author: VAIDIK, Judge.

text:
    HICKORY CREEK AT CONNERSVILLE, Appellant-Plaintiff, v. ESTATE OF Otto K. COMBS, Appellee-Defendant.
    No. 21A04-1211-ES-600.
    Court of Appeals of Indiana.
    June 27, 2013.
    Rehearing Denied Sept. 5, 2013.

      Paul (Rick) Rauch, Marc A.W. Stearns, Harrison & Moberly, LLP, Indianapolis, IN, Attorneys for Appellant.
    Jamie H. Harvey, Smith Harvey Law Office, Connersville, IN, Attorney for Ap-pellee.
   OPINION

VAIDIK, Judge.

Case Summary

According to the doctrine of necessaries, each spouse is primarily liable for his or her independent debts. To the extent that the debtor spouse is unable to satisfy his or her own necessary expenses, the law will impose limited secondary liability upon the financially superior spouse by means of the doctrine of necessaries.

In this case, Marianne Combs, a Medicaid recipient, died in a nursing home, but no estate was opened for her. The nursing home did not open a creditor’s estate for Marianne in order to preserve its claim. When Marianne’s spouse died a little over a year later, the nursing home filed a claim for her expenses against his estate. We find that according to the doctrine of necessaries, a creditor must first seek satisfaction from the income and property of the spouse who incurred the debt and only if those resources are insufficient may a creditor seek satisfaction from the non-contracting spouse.

Facts and Procedural History

Marianne Combs and Otto Combs were married. Marianne was a resident of Hickory Creek, a long-term care facility in Connersville, Indiana. Appellant’s App. p. 5, 45 (Joint Stipulation of Facts). Marianne’s daughter, Wanda Ferriell, was Marianne’s Durable Power of Attorney for Health Care; Wanda admitted Marianne into Hickory Creek, signing as her financial guarantor. Id. at 5, 35, 38. During her residency, Marianne received Medicaid, but she accrued a private-pay account balance of $5871.40. Id. at 45 (Joint Stipulation of Facts). Marianne died on December 22, 2010. Id. No estate was opened for Marianne. Id.

In July 2011, Hickory Creek filed a complaint against Wanda and Otto for Marianne’s account balance. Appellant’s Supp. App. p. 75. Hickory Creek’s theory was that Wanda signed as Marianne’s “financial guarantor” and Otto was Marianne’s “surviving spouse.” Id.

On January 12, 2012, Otto died. Id. An estate was opened for Otto on July 25, 2012. Appellant’s App. at 2, 45 (Joint Stipulation of Facts). On August 1, 2012, Hickory Creek filed a claim against Otto’s Estate for Marianne’s account balance pursuant to Indiana’s doctrine of necessaries. Id. at 2, 5, 45 (Joint Stipulation of Facts). Otto’s Estate denied the claim and requested that the matter be set for trial. Following a hearing, the trial court denied Hickory Creek’s claim against Otto’s Estate. Id. at 59. The court reasoned that Hickory Creek’s failure to file a claim upon Marianne’s death was a bar to recovery under the doctrine of necessaries. Id. The court also reasoned that Wanda admitted Marianne into Hickory Creek, not Otto. Id.

This discretionary interlocutory appeal pursuant to Indiana Appellate Rule 14(B) now ensues.

Discussion and Decision

Hickory Creek contends that the trial court erred in denying its claim against Otto’s Estate. Specifically, Hickory Creek argues that the doctrine of necessaries did not require it to open up and then make a claim against Marianne’s estate, which it alleges would not have had any assets. Hickory Creek argues this is so because the doctrine of necessaries “allows a creditor to file a claim against a spouse for a decedent debtor’s unpaid medical necessaries without wasting time, its money and the court’s resources opening an insolvent debtor’s estate to preserve its claim against the debtor’s spouse.” Appellant’s Br. p. 4.

The doctrine of necessaries originated at a time in which married women had been stripped of virtually all means of self-support by their incapacity to contract. Bartrom v. Adjustment Bureau, Inc., 618 N.E.2d 1, 3 (Ind.1993). During this time, married women were dependent on their husbands, who had a common-law duty to support their wives. Id. The doctrine of necessaries was developed to protect women whose husbands, despite their common-law duty, failed to provide necessary support. Porter Mem’l. Hosp. v. Wozniak, 680 N.E.2d 13, 16 (Ind.Ct.App.1997). Under the doctrine of necessaries, women were able to purchase necessary goods and services on their husband’s credit, making the husband liable. Bartrom, 618 N.E.2d at 3. After women were given the legal ability to contract in their own name, the doctrine was infrequently invoked, but it did not die. Wozniak, 680 N.E.2d at 16. In Memorial Hospital v. Hahaj, 430 N.E.2d 412 (Ind.Ct.App.1982), abrogated by Bartrom, 618 N.E.2d 1, this Court agreed with Jersey Shore Medical Center-Fitkin Hospital v. Estate of Baum, 84 N.J. 137, 417 A.2d 1003 (1980), and ruled that the doctrine of necessaries should be applied in a gender-neutral manner to apply to debts created by both wives and husbands. Because of disagreement about the continued vitality of the doctrine among several states and concern over Memorial Hospital, our Supreme Court in Bartrom clarified how the doctrine of necessaries was to operate in Indiana.

That is, according to the doctrine of necessaries, each spouse is primarily liable for his or her independent debts. Bartrom, 618 N.E.2d at 8. Typically, a creditor may look to a non-contracting spouse for satisfaction of the debts of the other only if the non-contracting spouse has otherwise agreed to contractual liability or can be said to have authorized the debt by implication under the laws of agency. Id. Agency requires some indicia that the principal intended or authorized the agent to conduct business on his or her behalf. See Quality Foods, Inc. v. Holloway Assocs. Prof'l. Eng’rs. & Land Surveyors, Inc., 852 N.E.2d 27, 31-32 (Ind.Ct. App.2006). Marriage alone is insufficient. A number of methods are available to prove this, such as a durable power of attorney, guardianship, or evidence of a conversation.

When, however, there is a shortfall between a dependent spouse’s necessary expenses and separate funds, the law will impose limited secondary liability upon the financially superior spouse by means of the doctrine of necessaries. Bartrom, 618 N.E.2d at 8. The liability is characterized as “limited” because its outer boundaries are marked by the financially superior spouse’s ability to pay at the time the debt was incurred. Id. It is “secondary” in the sense that it exists only to the extent that the debtor spouse is unable to satisfy his or her own personal needs or obligations. Id. These rules assist enforcement of the marital duty of support in both a workable and an equitable manner. Id. & n. 14.

Otto’s Estate argues that this case is “remarkably” similar to South Bend Clinic v. Estate of Ruffing, 501 N.E.2d 1114 (Ind. Ct.App.1986). Appellee’s Br. p. 7. In that case, Edna Ruffing and Frank Ruffing, Jr., were married. South Bend Clinic provided medical services to Edna, who passed away. South Bend Clinic did not file a claim against Edna’s Estate, although Edna’s Estate made a partial payment to South Bend Clinic for Edna’s medical expenses. "When Frank later died, South Bend Clinic filed a claim for the balance of Edna’s medical expenses against Frank’s Estate. Frank’s Estate filed a motion for summary judgment alleging that South Bend Clinic’s claim was barred because it failed to file a claim against Edna’s Estate. The trial court entered summary judgment in favor of Frank’s Estate.

On appeal, this Court, in explaining primary and secondary liability, held that “a creditor must first seek satisfaction from the income and property of the spouse who incurred the debt. Only if those resources are insufficient may a creditor seek satisfaction from the other income and property of the marital relationship.” South Bend Clinic, 501 N.E.2d at 1116 (citing Jersey Shore Med. Ctr., 417 A.2d 1003). This Court explained that because it was Edna who incurred the medical expenses, South Bend Clinic had to first seek satisfaction from her income and property. But because South Bend Clinic did not timely do so, its claim was forever barred. Id. at 1116-17. As for South Bend Clinic’s argument that there were no assets in Edna’s Estate and therefore it would have been a vain or useless act to file a claim, this Court noted that had South Bend Clinic filed a claim, it could have preserved its right to any newly discovered assets. Id. at 1117. This Court therefore affirmed the trial court. Id.

Hickory Creek argues that Otto’s Estate’s analogy to South Bend Clinic “comes up short” because it was decided before Bartrom, and South Bend Clinic relied on Memorial Hospital, which our Supreme Court abrogated in Bartrom, Appellant’s Reply Br. p. 3. We note, however, that our Supreme Court did not mention South Bend Clinic in Bartrom and therefore South Bend Clinic still appears, at least facially, to be good law. See 25 Aline F. Anderson & Diane Hubbard Kennedy, Indiana Practice, Anderson’s Probate Forms, § 2:205 (2012) (citing South Bend Clinic). But even if South Bend Clinic did not survive Bartrom, a creditor must first seek satisfaction from the income and property of the spouse who incurred the debt. And only if those resources are insufficient may a creditor seek satisfaction from the non-contracting spouse. This is because the doctrine of necessaries imposes secondary liability on the non-contracting spouse, not primary liability. And secondary liability exists only to the extent that the debtor spouse is unable to satisfy his or her own personal needs or obligations. Bartrom, 618 N.E.2d at 8.

Allowing a creditor to first pursue a non-contracting spouse erodes the concept of secondary liability in at least two ways. First, it allows a creditor to file suit against the non-contracting spouse after making its own determination that the debtor spouse has no income or property. Second, it shifts the burden of proving the financial inability of the debtor spouse from the creditor to the non-contracting spouse. This is not the purpose of the doctrine of necessaries.

Here, Hickory Creek essentially determined for itself that Marianne had no assets. Hickory Creek claims, without any citation to the record, that Marianne had no assets because Indiana approved her Medicaid application and that it tried to collect her balance for several months before her death to no avail. Also without any citation to the record, Hickory Creek claims that after Marianne’s death, it conducted an investigation into her possible assets and determined that she lacked the financial resources to pay her account balance. Hickory Creek asserts that this justified its decision not to open an estate for Marianne just “for the sake of preserving its claim.” Appellant’s Reply Br. p. 8.

We disagree and find that Hickory Creek was first required to file a claim against Marianne to determine whether she was unable to satisfy her obligations. And because Marianne had passed away and no estate was opened for her, this meant that Hickory Creek, as a creditor, should have opened an estate for her, which it was permitted to do as an interested person. See Ind.Code §§ 29-1-1-8, 29-1-7-4. However, Hickory Creek did not do so. And now, it cannot do so because the time has passed. See Ind. Code § 29-1-14-1 (non-claim statute which provides that claims against a decedent’s estate shall be “forever barred” unless filed against the estate within three months after the date of the first published notice to creditors or within nine months after the decedent’s death); Appellant’s Br. p. 8-9 & Reply Br. p. 5 (Hickory Creek conceding that Indiana law bars a claim against Marianne’s estate at this point).

Nevertheless, Hickory Creek claims that requiring it to open an estate for Marianne, a Medicaid recipient, would “inundate the court system with unnecessary filings” and “does not make sense from a public policy standpoint to force nursing homes to preserve their claim in an estate, by filing a fruitless petition to open an estate and subsequently close it, once it is shown the decedent had no money.” Appellant’s Reply Br. p. 8. But as noted by the Court in Bartrom, there could be newly discovered assets. And regardless, although this case involves an estate, it does not mean that all cases involving the doctrine of necessaries will; the doctrine applies to living spouses, divorcing spouses, nursing-home expenses, and medical expenses. Policy cannot be based solely on a deceased Medicaid recipient in a nursing home. The doctrine of necessaries is based on the concept that the non-contracting spouse is liable only to the extent that the debtor spouse is unable to satisfy his or her own personal needs or obligations. Accordingly, because Hickory Creek did not first pursue Marianne, the trial court did not err in denying Hickory Creek’s claim against Otto’s Estate.

Affirmed.

KIRSCH, J„ and PYLE, J„ concur.

      . According to FSSA:
      Established in 1965, Medicaid is a state and federally funded health care program designed to assist low income individuals and families. In order to qualify for Medicaid assistance the individual/family must meet certain eligibility requirements. The Medicaid program is administered on the state level; as a result, some requirements and rules vary from state to state.
      In Indiana, Medicaid is administered through the Family and Social Services Administration (FSSA) by the Department of Family Resources (DFR). Changes to the Medicaid program come from the Indiana General Assembly as well as the Center for Medicare and Medicaid Services (CMS).
      FSSA, Low-Income Assistance/Medicaid, http://www.in.gov/idoi/files/Nav_Guide_4_ Section_O_Low_Income_Assistance.01_08_ pub.pdf (last visited June 6, 2013).

      . Marianne had an interest in property she held with Otto as joint tenants with rights of survivorship, which Marianne lost upon her death. Appellant's App. p. 53.

      . We question the viability of the antiquated doctrine of necessaries. Nonetheless, since it remains Indiana law, we analyze this case according to that precedent.

      . Hickory Creek also argues that South Bend Clinic is distinguishable because an estate was opened for Edna and South Bend Clinic received a partial payment for her medical expenses whereas no estate was opened for Marianne and Hickory Creek did not receive a partial payment for her nursing-home expenses. However, the salient fact remains the same in both cases: neither South Bend Clinic nor Hickory Creek filed a claim against either Edna or Marianne.

      . Citing Wozniak, Hickory Creek argues that Marianne’s Medicaid status indicated that a shortfall existed between her necessary expenses and her funds. Appellant’s Reply Br. p. 7. In Wozniak, the debtor was discharged from bankruptcy before she paid her hospital bill, and the hospital pursued her husband pursuant to the doctrine of necessaries. 680 N.E.2d at 16. Here, however, no shortfall was ever determined to exist.

      .For example, Hickory Creek baldly asserts that "Mr. Combs never opened an estate for his wife because she possessed no assets to probate." Appellant’s Reply Br. p. 3.

      . In addition, we note that the evidence shows that Wanda was Marianne’s Durable Power of Attorney for Health Care, admitted her into Hickory Creek, and signed as her financial guarantor. According to Bartrom, a creditor may look to a non-contracting spouse for satisfaction of the debts of the other only if the non-contracting spouse has otherwise agreed to contractual liability or can be said to have authorized the debt by implication under the laws of agency. Marriage alone is insufficient. Hickory Creek has failed to point to any evidence that Otto authorized the debt. The trial court essentially made this finding when it said that Wanda admitted Marianne into Hickory Creek, not Otto.


source: Caselaw Access Project

author: SHARPNACK, Senior Judge.

license: Public Domain

text:
    Booker T. PRINCE, Jr., Appellant-Respondent, v. MARION COUNTY AUDITOR and Marion County Treasurer, Appellees-Petitioners.
    No. 49A02-1210-MI-835.
    Court of Appeals of Indiana.
    July 3, 2013.

      Mark Small, Indianapolis, IN, Attorney for Appellant.
    Angela S. Joseph, Office of Corporation Counsel, Indianapolis, IN, Attorney for Appellees.
   OPINION

SHARPNACK, Senior Judge.

STATEMENT OF THE CASE

Booker T. Prince, Jr., appeals the trial court’s denial of his motion for relief from judgment. We affirm.

ISSUES

Prince raises two issues, which we restate as:

I. Whether the trial court abused its discretion in determining that the application for judgment and order for sale of Prince’s property of the Marion County Auditor and Marion County Treasurer (collectively, “the officials”) substantially complied with statutory requirements.
II. Whether the trial court abused its discretion in determining that the officials’ notices to Prince regarding the tax sale process met the requirements of due process.

FACTS AND PROCEDURAL HISTORY

In 2003, Prince purchased two adjoining parcels of land in Indianapolis. One parcel has an apartment building and the other parcel is a parking lot. Prince hired a building manager, who worked in an office in the building. Subsequently, Prince moved to California and provided the Auditor with a California post office box for receipt of correspondence. The Auditor also had the apartment building’s street address, but Prince did not provide the unit or apartment number for the building’s office.

Prince failed to pay property taxes on the building and the parking lot. In August 2010, the Auditor sent a “Notice of Tax Sale” to Prince at the apartment building’s address. Ex. Vol., Ex. A. The Auditor also sent copies of the notice to Prince at his California post office box via first class mail and certified mail. The copy of the notice that the Auditor sent to the apartment building came back marked “return to sender, vacant, unable to forward.” Ex. Vol., Ex. C. Prince received the copy of the notice that was sent to his California post office box by certified mail and signed for it. However, the notice was stolen out of his car before he opened it. The notice that the Auditor sent to Prince’s box via first class mail was not returned. The notice of tax salé advised that Prince’s parcels would be sold at a tax sale on or after September 15, 2010, unless the taxes were paid prior to that date. Prince did not pay the taxes due.

On September 15, 2010, the officials filed with the trial court an application for judgment and order for sale, seeking permission to sell several parcels of land, including the parcels at issue here. On October 4, 2010, the trial court issued a judgment and order for the sale of Prince’s parcels. On October 8, 2010, the parcels were sold to Marion County at a tax sale. After the tax sale, the Auditor hired a title company to perform a title search on Prince’s parcels to uncover any additional addresses for Prince. No additional addresses were found.

On January 3, 2011, the Auditor sent Prince a notice informing him that his parcels had been sold at a tax sale and that he had a right to redeem them. The Auditor sent a copy to the apartment building by first class mail and sent copies to Prince’s California post office box by first class mail and certified mail. At that time, Prince had begun using a different post office box. He did not inform the officials of his new address, but he had arranged to have mail that arrived at his old post office box forwarded to the new box. Once again, the copy of the notice that the Auditor sent to the apartment building came back marked “return to sender, vacant, unable to forward.” Ex. Vol., Ex. E. Furthermore, Prince did not claim the copy that was sent to his post office box via certified mail. However, the copy that the Auditor sent to his post office box via first class mail was not returned.

Next, in May 2011, the Auditor sent Prince a notice that a petition had been filed with the trial court to issue a tax deed on or after June 10, 2011. Once again, the Auditor sent a copy to the apartment building by first class mail and sent copies to Prince’s California post office box by first class mail and certified mail. The copy of the notice that the Auditor sent to the apartment building came back marked “return to sender, vacant, unable to forward.” Ex. Vol., Ex. G. However, the copy that the Auditor sent to Prince’s post office box via first class mail was not returned.

Subsequently, Prince received a call from the manager of his apartment building, who told him that several individuals had arrived at the building and asserted that they were the new owners. After receiving this information, Prince filed a motion for relief from judgment, asking the court to set aside the judgment and order for sale. The court held an eviden-tiary hearing. After the hearing, the trial court concluded as follows:

The Auditor’s efforts to notify Prince of the sale, redemption period and issuance of the tax deed were constitutionally and statutorily sufficient. The failure to include the dates of notice and publication in the Application does not cause the Judgment And Order For Sale — and thus the sale itself — to be void; there was substantial compliance with the statute, and the Application did not mislead or otherwise prejudice Prince. Prince’s Motion For Relief From Judgment is DENIED.

Appellant’s App. p. 15. This appeal followed.

DISCUSSION AND DECISION

Motions for relief from judgment are governed by Indiana Trial Rule 60(B). Prince cited Rule 60(B)(6) in his motion. That rale provides, in relevant part, “On motion and upon such terms as are just the court may relieve a party or his legal representatives from a judgment, including a judgment by default, for the following reasons ... the judgment is void.”

The decision of whether to grant or deny a Trial Rule 60(B) motion for relief from judgment is within the sound, equitable discretion of the trial court. Stonger v. Sorrell, 776 N.E.2d 353, 358 (Ind.2002). We will not reverse a denial of a motion for relief from judgment in the absence of an abuse of discretion. Id. A trial court abuses its discretion if its decision clearly contravenes the logic and effects of the facts and circumstances or if the trial court has misinterpreted the law. Purcell v. Old Nat’l Bank, 972 N.E.2d 835, 843 (Ind. 2012).

In addition, where, as here, the trial court enters special findings and conclusions, our standard of review is two-tiered. Stonger, 776 N.E.2d at 358. First, we determine whether the evidence supports the findings, and second, whether the findings support the judgment. Id. The findings and conclusions will be set aside only if they are clearly erroneous. Id. The evidence is viewed in the light most favorable to the judgment, and we will defer to the trial court’s factual findings if they are supported by the evidence and any legitimate inferences therefrom. Marion Cnty. Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213, 216-17 (Ind.2012). Legal conclusions are reviewed de novo. Id.

I. ADEQUACY OF APPLICATION FOR JUDGMENT AND ORDER FOR SALE

Prince argues that the trial court’s order authorizing the sale of his parcels was void because the officials’ application failed to comply with statutory requirements.

When an owner of real estate fails to pay property taxes, the property may be subject to sale in settlement of the delinquent taxes. Id. at 217. The tax sale process is a purely statutory creation and requires material compliance with each step of the statutes, Indiana Code sections 6-1.1-24-1 through -15 (sale) and 6—1.1— 25-1 through -19 (redemption and tax deeds). Schaefer v. Kumar, 804 N.E.2d 184, 191 (Ind.Ct.App.2004), trans. denied. The issuance of a tax deed creates a presumption that a tax sale and all of the steps leading up to the issuance of the tax deed are proper. Id. However, this presumption may be rebutted by affirmative evidence to the contrary. Id.

As part of the tax sale process, the county treasurer and county auditor must file an application for judgment and order for tax sale with a court and receive the court’s permission to proceed with the tax sale. Ind.Code § 6-1.1-24-4.6 (2007). This statute provides, in relevant part:

Application for judgment and order for sale shall be made as one (1) cause of action to any court of competent jurisdiction jointly by the county treasurer and county auditor. The application shall include the names of at least one (1) of the owners of each tract or item of real property, the dates of mailing of the notice required by sections 2 and 2.2 of this chapter, the dates of publication required by section 3 of this chapter, and the affidavit and corrected list as provided in subsection (a).

Ind.Code § 6-1.1-24-4.6(b).

Here, the officials filed an application for judgment and order for tax sale for with the trial court on September 15, 2010. The officials concede the application lacked the dates of mailing of the pre-sale notice and the dates of publication for the parcels at issue. However, they argue that the application nonetheless materially complied with the requirements of the statute.

Prince claims the affidavit the officials attached to their application is defective because it lacks a notarial seal. As a general rule, all notarial acts must be attested by a seal. Ind.Code § 33-42-2-4 (2004). Our Supreme Court, however, does not require strict compliance with this requirement. See Brown v. N. Ind. Land Co., 185 Ind. 520, 112 N.E. 525, 527 (1916) (reversing the trial court’s decision to dismiss a case due to an affidavit’s lack of a notarial seal and holding that the appellant had substantially complied with the requirements for an affidavit).

In this case, the officials provided Prince with notice of the sale, as they asserted in their affidavit. Prince does not dispute signing for the certified copy of the notice that they sent to his California post office box. Furthermore, Prince does not dispute that he owed property taxes on the parcel, as stated in the officials’ affidavit. Prince also fails to explain how he was prejudiced by any defects in the application, because the officials were not required to send him a copy and he did not see it until after he had been informed that the parcels had been sold. In addition, the application stated Prince’s name, identified the parcels at issue, and stated the amount of property taxes due. While it would have been better for the court to require the officials to provide all of the information set forth in Indiana Code section 6-1.1 — 24—4.6(b), there is sufficient evidence to support the trial court’s findings and conclusions that the application substantially complied with the statutory requirements. The trial court did not abuse its discretion.

II. NOTICE TO PRINCE

Prince claims that the officials failed to provide him with adequate notice of the sale of his properties, thereby depriving him of due process of law. Before the government may sell property due to unpaid property taxes, the Due Process Clause of the Fourteenth Amendment to the United States Constitution requires the government to provide the owner with “notice and opportunity for hearing appropriate to the nature of the case.” Sawmill Creek, 964 N.E.2d at 217 (quoting Jones v. Flowers, 547 U.S. 220, 223, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006)). Due process does not require that a property owner receive actual notice before the government may take his property. Jones, 547 U.S. at 226, 126 S.Ct. 1708. Rather, the government must provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Id.

In Indiana, title conveyed by a tax deed may be defeated if three required notices, specifically the notice of tax sale, the notice of the right of redemption, and the notice of petition for tax deed, are not in substantial compliance with statutory requirements. Schaefer, 804 N.E.2d at 191. The notice of tax sale is governed by Indiana Code section 6-1.1-24-4 (2007), which requires the county auditor to send notice of the tax sale by certified mail to the owner or owners of the real property at their last known address.

Next, Indiana Code section 6-1.1-25-4.5 (2007) governs notices of the right of redemption. According to that statute, a person who purchases property at a tax sale must send the owner of the property a notice of the sale and of the right of redemption via certified mail at the last address for the owner as indicated in the county auditor’s records. Id.

Finally, if the owner of record does not redeem the property from the tax sale within the required period, the purchaser may petition the trial court for issuance of a tax deed. Ind.Code § 6-1.1-25-4.6 (2007). The purchaser must provide notice of the petition to the owner of record in the same manner set forth in Indiana Code section 6-1.1-25-4.5. Ind.Code § 6-1.1-25-4.6.

Here, the Auditor sent Prince the notice of the tax sale, the notice of the right of redemption, and the notice of petition for tax deed in three different ways: (1) to the apartment building, (2) to Prince’s California post office box via certified mail, and (3) to Prince’s California post office box via first class mail. Furthermore, after the tax sale the Auditor obtained a title search on Prince’s parcels in an unsuccessful effort to locate additional addresses. All of the notices sent to the apartment building were returned to the Auditor indicating that the property was vacant. However, Prince received the notice of tax sale that was sent to his post office box via certified mail. Furthermore, none of the notices that the Auditor sent to Prince’s post office box via first class mail were returned to the Auditor. Thus, the Auditor substantially complied with the statutes that govern the notices, and the manner of service the Auditor chose was reasonably calculated, under all the circumstances, to apprise Prince of the pendency of the action and afford him an opportunity to object. See Sawmill Creek, 964 N.E.2d at 220 (determining that the county auditor’s manner of service satisfied due process requirements, despite the property owner’s failure to receive actual notice, because the Auditor published notices in multiple ways, mailed notices to all addresses of which it was aware, and obtained a title search in an attempt to find additional addresses for the owner).

Prince argues that the officials should have posted the notices at the apartment building, where his manager would have seen it. We cannot conclude that principles of due process required the officials to post the notice. All of the notices the Auditor had sent to the apartment building had come back indicating that the property was vacant. It would not be reasonable to require the Auditor to post notice at what was, to the best of the Auditor’s knowledge, vacant property. See id. at 221 (determining that the Auditor was not required to post notice at the property because the Auditor’s records indicated the property was empty land).

Next, Prince argues that the holding in Jones requires us to reverse, but that case is factually distinguishable. In Jones, the government agency seeking to sell Jones’s property for unpaid taxes sent one notice of the tax sale to Jones, via certified mail. The certified mail was unclaimed, and the agency proceeded with the tax sale. The United States Supreme Court concluded that, under the circumstances, the agency’s attempts to provide notice to Jones did not comply with principles of due process, particularly because the agency took no further steps after learning that the only notice that it sent had failed to reach the owner. Jones, 547 U.S. at 238, 126 S.Ct. 1708.

In the current case, none of the notices that the Auditor sent to Prince’s post office box via first class mail were returned. Furthermore, Prince had signed the certified mail receipt for the notice of tax sale, which was also sent to the post office box. Thus, the Auditor knew that service had been accomplished. Furthermore, after the tax sale the Auditor obtained a title search to locate other addresses for Prince. Consequently, the officials acted ■with far more diligence than the agency in Jones, and that case does not compel reversal here. The trial court did not abuse its discretion in concluding that the officials’ notices to Prince regarding the tax sale process met the requirements of due process.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court.

Affirmed.

BAKER, J., and MAY, J., concur.

      . The record does not reveal the identity of these individuals or whether Marion County had, in fact, sold or otherwise transferred the parcels to them.

      . Prince cites Marra v. Clapp, 255 Ind. 97, 262 N.E.2d 630 (1970), for the principle that a party following a process set forth by statute must strictly comply with the terms of the statute. Marra addresses an election contest, not a tax sale. We conclude that Schaefer and its antecedents, which directly address tax sales and require material, rather than strict, compliance with statutory requirements, are applicable here.

      . Prince further notes that the record contains two versions of the affidavit, both of which bear a September 15, 2010 file-mark. The version that is attached to the trial court's ruling on Prince’s motion for relief from judgment contains the notary public’s signature, the date of execution, the county, and the date the notary's commission expired. The version Prince attached to his motion for relief from judgment lacks the date of execution and the date the notary’s commission expires. Prince fails to explain why there are two versions of the affidavit. We shall consider the more complete version of the affidavit to be valid in the absence of evidence or argument to the contrary, and the sole defect in that version is the absence of a notarial seal.

      . Prince argues for the first time in his reply brief that the officials could not have known at the time they filed the application that they had provided Prince with proper notice because the certified mail receipt did not come back until after the officials had filed the application. We disagree. The Auditor had sent copies of the notice of tax sale to Prince's California post office box by first class mail and certified mail, and the copy they sent first class was not returned. Thus, the officials had reason to state that they had sent Prince notice of the sale.


author: FRIEDLANDER, Judge.

text:
    Matthew LONGEST, Deceased, by Robert LONGEST, Administrator of the Estate and Parent of Matthew Longest, and Robert Longest, Jr., Administrator of the Estate of Maribel Longest, Deceased and Parent of Matthew Longest, Appellants-Plaintiffs, v. Lisa M. SLEDGE, a minor, and Roger Brown and Donna Sledge, a/k/a Donna Sledge Brown, Appellees-Defendants.
    No. 47A05-1211-CT-594.
    Court of Appeals of Indiana.
    July 17, 2013.
    Rehearing Denied Sept. 19, 2013.

      Mary Beth Ramey, Ramey & Hailey, Indianapolis, IN, Nicholas F. Baker, The Hastings Law Firm, Indianapolis, IN, Attorneys for Appellants.
    William H. Kelley, Darla S. Brown, Kelley, Belcher & Brown, Bloomington, IN, Attorneys for Appellees.
   OPINION

FRIEDLANDER, Judge.

Robert Longest Sr. and Maribel Longest (collectively, the Longests) filed a wrongful death action following the death of their son, Matthew Longest, and named Lisa Sledge, Donna Sledge Brown, and Robert Brown as defendants. The Long-ests appeal from a final judgment following the trial court’s entry of partial summary judgment in favor of defendants on the Longests’ claims under the Child Wrongful Death Statute (CWDS) and the General Wrongful Death Statute (GWDS). The Longests raise the following issues for our review:

1. Did the trial court err in granting summary judgment for the defendants on the Longests’ CWDS claim based on its conclusion that Matthew was not a child for the purposes of the CWDS because he was not enrolled in a vocational school or program?
2. Did the trial court err in granting partial summary judgment for the defendants on the Longests’ GWDS claim based on its conclusion that the Longests were not Matthew’s dependents for the purposes of the GWDS?
3.Did the trial court abuse its discretion in limiting its award of attorney fees?

We affirm in part, reverse in part, and remand with instructions.

In 1998, twenty-one-year-old Matthew was living with his parents and participating in an informal, non-union apprenticeship to become a journeyman mason under his father’s supervision. Matthew had begun learning the masonry trade from his father while still in high school, and after leaving high school in 1995, became his father’s full-time apprentice. In December 1997, Robert Sr., who had previously been self-employed for a number of years as a journeyman mason, took a job with Wilhelm Construction Company as a mason. At that time, Matthew also began working for Wilhelm as a hod carrier. Wilhelm offered a union apprenticeship program, but Matthew did not enroll. Instead, Matthew continued his informal apprenticeship with Robert Sr. while they worked together at Wilhelm.

On April 21, 1998, Robert Sr. was driving Matthew home after a day at work when they were involved in a head-on collision with a vehicle driven by then-sixteen-year-old Lisa Sledge. Matthew did not survive the accident, and Robert Sr. was seriously injured.

On October 4, 1999, the Longests filed an action against the defendants asserting four claims: Count I, the estate’s wrongful death claim under the GWDS; Count II, the Longests’ wrongful death claim under the CWDS; Count III, Robert Sr.’s personal injury claim; and Count IV, Maribel’s loss of consortium claim. On April 12, 2001, the defendants filed a motion for partial summary judgment arguing that recovery under the GWDS was limited to medical, funeral, and administration expenses and attorney fees because the Longests were not Matthew’s “dependent next of kin.” Appellant’s Appendix at 21. The Longests filed a response in which they argued that they were entitled to recovery under the CWDS or, alternatively, the GWDS. The defendants replied in support of their motion for summary judgment and argued that Matthew was not a child for the purposes of the CWDS because Matthew’s apprenticeship with his father did not constitute enrollment in a vocational school or program, and that Matthew’s contributions to the Longest household were insufficient to create a genuine issue of material fact concerning whether his parents were dependent upon him.

The trial court heard argument and took the matter under advisement before granting partial summary judgment in favor of the defendants on September 25, 2001. In its order, the trial court concluded that the Longests were not entitled to recover under the CWDS because Matthew was not enrolled in a vocational school or program at the time of his death, and that recovery under the GWDS was limited to medical and funeral expenses by the estate because the Longests were not Matthew’s dependent next of kin. The trial court granted the Longests’ request to certify its partial summary judgment order for interlocutory appeal, but this court declined to accept jurisdiction.

On June 4, 2004, the Longests filed a motion asking the trial court to set aside its partial summary judgment order, which the trial court denied on July 21, 2004. Thereafter, on September 15, 2008, the Longests filed a motion asking the trial court to “certify the issue of Matthew Longest[’s] legal status for Interlocutory Appeal to the Indiana Court of Appeals.” Appellant’s Appendix at 122. The trial court granted the order, but this court again declined to accept jurisdiction.

On May 23, 2012, a bench trial was held regarding liability and damages, at which the Longests again asked the court to reconsider its prior partial summary judgment order. On October 22, 2012, the trial court entered its final order. In the order, the trial court denied the Longests’ request to set aside the partial summary judgment order, concluding that the Long-ests “ha[d] not shown any additional evidence to persuade the court the decision was incorrect.” Appellant’s Appendix at 132. The trial court found in favor of the Longests on the issue of liability and entered an order on damages and attorney fees. The trial court concluded that the damages recoverable were limited to funeral and burial expenses, costs and expenses of administration of the estate, and attorney fees related to the administration of the estate. The Longests now appeal.

1.

The Longests first argue that the trial court erred in granting summary judgment in favor of the defendants on the Longests’ CWDS claim. When reviewing a trial court’s ruling on a motion for summary judgment, this court stands in the shoes of the trial court and applies the same standards in deciding whether to affirm or reverse the ruling. Ritchhart v. Indianapolis Pub. Sch., 812 N.E.2d 189 (Ind.Ct.App.2004), trans. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267 (Ind. 2009). This standard requires us to construe all factual inferences in favor of the nonmoving party, and all doubts as to the existence of an issue of material fact must be resolved against the moving party. Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267.

The CWDS allows a parent to maintain an action against a person whose wrongful act or omission causes the injury or death of a child. I.C. § 34-1-1-8. The remedies available in such an action include damages for the loss of the child’s services, love, and companionship, as well as medical, burial, and administrative expenses, including attorney fees. Id. At issue in this appeal is whether Matthew was a child for the purposes of the CWDS at the time of his death. The version of the CWDS in effect at the time of Matthew’s death provided the following definition:

(a) As used in this section, “child” means an unmarried individual without dependents who is:
(1) less than twenty (20) years of age; or
(2) less than twenty-three (23) years of age and is enrolled in an institution of higher education or in a vocational school or program.

Id. This court has noted that the statutes creating actions for wrongful death are in derogation of common law, and must therefore be strictly construed. Deaconess Hosp., Inc. v. Gruber, 791 N.E.2d 841 (Ind.Ct.App.2003). Nevertheless, this court has been willing to interpret the language of the CWDS pertaining to enrollment in an institution of higher education or a vocational school or program “as liberally as it can and still remain within the clear meaning of the statute.” Ledbetter v. Ball Memorial Hosp., 724 N.E.2d 1113, 1118 (Ind.Ct.App.2000) (citing Sweet v. Art Pape Transfer, Inc., 721 N.E.2d 311 (Ind.Ct.App.1999), trans. dismissed ), trans. denied.

The trial court granted summary judgment against the Longests based on its conclusion that Matthew was not enrolled in an institution of higher education or a vocational school or program at the time of his death. On appeal, the Longests argue that Matthew’s informal apprenticeship under his father’s supervision constituted enrollment in a vocational program. In support of this contention, the Longests direct our attention to the designated affidavits of Robert Sr. and Edward Bickel, a former field representative for the local unit of the International Union of Bricklayers & Allied Craftworkers. In these affidavits, both Bickel and Robert Sr. attested that in order to become a mason, a person must complete an apprenticeship with a person or persons who practice the trade. They testified further that there are two types of apprenticeships. First, there are “[l]ess formalized (and usually nonunion) apprenticeship programs consisting exclusively of extensive-on-the-job training by a skilled mason.” Appellant’s Appendix at 61, 79. Both Robert Sr. and Bickel attested that there is no formal enrollment for this type of apprenticeship. Second, there are “[fjormalized apprenticeship programs organized by the union, which include classroom instruction in addition to on the job training.” Id. at 61, 79. According to Bickel and Robert Sr., “[a] person who completes either type of apprenticeship program and attains a high degree of skill earns the title ‘journeyman mason.’ ” Id. at 62, 80. Both Bickel and Robert Sr. attested that “[t]he International Union of Bricklayers & Allied Craft-workers recognizes both types of training programs and will certify a person who completes a ‘non-union’ apprenticeship as a union mason if the requisite skill of workmanship is shown.” Id. at 62, 80. Additionally, Robert Sr. stated that he had become a union-certified mason through an informal, on-the job apprenticeship, and that his oldest son, Robert Jr., became a union-certified mason by completing a similar, informal apprenticeship under Robert Sr.’s supervision.

Robert Sr. attested further that from 1995 until 1997, he was self-employed as a mason and Matthew worked full-time for him as his apprentice. Robert Sr. and Matthew both took jobs at Wilhelm in December 1997 — Robert Sr. as a mason and Matthew as a hod carrier. Although Matthew did not enroll in Wilhelm’s union apprenticeship program, his informal apprenticeship was ongoing at the time of his death. The Longests argue that this informal, non-union apprenticeship was sufficient at least to create a genuine issue of material fact concerning whether Matthew was enrolled in a vocational school or program at the time of his death. In arguing that Matthew was not enrolled in such a program, the defendants note that Matthew “was not taking any classes”; they note further that Matthew had not enrolled in Wilhelm’s apprenticeship program, which “would have involved classroom instruction, extensive record keeping, and enrollment in addition to on-the-job training.” Appellee’s Brief at 7, 8. The defendants argue further that “[w]hat the Longests’ [sic] described as ‘an informal apprenticeship program’ was not a ‘program’ at all. The most that the Long-ests were able to show was that Matthew Longest was considering entering an apprenticeship at some point in the future.” Id. at 10.

In sum, the defendants argue that some degree of formality and classroom instruction is required for a course of training to qualify as a vocational program for the purposes of the CWDS. The Longests disagree and direct our attention to Sweet v. Art Pape Transfer, Inc., 721 N.E.2d 311, which we find illuminating on this point. In that case, Sweet filed a CWDS claim following the death of her twenty-one-year-old daughter, Shawnee. Shawnee had been employed at the Trinity School of Natural Health, a non-profit Christian institution that was not accredited through or financially supported by the state or federal government. Trinity offered self-study programs in natural health, the successful completion of which would result in titles such as “Master Herbalist, Doctor of Naturopathy, and Master of Holistic Health.” Sweet v. Art Pape Transfer, Inc., 721 N.E.2d at 312. Students in the programs answered a set of questions at the end of each section of their texts and sent their answers to Trinity to be graded, without any imposed deadlines. As an employee of Trinity, Shawnee was entitled to pursue the courses offered there free of charge and without filling out an enrollment application. Although Trinity’s records did not reflect that Shawnee was enrolled as a student at the time of her death, she had received permission from the registrar to pursue the Master Herbalist course, obtained textbooks, and begun studying. Sweet v. Art Pape Transfer, Inc., 721 N.E.2d 311.

The trial court granted summary judgment for the defendants on Sweet’s CWDS claim based on its conclusion that Shawnee was not a child for the purposes of the CWDS because she was not enrolled in a vocational school or program at the time of her death. This court reversed. In addressing Sweet’s arguments on appeal, the court separately analyzed the questions of whether Shawnee was “enrolled” and whether Trinity was a “vocational school or program.” In concluding that Shawnee was “enrolled” for the purposes of the CWDS, the court rejected the defendants’ contention that enrollment required the making of a written record. Id. In doing so, the court noted that as an employee of Trinity, Shawnee was not required to fill out an application form before commencing her studies, and that there would have been no need for her to complete a financial agreement because the programs were free of charge to her. Consequently, the court “declinefd] to impose upon this wrongful death litigant a requirement of a written enrollment record where the statute includes no such requirement and where the victim’s status as an employee-student would render a written enrollment record superfluous.” Id. at 314.

Next, the court addressed whether Trinity could be classified as a “vocational school or program.” Sweet argued that the self-study programs offered by Trinity were vocational because they prepared students “to advise clients about natural health in jobs with chiropractors and medical doctors, in health food stores, and with distributors of nutritional supplements.” Id. This court agreed that the self-study programs were vocational for the purposes of the statute, relying in part on the language of a now-repealed statutory provision relating to public and private education, which broadly defined “vocational education” to include “any education the major purpose of which is to prepare a person for profitable employment.” Sweet v. Art Pape Transfer, Inc., 721 N.E.2d at 314 (quoting Ind.Code Ann. § 20-10.1-1-11(a) (repealed by P.L. 1-2005, § 240)).

Although Sweet is factually distinguishable from the case as hand, we find its reasoning helpful here. We agree with that court’s conclusion that “enrollment” does not necessarily require any written record, particularly where the circumstances indicate such records would be unnecessary or superfluous. Here, both Bickel and Robert Sr. attested that there is no formal enrollment process for nonunion, on-the-job apprenticeships like the one in which Matthew was participating. We decline to impose such a rigid requirement in this case, particularly in light of the fact that Matthew was learning the trade under the supervision of his own father. Rather, we conclude that in this context, to be “enrolled” in a vocational program means no more than to be actively participating in such a program. Robert Sr. testified that Matthew was continuously participating in the apprenticeship at the time of his death. Thus, provided that the non-union apprenticeship qualifies as a vocational program, we have little difficulty concluding that Matthew was “enrolled” for the purposes of the CWDS.

Turning now to the question of whether the apprenticeship qualifies as a “vocational school or program,” we agree with the Sweet court that the phrase encompasses “any education the major purpose of which is to prepare a person for profitable employment.” Id. (citation omitted). Unlike the defendants, we see no reason to impose a requirement that these educational programs contain a component of traditional classroom instruction. The courses at issue in Sweet were self-study courses that required students to obtain textbooks, study them, and complete a module of questions at the end of each chapter. Contrary to the defendants’ assertion on appeal, there is no indication that the self-study courses at issue in that case included classroom instruction.

Moreover, we believe the legislature’s decision to delay the age of majority for the purposes of the CWDS from age twenty until age twenty-three where the decedent is enrolled in an “institution of higher education or in a vocational school or program” reflects its intention to allow recovery when a decedent was in active pursuit of any of a broad range of educational goals — ranging from college degrees to trade designations and other, less traditional certifications like those at issue in Sweet. We believe that disallowing coverage based solely on a program’s informality and focus on real-world, on-the-job training as opposed to classroom learning would ignore the practical realities of many courses of vocational study and exclude those in pursuit of a number of traditional trade designations from the operation of the CWDS. In light of the statute’s broad language and express inclusion of vocational programs, we do not believe this to have been the legislature’s intent.

None of this is to suggest, however, that merely adding an element of on-the-job training will transform what would otherwise be nothing more than a job into a vocational program. Here, Matthew was simultaneously working as hod carrier and pursuing his informal apprenticeship under his father’s supervision. Provided Matthew successfully completed the apprenticeship and demonstrated the requisite skill, he would have attained the title of journeyman mason and been eligible for union certification. As Robert Sr. attested, “[wjhether working for me or for Wilhelm, and whether in the union’s formal apprentice program or through the less formal, but equally accepted on-the-job training, Matthew was working toward the completion of his apprenticeship and becoming a mason.” Appellant’s Appendix at 63. Based on these facts, we conclude that the evidence most favorable to the Longests as the non-moving parties is sufficient to create a genuine issue of material fact as to whether the informal, non-union apprenticeship was a vocational program for the purposes of the CWDS.

We therefore conclude that there are genuine issues of material fact precluding summary judgment in favor of the defendants on the issue of Matthew’s status as a child for the purposes of the CWDS. Consequently, the trial court erred in granting summary judgment on the Longests’ CWDS claim, and we remand with instructions to vacate that portion of its judgment and for further proceedings consistent with this opinion.

2.

Next, the Longests argue that the trial court abused its discretion in granting partial summary judgment on the issue of whether the Longests were Matthew’s dependent next of kin for the purposes of the GWDS. The GWDS provides, in pertinent part:

When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter ... and the damages shall be in such an amount as may be determined by the court or jury, including, but not limited to, reasonable medical, hospital, funeral and burial expenses, and lost earnings of such deceased person resulting from said wrongful act or omission. That part of the damages which is recovered for reasonable medical, hospital, funeral and burial expense shall inure to the exclusive benefit of the decedent’s estate for the payment thereof. The remainder of the damages, if any, shall, subject to the provisions of this article, inure to the exclusive benefit of the widow or widower, as the case may be, and to the dependent children, if any, or dependent next of kin, to be distributed in the same manner as the personal property of the deceased.... [W]hen such decedent leaves no such widow, widower, or dependent children, or dependent next of kin, surviving him or her, the measure of damages to be recovered shall be the total of the necessary and reasonable value of such hospitalization or hospital service, medical and surgical services, such funeral expenses, and such costs and expenses of administration, including attorney fees.

I.C. § 34-23-1-1 (emphasis supplied). It is undisputed that Matthew left no widow or dependent children. Thus, in order for the Longests to recover under the GWDS, they must establish that they were Matthew’s “dependent next of kin.” Concluding that the Longests were not Matthew’s dependents, the trial court granted summary judgment for the defendants on this issue.

On appeal, the Longests argue that the designated evidence establishes that they were Matthew’s dependents. In the context of wrongful death actions, our Supreme Court has held that “proof of dependency must show a need or necessity of support on the part of the person alleged to be dependent ... coupled with the contribution to such support by the deceased.” New York Cent. R.R. Co. v. Johnson, 234 Ind. 457, 465, 127 N.E.2d 603, 607 (1955). This court has noted:

Dependency is based on a condition and not a promise, and such dependency must be actual, amounting to a necessitous want on the part of the beneficiary and a recognition of that necessity on the part of decedent, an actual dependence coupled with a reasonable expectation of support or with some reasonable claim to support from decedent. The mere fact that deceased occasionally contributed to the support of the beneficiary in an irregular way, is not sufficient to support the action....

Deaconess Hosp., Inc. v. Gruber, 791 N.E.2d at 845 (quoting Wolf v. Boren, 685 N.E.2d 86, 88 (Ind.Ct.App.1997) (ellipsis in original)).

The designated evidence establishes that at the time of his death, Matthew was living in his parents’ home. Both of his parents were able-bodied and gainfully employed, and they admit that they were not totally dependent upon him. Nevertheless, they argue that they were partially dependent on Matthew because Matthew paid his mother between fifty and one hundred dollars per week for rent, food, laundry, and to offset the expenses of him living there. In her deposition, Maribel testified that Matthew’s financial contributions totaled five to six thousand dollars per year.

We acknowledge that total dependency is not required under the GWDS; indeed, this court has held that a “plaintiff may be partially dependent even though he could survive without the contribution made by the deceased.” Id. at 846 (quoting Lustick v. Hall, 403 N.E.2d 1128, 1131-32 (Ind.Ct. App.1980)). On the other hand, our supreme court has held that “[p]ayments for board, lodging or other accommodations ... are not sufficient to establish dependency on the part of the recipient.” New York Cent R.R. Co. v. Johnson, 234 Ind. at 465, 127 N.E.2d at 607. Both Robert Sr. and Maribel acknowledged that the funds Maribel received from Matthew were in the nature of payments for room, board, and laundry services. Indeed, Maribel stated that she “charged” him between fifty and one hundred dollars per month as a rent payment and in order to offset the expenses of him living in the home. Transcript at 77. Accordingly, these payments are insufficient to create a genuine issue of material fact with respect to dependency for the purposes of the GWDS.

The Longests also point out that Matthew performed services for his mother. Specifically, Maribel testified in a deposition that “in the winter he’d bring wood down. He done things to my car. He’d run errands for me. He was a tall young man so, you know, he done a lot of things that I couldn’t do, reaching, just ... Yes, I depended on him a lot.” Appellant’s Appendix at 73.

Services may be sufficient to establish dependency, but the contributions must be more than just a service or benefit to which the claimed dependent has become accustomed, and they “must go beyond merely helping other family members, even those who have relied on that assistance.” Deaconess Hosp., Inc. v. Gruber, 791 N.E.2d at 846 (quoting Estate of Sears ex rel. Sears v. Griffin, 771 N.E.2d 1136, 1139 (Ind.2002)).

We find this court’s decision in Chamberlain v. Parks, 692 N.E.2d 1380 (Ind.Ct. App.1998), trans. denied, instructive here. In that case, the decedent’s parents sought recovery under the GWDS as dependent next of kin based on the personal services their son had provided them during his lifetime. The decedent’s mother stated that she depended on the decedent for a variety of services, including carrying groceries and laundry, household cleaning and maintenance, yard work, working on cars, cooking, and running errands. The trial court granted summary judgment for the defendants on the issue of dependency, and this court affirmed, reasoning that the decedent’s acts “amounted to no more than gifts, donations and acts of generosity expected of a son to whom free housing, most of his board, gasoline money and automobile insurance was provided.” Id.

We reach a similar conclusion here. We acknowledge that Matthew regularly helped out around the house, and Maribel had undoubtedly come to expect and rely to some extent upon that help. But as our Supreme Court has noted, “[s]ervices must go beyond merely helping other family members, even those who have relied on that assistance.” Estate of Sears ex rel. Sears v. Griffin, 771 N.E.2d at 1139. We therefore conclude that Matthew’s actions amounted to no more than the sort of gifts, acts of generosity, and kindness to be expected of a son still living under his parents’ roof. More is required to establish dependency for the purposes of the GWDS. Accordingly, we cannot conclude that the trial court erred in granting partial summary judgment in favor of the defendants on the Longests’ GWDS claim, and we affirm that portion of the judgment.

B.

Finally, the Longests argue that the trial court abused its discretion in limiting their recovery of attorney fees. We review a trial court’s award of attorney fees for an abuse of discretion; thus, we will reverse only when an award is clearly against the logic and effect of the facts and circumstances before the court. Benaugh v. Garner, 876 N.E.2d 344 (Ind.Ct.App. 2007), trans. denied. Under the GWDS, the Estate may recover “for the necessary and reasonable costs and expenses of administering the estate and prosecuting or compromising the action, including a reasonable attorney’s fee[.]” I.C. § 34-23-1-1 (emphasis supplied). “What constitutes reasonable attorney fees is a matter largely within the trial court’s discretion.” Franklin College v. Turner, 844 N.E.2d 99, 105 (Ind.Ct.App.2006). In determining whether a fee is reasonable, the trial court may consider such factors as the time, labor, and skill required to perform the legal service, the amount involved and the results obtained, the experience, reputation, and ability of the lawyer, and the fee customarily charged in the locality for similar legal services. Nunn Law Office v. Rosenthal, 905 N.E.2d 513 (Ind.Ct.App. 2009). Finally, “[t]he trial judge is considered to be an expert on the question and may judicially know what constitutes a reasonable attorney’s fee.” Rand v. City of Gary, 834 N.E.2d 721, 723 (Ind.Ct.App. 2005) (citing Glover v. Torrence, 723 N.E.2d 924, 938 (Ind.Ct.App.2000)), trans. denied.

As an initial matter, we note that the issue of attorney fees was not addressed during the bench trial in this matter; instead, the parties agreed to file post-trial submissions on the issue. From our review of the chronological case summary and the trial court’s final order, it appears that the Longests filed a verified petition for attorney fees and an attorney fee affidavit on June 29, 2012, and the defendants filed a response in opposition on July 20, 2012, which was also accompanied by an affidavit. The Longests, however, have not favored us with copies of any of these documents. “It is an appellant’s duty to provide an adequate record for review.” Page v. Page, 849 N.E.2d 769, 771 (Ind.Ct.App.2006). Because the Longests have not presented us with a complete record, we are unable to review the evidence presented to the trial court on this matter. Instead, we must rely exclusively on the findings the trial court made in ruling on the Longests’ request for attorney fees.

The trial court entered the following relevant findings and conclusions with respect to its attorney fee award:

The value of the attorney’s fees must be reasonable. Hillebrand v. Supervised Estate of Large, 914 N.E.2d 846, 850 (Ind.Ct.App.2009). The court in Hillebrand held that “the damages awarded in a wrongful death action may include the reasonable attorney fees necessary to pursue the action, and these damages inure to the exclusive benefit of the estate for the payment of such costs.” Id. I.C. 29-1-10-13 states that “an attorney performing services for the estate at the instance of the personal representative shall have such compensation therefore out of the estate as the court shall deem just and reasonable.”
The plaintiffs [sic] should only be able to recover for the attorney’s fees associated with Count One of the complaint. It does not appear from the interpretation of the statute that the plaintiffs should be able to recover for attorney’s fees for Counts Two, Three and Four, as they were not related to the administration of the estate. Further, the defendant was awarded summary judgment with respect to Count Two, which was a claim by the parents of Matthew Longest for the loss of love and companionship, services, and affection of their son under the [CWDS].
The [attorney for the] plaintifff[s] also asks that the court set the rate of her services at $350 per hour. This would be appropriate if the accident and all subsequent hearings occurred in Indianapolis or the surrounding area. However, the accident and all subsequent hearings occurred in Southern Indiana. An affidavit submitted by the defense states the prevailing rates in this area range from $125-150/hour. A “ 'reasonable hourly rate’ is based upon market rates in the community for similar services rendered.” Barker v. City of West Lafayette, 878 N.E.2d 230, 233 (Ind.Ct. App.2007).
CONCLUSION AND ORDER
... The plaintiffs are ... entitled to receive reasonable attorney’s fees for fees that are associated with the Estate of Matthew Longest. Indiana’s [GWDS] doesn’t provide for the recovery of attor-ne/s fees for the claims of Robert and Maribel Longest. Robert Longest settled his claim in December of 2004 and his claim for negligent infliction of emotional distress disappeared with that settlement. Because we are dealing with only one of the four claims, years of records and litigation expenses, and because all of the times and expenses are lumped together in the attorney fee affidavit and expense sheets, the records are not clear as to which expenses and hours go to the funeral and burial expenses alone. The court now determines that to ask the Plaintiffs[’] counsel to spend even more time sorting through documents and record’s [sic] to submit specific affidavits as to the funeral and burial hours would delay this case, from 1998, even further. Therefore, in that there were four original claims and we are now dealing with one, the court finds that the equitable solution is to award attorney fees for one fourth of the request at the prevailing Lawrence County attorney fee rate of $150 per hour for a total fee award of $11,356.50 (75.71 hours x $150) plus one forth [sic] of the expenses requested $3,620.60 ($14,480.25 divided by 4).

Appellant’s Appendix at 134-35.

On appeal, the Longests argue that the trial court erred in awarding attorney fees for only one-quarter of the billed hours based on its conclusion that attorney fees were recoverable for only one of the four claims asserted in the Longests’ complaint. Specifically, they argue that “[u]l-timately, the attorneys for the Longests and the Estates had to prove a full case of liability and damages in order to recover any amount, even those amounts for funeral expenses and Estate administration.” Appellant’s Brief at 19. The Longests assert that because it was “impossible for the attorneys or the trial court to subdivide the attorneys’ time devoted to this action,” they are entitled to recover fees for all of the attorney hours spent in pursuit of this case. Id.

On the record before us, we cannot agree. The record, such as it is, contains no support for the Longests’ arguments in this regard. In fact, the record contains no evidence at all concerning the hours the Longests’ attorneys spent in pursuit of this litigation, or the manner in which they spent them. Indeed, we are unable to even determine whether the Longests’ position on appeal with respect to the purported indivisibility of the time spent on this matter is consistent with its position at trial. In light of our standard of review, we decline to simply take the Longests’ statements on this issue at face value. Given the dearth of evidence, we cannot conclude that the trial court abused its discretion in this regard. See Stewart v. TT Commercial One, LLC, 911 N.E.2d 51, 59 (Ind.Ct.App.2009) (noting that “[w]here the amount of the fee is not inconsequential, there must be objective evidence of the nature of the legal services and the reasonableness of the fee”), trans. denied.

The Longests also assert that the trial court abused its discretion in reducing the billed rate of $350 per hour to an award of $150 per hour. According to the Longests, “[t]he trial court never once reviewed whether the amount of hours or the value of the hours were reasonable, but, instead, substituted the attorney’s regular billable rate for a Lawrence county attorney fee.” Appellant’s Brief at 19. We disagree with this characterization of the trial court’s order. The trial court clearly considered the reasonableness of the $350/hour billable rate. Specifically, based on an affidavit submitted by the defendants concerning the customary rates in Lawrence County, the trial court concluded that the billable rate was unreasonable for the relevant market and substituted a typical Lawrence County rate. Again, in light of the absence from the record of the relevant evidence concerning attorney fees, we cannot conclude that the trial court abused its discretion in this regard. We therefore affirm that part of the trial court’s judgment awarding attorney fees on the GWDS claim.

Judgment affirmed in part, reversed in part, and remanded with instructions.

ROBB, C.J., and CRONE, J., concur.

      . Robert Longest Sr. sued in dual capacities as Matthew’s parent and as the administrator of Matthew's estate, while Maribel sued solely in her capacity as Matthew's parent. During the pendency of the litigation in this matter, Maribel passed away. Maribel and Robert Sr.’s surviving son, Robert Longest Jr., was named administrator of her estate and participates in this appeal in that capacity.

      . At the time of Matthew’s death, the CWDS was codified at Ind.Code Ann. § 34-1-1-8 (repealed July 1, 1998 by Pub. L. 1-1998, § 221). Effective July 1, 1998, the CWDS was recodified at Ind.Code Ann. § 34-23-2-1 (West, Westlaw current through June 29, 2013, excluding P.L. 205-2013). Additionally, the relevant language of the recodified statute was amended in 2008. Thus, for the purposes of this opinion, we will refer to the language of the now-repealed I.C. § 34-1-1-8 when discussing the CWDS.

      . At the time of Matthew’s death, the GWDS was codified at Ind.Code Ann. § 34-1-1-2 (repealed July 1, 1998 by Pub. L. 1-1998, § 221). Effective July 1, 1998, the GWDS was recodified at Ind.Code Ann. § 34-23-1-1 (West, Westlaw current through June 29, 2013, excluding P.L. 205-2013). The relevant language of the GWDS did not change with its recodification and has not been subsequently amended. Accordingly, for ease of reference, we will cite the current version of the statute in this appeal.

      . A hod carrier "works in conjunction with the masons, hauling brick, setting up the site, mixing mortar and determining the amount of brick needed for a particular job.” Appellant’s Appendix at 62.

      . Counts III and IV were settled prior to trial and are not at issue in this appeal.

      . Because we reverse on the basis of the statutory language alone, we need not address the Longests’ argument that a contrary construction of the statute would violate article 1, section 23 of the Indiana constitution.

      . We note that the Longests may not receive compensation under both the GWDS and the CWDS. See City of Indianapolis v. Taylor, 707 N.E.2d 1047 (Ind.Ct.App. 1999) (noting that recovery by parents under both statutes is impermissible because under the CWDS, a parent may recover only if the deceased has no dependents, and under the GWDS, a parent may recover only if he or she is a dependent of the deceased). This does not, however, prevent the Longests from pleading both claims in the alternative. See Alaska Seaboard Partners, LP v. Hood, 949 N.E.2d 1247, 1254 (Ind.Ct.App.2011) (noting that "a party may properly plead alternative and contradictory theories”).

      . Because the issue is not before us in this appeal, we do not address whether the Long-ests may recover attorney fees related to their pursuit of the CWDS claim should they prevail on the merits of that claim on remand. See I.C. § 34-1-1-8 (providing that plaintiffs in a CWDS claim may recover damages to pay the expenses "of the administration of the child’s estate, including reasonable attorney’s fees”).

      . According to the Longests, "[t]he Estate presented alternative theories of recovery in the three mentioned counts,” apparently referring to the three counts on which the trial court ruled were not eligible for an attorney fee award — the CWDS claim, Robert Sr.’s personal injury claim, and Maribel’s loss of consortium claim. Appellant’s Brief at 19. We note that none of these three claims were presented by the estate. The Longests, not the estate, were the plaintiffs in the CWDS action. See I.C. § 34 — 1—1—8(b) (providing that a CWDS claim may be maintained by a parent or guardian). Likewise, Robert Sr. was the plaintiff in his personal injury action and Maribel was the plaintiff in her loss of consortium action. The only cause of action advanced by the estate was the GWDS claim.
        See I.C. § 34-23-1-1 (providing GWDS claims may be commenced by the personal representative of the estate).

      . The Longests also argue that the trial court abused its discretion by failing to use "the lodestar method” to determine a reasonable attorney fee. Appellant’s Brief at 19. The Longests quote Barker v. City of W. Lafayette, 878 N.E.2d 230, 233 (Ind.Ct.App.2007), for the proposition that "[t]he lodestar figure is the product of a reasonable number of hours spent on the litigation times a reasonable hourly rate.” Assuming arguendo that the trial court was required to employ this method, our review of the trial court’s order indicates that it did just that. The court determined a reasonable number of hours spent on the claims for which attorney fees were available (75.71 hours) and multiplied that by a reasonable hourly rate ($150 per hour), for a total award of $11,356.50.


text:
    In the Matter of Carl C. JONES, Respondent.
    No. 45S00-1012-DI-680.
    Supreme Court of Indiana.
    June 17, 2013.
   PUBLISHED ORDER ACCEPTING CONSENT TO DISCIPLINE AND IMPOSING DISCIPLINE

The Indiana Supreme Court Disciplinary Commission filed a “Second Amended Verified Complaint for Disciplinary Action” against Respondent. Respondent has tendered to this Court an affidavit of consent to discipline, pursuant to Indiana Admission and Discipline Rule 23(17), acknowledging that the material facts alleged in the complaint are true and consenting to discipline to be determined by this Court. Having reviewed the complaint, the affidavit, and the briefs of the parties, the Court concludes that Respondent engaged in professional misconduct and imposes discipline on Respondent.

Facts: As a result of conduct when visiting a client in jail, Respondent was convicted by a jury on November 4, 2010, of Trafficking with an Inmate, a class A misdemeanor. The contraband he delivered to his incarcerated client consisted of a letter from the client’s girlfriend offering to testify falsely about an alibi for the client, letters from the client’s mother and brother, and other items.

In July 2007, in responding to the Commission’s grievance against him, Respondent stated that any letters confiscated by the jail were mailed to the client by the client’s mother. At his trial in November 2010, however, Respondent testified that he had brought the letters to his client. Respondent makes no attempt to explain the discrepancy in his responses. Since his admission to the allegation at his criminal trial was later in time and against his interests, we surmise that his earlier denial to the Commission was likely the untruthful statement.

A fact in mitigation is Respondent’s lack of disciplinary history. A fact in aggravation is that Respondent has failed to discuss in any manner his untruthful statement to the Commission or express remorse for it.

Violations: Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

8.4(b): Committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.
8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

Discipline: Respondent’s use of his position of trust as an attorney to traffic in any contraband with an inmate is serious misconduct. See Matter of Wagoner, 787 N.E.2d 377, 378 (Ind.2003) (Shepard, C.J., dissenting from approval of conditional agreement); cf. Matter of Fulkerson, 912 N.E.2d 822 (Ind.2009) (attempt to deceive jail personnel to gain access for an unauthorized person to a secure area of jail). In addition, Respondent’s untruthful response to the Commission’s investigative inquiry was a substantial breach of professional ethics. See Matter of Shumate, 626 N.E.2d 459, 461 (Ind.1993).

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of at least six months, without automatic reinstatement, beginning July 30, 2013. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4) and (18). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.

      . In his brief on sanction. Respondent disclaimed knowledge of the letter from the girlfriend offering to testify falsely about an alibi, stating that he gave his client a sealed envelope that he believed contained only letters from the client’s mother. This statement, however, is not under oath or entered into evidence in this case.

      . The Court would find lying under oath at a criminal trial at least as serious an ethical violation.


author: DICKSON, Chief Justice.

text:
    Mary Alice MANLEY, and Gary Manley, Appellants (Plaintiffs), v. Ryan J. SHERER, M.D., and Sherer Family Medicine, P.C., Appellees (Defendants).
    No. 59S01-1205-PL-249.
    Supreme Court of Indiana.
    Aug. 8, 2013.

      W. Brent Gill, Ken Nunn Law Office, Bloomington, IN, James 0. McDonald, Terre Haute, IN, Attorneys for Appellants.
    Edward J. Liptak, Jeremy M. Dilts, Carson Boxberger LLP, Bloomington, IN, Attorneys for Appellees.
   DICKSON, Chief Justice.

In this medical malpractice action the plaintiffs, Mary Alice Manley and Gary Manley, appeal from a grant of summary judgment in favor of the defendants, Dr. Ryan Sherer and Sherer Family Medicine, P.C. We reverse.

On November 27, 2006, Mary Manley was involved in a head-on automobile collision with Kimberly Zehr. At the scene of the accident, Ms. Manley overheard Ms. Zehr say that “she should not be driving because of her medical condition.” Appellants’ App’x. at 24. At an unspecified later date, Ms. Manley learned of an undated letter from Ms. Zehr’s physician, Dr. Sherer, to the Orange County Prosecuting Attorney reporting that Ms. Zehr had several medical conditions that, combined with medications she had been prescribed by Dr. Sherer, may have contributed to the automobile accident. Id. at 125.

The plaintiffs sued Ms. Zehr alleging that, as a result of the collision, Ms. Manley suffered permanent, debilitating injuries that required extensive hospitalization and Mr. Manley suffered a loss of spousal consortium. That case settled for an undisclosed sum. On November 25, 2008, the plaintiffs filed a proposed complaint with the Indiana Department of Insurance against Dr. Sherer and his medical group alleging medical negligence in failing to warn Ms. Zehr not to drive while she was taking her medication. On July 80, 2010, the defendants filed a motion for preliminary determination of law and for summary judgment contending that the plaintiffs failed to timely file their complaint. The trial court granted summary judgment in favor of the defendants, the plaintiffs appealed, and the Court of Appeals reversed. Manley v. Sherer, 960 N.E.2d 815, 818 (Ind.Ct.App.2011). We granted transfer, thereby vacating the opinion of the Court of Appeals. Ind. Appellate Rule 58(A).

When a trial court’s ruling granting or denying summary judgment is challenged on appeal, the procedure and standard under Indiana law is clear. Our standard of review is the same as it is for the trial court. Kroger Co. v. Plonski, 930 N.E.2d 1, 4 (Ind.2010). The moving party “bears the initial burden of making a pri-ma facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.” Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind.2012). Summary judgment is improper if the moving party fails to carry its burden, but if it succeeds, then the non-moving party must come forward with evidence establishing the existence of a genuine issue of material fact. Id. We construe all factual inferences in favor of the non-moving party and resolve all doubts as to the existence of a material issue against the moving party. Plonski, 930 N.E.2d at 5. An appellate court reviewing a challenged trial court summary judgment ruling is limited to the designated evidence before the trial court, see Ind. Trial Rule 56(H), but is constrained to neither the claims and arguments presented at trial nor the rationale of the trial court ruling, see Woodruff v. Ind. Family & Soc. Servs. Admin., 964 N.E.2d 784, 790 (Ind.2012) (“We will reverse if the law has been incorrectly applied to the facts. Otherwise, we will affirm a grant of summary judgment upon any theory supported by evidence in the record.”); Wagner v. Yates, 912 N.E.2d 805, 811 (Ind.2009) (“[W]e are not limited to reviewing the trial court’s reasons for granting or denying summary judgment but rather we may affirm a grant of summary judgment upon any theory supported by the evidence.”).

In the present case, the defendants’ motion for summary judgment primarily asserts that the plaintiffs’ action was not timely commenced in accordance with the Indiana Medical Malpractice Act, which requires claims to be filed within two years of the allegedly negligent act, omission, or neglect. Ind.Code § 34-18-7-1(b). The defendants claim that the last possible alleged act of malpractice occurred on November 21, 2006, when Ms. Zehr last visited Dr. Sherer, and that because the plaintiffs’ proposed complaint was not filed until November 25, 2008, more than two years later, it was untimely. In the defendants’ additional trial court brief in support of their motion for summary judgment, they further argue that the medical malpractice statute of limitation bars this action because the plaintiffs filed their proposed complaint with the Department of Insurance but at no time did they ever file their complaint in court. In addition to asserting their statute of limitation defenses, the defendants also seek summary judgment on the alternative claim that undisputed facts establish that the alleged failure of Dr. Sherer to warn Ms. Zehr against driving could not have been the proximate cause of the ensuing collision. Opposing the defendants’ motion for summary judgment, the plaintiffs argue that the Medical Malpractice Act does not apply to their claim because Ms. Manley was not a patient of Dr. Sherer, and thus the plaintiffs’ claim is not one for medical malpractice subject to the special occurrence-based statute of limitation. As to the defendants’ claim regarding proximate causation, the plaintiffs contend that the foreseeability component of proximate cause is a question of fact in this case.

We preliminarily reject the plaintiffs’ claim that their action against Dr. Sherer and his medical group is not governed by the Indiana Medical Malpractice Act. The plaintiffs have treated it otherwise by filing their proposed complaint with the Department of Insurance as required by the Act. They may not now contend that the Medical Malpractice Act and its time limitation do not apply to their claim.

With respect to the statute of limitation issue, we find that the defendants are not entitled to summary judgment. When a defendant in a medical malpractice action asserts the statute of limitation as an affirmative defense, the defendant bears the burden of establishing that the action was commenced outside that statutory period. Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 695 (Ind.2000). Here, the defendants have established that the plaintiffs did not file the action until November 25, 2008, four days after the two-year medical malpractice statute of limitation had run. But this is not the end of the inquiry. Once the defendant has established that the action was filed outside the statute of limitation, the burden shifts to the plaintiff to establish “an issue of fact material to a theory that avoids the defense.” Id. Here, the designated evidence establishes such a rebuttal to the defense, namely, that there are genuine issues of fact as to the trigger date of the plaintiffs’ malpractice claim and thus whether or not it was “reasonably possible for [them] to present the claim in the time remaining after discovery and before the end of the statutory period.” Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind.2005).

In order for the date to be triggered, our case law requires that a plaintiff be aware of “facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury.” Id. at 1171 (quoting Van Dusen v. Stotts, 712 N.E.2d 491, 497 (Ind.1999)); see also Herron v. Anigbo, 897 N.E.2d 444, 448-51 (Ind.2008) (discussing the triggering of an occurrence-based limitation period). The defendants argue on appeal that the running of the statutory limitation period was triggered when Ms. Manley overheard Ms. Zehr’s statement at the scene of the accident “that she should not be driving because of her medical condition.” Appellants’ App’x at 24. This vague statement overheard by Ms. Manley at the scene of the accident could suggest a bevy of possibilities wholly unrelated to and not reasonably suggestive of a doctor’s failure to warn about side effects of prescribed medication. While there is no evidence to so suggest, even if Ms. Manley had suspected that malpractice was a potential issue at the time the statement was made by Ms. Zehr, we have found in the past that mere suspicion is not enough. Van Dusen, 712 N.E.2d at 499 (“In general ... a plaintiffs lay suspicion that there may have been malpractice is not sufficient to trigger the two-year period. At the same time, a plaintiff need not know with certainty that malpractice caused his injury, to trigger the running of the statutory time period.” (citation omitted)).

The plaintiffs put forth an alternative trigger date, specifically, the date that Ms. Manley received a copy of the letter sent to the Orange County Prosecuting Attorney by Dr. Sherer, identifying himself as Ms. Zehr’s primary care physician, which stated, “I feel that [Ms. Zehr’s] medical conditions and medications combined to cause this problem.” Appellants’ App’x at 125. The plaintiffs reasonably contend that it was not until this point that they possessed knowledge of the facts necessary to investigate Ms. Zehr’s medical history and discover the alleged malpractice. However, because the letter is undated, it is unknown on what date the letter came to the attention of the plaintiffs. It is thus indiscernible whether the plaintiffs could have pursued their malpractice claim within the two-year statutory limit, or, if not, whether they acted within a reasonable time as required by our caselaw. Booth, 839 N.E.2d at 1172 (“[I]f the discovery date is within two years following the occurrence of the alleged malpractice, ... the action must be initiated before the period expires, unless it is not reasonably possible for the claimant to present the claim in the time remaining after discovery and before the end of the statutory period.” (emphasis added)).

We find from the designated evidence that there exists “an issue of fact material to a theory that avoids the defense,” Boggs, 730 N.E.2d at 695, which serves to rebut the defendants’ affirmative defense. “[F]aetual issues relating to the running of the limitations period, such as the date on which the plaintiff first learns of the injury, are to be resolved by the trier of fact at trial.” Herron, 897 N.E.2d at 452. Because we must construe the facts favorably to the plaintiffs as the non-moving party, we conclude that Ms. Manley overhearing Ms. Zehr’s accident-scene remark is insufficient to conclusively establish the trigger date for the limitation period of the Medical Malpractice Act and that there remains a genuine issue of material fact as to both the trigger date and, if within the two-year limitation period, whether the plaintiffs filed their complaint within a reasonable time. The defendants are not entitled to summary judgment on their statute of limitation defense.

We also find no merit in the defendants’ claim that the plaintiffs’ filing of their proposed complaint with the Department of Insurance was insufficient to commence this action within the statutory limitation period. Indiana Code Section 34-18-7-3 explicitly declares, to the contrary, that such filing of a proposed complaint “tolls the applicable statute of limitations.” Ind.Code § 34-18-7-3(a). And a proposed complaint “is considered filed” when a copy is delivered or mailed to the Commissioner of Insurance. Id. § 34—18—7—3(b); see also Jordan v. Deery, 609 N.E.2d 1104, 1107 (Ind.1993) (“[T]he running of a limitation period is suspended for the period of time from the date of filing the proposed complaint until ninety days following re ceipt of the panel opinion.”); Miller v. Terre Haute Reg’l Hosp., 603 N.E.2d 861, 863 (Ind.1992) (“This Court held [in Guinn v. Light, 558 N.E.2d 821 (Ind.1990),] that the filing of a proposed complaint against a health care provider with the Department tolls the statute of limitations until the parties are informed that the provider has not qualified under the Act.”).

We further find that summary judgment is likewise improper as to the defendants’ alternate summary judgment claim asserting lack of causation as a matter of law. The defendants urge that the undisputed facts demonstrate, (a) that the alleged failure of Dr. Sherer to warn Ms. Zehr could not have been the proximate cause of the ensuing collision because Ms. Zehr continued to drive after the collision, thus demonstrating that she would have ignored any warning from Dr. Sherer, and (b) that Ms. Zehr’s choice to drive despite knowing that she “should not be driving” constitutes a superseding cause, thus establishing a lack of the necessary element of causation. Both of these contentions rest on uncertain facts and inferences— genuine issues of material fact — that preclude judgment for the defendants as a matter of law. To obtain summary judgment, a moving party must affirmatively dispel all determinative genuine issues of material fact. It is not enough to cite the absence of evidence and claim that the non-moving party is thereby unable to prove an element of its case. Rather, the moving party must demonstrate that the undisputed facts conclusively establish the absence of a required element of the non-moving party’s case. The defendants did not meet this burden as to the issue of causation.

Finding genuine issues of material fact (1) as to when the plaintiffs either, (a) knew of the alleged malpractice, or (b) learned of facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and resulting injury; and (2) as to the absence of the element of causation necessary to establish liability, we conclude that the defendants’ motion for summary judgment should have been denied. The judgment of the trial court is therefore reversed and this cause remanded for further proceedings.

RUCKER, DAVID, MASSA, and RUSH, JJ., concur.

      . The complaint filed by the Manleys against Ms. Zehr was not included in the record provided to this Court. Therefore, we do not know the exact date the Manleys initiated their claim against Ms. Zehr. The record does contain a "Plaintiffs' Response to Defendants’ Interrogatories and Requests for Production of Documents,” related to that action, which was completed on May 4, 2007. Appellants’ App’x at 35-52. Therefore, for purposes of this opinion we simply note that the initial action commenced at some point before May 4, 2007.

      . The present proceeding was initiated in the Orange Circuit Court on July 30, 2010, when the defendants requested a preliminary determination of law and summary judgment. Presumably the plaintiffs' proposed complaint, filed with the Department of Insurance on November 25, 2008, was still awaiting final action by a medical review panel at the time the defendants filed their motion for preliminary determination and for summary judgment.


text:
    In the Matter of Jeremy S. BRENMAN, Respondent.
    No. 53S00-1304-DI-287.
    Supreme Court of Indiana.
    Aug. 8, 2013.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW IN INDIANA FOR NONCOOPERATION

On May 2, 2013, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission’s investigation of a grievance filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court’s order to show cause. The Commission has filed a “Request for Ruling and to Tax Costs.”

Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23(10)(f)(3), this suspension shall continue until: (1) the Executive Secretary of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation; (2) the investigation or any disciplinary proceedings arising from the investigation are disposed of; or (3) until further order of this Court, provided there are no other suspensions then in effect. Respondent is already under suspension orders entered in Cause Nos. 53S00-1212-DI-707, 53SO0-1301-DI-5O, and 53S00-1301-DI-51. Respondent is ordered to fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 28(26).

IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 23(10)(f)(5), that Respondent reimburse the Disciplinary Commission $512.22 for the costs of prosecuting this proceeding.

The Clerk of this Court is directed to give notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys. The Clerk of this Court is further directed to give notice of this order to the Disciplinary Commission and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Patricia S. BEECHER, Respondent.
    No. 45S00-1307-DI-457.
    Supreme Court of Indiana.
    Aug. 8, 2013.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW DUE TO DISABILITY

Pursuant to Indiana Admission and Discipline Rule 23, Section 25, the Disciplinary Commission has filed a “Verified Petition to Determine Disability,” requesting this Court to suspend Respondent from the practice of law in this state due to disability. Along with that petition, Respondent has submitted an “Affidavit of Consent to Disability Suspension.”

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

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.