author: Bailey, Judge.

text:
    DORFMAN PROPERTY MANAGEMENT, Appellant-Defendant, v. Tameka EDWARDS, Appellee-Plaintiff.
    Court of Appeals Case No. 06A01-1711-SC-2623
    Court of Appeals of Indiana.
    Filed June 28, 2018
    Attorney for Appellant: Andrew J. Borland, Indianapolis, Indiana
   Bailey, Judge.

Case Summary

[1] Dorfman Property Management ("Dorfman") appeals a small claims judgment ordering that Dorfman return to its former tenant, Tameka Edwards ("Edwards"), a portion of her security deposit. Dorfman presents the sole issue of whether the judgment is clearly erroneous because Edwards was charged for less than all costs incurred by Dorfman, specifically, those for professional housecleaning and repainting. We affirm.

Facts and Procedural History

[2] On February 26, 2016, Edwards and Dorfman executed a one-year lease for a house in Whitestown, Indiana ("the Lease"). The house was to be occupied by Edwards and her three children. Edwards agreed to pay monthly rent of $1,250.00 and she tendered a $2,500.00 security deposit to Dorfman. The Lease specified that the "amount necessary to have the carpet professionally cleaned" would be deducted from the security deposit, as would amounts "reasonably required" to reimburse Dorfman for cleaning and repair in "all rooms in which Tenant shall have damaged or irreparably marked the walls." (Def. Ex. B. Para. 9.)

[3] Upon move-in, Edwards asked that certain exterior damages be repaired. With that matter unresolved, more serious habitability issues arose. A sewer backup occurred at the rental property and Dorfman attempted to charge Edwards for the maintenance response. Edwards obtained not-for-profit legal assistance; after their intervention on Edwards's behalf, Dorfman ceased demanding payment from Edwards related to the sewer backup. Thereafter, the air conditioning in the home stopped functioning. Edwards again obtained legal assistance and the air conditioning unit was repaired.

[4] At the end of the Lease, Edwards gave notice of her intent to vacate the premises and provided a forwarding address in Georgia. Dorfman mailed Edwards a "Move Out/Deposit Report" assessing the following amounts:

Carpet Cleaning $937.30 Housecleaning 225.00 Painting/WallRepair 987.50 Door Tracks 74.00 Mini-blinds 45.00 Broken screens 70.00 Dishwasher wheel 45.00 Driveway Oil Stain 50.00 Microwave Repair 95.00 Toilet Seats/Lightbulbs 70.00 Sewer Bill 230.22

(Def. Ex. C.) Because the aggregate amount of $2,829.02 exceeded the security deposit, Dorfman demanded payment from Edwards in the amount of $329.02.

[5] Edwards sued Dorfman in small claims court to recover her security deposit. On August 15, 2017, the trial court conducted a hearing at which Edwards and Dorfman's Office/Maintenance Manager, Kari McAtee ("McAtee"), testified. Edwards and McAtee each submitted photographs for the trial court's review. Edwards testified that she had cleaned the house and patched any nail holes. She claimed that she had personally taken the photographs she submitted into evidence. McAtee testified that she had never been inside the house rented by Edwards, but that a leasing agent or real estate agent had photographed the house. McAtee's testimony consisted of her description of what those photographs depicted. McAtee testified that the photographs depicted scuff marks, dirty walls and baseboards, hair and dirt, a black mark on a wall, a missing dishwasher wheel, and an unclean door.

[6] The trial court issued an order on October 18, 2017. The trial court's order stated that it had found the photographs tendered by Edwards "to be particularly persuasive" and that the property had been "well-maintained" by Edwards. (Appealed Order at 4.) The order also stated that "cleaning could have been a bit more thorough" but there was a lack of "actual damage" to the rental property beyond ordinary wear and tear for which a landlord would expect to be responsible as a "cost of doing business." Id. at 4-5. Dorfman was permitted to deduct from the deposit: professional carpet cleaning fee of $937.30, an unpaid sewer bill of $230.22, replacement cost for door tracks of $74.00, and replacement cost for mini-blinds of $45.00. Dorfman was ordered to refund $1,213.48 to Edwards.

[7] Dorfman now appeals, contending that explicit terms of the Lease entitled Dorfman to retain sums for professional cleaning and repainting of the entire house.

Discussion and Decision

[8] We review a small claims court's judgment for clear error. Bokori v. Martinoski , 70 N.E.3d 441, 443 (Ind. Ct. App. 2017). A deferential standard of review is particularly important in small claims actions, where trials are informal, with the sole objective of dispensing speedy justice between the parties according to the rules of substantive law. Lae v. Householder , 789 N.E.2d 481, 483 (Ind. 2003). Here, Edwards did not file an appellee's brief, "and thus we may reverse upon a prima facie showing of reversible error-but even so, we still may not reweigh evidence or reassess witness credibility." Bokori , 70 N.E.3d at 444.

[9] Dorfman invites our de novo review of the Lease. The interpretation of a contract is a pure question of law. Eagle Aircraft, Inc. v. Trojnar , 983 N.E.2d 648, 657 (Ind. Ct. App. 2013). When a contract is clear and unambiguous, the language will be given its plain meaning. Id.

[10] Dorfman directs our attention to certain language of Paragraph 9 of the Lease, applicable to cleaning and repainting:

The following conditions must be met to qualify for a full-refund: h. The property has been thoroughly cleaned and delivered in the same move in condition upon vacating....
Landlord shall be entitled to deduct from the security deposit any amounts in addition to the carpet cleaning fee as shall be reasonably required to reimburse Landlord for a complete cleaning, repair, and repainting of any and all rooms in which Tenant shall have damaged or irreparably marked the walls, including holes created to hang pictures, etc. Such cleaning, repair and repainting shall not be deemed to be ordinary "wear and tear."

(Def. Ex. C.)

[11] Dorfman claims entitlement to the full costs of professional cleaning and painting, asserting, "an order was issued in contravention of the contract" when "the trial court added its own interpretation to the written agreement." Appellant's Brief at 11. According to Dorfman, the trial court misdirected its focus to whether "cleaning could have been a bit more thorough" as opposed to a requisite "thorough cleaning" and also focused on "actual damage" or "irreparable damage" rather than "[the fact] that expenses were incurred to repair [marks and patched spots on the walls]." Appellant's Brief at 10-11.

[12] Dorfman argues:

Essentially, the lease requires the tenant to patch holes and return the walls to move in condition. The Trial Court may not have liked this condition, but it is a part of the valid contract between the parties and it is explicit. In this case, the tenant either had to refrain from marking or putting holes in the walls or she had to repair the holes and marks she made. She did neither. Under the language of the lease, she is liable for the cost to the landlord Dorfman to do so. The Trial Court's Order to the contrary should be reversed.

Appellant's Brief at 12.

[13] Distilled to its essence, Dorfman's argument is that: (1) the Lease requires a tenant to leave the premises in move-in condition; and (2) should Dorfman identify any scuffing, mark, dirt, or nail hole, the Lease requires the tenant to fully reimburse costs of professionally cleaning and repainting the entire room or rooms containing scuffing, a mark, dirt, or nail hole. In taking this position, Dorfman ignores the reasonableness requirements of the Lease and a landlord's obligations under Indiana Code Section 32-31-3-12. That said, the trial court was not tasked with resolving an ambiguity in the Lease but rather with applying the terms of the Lease in the face of conflicting evidence. Dorfman ignores the evidence favorable to the judgment.

[14] Edwards testified that she had left the leased house in a clean and undamaged condition. Her evidentiary photographs, taken by her personally, were those found by the trial court to be "particularly persuasive." (Appealed Order at 4.) As for the photographs taken by a real estate agent or leasing agent and introduced into evidence by Dorfman, Edwards denied that they fairly depicted the condition of her rental house at her move-out. According to Edwards, they either showed a different rental property or conditions attributable to someone other than herself. Finally, the trial court questioned Edwards concerning an "allegation of nail holes poorly repaired" and Edwards responded she had left her nail holes patched and any inadequately repaired areas were "not hers." (Tr. Vol. II, pgs. 41-42.) The trial court, as the fact-finder, credited Edwards's testimony and documentary evidence. We will not reweigh the evidence or assess credibility of any witness. Bokori , 70 N.E.3d at 444.

Conclusion

[15] Dorfman has not shown that the trial court clearly erred in ordering that Dorfman return to Edwards a portion of her security deposit.

[16] Affirmed.

Najam, J., and Brown, J., concur.

      The parties treated this report as an itemization compliant with Indiana Code Section 32-31-3-12. This statute provides in relevant part:
      Upon termination of a rental agreement, a landlord shall return to the tenant the security deposit minus any amount applied to:
      (1) the payment of accrued rent
      (2) the amount of damages that the landlord has suffered or will reasonably suffer by reason of the tenant's noncompliance with law or the rental agreement; and
      (3) unpaid utility or sewer charges that the tenant is obligated to pay under the rental agreement;
      all as itemized by the landlord with the amount due in a written notice that is delivered to the tenant not more than forty-five (45) days after termination of the rental agreement and delivery of possession.

      The Lease specifically provided for payment of this item, regardless of the move-out condition of the carpet. Edwards did not specifically challenge the reasonableness of the amount, $937.30, which the trial court characterized as "not an insignificant sum." Appealed Order at 5.


source: Caselaw Access Project

author: Robb, Judge.

license: Public Domain

text:
    D.A.Y. INVESTMENTS LLC, Andy's Truck & Equipment Co., Gold Coast Rand Development Co., Surplus Management Systems LLC, Gary II LLC and Andrew Young, Appellants-Plaintiffs/Cross-Appellees, v. LAKE COUNTY, Indiana, Treasurer Peggy Holinga-Katona, Auditor John Petalas, Commissioners Roosevelt Allen, Jr., Gerry Scheub, Michael Repay, and Township Assessor Jackie Collins, Appellees-Defendants, and Assessor Jerome Prince, Appellee-Defendant/Cross-Appellant.
    Court of Appeals Case No. 45A03-1709-PL-2122
    Court of Appeals of Indiana.
    Filed June 29, 2018 Rehearing denied August 29, 2018
    Attorney for Appellants: Corbin R. Fowler, Gary, Indiana
    Attorney for Appellees Lake County Auditor, Treasurer and Commissioners: Randy H. Wyllie, Wieser & Wyllie, LLP, Schererville, Indiana
    Attorney for Appelle Calumet Township Assessor Jackie Collins: Kevin Chandler Smith, Smith Sersic, Munster, Indiana
    Attorneys for Appellee Lake County Assessor Jerome Prince: Tony Walker, Leanna Weissmann, The Walker Law Group, P.C., Indianapolis, Indiana
   Robb, Judge.

Case Summary and Issue

[1] D.A.Y. Investments, LLC; Andy's Truck & Equipment Company; Gold Coast Rand Development Company; Surplus Management Systems, LLC; Gary II, LLC; and Andrew Young (collectively, "Owners") sued Lake County, Indiana; Peggy Holinga-Katona, Treasurer; Jerome Prince, Assessor; John Petalas, Auditor; Roosevelt Allen, Jr., Gerry Scheub, and Michael Repay, Commissioners; and Jackie Collins, Township Assessor (collectively, "Lake County Defendants"), for specific performance of a settlement agreement the parties entered into regarding taxes due on properties owned by the Owners. The trial court granted the Lake County Defendants' motion to dismiss alleging lack of subject matter jurisdiction, finding the Owners' claims were based on disputes that should have been first addressed through an administrative process. The Owners appeal, raising the following issue for our review: whether the trial court abused its discretion in denying their motion to correct error after the trial court granted the Lake County Defendants' motion to dismiss their complaint for lack of subject matter jurisdiction pursuant to Indiana Trial Rule 12(B)(1). Concluding the trial court did not have subject matter jurisdiction over this case arising under tax laws, we affirm.

Facts and Procedural History

[2] Young owns approximately 1,800 properties in Lake County either individually or through his various business entities named above. In 2009, the Owners filed voluntary petitions for bankruptcy in federal court in Illinois. As part of the bankruptcy action, the Owners sought protection from Lake County with respect to taxes owed on those properties. On February 29, 2012, the bankruptcy court approved a written settlement agreement between the Owners and the Lake County Defendants. The settlement agreement provided, in pertinent part:

1. That attached hereto and marked Exhibit A is a listing of all the properties that are the subject of the controversy herein .... The sixth column consists of the assessed valuation that the parties have agreed upon for the taxable years involved in each property to and including 2010 taxes, payable in 2011....
2. That pursuant to said Exhibit A, the parties now agree that the following amounts are due to Lake County for all taxes on all properties to and including 2010 taxes, payable 2011 ....
3. To resolve all of the above pending appeals the [Owners] and the county assessor now agree as follows:
A. The [Owners] shall pay the following sum to Lake County, Indiana: $904,954.58.
* * *
C. The payment of the sum listed in paragraph 3a above shall settle all of the tax claims due and owing from the [Owners] for all of the property and years identified in paragraph 2.
4. The parties further agree that the [Owners] herein will pay the above stated amount over a period of twenty-four (24) months subject to the following:
* * *
E. The [Owners] recognize that during the period of scheduled payments as set forth above, any of the real estate listed herein that they will continue to be the fee simple owners of will have taxes due and owing for the calendar year 2011, payable 2012 and 2012, payable 2013.
* * *
5. That the parties further agree that the property classification and assessed valuations used herein on each and every parcel of land are accepted by the parties as the basis upon which any tax increases or decreases occur and that these properties will be treated in the exact same manner as any other properties in Lake County, using the same methodologies as any other properties in Lake County based on the agreed property classification assessment valuation found herein. Any property classified as residential will be taxed at the residential rate. Property classified as commercial or industrial will be taxed at the commercial rate.
6. That the parties further agree and understand that there will be a general reassessment of all real estate in Lake County, Indiana in 2013 and that these properties will be treated in the same manner using the same methodologies as all other properties in Lake County, Indiana for said reassessment.
* * *
9. This agreement covers all of the properties listed in said Exhibit A, and binds the parties, their heirs, successors, agents, and authorized personnel to its terms and conditions, and shall be enforceable in this court or any court in Lake County, Indiana that has constitutional or statutory authority for the venue of any cause of action that may be necessary to enforce this agreement.

Appellants' Appendix, Volume 3 at 4-6.

[3] Pursuant to the agreement, the Owners paid the $904,954.58 due over two years. On December 30, 2016, the Owners filed a complaint in three counts against the Lake County Defendants: Count I, for specific performance; Count II for bad faith failure to settle a claim; and Count III in the alternative to determine the validity, priority, and extent of liens. Count I alleged:

22. [Lake County] Defendants have failed and refused to do what was required of them under the Agreement, including but not limited to; failing to re-classify each property as agreed, failing to assess the properties at the assessed valuations arrived at between the parties, failing to acknowledge and bill for each property at the agreed upon rates, failing to properly credit the tax payments made, failing to waive penalties and interest not specifically provided for in the Agreement, failing to properly publish the correct classifications and valuations agreed upon to the general public, failing to use the same methodologies for general reassessments to [Owners'] properties as apply to other properties in Lake County, Indiana, and failing and refusing to cooperate with [Owners] in addressing these issues.

Appellants' App., Vol. 2 at 55. Count III alleged:

32. [Owners] dispute the amount of the real estate tax lien claims of Lake County, Indiana and the Lake County Treasurer.
* * *
34[-36]. More specifically, the Lake County [Defendants'] failure and refusal to issue tax bills to [Owners] based on the assessed valuations and proper classifications that the parties agreed to in the Agreement approved by the bankruptcy court on February 29, 2012 has resulted in incorrect and excessive taxes being levied against [Owners] on their properties for taxes payable in the year 2012[, 2013, and 2014].
* * *
37. The Lake County [Defendants'] failure and refusal to issue tax bills to [Owners] based on the assessed valuations and proper classifications that the parties agreed to in the Agreement approved by the bankruptcy court on February 29, 2012 will certainly result in incorrect and excessive taxes being levied against [Owners] on their properties for taxes payable in the year 2015, as well.

Id. , Vol. 2 at 57-58.

[4] The Lake County Defendants filed a motion to dismiss alleging lack of subject matter jurisdiction. After a hearing, the trial court issued an order granting the motion to dismiss:

18. The Court found that the [Owners'] claims were all based upon disputes with the [Lake County Defendants] over tax lien amounts, incorrect or excessive taxes, errors resulting in improper tax bills, improper tax assessments, improper tax classifications, incorrect tax valuations, and their appeal of certain tax assessments. These allegations are principally involved with the collection of a tax or defenses to those attempts at collection.
19. The legislature provided the [Owners] with an administrative procedure for the review and appeal of tax assessments under IC 6-1.1-15-1.
20. The [Owners] chose to file the present lawsuit without first availing themselves to those administrative remedies created for their protection.
* * *
22. Accordingly, this Court found that it lacked subject matter jurisdiction to hear this matter against any of the [Lake County Defendants].

Id. , Vol. 2 at 36. The Owners filed a motion to correct error. The trial court held a hearing and then issued an order denying the motion:

22. After a careful re-evaluation of the underlying facts and the underlying motions, and a review of the updated filings of each party the Court found that it did not abuse its discretion under Trial Rule 59 as its decision to dismiss for lack of jurisdiction was logical and consistent with the facts and circumstances of the present case, and the inferences which could be drawn therefrom.

Id. , Vol. 2 at 24. Owners now appeal the trial court's denial of its motion to correct errors related to its dismissal of their complaint.

Discussion and Decision

I. Standard of Review

[5] Generally, a trial court has wide discretion to correct errors, and we will reverse only for an abuse of that discretion. Paulsen v. Malone , 880 N.E.2d 312, 313 (Ind. Ct. App. 2008). An abuse of discretion occurs when the trial court's action is against the logic and effect of the facts and circumstances before it and the inferences that may be drawn therefrom, or if it is based on impermissible reasons or considerations. Id.

[6] In arguing that the trial court abused its discretion by denying their motion to correct error, the Owners assert their complaint is grounded in contract-not tax-law, and the trial court had jurisdiction to enforce the settlement agreement at issue. The trial court agreed with the Lake County Defendants that the complaint asserted issues of tax assessments and amounts, and found it lacked subject matter jurisdiction because the Owners failed to exhaust their administrative remedies. We apply a de novo standard of review to issues of law such as subject matter jurisdiction. Jackson v. Holiness , 961 N.E.2d 48, 50 (Ind. Ct. App. 2012).

Subject matter jurisdiction is the power of a given tribunal to hear and determine a general class of cases. Id. Subject matter jurisdiction is conferred by the constitution or state statutes. Id.

II. Subject Matter Jurisdiction

[7] The primary issue in this appeal is whether the Lake Superior Court has jurisdiction over this case. The Lake Superior Court has subject matter jurisdiction over all civil and criminal cases, Ind. Code § 33-29-1.5-2(1), except where exclusive jurisdiction has been conferred by law upon a different court, State ex rel. Zoeller v. Aisin USA Mfg., Inc. , 946 N.E.2d 1148, 1152 (Ind. 2011). In creating the Indiana Tax Court in 1986, the legislature "intended that all challenges to the tax laws-regardless of the legal theory relied on-be tried in the Tax Court." State v. Sproles , 672 N.E.2d 1353, 1357 (Ind. 1996). The Tax Court has limited but exclusive jurisdiction over any case that "arises under" the tax laws and that is an initial appeal of a final determination by a relevant agency. Ind. Code § 33-26-3-1. If the Tax Court has jurisdiction, the trial court does not. Aisin USA Mfg., Inc. , 946 N.E.2d at 1152. Our supreme court has interpreted the "arise under" language broadly to include "any case challenging the collection of a tax or assessment ... whether the challenge is premised on constitutional, statutory, or other grounds." Id. at 1153. The challenge need not be to the collection of taxes directly; challenges to earlier steps in the taxation or assessment process also arise under the tax laws. Id.

[8] The Owners repeatedly state that this case is grounded in contract law and therefore is not a tax law case. See , e.g. , Transcript at 45 (Owners' counsel stating at motion to correct error hearing, "This proceeding is subject to contract law. Contract law, equitable law, but not tax court."); Appellants' Brief at 8 (stating the Owners' claim "is a breach of contract claim against Lake County in which [they] assert that Lake County failed to satisfy the terms of the Settlement Agreement"). They argue the settlement agreement required the Lake County Defendants to assess their 1,800 parcels at the values agreed to and listed in Exhibit A, that reassessment of the parcels at those values was a material term of the settlement agreement, and that the Lake County Defendants' failure to do so was a material breach of the agreement. They argue tax laws have nothing to do with whether the agreement was breached. If the settlement agreement set forth agreed assessed values for future years, then it would be within the trial court's purview to say whether the Lake County Defendants breached the agreement and to order the Lake County Defendants to collect taxes based on those agreed assessed values. However, paragraph 1 of the settlement agreement specifically states that the attached list of properties and assessed values "consists of the assessed valuation that the parties have agreed upon for the taxable years involved in each property to and including 2010 taxes, payable in 2011 ." Appellants' App., Vol. 3 at 4 (emphasis added). The Lake County Defendants made no agreement to assess the Owner's property at a certain value going forward. Instead, pursuant to paragraph 5, the parties agreed the properties "will be treated in the exact same manner as any other properties in Lake County, using the same methodologies ...." Id. , Vol. 3 at 6.

Therefore, it is not possible to determine if the Lake County Defendants appropriately assessed the Owners' property based on the settlement agreement alone. The general manner and methodology of tax assessment in Lake County determines the appropriate assessments for the Owners' property.

[9] As the supreme court stated in Aisin USA Mfg., Inc. , if the case "principally involves the collection of a tax or defenses to the collection of a tax," it arises under the tax laws and is subject to the Tax Court's exclusive jurisdiction regardless of the grounds on which the challenge is premised. 946 N.E.2d at 1153-54. That the Owners' have styled their claim as a breach of contract does not negate the fact that it is, in essence, a claim challenging the assessment or collection of taxes as "incorrect and excessive." Appellants' App., Vol. 2 at 57-58.

[10] Because this is a case claiming error in the assessed value of property, Indiana Code chapter 6-1.1-15 governs procedures for review and appeal of the assessments. Ind. Code § 6-1.1-15-1.1(a)(1). There are several steps, starting with the taxpayer seeking review by filing notice with the relevant county or township official, Ind. Code § 6-1.1-15-1.1(a), and ending with a final determination by the Indiana Board of Tax Review, Ind. Code § 6-1.1-15-4. Once the Indiana Board of Tax Review has rendered a final determination, the taxpayer may file a petition for judicial review with the Indiana Tax Court. Ind. Code § 6-1.1-15-5. It does not appear the Owners have availed themselves of this administrative process for any tax year of which they now complain the assessments were in error.

[11] Where applicable, the requirement that a party exhaust its administrative remedies prior to seeking judicial review of an agency action is a jurisdictional prerequisite to judicial review. Outboard Boating Club of Evansville, Inc. v. Ind. State Dep't of Health , 952 N.E.2d 340, 343 (Ind. Ct. App. 2011), trans. denied . Failure to exhaust administrative remedies is therefore a defect in subject matter jurisdiction. Marion Cty. Auditor v. Revival Temple Apostolic Church , 898 N.E.2d 437, 445 (Ind. Ct. App. 2008), trans. denied . As it is the taxpayer's responsibility to exhaust all administrative remedies, the taxpayer cannot "circumvent the 'final determination' requirement basis for the Indiana Tax Court's exclusive jurisdiction over tax appeals by filing an action in a trial court instead of with the relevant administrative agency." Id. A trial court is not vested with subject matter jurisdiction simply based on the lack of a final determination by a tax-related agency. Id. In other words, the subject matter of the Owners' claim is one within the exclusive jurisdiction of the Tax Court. The fact that the Owners may have forfeited an appeal to the Tax Court by failing to avail themselves of that process for adjudicating their claim does not give the Lake Superior Court subject matter jurisdiction over this case.

Conclusion

[12] The trial court did not abuse its discretion in denying the Owners' motion to correct error of the order granting the Lake County Defendants' motion to dismiss. The judgment of the trial court is affirmed.

[13] Affirmed.

Najam, J., and Altice, J., concur.

      It appears part of the agreement was to reduce or discount the amount of taxes Owners owed on the parcels. In other words, the Lake County Defendants accepted an amount less than the actual amount due and the Owners were brought current through the 2010/payable in 2011 tax year only by agreement.

      In 2014, the Owners again sought bankruptcy protection and on May 15, 2015, filed in the bankruptcy court a complaint against the Lake County Defendants for specific performance and damages based on the settlement agreement. The settlement agreement itself stated that it was enforceable in bankruptcy court or in any Lake County court that has jurisdiction. Because of a procedural defect, the underlying bankruptcy was dismissed, and the complaint against the Lake County Defendants was also dismissed.

      The Lake County Defendants also filed motions to dismiss premised on the individually named defendants not being the real parties in interest. The trial court denied those motions as moot. Lake County Assessor Jerome Price has filed a cross-appeal raising the issue of whether he should be dismissed from this litigation. Because of our resolution of the Owners' appeal, we need not address this issue, as the entire lawsuit is dismissed. Although Price invites us to answer the question to "provide clarity for other Indiana practitioners," Joint Brief of Appellees at 20, we decline to do so, as we do not issue advisory opinions. INS Investigations Bureau, Inc. v. Lee , 709 N.E.2d 736, 742 (Ind. Ct. App. 1999), trans. denied .

      The Owners stated at the motion to dismiss hearing that they "kept trying and trying and trying to get those properties reassessed," but conceded that "going forward [they] would accept any changes in valuations that were required by law to any other property, just do it fairly. [They] didn't expect those values to stay the same." Transcript at 20-21.


author: Riley, Judge.

text:
    CITY OF INDIANAPOLIS, Appellant-Plaintiff/Counterclaim Defendant, v. TOWNE & TERRACE CORPORATION, et al., Appellees-Defendants/Counterclaim Plaintiffs.
    Court of Appeals Case No. 49A02-1711-OV-2686
    Court of Appeals of Indiana.
    FILED July 3, 2018
    Attorneys for Appellant: Donald E. Morgan, Thomas J.O. Moore, Deborah L. Law, Office of Corporation Counsel, Indianapolis, Indiana, James J. Ammeen, Indianapolis, Indiana
    Attorneys for Appellees: Clifford R. Courtney, Frederic C. Sipe, Indianapolis, Indiana, Robert A. Smith, Smith Wade, LLC, Noblesville, Indiana
   Riley, Judge.

STATEMENT OF THE CASE

[1] Appellants-Plaintiff/Counterclaim Defendant, City of Indianapolis (City), appeals the trial court's summary judgment in favor of Appellees-Defendants/Counterclaim Plaintiffs), Towne & Terrace Corporation, et al. , (Towne & Terrace).

[2] We affirm.

ISSUES

[3] The City presents four issues on appeal, three of which we find dispositive and which we restate as follows:

(1) Whether no genuine issue of material fact exists to conclude that Indiana Code section 32-31-1-22 barred the City's claims against Towne & Terrace;
(2) Whether no genuine issue of material fact exists to conclude that the City's public nuisance action under Indiana Code section 32-30-6-7 against Towne & Terrace is not successful ; and
(3) Whether there is no genuine issue of material fact to conclude that the City owed Towne & Terrace maintenance assessments on the units it acquired ownership to.

FACTS AND PROCEDURAL HISTORY

[4] Towne & Terrace is a residential complex near the intersection of East 42nd Street and Post Road in Indianapolis, Indiana. Incorporated in 1964 for the purpose of owning and maintaining the common areas of the condominium development, Towne & Terrace is a private, nonprofit Indiana corporation with volunteer directors. Unlike more recent condominium developments, Towne & Terrace homeowners are members of Towne & Terrace and do not own any interest in its common areas. The individual lots are transferred by deed. To keep Towne & Terrace apprised of ownership changes in the individual condominiums, the corporation's Amended Articles of Incorporation require the issuance of a certificate of membership to each member, and it is each member's responsibility to inform Towne & Terrace when his or her lot is transferred to a new owner. The previous member must then request a new certificate of membership to be issued to the new member. As of 2017, the City owned at least 49 units in Towne & Terrace. Thirteen of the units were acquired as part of a settlement in an unrelated nuisance action. The remainder of the units became the City's possession after they were not purchased at tax sales. Since being acquired, each of the City's homes in Towne & Terrace has been left vacant and boarded up.

[5] Over the years, the East side of Marion County has suffered a major crime wave. In 2015, the Federal Bureau of Investigation, the United States Attorney's Office, the Indiana State Police, the Marion County Sheriff, and Indianapolis Metropolitan Police Department conducted raids throughout Indianapolis, leading to the arrest of thirty-five criminals-the vast majority on the East side.

[6] On December 16, 2014, the City filed an Amended Complaint against Towne & Terrace and four members of its board in their representative capacities, alleging that Towne & Terrace "failed to provide, maintain, and ensure that all common areas of the [ ] residential complex are safe from hazardous conditions, including but not limited to general lawlessness and the threat of reasonably foreseeable criminal intrusions." (Appellant's App. Vol. II, p. 40). Specifically, the City noted that "[s]ince January 1, 2008, there have been at least excessive police runs and numerous reports filed by the Indianapolis Metropolitan Police Department at the [ ] residential complex involving crimes such as homicide, rape, fraud, arson, domestic battery, public intoxication, child abduction, child abuse, larceny, burglary, armed robbery, aggravated assault, vandalism, intimidation, invasion of privacy, and trespass." (Appellant's App. Vol. II, p. 42). As such, the City requested the trial court, among other things, to

[a]ward the City compensatory damages against [Towne & Terrace], jointly and severally, to compensate the City for all damages caused by [Towne & Terrace's] operation, management and maintenance of the [Towne & Terrace] residential complex and individual units, including but not limited to:
i. All resources expended by the City, including but not limited to the Department of Public Safety, IMPD, DCE, and MCHD, in response to the unreasonable volume of investigations, reports, and citations caused by [Towne & Terrace's] neglect of the [ ] residential complex and individual units, and
ii. Any and all other public resource expenditures resulting from [Towne & Terrace's] neglect of the [ ] residential complex.

(Appellant's App. Vol. II, pp. 47-48).

[7] On January 30, 2015, Towne & Terrace filed an Answer and Counterclaim, denying the allegations in the Amended Complaint and asserting that the City owed Towne & Terrace maintenance fees on the individual units owned by the City. On October 3, 2016, Towne & Terrace moved for summary judgment on its counterclaim against the City. The trial court conducted a hearing on May 17, 2017.

[8] Prior to the trial court issuing a ruling, Towne & Terrace filed a second motion for summary judgment on the City's Amended Complaint; to which the City responded on July 17, 2017. After a hearing on Towne & Terrace's second motion for summary judgment, the trial court issued its ruling on October 18, 2017, granting summary judgment to Towne & Terrace on the City's Amended Complaint and partial summary judgment on Towne & Terrace's counterclaim.

DISCUSSION AND DECISION

I. Standard of Review

[9] In reviewing a trial court's ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley , 891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied . Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in the light most favorable to the non-moving party. Id. at 608. A fact is 'material' for summary judgment purposes if it helps to prove or disprove an essential element of the plaintiff's cause of action; a factual issue is 'genuine' if the trier of fact is required to resolve an opposing party's different version of the underlying facts. Ind. Farmers Mut. Ins. Group v. Blaskie , 727 N.E.2d 13, 15 (Ind. App. 2000). The party appealing the grant of summary judgment has the burden of persuading this court that the trial court's ruling was improper. First Farmers Bank & Trust Co. , 891 N.E.2d at 607. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiff's cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiff's claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.

[10] We observe that, in the present case, the trial court entered findings of fact and conclusions of law in support of its judgment. Special findings are not required in summary judgment proceedings and are not binding on appeal.

AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc. , 816 N.E.2d 40, 48 (Ind. Ct. App. 2004). However, such findings offer this court valuable insight into the trial court's rationale for its review and facilitate appellate review. Id.

II. Indiana Code section 32-31-1-22

[11] Indiana Code section 32-31-1-22 was enacted as part of P.L. 266-2017 and became effective July 1, 2017, several years after the City filed its Amended Complaint. The statute provides, in pertinent part:

(d) [ ] a political subdivision may not adopt or enforce any ordinance, rule or regulation that imposes a penalty, or allows for the imposition of a penalty against a tenant, an owner, or a landlord for a contact made to request law enforcement assistance or other emergency assistance for one (1) or more rental units if:
(1) the contact is made by or on behalf of:
(A) a victim or potential victim of abuse:
(B) a victim or potential victim of a crime; or
(C) an individual in an emergency; and
(2) either of the following applies:
(A) at the time the contact is made, the person making the contact reasonably believes that law enforcement assistance or other emergency assistance is necessary to prevent the perpetration or escalation of abuse, a crime, or an emergency.
(B) if abuse, a crime, or an emergency occurs, the law enforcement assistance or other emergency assistance was needed.
* * * *
(i) Nothing in this section shall be construed to prevent an attorney representing a city, county or town from bringing a nuisance action described under [ I.C. §] 32-30-6-7(b) against a landlord or owner of a rental unit.

The City focuses on several different reasons for its contention that the statute does not apply to the current situation. Asserting that the trial court retroactively applied the statute, the City maintains that it is not trying to enforce an ordinance, rule, or regulation; rather, it is bringing a nuisance action under I.C. § 32-30-6-7 and seeking "compensatory damages for a public nuisance for which it alleges Towne & Terrace is responsible." (Appellant's Br. p. 8).

[12] While we agree with the City that it brought a nuisance action against Towne & Terrace as allowed under I.C. § 32-31-1-22(i), at the same time the City is seeking damages for "resources expended by the City, including but not limited to the Department of Public Safety, IMPD, DCE, and MCHD, in response to the unreasonable volume of investigations, reports, and citations caused by [Towne & Terrace's] neglect of the [ ] residential complex and individual units," which is seemingly prohibited under I.C. § 32-31-1-22(d).

[13] A court's first task in statutory interpretation is to attempt to harmonize two conflicting statutes. State v. Universal Outdoor, Inc. , 880 N.E.2d 1188, 1191 (Ind. 2008). As long as two statutes can be read in harmony with one another, we presume that the Legislature intended for them both to have effect. Id. Where possible, if conflicting portions of a statute can be reconciled with the remainder of the statute, every word in the statute must be given effect and meaning, with no part being held meaningless. Id.

[14] Indiana Code section 32-31-1-22(i) unequivocally allows the pursuit of nuisance actions brought by a city, county or town. Even though this section (i) is silent as to the type of damages a city, county, or town may demand under a nuisance action, section (d) of the statute clarifies that the enforcement of the nuisance rules cannot be used to penalize an individual in requesting law enforcement's assistance. Furthermore, section (i) only limits the type of damages that may be pursued against "a landlord or owner of a rental unit." Here, both parties agreed that Towne & Terrace owns and maintains the common areas of the condominium development but does not own individual units. In return for use of the common areas by the individual units, Town and Terrace imposes assessment and maintenance fees. As such, Towne & Terrace can be considered a landlord for the common areas of the condominium complex. Accordingly, the City's nuisance action against Town and Terrace to refund the City's resources spent on law enforcement's investigations and responses to the residential complex, is barred by I.C. § 32-31-1-22(d).

III. The City's Nuisance Action

[15] In so far as Towne & Terrace cannot be considered a landlord for the common areas or the City's nuisance action encompasses other damages than merely fees for excessively calling upon law enforcement, we will address the City's nuisance action against Towne & Terrace.

[16] The City contends that the trial court erred in determining that the City could not maintain its nuisance claim based on the allegation that "Towne & Terrace took no reasonable action to prevent the property from descending into criminal chaos, nor did it take any reasonable steps to ameliorate the situation." (Appellant's Br. p. 10). In denying the City's claim, the trial court maintained that:

Towne & Terrace owns only the common areas of the Towne & Terrace condominium property. Towne & Terrace Corp. owns no lots, individual units or any other property on the site. Towne & Terrace has no direct control over the individual dwellings within the condominium community.
Further, the directors of Towne & Terrace have no police powers, no authorization to enforce laws, and no control over what happens inside a particular residence. The directors have no authority to correct operations, management, or maintenance issues. Only the owners can make such changes and the City did not sue any individual owners in this case.

(Appellant's App. Vol. II, p. 28).

[17] Indiana's nuisance statute allows a county, city, or town to bring an action to "abate or enjoin a nuisance." I.C. § 32-30-6-7. "Nuisance" is described as "Whatever is (1) injurious to health; (2) indecent; (3) offensive to the senses; or (4) an obstruction to the free use of property." I.C. § 32-30-6-6. In interpreting the nuisance statute, our supreme court rejected the contention that a party must be the owner or controller of property to be held liable for a nuisance.

City of Gary ex rel. King v. Smith & Wesson Corp. , 801 N.E.2d 1222, 1232 (Ind. 2003). Rather, the court held "that there is no requirement that the activity involve an unlawful activity or use of land. If an activity meets the requirements of an unreasonable interference with a public right, it may constitute a public nuisance." Id.

[18] Asserting that Towne & Terrace did nothing to increase security and safety at the condominiums and negligently operated the complex, the City alleged in its Amended Complaint that the Towne & Terrace complex is rife with "crimes such as homicide, rape, fraud, arson, domestic battery, public intoxication, child abduction, child abuse, larceny, burglary, armed robbery, aggravated assault, vandalism, intimidation, invasion of privacy, and trespass, necessitating excessive police runs[.]" (Appellant's App. Vol. II, p. 42). As a result, the Towne & Terrace residential complex has encouraged general lawlessness, with the individual units posing a heightened and unreasonable risk of injury and contributing to urban blight.

[19] In its second motion for summary judgment, Towne & Terrace contended that "Towne & Terrace is not capable of controlling crime and is not authorized to enforce criminal laws. Law Enforcement is the sole province of the City[.]" (Appellant's App. Vol. II, p. 161). Towne & Terrace "has no ownership of any of the Lots or dwellings within Towne & Terrace." (Appellant's App. Vol. II, p. 162). To this end, Towne & Terrace designated its Covenants & Restrictions and its Articles of Incorporation, which reflected that Towne & Terrace only owns the common areas and has no control over the individual units in the complex nor can it compel compliance with existing ordinances from an individual owner. It merely has an obligation to maintain the common areas.

[20] During the hearing on Town & Terrace's motions for summary judgment, the City alleged that the individual residents at the condominium complex caused a misuse and abuse of police and emergency resources by repetitive first responder runs to the complex. However, at no point did the City designate evidence indicating that Towne & Terrace's use or maintenance of the common areas amounted to a nuisance. As "the moving party demonstrated that its designated evidence raised no genuine issues of material fact," Towne & Terrace was entitled to judgment in its favor as a matter of law. See Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014).

IV. Maintenance Assessment Fees

[21] Lastly, the City maintains that the trial court erroneously issued partial summary judgment to Towne & Terrace on the corporation's counterclaim for maintenance assessment fees.

[22] Article IV of the Towne & Terrace's Declaration of Covenants and Restrictions (Covenants) provides as follows:

Section 1. Creation of the Lien and Personal Obligation of Assessments. The Declarant of each Lot owned by it within The Properties hereby covenants and each purchaser of any Lot by acceptance of a Deed therefor, whether or not it shall be so expressed in any such deed or other conveyance, shall be deemed to covenant and agree to pay the Corporation: (1) annual assessments or charges; (2) special assessments for capital improvements, such assessments to be fixed, established and collected from time to time as hereinafter provided. The annual and special assessments, together with such interest thereon and costs of collection thereof as hereinafter provided shall be a charge on the land and shall be a continuing lien upon the property against which each such assessment is made. Each such assessment, together with such interest thereon and cost of collection thereof as hereinafter provided shall also be the personal obligation of the person who was the Owner of such property at the time when the assessment fell due.

(Appellant's App. Vol. II, pp. 84-85). Relying on the Covenants' language that only the 'purchaser' of a Lot is assessed maintenance fees, the City maintains that "[m]any of the lots owned by the City were not purchased, the deeds came into the City's possession because no one bought the properties at tax sale." (Appellant's Br. p. 13). Claiming to be no more than an "owner of last resort," the City asserts that it is not required to pay maintenance assessments. (Appellant's Br. p. 13).

[23] Absent a definition in the Covenants, we resort to English language dictionaries to ascertain the plain and ordinary meaning of "purchaser." See Vanderburgh Co. Election Bd. v. Vanderburgh Co. Democratic Cent. Committee , 833 N.E.2d 508, 510 (Ind. Ct. App. 2005). Black's Law Dictionary defines purchaser as "[o]ne who acquires real property by means other than descent, gift, or inheritance." BLACK'S LAW DICTIONARY (8th ed. 2004). The City is not challenging its current ownership of the individual units; rather, it is contesting the manner in which it acquired these individual condominiums. However, the designated evidence reflects that its acquisition was not through descent, gift, or inheritance. Instead, the City acquired the individual lots through a tax sale and recorded the deeds to the lots. To exclude this manner of acquisition from the meaning of purchaser for purposes of maintenance assessments would be to elevate form over substance-which we decline to do.

[24] The City now attempts to avoid being assessed for maintenance fees by referring to the Amended Articles of Incorporation, which included, in pertinent part:

Every person or entity who is a record owner of a fee interest in any Lot which is part of The Properties shall be a member of the corporation, provided that any such person or entity who holds such interest merely as a security for the performance of an obligation shall not be a member. Such membership shall be evidence[d] by a certificate of membership issued by the Corporation Secretary. It shall be the obligation of each member to have the certificate of membership transferred by the Corporation Secretary upon transfer of title to any Lot. Failure to do so will leave the certificate holder liable under all by-laws, rules, and other regulations of the Corporation.

(Appellees' App. Vol. II, p. 149). As it is uncontested that Towne & Terrace failed to issue membership certificates to the City when it acquired the individual rental units, the City contends that the previous owner remains liable for the maintenance assessments. We disagree.

[25] Article IV of the Covenants does not condition the assessment of maintenance charges on the certificate of membership. Rather, each 'purchaser of any lot' at the time the assessment falls due is subject to annual assessments or charges. Likewise, the Articles of Incorporation fail to include any reference to the Covenants and merely provides guidance as to the internal workings of the corporation. Nothing in the Articles of Incorporation or in the Covenants exempts purchasers of lots from maintenance assessments if the certification of membership is not issued. To the contrary, the Articles of Incorporation purport to safeguard the financial health of Towne & Terrace by increasing the number of parties responsible for the maintenance assessments. In other words, if the previous owner refrains from notifying the corporation of a change in ownership of the rental unit, the previous owner-together with the new purchaser-shall be liable for payment of the annual assessment. Therefore, we conclude that there is no genuine issue of material fact that the City is responsible for the payment of maintenance charges assessed on its rental units in the Towne & Terrace condominium complex.

CONCLUSIONS

[26] Based on the foregoing, we hold that the trial court properly issued summary judgment on Towne & Terrace's motions for summary judgment.

[27] Affirmed.

[28] May, J. and Mathias, J. concur

      "Penalty" is defined as "(1) the assessment of a penalty, fine, or fee (2) Actual or threatened eviction from a rental unit, or the causing of an actual or threatened eviction from a rental unit." I.C. § 32-31-1-22(b).

      Even though the Statute only became effective after incurring the expenses and filing the Amended Complaint, the statute clearly speaks to the situation where a political subdivision, as here, "enforce[s] any ordinance, rule, or regulation that imposes a penalty." I.C. § 32-31-1-22(d).


text:
    William R. HARR and Finster Courier, Inc. d/b/a Elite Express, Appellants-Defendants/Cross-Appellees, v. Julian HAYES and Tracey Hayes, Appellees-Plaintiffs/Cross-Appellants.
    Court of Appeals Case No. 49A02-1711-CT-2595
    Court of Appeals of Indiana.
    FILED July 3, 2018
    Attorneys for Appellants: Larry L. Barnard, Grant A. Liston, Carson Boxberger LLP, Fort Wayne, Indiana
    Attorneys for Appellees: Nathaniel Lee, Jennifer Lee, Lee Cossell & Crowley, LLP, Indianapolis, Indiana
   Robb, Judge.

Case Summary and Issues

[1] Following an accident between two semi-tractor trailers, a lawsuit commenced between the two drivers, Julian Hayes ("Hayes") and William R. Harr, and Harr's employer, Finster Courier, Inc., d/b/a/ Elite Express (collectively, "Defendants"). The Defendants attempted to remove the case to federal court contending the parties were citizens of different states and that the amount in controversy exceeded $75,000. Hayes objected to removal, arguing such action was premature and that the amount in controversy did not exceed $75,000. The district court determined it lacked subject matter jurisdiction and remanded the case to state court. Following a jury verdict in state court of $187,500 in favor of Hayes, the Defendants filed a motion to correct error and asked the trial court to modify the judgment to $75,000 based on the doctrines of judicial estoppel, waiver, and judicial admission. The trial court denied the Defendants' motion and the Defendants now appeal, raising the sole issue of whether the trial court erred in denying their motion to correct error. Hayes cross-appeals, arguing the appeal is frivolous and requesting attorneys' fees. Concluding the trial court did not err in denying the Defendants' motion to correct error and that Hayes is not entitled to attorneys' fees, we affirm.

Facts and Procedural History

[2] On July 23, 2015, two semi-tractor trailers collided on Interstate 465 causing injury to one of the drivers, Julian Hayes. On October 26, 2015, Hayes filed suit in the Marion Superior Court against the other driver, William Harr, and Harr's employer, Finster Courier, Inc., d/b/a/ Elite Express. Almost immediately, Defendants filed a notice of removal alleging diversity of citizenship under 28 U.S.C. § 1332. 28 U.S.C. § 1332 provides, in relevant part:

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between-
(1) citizens of different States ....

[3] The Defendants alleged that the district court possessed diversity jurisdiction because "the amount in controversy exceeds the sum or value of Seventy-Five Thousand Dollars ($75,000), exclusive of interest and costs," and that Harr is a citizen of Pennsylvania, Finster is incorporated in New Jersey, and Hayes is a citizen of Indiana. Appellees' Appendix, Volume II at 5-6. Upon the Defendants' motion, the case was removed to the United States District Court for the Southern District of Indiana, Indianapolis Division. On December 16, 2015, Hayes filed a motion to remand, arguing removal was "pre-mature in not having conducted discovery to investigate the amount of this claim or even inquire as to Plaintiff's demand." Appellants' Corrected Appendix, Volume II at 52. Hayes alleged that the district court lacked subject matter jurisdiction:

3. Plaintiff further provides that diversity jurisdiction is not met in this matter because the amount in controversy does not exceed Seventy-Five Thousand Dollars ($75,000.00).
* * *
6. On December 16, 2015, Plaintiff submitted his first demand to Defendants in the amount of Seventy-Two Thousand, Five Hundred Dollars ($72,500.00). [Exhibit "I"].
7. Therefore, even if the citizenship of the parties is diverse, the requirements of diversity jurisdiction under 28 U.S.C. § 1441 are not met because the amount in controversy does not exceed Seventy-Five Thousand Dollars ($75,000.00).

Id. at 52-53.

[4] At the time of removal, Hayes had been released to return to work full time but was receiving ongoing medical treatment and had accumulated around $3,500 in medical bills. His workers compensation claim was still being processed. The same day Hayes filed the motion to remand, he also submitted a settlement demand for $72,500. In response, the Defendants sent a letter stating that they would agree to remand the case if Hayes would "provide[ ] assurance that he would not execute on any potential judgment over $75,000," and included a proposed covenant not to execute. Id. at 77. Hayes responded that "WE [sic] cannot agree to any agreement without payment. Are you offering the $75,000? If so, send a check." Id.

[5] On December 29, Defendants objected to remanding the case, arguing the amount in controversy was clearly over $75,000 because Hayes refused to sign the proposed covenant. Id. at 78. On January 20, 2016, the district court granted Hayes' motion to remand, determining that it lacked subject matter jurisdiction because it is the removing party's burden to establish by a preponderance of the evidence that each requirement of 28 U.S.C. § 1332 has been met and "Defendants have made no effort whatsoever to explain why they had a good faith belief, at the time of removal, that the amount in controversy exceeded $75,000." Id. at 78-79.

[6] With the case back in Marion Superior Court, Defendants filed a motion to limit entry of judgment. The basis of the Defendants' motion was the district court's grant of Hayes' motion to remand in which Hayes asserted the district court lacked subject matter jurisdiction "because the amount in controversy does not exceed $75,000." Id. at 46. Defendants therefore argued that, "Under the doctrine of judicial estoppel, any judgment entered in favor of the Plaintiffs in this case must be limited to $75,000.00." Id. at 47. Defendants included in their motion to limit entry of judgment what they purported to be a "true and exact copy of the [district] Court's Order ... marked as Exhibit 'C.' " Id. However, Defendants' Exhibit C omitted page 5 of the district court's order in which the district court discussed the Defendants' failure to meet their burden of proof regarding each requirement of 28 U.S.C. § 1332.

[7] On July 31, 2017, Hayes moved to strike the Defendants' motion to limit damages. Hayes cited the omitted page of the district court's order and argued "the [district] Court order clearly demonstrates that the Defendants failed to meet their burden to demonstrate all of the elements necessary for federal court jurisdiction." Id. at 64. In a supplemental response to the Defendants' motion to limit entry of judgment, Hayes stated that since the removal action, a physician had determined that Hayes had an 8% permanent impairment and that his medical expenses totaled over $21,000. These facts, coupled with Hayes' "ongoing and incomplete" treatment, Hayes argued, caused the current value of the case to be "substantially higher today than at the time this lawsuit was filed." Id. at 87. Therefore, while Hayes "would have gladly accepted $72,500.00" at the time of removal, "the value has increased and the Defendant[s] owe more than the original amount in controversy." Id. at 88.

[8] A jury trial was conducted on August 8 and 9, 2017. The jury returned a verdict for Hayes in the amount of $187,500 and the trial court subsequently denied Defendants' motion to limit entry of judgment to $75,000 and Defendants' motion to correct error regarding the same. In so doing, the trial court explained:

This Court remains troubled by the notion that a party may represent to the U.S. District Court that the amount in controversy in a case is less than the jurisdictional requirement, and then, once remanded, that it exceeds that amount. However, neither party has pointed to any precedent which expressly prohibits such a practice. The parties submitted this matter to a jury in this Court for determination. The jury, as the trier of fact, determined that the Plaintiffs' damages totaled One Hundred Eight-Seven [sic] Thousand Five Hundred and 00/100 Dollars ($187,500.00). The Court finds that the jury's verdict should not be disturbed.

Order at 4.

[9] Defendants now appeal and Hayes cross-appeals for an award of attorneys' fees, costs, and post-judgment interest, alleging that Defendants filed the underlying "frivolous appeal, which is meritless and ... filed in bad faith, for purposes of harassment, and delay." Response Brief of Appellee at 25.

Discussion and Decision

I. Defendants' Appeal: Jury Award

[10] Defendants allege the trial court erred in denying their motion to correct error and refusing to modify the verdict entered by the jury to $75,000 under the doctrines of judicial estoppel, waiver, and/or judicial admission.

A. Standard of Review

[11] We review rulings on motions to correct error for an abuse of discretion. Walker v. Kelley , 819 N.E.2d 832, 836 (Ind. Ct. App. 2004). An abuse of discretion occurs if the trial court's decision was against the logic and effect of the facts and circumstances before the court or if the court misapplied the law. Id. However, to the extent a motion to correct error presents purely questions of law, we review such questions de novo. Indiana BMV v. Charles , 919 N.E.2d 114, 116 (Ind. Ct. App. 2009).

B. Judicial Estoppel

[12] Defendants allege that trial court erred in denying their motion to correct error and failing to modify the verdict entered by the jury to $75,000 under the doctrine of judicial estoppel.

[13] This court has previously explained,

Judicial estoppel is a judicially created doctrine that seeks to prevent a litigant from asserting a position that is inconsistent with one asserted in the same or a previous proceeding. Judicial estoppel is not intended to eliminate all inconsistencies; rather, it is designed to prevent litigants from playing "fast and loose" with the courts. The primary purpose of judicial estoppel is not to protect litigants but to protect the integrity of the judiciary. The basic principle of judicial estoppel is that, absent a good explanation, a party should not be permitted to gain an advantage by litigating on one theory and then pursue an incompatible theory in subsequent litigation. Judicial estoppel only applies to intentional misrepresentation, so the dispositive issue supporting the application of judicial estoppel is the bad-faith intent of the litigant subject to estoppel.

Price v. Kuchaes , 950 N.E.2d 1218, 1227-28 (Ind. Ct. App. 2011) (citation omitted), trans. denied.

[14] In turn, Hayes argues judicial estoppel is inapplicable for four reasons: (1) Hayes' motion to remand in federal court was not a pleading; (2) Hayes did not repudiate an earlier position; (3) the removal action was not part of the proceeding before the state trial court; and, (4) that at the time of removal, Hayes' statement of the amount in controversy was not a material misrepresentation.

[15] First, Hayes asserts that judicial estoppel is "completely inapplicable here because Hayes' motion to remand is not a pleading under the state or federal rules." Br. of Appellees at 19. Although our supreme court has described judicial estoppel as precluding "a party from repudiating assertions in the party's own pleadings," PSI Energy, Inc. v. Roberts , 829 N.E.2d 943, 957 (Ind. 2005), aff'd on reh'g , 834 N.E.2d 665, we are unaware of-and Hayes has failed to provide us with-authority limiting the doctrine of judicial estoppel to pleadings. To the contrary, we have consistently applied the doctrine of judicial estoppel to matters outside of pleadings. See Hay v. Baumgartner , 903 N.E.2d 1044, 1049 (Ind. Ct. App. 2009) (holding party was judicially estopped from stipulating to issuance of preliminary injunction and then complaining such injunction was wrongfully entered); Robson v. Texas E. Corp. , 833 N.E.2d 461, 466 (Ind. Ct. App. 2005) ("Judicial estoppel is applicable when a bankrupt debtor fails to disclose a cause of action as an asset in bankruptcy proceedings and then pursues the omitted cause of action in a subsequent proceeding."), trans. denied; Lumbard v. Farmers State Bank, 812 N.E.2d 196, 201 (Ind. Ct. App. 2004) (holding party was judicially estopped from complaining of defects with one piece of evidence while repeatedly referencing document containing the same defect).

[16] Second, Hayes contends that he "never repudiated his assertion to the District Court that the removal is premature." Br. of Appellees at 19. The Defendants' argument regarding judicial estoppel, however, involves Hayes' claim that the amount in controversy did not exceed $75,000, not Hayes' claim that removal was premature. Indeed, at least at first glance, Hayes' motion to remand is seemingly inconsistent. On one hand, Hayes stated that the Defendants' motion for removal was "pre-mature in not having conducted discovery to investigate the amount of this claim or even inquire as to [Hayes'] demand," while on the other hand, Hayes stated that "the amount in controversy does not exceed $75,000, [and] as such the requirements of diversity jurisdiction are not met." Appellants' Corrected App., Vol. II at 52. Twice more in the motion to remand, Hayes asserted:

3. Plaintiff further provides that diversity jurisdiction is not met in this matter because the amount in controversy does not exceed Seventy-Five Thousand Dollars ($75,000.00).
[and]
7. Therefore, even if the citizenship of the parties is diverse, the requirements of diversity jurisdiction under 28 U.S.C. § 1441 are not met because the amount in controversy does not exceed Seventy-Five Thousand Dollars ($75,000.00).

Id. at 52-53. However, when viewed in the context of Hayes' argument that removal was "pre-mature in not having conducted discovery," id. at 52, and that Defendants had failed to meet their burden, Hayes' statements could reasonably be read to mean that the amount in controversy did not presently exceed $75,000-not that it would never exceed $75,000.

[17] Later, Hayes argued that additional evidence and further medical treatment had caused the current case valuation to be "substantially higher today than at the time this lawsuit was filed" and that although he "would have gladly accepted $72,500.00" at the time of removal, "the value has increased and the Defendant[s] owe more than the original amount in controversy." Id. at 87-88. Hayes did, therefore, at least partially repudiate his statement that the amount in controversy did not exceed $75,000.

[18] Third, Hayes appears to argue that judicial estoppel does not apply because the "removal action before the District Court was not part of the proceeding before the state trial court." Br. of Appellee at 19. This is of no matter. As noted, judicial estoppel is designed to prevent litigants from playing "fast and loose" with the courts and is designed to protect the judiciary, not individual litigants. Price , 950 N.E.2d at 1227. We see no logical reason that judicial estoppel should be limited to representations made in the same litigation or to the same tribunal and we are unaware of precedent so limiting the doctrine. See, e.g., Walton v. Bayer Corp., 643 F.3d 994, 1003 (7th Cir. 2011) (noting that because judicial estoppel's purpose is to deter fraud in litigation, judicial estoppel should prevent a party from taking a position in state court counter to the position it used to obtain remand in federal court); Alaska Seaboard Partners Ltd. P'ship v. Hood, 949 N.E.2d 1247, 1255 (Ind. Ct. App. 2011) (holding judicial estoppel barred company from taking a position in a state action counter to the position of a related company in a California state action); Robson , 833 N.E.2d at 473 (concluding genuine issues of material fact remain regarding judicial estoppel where plaintiffs omitted a cause of action in previous bankruptcy proceedings and later pursued the action in state court).

[19] Fourth and finally, Hayes contends that because his statement regarding the amount in controversy was not a material misrepresentation at the time of removal, judicial estoppel is inapplicable. On this point, we agree.

[20] As we have previously explained, "[j]udicial estoppel only applies to intentional misrepresentation, so the dispositive issue supporting the application of judicial estoppel is the bad-faith intent of the litigant subject to estoppel." Robson , 833 N.E.2d at 466. And, we have noted that the "basic principle of judicial estoppel is that, absent a good explanation, a party should not be permitted to gain an advantage by litigating on one theory and then pursue an incompatible theory in subsequent litigation." Id. (emphasis added).

[21] At the time of Hayes' representations regarding the amount in controversy, Hayes' medical bills totaled only $3,500 and Hayes submitted his first demand to the Defendants in the amount of $72,500. See Grinnell Mut. Reinsurance Co. v. Haight, 697 F.3d 582, 585 (7th Cir. 2012) (noting that although settlement negotiations are not admissible at trial, they can be considered "to show the stakes" when determining the amount in controversy). Although Hayes was receiving ongoing medical treatment, it was not until after the case was remanded that Hayes added his wife's claim and he learned that he suffered an 8% permanent impairment.

[22] Defendants removed this action without filing interrogatories as to the specific monetary damages claimed, or otherwise investigating the specific monetary amount. Therefore, in conjunction with his representations regarding the amount in controversy, Hayes argued that removal "was pre-mature in not having conducted discovery to investigate the amount of this claim or even inquire as to Plaintiff's demand." Appellants' Corrected App., Vol. II at 52. Accordingly, we have no reason to believe that Hayes intentionally misrepresented the amount in controversy or that Hayes acted in bad faith.

[23] Ongoing medical treatment and growing medical expenses, however, are not uncommon in personal injury actions. For this reason alone, plaintiffs should be cautious of proclaiming that the amount in controversy does not exceed $75,000-lest they be held to their word. In this regard, we share the trial court's concern "that a party may represent to the U.S. District Court that the amount in controversy in a case is less than the jurisdictional requirement, and then, once remanded, that it exceeds that amount." Order at 4. Under certain circumstances, judicial estoppel would serve to prevent a plaintiff from making representations to defeat diversity jurisdiction and then claiming otherwise in subsequent litigation. Such facts, however, are not presently before us.

[24] We have explained that judicial estoppel is not meant to be a technical defense to "derail potentially meritorious claims" and that we must give "due consideration to all of the circumstances of a particular case." Morgan Cty. Hosp. v. Upham , 884 N.E.2d 275, 280 (Ind. Ct. App. 2008), trans. denied . Here, the Defendants filed a motion to remove the case to federal court based on diversity jurisdiction. As such, it was the Defendants who bore the burden to demonstrate by a preponderance of the evidence that the amount in controversy exceeded $75,000. Walker v. Trailer Transit, Inc. , 727 F.3d 819, 824-25 (7th Cir. 2013). But, as the district court concluded, the Defendants utterly failed to meet their burden of proof:

... Here, Defendants have made no effort whatsoever to explain why they had a good faith belief, at the time of removal, that the amount in controversy exceeded $75,000, exclusive of interest and costs. Indeed, their only statement in the Amended Petition for Removal regarding the amount in controversy is that "the amount in controversy exceeds the sum or value of Seventy-Five Thousand Dollars ($75,000.00), exclusive of interest and costs." Defendants do not point to any evidence to support their statement.
Further, Mr. Hayes specifically argues in the Motion to Remand that Defendants did not complete any pre-lawsuit discovery, and that removal was premature without such discovery. But Defendants do not respond to Mr. Hayes' argument at all, and still do not present any evidence in their response brief to support their belief that the amount in controversy exceeded $75,000, exclusive of interest and costs, at the time of removal. Instead, Defendants rely solely on post-removal events which, as discussed above, are irrelevant to the Court's analysis regarding whether removal was proper in the first place. Mr. Hayes has challenged Defendants' assertion that the amount in controversy exceeds $75,000, exclusive of interest and costs, and Defendants have failed to meet their burden of showing by a preponderance of evidence-evidence existing at the time of removal-that the amount in controversy requirement is met.
* * *
... Defendants had every opportunity to explain why they believed at the time of removal that the amount of controversy exceeded $75,000, exclusive of interest and costs, but chose not to do so. Accordingly, the Court finds that the removal was improper and that remand to the Marion Superior Court is necessary.

Appellants' Corrected App., Vol. II at 69-71 (citations to record omitted).

[25] Interestingly, Defendants omitted the page containing the vast majority of the foregoing text from their motion to limit judgment to $75,000.

Nevertheless, as the order makes clear, the district court remanded the case because of the Defendants' failure to satisfy their burden-not Hayes' statement regarding the amount in controversy. After all, federal courts determine the amount in controversy on the date the suit was filed in state court and at the time of removal. See, e.g., Gould v. Artisoft, Inc., 1 F.3d 544, 547 (7th Cir. 1993). Thus, even if "the plaintiff after removal, by stipulation, by affidavit, or by amendment of his pleadings, reduces the claim below the requisite amount, this does not deprive the district court of jurisdiction." St. Paul Mercury Indem. Co. v. Red Cab Co. , 303 U.S. 283, 292, 58 S.Ct. 586, 82 L.Ed. 845 (1938).

[26] Judicial estoppel is limited to instances where "the allegations or admissions must have been acted on by the court." Tobin v. McClellan, 225 Ind. 335, 347, 73 N.E.2d 679, 684 (1947). We addressed this element in Allstate Ins. Co. v. Dana Corp. , emphasizing that "[a]n essential part of the doctrine [of judicial estoppel] is that it prohibits a party from presenting a position contrary to one upon which it previously prevailed." 737 N.E.2d 1177, 1193 (Ind. Ct. App. 2000), vacated in part on other grounds and summarily aff'd , 759 N.E.2d 1049 (Ind. 2001). Here, although Hayes' position was technically successful, that success was due to the Defendants' failure-not Hayes' post-removal representations. After conducting further discovery or issuing interrogatories as to Hayes' specific monetary damages, Defendants could have removed the case again. They chose, however, not to do so.

[27] To the extent Defendants rely on federal courts applying judicial estoppel in similar contexts, we find such cases distinguishable. Two of the cases involve pre-removal limitations of damages, as opposed to post-removal representations regarding the amount in controversy. Ratliff v. Merck & Co., Inc. , 359 F.Supp.2d 571, 576 (E.D. Ky. 2005) ; Adoff v. Protus IP Solutions, Inc. , 2009 WL 3380328 (D. Md. 2009). In the third case, the district court considered a stipulation by affidavit attached to the plaintiff's motion to remand that "total damages claimed in this action are $54,000."

Fenger v. Idexx Labs., Inc. , 194 F.Supp.2d 601, 604 (E.D. Ky. 2002). The district court concluded that the doctrine of judicial estoppel would apply to prevent the plaintiff from later claiming a different amount of damages because it had adopted "the position urged by the plaintiff." Id. at 605. Here, the district court did not adopt Hayes' argument and Hayes' representations regarding the amount in controversy are dissimilar to an express limitation of damages by a stipulation in an affidavit.

[28] Concluding Hayes did not intentionally misrepresent the amount in controversy and that the district court did not act upon such representation, we therefore decline to apply the doctrine of judicial estoppel to the facts before us.

C. Waiver

[29] Next, Defendants argue the trial court erred in denying their motion to correct error to modify the judgment to $75,000 under the doctrine of waiver. We disagree.

[30] Waiver is an intentional relinquishment of a known right. T-3 Martinsville LLC v. U.S. Holding, LLC , 911 N.E.2d 100, 116 (Ind. Ct. App. 2009), trans. denied . Waiver involves "both knowledge of the existence of the right and the intent to relinquish it." Westfield Nat. Ins. Co. v. Nakoa , 963 N.E.2d 1126, 1132 (Ind. Ct. App. 2012), trans. denied .

[31] For this argument, Defendants rely exclusively on Jeffery v. Cross Country Bank , 131 F.Supp.2d 1067 (E.D. Wis. 2001). There, one day before the defendant removed the case to federal court, the plaintiff filed an amended complaint expressly stating that the amount in controversy did not exceed $75,000. Upon a motion to remand, the district court concluded that the plaintiff had waived her right to recover an amount greater than $75,000 because her statement was both timely and a "clear and unequivocal relinquishment of her right to seek more than $75,000 in damages." Id. at 1070. Here, Hayes' representations were neither timely, nor "clear and unequivocal." Id.

[32] As discussed in the context of judicial estoppel, it is a defendant's burden to establish the amount in controversy at the time of removal. Gould , 1 F.3d at 547. Although we have no doubt that a plaintiff is entitled to waive his or her right to recover more than the minimum amount in controversy, In Re Brand Name Prescription Drugs Antitrust Litig. , 123 F.3d 599, 607 (7th Cir. 1997), such waiver must occur prior to removal, In Re Shell Oil Co. , 970 F.2d 355, 356 (7th Cir. 1992). Here, Hayes' representations were made after the Defendants had removed the case and due to the context of Hayes' argument regarding the Defendants' failure to meet their burden and removal being premature, we are not convinced that Hayes intended to relinquish a known right.

D. Judicial Admission

[33] Finally, Defendants argue the trial court erred in denying their motion to correct error to modify the judgment to $75,000 under the doctrine of judicial admission. Again, we disagree.

[34] Judicial admissions are voluntary and knowing concessions of fact by a party or a party's attorney occurring at any point in a judicial proceeding. Stewart v. Alunday , 53 N.E.3d 562, 568 (Ind. Ct. App. 2016). "The party must testify clearly and unequivocally to a fact peculiarly within his knowledge in order for it to be considered a judicial admission." Id. Judicial admissions may be contained in stipulations, pleadings in the case being tried, admissions made in open court, and admissions made pursuant to a request for admissions. Id.

[35] Defendants allege Hayes made a judicial admission where he repeatedly stated the amount in controversy did not exceed $75,000, while Hayes contends his argument was in the context of "then-existing facts" and that he never admitted that the "value of the case could never exceed $75,000." Br. of Appellees at 24. As we explained in Heyser v. Noble Roman's Inc. , "A statement which contains ambiguities or doubt is not to be regarded as a binding admission." 933 N.E.2d 16, 19 (Ind. Ct. App. 2010), trans. denied . Due to the context of Hayes' argument regarding the Defendants' failure to meet their burden and removal being premature, we conclude Hayes' statement contains an ambiguity and cannot therefore be regarded as a binding judicial admission.

[36] Quite simply, the Defendants failed to meet their burden of proof before the district court and then attempted to cap Hayes' damages because of it. We therefore conclude the trial court did not err in denying the Defendants' motion to correct error.

II. Plaintiffs' Cross-Appeal: Attorneys' Fees

[37] Hayes cross-appeals for an award of attorneys' fees, costs, and post-judgment interest, alleging that Defendants filed the underlying "frivolous appeal, which is meritless and ... filed in bad faith, for purposes of harassment, and delay." Br. of Appellees at 25.

[38] We may "assess damages if an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages shall be in the Court's discretion and may include attorneys' fees." Ind. Appellate Rule 66(E). Our discretion to award attorneys' fees is limited to instances when "an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay." Ballaban v. Bloomington Jewish Cmty., Inc. , 982 N.E.2d 329, 339-40 (Ind. Ct. App. 2013). Due to the potential chilling effect upon the right to appeal, we must use "extreme restraint" when exercising this power. Id. at 340. And, "[a] strong showing is required to justify an award of appellate damages and the sanction is not imposed to punish mere lack of merit but something more egregious." Id.

[39] Claims for appellate attorneys' fees are classified into substantive and procedural bad faith claims. Id.

To prevail on a substantive bad faith claim, the party must show that "the appellant's contentions and arguments are utterly devoid of all plausibility." Procedural bad faith, on the other hand, occurs when a party flagrantly disregards the form and content requirements of the rules of appellate procedure, omits and misstates relevant facts appearing in the record, and files briefs written in a manner calculated to require the maximum expenditure of time both by the opposing party and the reviewing court. Even if the appellant's conduct falls short of that which is "deliberate or by design," procedural bad faith can still be found.

Id. (citations omitted).

[40] Hayes first claims that the Defendants' appeal is frivolous because the "nub of this appeal is the District Court's removal/remand," and it is "exceedingly frivolous for [the Defendants] to ask the Indiana Court of Appeals to essentially overrule the District Court's remand order." Br. of Appellees at 26. The Defendants' appeal, however, clearly asks that we review the trial court's denial of their motion to correct error-not the district court's order. The Defendants then provided a cogent argument and cited relevant authority in their attempt to apply the doctrines of judicial estoppel, waiver, and/or judicial admission to limit the entry of judgment.

[41] Hayes next claims that the district court retained jurisdiction to rule on whether Hayes' argument before the federal court was binding on the eventual jury verdict in state court. Although the district court retained the authority to rule on "collateral matters," Wisconsin v. Hotline Indus., Inc. , 236 F.3d 363, 365 (7th Cir. 2000), the issue presented here was whether Indiana law served to limit the entry of judgment under the doctrines of judicial estoppel, waiver, and/or judicial admission. This, of course, is a matter well within our purview. See e.g., League of Women Voters of Indiana, Inc. v. Rokita, 929 N.E.2d 758, 763 (Ind. 2010) ("A federal court's interpretation of Indiana law is not binding on Indiana state courts."). Although we concluded that the Defendants' arguments ultimately failed, such arguments were plausible and therefore do not justify punitive sanctions. See Orr v. Turco Mfg. Co., Inc., 512 N.E.2d 151, 153 (Ind. 1987) (holding "plausible argument for clarification, modification or reversal of existing law" does not justify punitive sanctions).

[42] Hayes also alleges the Defendants committed procedural bad faith throughout this litigation. Scattered throughout several pages of broad assertions and hyperbole, it appears Hayes alleges the Defendants committed procedural bad faith by: (1) waiting to admit fault on the eve of trial; (2) "constant teetering on the value of the case"; (3) taking "immediate and premature removal, followed by a bargain for remand in exchange for a cap on damages"; (4) attempting to place a cap on Hayes' damages; (5) failing to assert a damages cap as an affirmative defense; (6) concealing facts and a misleading use of the law; (7) utilizing an improper basis for appeal; (8) initiating this appeal to delay the payment of the portion of the judgment over $75,000; and (9) being intentionally "extremely uncooperative." Br. of Appellees at 29-32.

[43] To the extent Hayes alleges the Defendants utilize an improper basis for appeal, for reasons discussed above, see supra ¶ 40-41, we disagree. Similarly, we are unpersuaded by Hayes' perfunctory assertion that "[a]t minimum, this appeal was filed to delay payment of the portion of the judgment over $75,000." Br. of Appellees at 29. The rest of Hayes' claims regarding procedural bad faith involve instances occurring before the trial court. Our discretion to award attorneys' fees under Appellate Rule 66(E) is limited to instances when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexastiousness, or purpose of delay. These claims would be properly considered through an appeal of the trial court's denial of Hayes' motion for costs, not a cross-appeal for attorneys' fees pursuant to Appellate Rule 66(E). Hayes did not appeal such denial. Accordingly, Hayes has failed to demonstrate procedural bad faith and although this case has been particularly litigious, the Defendants do not bear such responsibility alone. We therefore deny Hayes' request for attorneys' fees.

Conclusion

[44] For the reasons set forth above, we conclude the doctrines of judicial estoppel, waiver, and/or judicial admission are inapplicable on the facts before us. We therefore affirm the judgment of the trial court and deny Hayes' request for appellate attorneys' fees.

[45] Affirmed.

Najam, J., and Altice, J., concur.

      The complaint was subsequently amended to add Tracy Hayes, Hayes' wife, as a plaintiff.

      Although we have no reason to believe that Hayes' subsequent addition of his wife's claim was due to broader litigation strategy to keep his claim out of federal court, we place little significance on this fact due to its potential for abuse.

      In Defendants' motion to limit judgment to $75,000, Defendants state that "A true and exact copy of the [district] Court's Order is attached hereto and marked as Exhibit 'C.' " Appellants' Corrected App., Vol. II at 47. Exhibit C, however, contained only pages 1-4 and 6 of the district court's order, omitting page 5 with the discussion regarding the Defendants' failure to meet their burden of proof. Id. at 54-58. The exhibit therefore misrepresented to the trial court the reasoning of the district court's order by incorrectly suggesting that the case was remanded because of Hayes' statement of the amount in controversy, not the Defendants' failure to meet their burden. We note also that Hayes brought this omission to the Defendants' attention in an email prior to filing his response, id. at 72, and yet the Defendants did not amend their motion to include the order in its entirety.
      We are deeply troubled by the Defendants' all too convenient omission and we remind counsel of Indiana Professional Conduct Rule 3.3(a)(3) requiring candor to the tribunal and precluding a lawyer from knowingly providing evidence the lawyer knows to be false. "[T]he accuracy of documents and instruments utilized by a tribunal in a proceeding is of the utmost importance to the administration of justice and ... fraudulent alteration of such documents by an officer of the court is therefore severe misconduct." Matter of Fisher , 684 N.E.2d 197, 200 (Ind. 1997).

      28 U.S.C. § 1446(b)(3) allows a defendant to file a notice of removal within thirty days after the receipt of "a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." Removal is subject to the one-year limitation of 28 U.S.C. § 1446(c).

      Moreover, although the Sixth Circuit has apparently permitted such consideration, the Seventh Circuit has repeatedly rejected such practice. See Matter of Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992) ; see also Back Doctors Ltd. v. Metro. Prop. & Cas. Ins. Co., 637 F.3d 827, 830 (7th Cir. 2011) ("[E]vents after the date of removal do not affect federal jurisdiction, and this means in particular that a declaration by the plaintiff following removal does not permit remand.")


author: Najam, Judge.

text:
    Jill (Kaiser) MCKIBBEN, Appellant-Petitioner, v. William KAISER, Appellee-Respondent.
    Court of Appeals Case No. 18A-DR-687
    Court of Appeals of Indiana.
    FILED July 5, 2018
    Attorney for Appellant: Dan J. May, Kokomo, Indiana
   Najam, Judge.

Statement of the Case

[1] Jill McKibben ("Wife") appeals the trial court's order denying her request for post-judgment interest on child support arrearage that William Kaiser ("Husband") owes to her. Wife raises one issue for our review, namely, whether the trial court erred as a matter of law when it failed to award her post-judgment interest pursuant to Indiana Code Section 24-4.6-1-101.

[2] We reverse and remand with instructions.

Facts and Procedural History

[3] Wife and Husband have two children together. On December 7, 2011, the trial court issued an order in which it found that Husband owed Wife $7,677.19 in child support arrearage. On November 26, 2012, the trial court terminated Husband's support obligation for both children, retroactive to July 11, 2012, but found that Husband was still $7,056.40 in arrears. Husband made one payment of $175 on November 18, 2013, which left a balance due to Wife in the amount of $6,881.40.

[4] On October 5, 2017, Wife filed a motion for enforcement of child support. In that motion, Wife requested that the trial court make a finding as to the amount of the arrearage and to assess interest in the amount of one and one-half percent per month. On January 26, 2018, following an evidentiary hearing, the trial court found that Husband owes Wife $6,881.40 in child support arrearage. But the trial court denied Wife's request for interest citing the fact that the children are emancipated and that Wife had waited five years to attempt to collect the arrearage. Wife then filed a motion to correct error, which the trial court denied. This appeal ensued.

Discussion and Decision

[5] Wife contends that the trial court erred when it failed to award her post-judgment interest. Initially, we note that Husband did not file an appellee's brief.

When an appellee fails to file a brief, we apply a less stringent standard of review. We are under no obligation to undertake the burden of developing an argument for the appellee. We may, therefore, reverse the trial court if the appellant establishes prima facie error. "Prima facie" is defined as "at first sight, on first appearance, or on the face of it."

Deckard v. Deckard , 841 N.E.2d 194, 199 (Ind. Ct. App. 2006) (citations omitted).

[6] Wife specifically contends that the trial court erred when it failed to award her post-judgment interest on Husband's child support arrearage pursuant to Indiana Code Section 24-4.6-1-101. We agree. Indiana Code Section 24-4.6-1-101 provides that, except as otherwise provided by statute, "interest on judgments for money whenever rendered shall be from the date of the return of the verdict or finding of the court until satisfaction at ... an annual rate of eight percent (8%) if there was no contract by the parties."

[7] This court previously addressed the issue of post-judgment interest awards on child support arrearages in Caldwell v. Black , 727 N.E.2d 1097 (Ind. Ct. App. 2000). In that case, Caldwell sought post-judgment interest on the child support arrearage that Black owed to her. This court stated that "post-judgment interest is statutorily mandated for money judgments" and Indiana Code Section 24-4.6-1-101"provides post-judgment interest ... following a judicial determination of arrearage without the necessity of a specific request for interest." Id . at 1100. Based on that statute, this court held that Caldwell, "as a judgment creditor," was "entitled to the general post-judgment interest rate, currently eight percent per year, as provided in" Indiana Code Section 24-4.6-1-101. Id .

[8] Here, on December 7, 2011, the trial court issued an order in which it found that Husband owed Wife $7,677.19 in child support arrearage. And on January 26, 2018, the trial court found that Husband still owes Wife $6,881.40. Therefore, like in Caldwell , Wife is a judgment creditor and she is entitled by operation of law to the general post-judgment interest rate. Accordingly, we reverse the trial court's order and remand for a calculation of the deficiency to include interest at the statutory rate of eight percent from the date of the judicial determination of arrearage. See id.

[9] Reversed and remanded with instructions.

Robb, J., and Altice, J., concur.

      The record on appeal does not provide us with any information regarding when the parties married, when they dissolved their marriage, or the amount Husband was initially required to pay in child support.

      Wife has not provided a copy of the transcript of the hearing on appeal.

      Wife also sought interest in the amount of one and one-half percent pursuant to Indiana Code Section 31-16-12-2, which provides that a trial court "may" order interest charges of up to one and one-half percent per month to be paid on delinquent child support. The trial court denied Wife's request for discretionary interest, but Wife does not appeal that part of the trial court's order.