author: KIRSCH, Judge.

text:
    Bradley D. BENARD, Appellant-Claimant, v. REVIEW BOARD OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT, Statutory Appellee, and Rolls-Royce Corporation, Appellee-Employer.
    No. 93A02-1303-EX-237.
    Court of Appeals of Indiana.
    Oct. 8, 2013.
    Ordered Published Nov. 14, 2013.

      Jay Meisenhelder, Employment & Civil Rights Legal Services, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Kyle Hunter, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee Review Board.

      . “In every appeal from a decision of the Review Board of the Indiana Department of Workforce Development, the Board ‘shall be made a party appellee.’ ” Recker v. Review Bd. of Ind. Dep’t of Workforce Dev., 958 N.E.2d 1136, 1136 (Ind.2011) (quoting Ind. Code § 22-4-17-12(b)).

   OPINION

KIRSCH, Judge.

Bradley D. Benard (“Benard”) appeals from an adverse determination of his claim for unemployment benefits by the Unemployment Insurance Review Board (“Review Board”) of the Indiana Department of Workforce Development (“the Department”) contending that the evidence does not support the conclusion that he was discharged for just cause.

We affirm.

FACTS AND PROCEDURAL HISTORY

Benard worked for Rolls-Royce Corporation (“Rolls-Royce”), an aircraft engine manufacturer, as a machine repair electrician from September 16, 1996 until the time of his discharge on August 20, 2012. Rolls-Royce discharged Benard for leaving a threatening message on a fellow employee’s voicemail.

More specifically, on the evening of August 16, 2012, Benard left a voicemail message for N.H., Benard’s team leader. The message was laced with profanity, and included passages in which Benard, who identified himself in the phone message, called N.H. derogatory names. The message included statements such as “you better pray we never cross paths in the street,” “that’s not a threat, it’s a promise,” and “I want to bite your throat out and spit it into your mouth.” Appellant’s App. at ii. N.H., who was “very disturbed by it,” brought the recording to Rolls-Royce’s attention. Tr. at 6. Benard had grown increasingly upset over what he perceived to be his supervisor’s decision not to support or promote one of Benard’s suggestions to management. If the suggestion had been adopted or accepted for use by Rolls-Royce, Benard could have received an incentive payment.

After his discharge, Benard filed a claim for unemployment benefits. The claims deputy for the Department found that Be-nard was discharged for just cause and denied him benefits. Benard appealed that denial on November 8, 2012. A hearing was held before an administrative law judge (“the ALJ”) on January 15, 2013. The ALJ reversed the decision of the claims deputy, finding Benard eligible for benefits, having not been discharged for just cause in connection with work. Rolls-Royce appealed the ALJ’s decision to the Review Board. The Review Board reversed the ALJ’s decision and found that Benard was ineligible for benefits because he had been discharged for just cause. Benard now appeals. Additional facts will be supplied.

DISCUSSION AND DECISION

Benard contends that we must reverse the decision of the Review Board on the following grounds:

First, because Rolls-Royce failed to meet its burden of proving that B.B. was discharged for just cause; second, because the Review Board erred in concluding that Rolls-Royce did not have to prove just cause under its rule, because B.B.’s actions were, allegedly, “unlawful,” and finally, because even if B.B. threatened his co-workers, the Review Board did not find, based on substantial evidence, that B.B. owed a duty in connection with work to refrain from threatening his co-workers.

Appellant’s Br. at 4 (emphasis in original).

The standard of review on appeal of a decision of the Board is threefold: (1) findings of basic fact are reviewed for substantial evidence; (2) findings of mixed questions of law and fact — ultimate facts — are reviewed for reasonableness; and (3) legal propositions are reviewed for correctness. McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314, 1318 (Ind.1998). Ultimate facts are facts that “involve an inference or deduction based on the findings of basic fact.” Id. at 1317. Where such facts are within the “special competence of the Board,” the Court will give greater deference to the Board’s conclusions, broadening the scope of what can be considered reasonable. See id. at 1318.

Recker, 958 N.E.2d at 1139. We do not reweigh the evidence or assess the credibility of witnesses and consider only the evidence most favorable to the Review Board’s findings. McHugh v. Review Bd. of Ind. Dept. of Workforce Dev., 842 N.E.2d 436, 440 (Ind.Ct.App.2006). We will reverse the Review Board’s decision only if there is no substantial evidence to support the Board’s findings. Id.

Benard was denied unemployment benefits because he was found to have been discharged for just cause. Indiana Code section 22^4-15-1 provides that a claimant is ineligible for unemployment benefits if he is discharged for just cause. When a claimant is denied benefits, he bears the burden of showing error. Russell v. Review Bd. of Ind. Dep’t of Emp’t & Training Servs., 586 N.E.2d 942, 947 (Ind.Ct.App.1992). Should the employer allege that a discharged employee who was seeking unemployment benefits was discharged for just cause, the employer bears the burden of establishing a pri-ma facie case of showing just cause. Id. at 947-48. If the employer makes that showing, the burden then shifts to the employee to produce evidence rebutting the employer’s case. Id. at 948. Further, “the determination of whether an employer had just cause to discharge an employee for purposes of determining the employee’s eligibility for unemployment compensation benefits is a question of fact for the [Review] Board to determine in each case on its particular facts; the [Review] Board’s decision regarding all questions of fact is conclusive and binding on an appellate tribunal if supported by the evidence.” Id.

Indiana Code section 22-4-15-1(d)(9) defines “discharge for just cause” as including but not limited to “any breach of duty in connection with work which is reasonably owed an employer by an employee.” In Hehr v. Review Board of the Indiana Employment Security Division, 534 N.E.2d 1122, 1126 (Ind.Ct.App.1989), we acknowledged the following:

We realize that the “breach of duty” ground for just discharge is an amorphous one, without clearly ascertainable limits or definition, and with few rules governing its utilization. As such, it is subject to potential abuse by an employer as a convenient ground upon which to justify a discharge, unless the Board carefully exercises its discretion and limits its application where necessary. In considering whether an employer may utilize this provision as a basis for justifying its action, the Board should consider whether the conduct which is said to have been a breach of a duty reasonably owed to the employer is of such a nature that a reasonable employee of the employer would understand that the conduct in question was a violation of a duty owed the employer and that he would be subject to discharge for engaging in the activity or behavior.

Further, the Review Board is afforded wide latitude to determine issues and hear theories not heard by the ALJ, and that latitude includes using any applicable statutory definition to find that a claimant was discharged for just cause. Trigg v. Review Bd. of Ind. Emp’t Sec. Div., 445 N.E.2d 1010, 1013 (Ind.Ct.App.1983). Our review, therefore, is limited to whether the Review Board made sufficient findings to support the decision it reached upon the definition it chose to apply. Id.

Benard claims that the Review Board’s decision was not supported by sufficient findings under the definition of “just cause” found in Indiana Code section 22-4-15-l(d)(9). He argues that Rolls-Royce’s failure to introduce into evidence a copy of “Shop Rule 20” was fatal to its position, and renders the Review Board’s decision unsupported by sufficient findings. Rolls-Royce has a rule which prohibits “threatening, intimidating, coercing or interfering with employees or supervision at any time.” Tr. at 5. Shop Rule 20 was not introduced as an exhibit in evidence, but was read into the record of the proceedings. The Labor Relations Representative for Rolls-Royce also stated that the reason behind the policy, which he claimed was uniformly applied to all employees, was to “maintain order and discipline so our[sic] and keep a work, work environment free from harassment and intimidating and threatening.” Id. Benard, however, refused to stipulate to the contents of the rule.

Without regard to the evidentiary value of the work rule, we find that the Review Board reached a conclusion supported by sufficient findings. The record reflects that Rolls-Royce had an employee incentive program to promote employee suggestions that have positive effects on its business. Benard learned that his supervisor, N.H., had not recommended one of his suggestions to upper management. Upon learning this, Benard. returned to work and “stewed on it all day long.” Id. at 10. Benard became increasingly more irritated about the fact after he went home and began to drink alcoholic beverages. Benard ultimately made the telephone call to N.H.’s work telephone and left the voi-cemail message. Benard claims that he bore no duty to Rolls-Royce to refrain from that behavior.

In Smithson v. Review Board of Indiana Employment Security Division, 446 N.E.2d 1014,1016 (Ind.Ct.App.1983), a case relied upon by the Review Board here, we concluded that employees owe a duty to their employers to refrain from particularly grievous acts such as fighting. We quoted from Kilpatrick v. Unemployment Compensation Board of Review, 59 Pa.Cmwlth. 201, 429 A.2d 133, 134 (Pa. Commw.Ct.1981), for the following proposition:

“[P]articipation in a fight during working hours is willful misconduct, whether it is in violation of a stated company policy or not, since at a minimum it rises to the level of a disregard of justiciably expected standards of behavior and of the employer’s interests. Unemployment Compensation Board of Review v. Vojtas, 28 Pa. Comwlth. 431, 351 A.2d 700 (1976).”

We reversed the Review Board’s decision in Smithson, however, after finding that the Review Board had not addressed Smithson’s claims of self-defense.

The Review Board, here, drew an analogy between the duty found in Smithson, to the situation where a “reasonable employee would innately know that he would be subject to discharge for threatening another employee.” Appellant’s App. at iii. We agree and find further support in Yoldash v. Review Board of Indiana Employment Security Division, 438 N.E.2d 310 (Ind.Ct.App.1982). In Yoldash, we found that an employee was in violation of standards of behavior reasonably expected of him by his employer, and thus, discharged for just cause, by directing abusive and offensive language, such as “drunk,” “suck-ass,” “communist,” and “fascist,” toward superiors. 438 N.E.2d at 314-15. In the present case, Benard’s abusive and offensive language constituted the criminal offense of intimidation, and the Review Board correctly concluded as much. Ind.Code § 35-45-2-1.

Benard, on the other hand, argues that the Review Board’s decision, as was the case in Smithson, should be reversed, because the Review Board failed to consider his defense, that of voluntary intoxication, such that he did not possess the mens rea required to place N.H. in fear of retaliation. First, voluntary intoxication is not a defense and “may not be taken into consideration in determining the existence of a mental state that is an element of the offense.” Ind.Code § 31-41-2-5. Thus, Benard’s defense he claims was overlooked, in fact, does not exist.

Benard contends that the decision should be reversed because there was no connection between his actions and his work. Benard correctly asserts that a duty to an employer must be “reasonably connected to work.” 646 I.A.C. 5-8-6(a)(1). Accordingly, he claims, that in the absence of evidence that he or N.H. were at work at the time of the telephone call, Benard’s behavior was not reasonably connected to work. We disagree.

Benard’s own testimony established that his actions were in direct response to N.H.’s decision not to support his suggestion, which he had submitted to Roll-Royce’s incentive program. Furthermore, Benard left the voicemail message on N.H.’s work telephone. Regardless of the time the call was placed, it is undisputed that the call concerned a matter connected to work. The record supports the Review Board’s findings that Benard’s actions were reasonably connected to work, that his discharge was for just cause, and that he was ineligible to receive unemployment benefits.

In sum, for each of the reasons stated above, we conclude that the Review Board made sufficient findings to support the decision it reached upon the definition of just cause it chose to apply.

Affirmed.

ROBB, C.J., and RILEY, J., concur.

      . The amendment to Administrative Rule 9(G), which incorporates by reference Indiana Code section 22-4-19-6, does not prohibit the use of full names of parties in routine appeals from the Review Board where it is essential to (1) the resolution of litigation; or (2) the establishment of precedent or development of the law. Moore v. Review Bd. of Ind. Dep't of Workforce Dev., 951 N.E.2d 301, 305-06 (Ind.Ct.App.2011). We also acknowledge our Supreme Court’s resolution of an issue involving confidentiality of the identities of parties to such an appeal in Recker, 958 N.E.2d 1136. In Recker, the supreme court noted that Indiana Administrative Rule 9(G) provides that when information is presented in court proceedings open to the public, such as judicial proceedings, "the information shall remain excluded from public access only if a party or a person affected by the release of the information, prior to or contemporaneously with its introduction into evidence, affirmatively requests that the information remain excluded from public access.” 958 N.E.2d at 1138 n. 4 (quoting Admin. R. 9(G)(1.2)(emphasis added)). Here, the decisions subject to our review were labeled "Confidential Record” with citations to the Indiana Code. Benard's Appellant’s Case Summary indicates in the affirmative that the entire trial court or agency record was sealed or excluded from public access, citing Indiana Administrative Rule 9(G)(l)(b)(xviii) ("All records of the Department of [Workforce Development as declared confidential by Ind.Code § 22-4-19-6.”). Nonetheless, the cover of the Appellant’s Appendix contains the full name of the claimant and the full name of the employer. Initials were used in some instances in the briefs. However, in the absence of an affirmative request for continued confidentiality of the identities of the employee and the employing entity, we fully identify the parties. Recker, 958 N.E.2d at 1138 n. 4.


source: Caselaw Access Project

author: BROWN, Judge.

license: Public Domain

text:
    Steven R. OTT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 20A05-1306-CR-270.
    Court of Appeals of Indiana.
    Oct. 16, 2013.
    Nancy A. McCaslin, McCaslin & McCas-lin, Brian K. Lakey, Elkhart, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Andrew A. Kobe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Steven R. Ott appeals the denial of his motion to correct error following the trial court’s order denying his “Verified Motion to Convert Class D Felony Conviction to a Class A Misdemeanor Pursuant to I.C. 35-50-2-7(c).” Appellant’s Appendix at 39. Ott raises one issue which we revise and restate as whether the court erroneously denied his motion to correct error. We affirm.

FACTS AND PROCEDURAL HISTORY In February 1975, the State charged Ott with delivering a controlled substance, LSD, on May 6, 1974, as a felony. On March 7, 1975, Ott pled not guilty. On April 1, 1977, Ott moved to withdraw his plea of not guilty and enter a plea of guilty to the lesser offense of possession of a controlled substance, and the court accepted Ott’s plea. On May 16, 1977, the court sentenced Ott to five years with all but 350 days suspended and ordered that the Sheriff give Ott consideration for work release. An entry dated the day of sentencing in the chronological case summary states:

The Court does now find that by reason of the facts and circumstances of this case that the interest of society does not demand or require that [Ott] shall suffer the full penalty imposed by law and the Court now suspends the execution of all of the sentence herein imposed upon [Ott] except for the first 350 days thereof and orders [Ott] confined to the Elk-hart County Jail for a period of 350 days and further orders that [Ott] be given consideration by the Sheriff for work release.

Id. at 3. On January 23, 1978, the court entered a notice which authorized Ott’s release from the work release program effective February 4, 1978, and ordered that Ott report to the probation department and be on probation for two years. On October 1, 1979, Ott was discharged from probation.

On April 15, 2013, Ott filed a “Verified Motion to Convert Class D Felony Conviction to a Class A Misdemeanor Pursuant to I.C. 35-50-2-7(c).” Id. at 39. On April 29, 2013, the court denied Ott’s motion. The court’s order states:

Court denies such Motion for the following reasons:
1. Court lacks jurisdiction to modify [Ott’s] sentence more than one (1) year after date of the original sentencing; and
2. [Ott’s] conviction was not for a class D felony. The designation of “Class D Felony” did not exist in Indiana before July 1, 1977. Moreover, [Ott] received a determinant [sic] sentence of five (5) years, which under the prior sentencing standards, which sentence is substantially in excess of the maximum sentence available for a class D felony.
The Court not only lacks jurisdiction to grant the relief requested by [Ott], [Ott] would not be entitled to the relief requested even if the Court had jurisdiction.

Id. at 41. On May 6, 2013, Ott filed a motion to correct error. On May 9, 2013, the court conceded that it had jurisdiction under Ind.Code § 35-50-2-7 to convert a class D felony conviction to a class A misdemeanor conviction but affirmed that Ott had not been convicted of a class D felony and thus the court lacked jurisdiction to grant the requested relief.

DISCUSSION

The issue is whether the court erroneously denied Ott’s motion to correct error. Generally, we review a trial court’s denial of a motion to correct error for an abuse of discretion. Booher v. State, 773 N.E.2d 814, 817 (Ind.2002). An abuse of discretion occurs when the trial court’s ruling is clearly against the logic, facts, and circumstances presented. Id. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind.Ct.App.2005), trans. denied.

Ott argues that he was sentenced approximately six weeks before the law designating classes of felonies went into effect. He contends that “[i]t would appear that the legislative intent, as evidenced by the language of the statute, was to make possession of LSD a class D felony.” Appellant’s Brief at 10. Ott states that “if he had been sentenced six weeks later his sentence would have ranged from six (6) months to three (3) years.” Id. at 11. He suggests that the Indiana Supreme Court “appears not to have addressed the modification issue in relation to subsection (c)” in State v. Brunner, 947 N.E.2d 411, 416 (Ind.2011), reh’g denied. Id. Ott also argues that while the Brunner Court cited Ind.Code § 35-38-1-1.5 to foreclose the defendant’s opportunity for a reduction from a class D felony to a class A misdemeanor in that case, the statute is not applicable in the present case because “it was for post-2003 convictions and was effective until July 1, 2013.” Id. at 12. He further contends that “the actions of the trial court, while not specifically indicating the sentence had been reduced to a Class A misdemeanor, did in essence reduce the conviction to that level.” Id. at 13.

The State maintains that Ott does not qualify for misdemeanor modification under Ind.Code § 35-50-2-7 because he was not convicted of a class D felony. The State contends that the language of Ind. Code § 35-50-2-7 is unambiguous and that by its very language “only defendants who have been convicted of class D felonies may use the statute to procure relief.” Appellee’s Brief at 4. The State also alleges that “[t]he legislature could have made a provision for defendants with unclassified felonies, but apparently it made the decision not to include those individuals within the reach of the statute.” Id. at 5.

Ott’s argument requires us to interpret Ind.Code § 35-50-2-7. When interpreting a statute, we independently review a statute’s meaning and apply it to the facts of the case under review. State v. Evans, 810 N.E.2d 335, 337 (Ind.2004), reh’g denied. “If a statute is unambiguous, that is, susceptible to but one meaning, we must give the statute its clear and plain meaning.” Id. If a statute is susceptible to multiple interpretations, we must try to ascertain the legislature’s intent and interpret the statute so as to effectuate that intent. Id. We presume the legislature intended logical application of the language used in the statute, so as to avoid unjust or absurd results. Id. “The judicial function is to apply the laws as enacted by the legislature.” Moore v. State, 949 N.E.2d 343, 345 (Ind.2011).

At the time that Ott filed his “Verified Motion to Convert Class D Felony Conviction to a Class A Misdemeanor Pursuant to I.C. 35 — 50—2—7(c)” and motion to correct error, and at the time of the trial court’s orders, Ind.Code § 35-50-2-7 provided in part:

(a) A person who commits a Class D felony shall be imprisoned for a fixed term of between six (6) months and three (3) years, with the advisory sentence being one and one-half (1 1/2) years. In addition, the person may be fined not more than ten thousand dollars ($10,000).
(c) Notwithstanding subsection (a), the sentencing court may convert a Class D felony conviction to a Class A misdemeanor conviction if, after receiving a verified petition as described in subsection (d) and after conducting a hearing of which the prosecuting attorney has been notified, the court makes the following findings:
(1) The person is not a sex or violent offender (as defined in IC 11 — 8—8— 5).
(2) The person was not convicted of a Class D felony that resulted in bodily injury to another person.
(3) The person has not been convicted of perjury under IC 35-44.1-2-1 (or IC 35-44-2-1 before its repeal) or official misconduct under IC 35-44.1-1-1 (or IC 35-44-1-2 before its repeal).
(4) At least three (3) years have passed since the person:
(A) completed the person’s sentence; and
(B) satisfied any other obligation imposed on the person as part of the sentence;
for the Class D felony.
(5) The person has not been convicted of a felony since the person:
(A) completed the person’s sentence; and
(B) satisfied any other obligation imposed on the person as part of the sentence;
for the Class D felony.
(6) No criminal charges are pending against the person.
(d) A petition filed under subsection (c) must be verified and set forth:
(1) the crime the person has been convicted of;
(2) the date of the conviction;
(8) the date the person completed the person’s sentence;
(4) any obligations imposed on the person as part of the sentence;
(5) the date the obligations were satisfied; and
(6) a verified statement that there are no criminal charges pending against the person.
(e) If a person whose Class D felony conviction has been converted to a Class A misdemeanor conviction under subsection (c) is convicted of a felony within five (5) years after the conversion under subsection (c), a prosecuting attorney may petition a court to convert the person’s Class A misdemeanor conviction back to a Class D felony conviction.

(Subsequently amended by Pub.L. No. 159-2013, § 5 (eff. July 1, 2013); Pub.L. No. 158-2013, § 660 (eff. July 1, 2014)). At the time that Ott filed his “Verified Motion to Convert Class D Felony Conviction to a Class A Misdemeanor Pursuant to I.C. 35-50-2-7(c)” and motion to correct error and at the time of the trial court’s orders, Ind.Code § 35-50-2-1 defined “Class D felony conviction” as “a conviction of a Class D felony in Indiana and a conviction, in any other jurisdiction at any time, with respect to which the convicted person might have been imprisoned for more than one (1) year.” (Subsequently amended by Pub.L. No. 158-2013, § 652 (eff. July 1, 2014)).

Ott concedes that he was sentenced approximately six weeks before the law designating classes of felonies went into effect. At the time that he was charged and sentenced, Ind.Code § 35-1-1-1 provided that “[a]ll crimes and public offenses which may be punished with death or imprisonment in the state prison shall be denominated felonies; and all other offenses against the criminal law shall be denominated misdemeanors.” At that time, Ind. Code § 35-24.1-2-4 defined LSD as a schedule I controlled substance, and Ind. Code § 35-24.1-4-1 provided that it was a felony to possess a controlled substance and that a person “shall be imprisoned in the state prison for any determinate period of not less than two (2) years, nor more than ten (10) years.”

Beginning on July 1, 1977, and following Ott’s conviction and sentence, Ind.Code §§ 35-48-4-6 and -7 made possession of schedule I controlled substances class D felonies. See Acts 1976, Pub.L. No. 148, § 7 (eff. July 1, 1977). Also beginning July 1,1977, Ind.Code § 35-50-2-7 provided that a person convicted of a class D felony “shall be imprisoned for a fixed term of two (2) years, with not more than two (2) years added for aggravating circumstances ....” See Acts 1976, Pub.L. No. 148, § 8 (eff. July 1,1977).

Ott does not point to a statute in effect at the time of his offense or thereafter that allowed a reduction in the classification of his offense from a felony to a misdemean- or. Ind.Code § 35-50-2-7 is titled “Class D felony; entry as or conversion to a Class A misdemeanor” and subsection (c) provided that “the sentencing court may convert a Class D felony conviction to a Class A misdemeanor conviction if.” (Emphases added). Ind.Code § 35-50-2-1 defined “Class D felony conviction” as “a conviction of a Class D felony in Indiana and a conviction, in any other jurisdiction at any time, with respect to which the convicted person might have been imprisoned for more than one (1) year.” (Emphasis added) (subsequently amended by Pub.L. No. 158-2013, § 652 (eff July 1, 2014)).

Based upon the language in the relevant statutes, we cannot say that the legislature provided for a modification of a felony conviction to a misdemeanor conviction for a felony committed prior to the division of felony classes. Under the circumstances, we cannot say that the trial court had authority to grant Ott’s motion to convert his conviction to a class A misdemeanor. See generally State v. Brunner, 947 N.E.2d 411, 418 (Ind.2011) (observing that “[although it may be equitable and desirable for the legislature to give a trial court discretion in modifying a conviction years later for good behavior, we recognize at this time the legislature has not given any such authority,” and holding that the trial court erred in granting Brunner’s motion for modification of conviction because the legislature had not enacted any such authority for the trial court), reh’g denied; Alden v. State, 983 N.E.2d 186, 189 (Ind. Ct.App.2013) (citing Brunner for the proposition that “modification of conviction for good behavior may be equitable and desirable, but only after legislature grants authority to courts ”) (emphasis added).

For the foregoing reasons, we affirm the trial court’s denial of Ott’s motion to correct error.

Affirmed.

NAJAM, J., and MATHIAS, J., concur.

      . Ind.Code §§ 35-24.1 were subsequently repealed by Acts 1976, Pub.L. No. 148, § 24.

      . Subsequently amended by Acts 1977, Pub.L. No. 340, § 120; Acts 1982, Pub.L. No. 204, § 40; Pub.L. No. 334-1983, § 3; Pub.L. No. 136-1987, § 7; Pub.L. No. 167-1990, § 2; Pub.L. No. 188-1999, § 9; Pub.L. No. 98-2003, § 3; Pub.L. No. 71-2005, § 10 (eff. April 25, 2005); Pub.L. No. 69-2012, § 6; Pub.L. No. 13-2013, § 145 (eff. April 1, 2013); Pub.L. No. 159-2013, § 5 (eff. July 1, 2013); Pub.L. No. 158-2013, § 660 (eff. July 1, 2014).


author: SHARPNACK, Senior Judge.

text:
    NORTH AMERICAN ROOFING SERVICES, INC., Appellant-Plaintiff, v. MENARD, INC., Appellee-Defendant.
    No. 26A01-1303-PL-125.
    Court of Appeals of Indiana.
    Oct. 17, 2013.

      Robert S. Grimm, Alvin J. Katzman, Katzman & Katzman, P.C., Indianapolis, IN, Attorneys for Appellant.

      Danny E. Glass, John J. Kreighbaum, Fine & Hatfield, P.C., Evansville, IN, Attorneys for Appellee.
   OPINION

SHARPNACK, Senior Judge.

STATEMENT OF THE CASE

Menard, Inc., hired North American Roofing Services, Inc. (“NARSI”), to install a roof on a new store that was being built. During construction, a portion of the structure collapsed and fell on two workers, injuring them and resulting in lawsuits. After the roof was completed, Menard refused to pay NARSI, and NAR-SI filed suit. NARSI now appeals the trial court’s denial of its motion for partial summary judgment and the grant of summary judgment to Menard. We reverse and remand.

ISSUE

NARSI raises one issue, which we restate as: whether the court erred in denying partial summary judgment to NARSI and granting summary judgment to Me-nard.

FACTS AND PROCEDURAL HISTORY

Menard decided to build a store in Princeton, Indiana. In 2007, Menard and NARSI executed a contract, pursuant to which NARSI agreed to install a membrane roof on the store. Menard ultimately agreed to pay NARSI $209,529 for the job. The contract contains an indemnity clause, which provides as follows:

[NARSI] shall indemnify and hold harmless [Menard], its agents and employees from any and all liability, damages, expenses, claims, demands, actions or causes of action, including attorney fees, arising out of the performance of the work hereunder, whether such liability, damages, expenses, claims, demands, actions or causes of actions are caused by [NARSI], its subcontractors, or their agents or employees, or any persons acting on their behalf.

Appellant’s App. p. 28. The contract also contains a provision entitled Article 9, Section E (“Section E”), which sets forth circumstances under which Menard may decline to pay NARSI for its work. Appellant’s App. p. 29. That clause provides:

[Menard] may withhold payment from [NARSI] because of:
(1) defective work not remedied;
(2) third party claims filed or reasonable evidence indicating probable filing of such claims;
(3) failure of [NARSI] to make payments properly to subcontractors or for labor, materials, or equipment;
(4) reasonable doubt that the uncompleted Contract Work can be completed for the unpaid balance of the Contract Sum;
(5) damage to another Contractor;
(6) reasonable indication that the Contract Work will not be completed within the Contract Time; or
(7) unsatisfactory prosecution of the Contract Work by the Contractor.

Id. at 29-30.

In September 2007, during construction, a portion of the building collapsed after heavy rains. Debris fell on construction workers Michael Folsom and Derek Hazel-ip, causing them serious injuries.

Folsom sued Menard, NARSI, and other contractors in federal court, and Hazelip sued Menard, NARSI, and other contractors in state court. Their complaints are similar in many respects. Folsom and Ha-zelip both alleged that Menard:

provided architectural drawings, specifications, blue prints, and material lists for the construction at the [building site]; further, its representatives attended and participated in safety meetings, and provided supervision and inspection services of work done and materials provided by those with whom it contracted directly as well as those that contracted with the general contractor, CDI, Inc.

Id. at 105,114-15. The complaints further alleged that NARSI “was under contract with [Menard] to install a membrane roofing system according to specifications provided by [Menard] and began the installation of that membrane prior to September 26, 2007.” Id. at 106, 115. In addition, Folsom and Hazelip each claimed, “[NAR-SI] failed to provide adequate runoff or drainage for the membrane on the structure at the [building site].” Id. at 106,115. They also alleged that water accumulated on the membrane roof and, “as the result of the actions of [NARSI], [Menard], [CDI], and [another contractor] the water was unable to drain or run off,” which led to the collapse. Id. at 106, 116. Both Folsom and Hazelip asserted that Menard, NARSI, and other contractors owed them a duty of care and, “by their acts and omissions, individually and jointly,” breached the duty. Id. at 107,116.

In both lawsuits, Menard filed cross-claims against NARSI and other contractors. Furthermore, Menard separately sued various insurers, including NARSI’s liability insurance carrier, in federal court, claiming failure to defend and seeking indemnification.

Meanwhile, it is undisputed that NARSI completed the roofing job, and the store opened for business. It is also undisputed that Menard refused to pay NARSI, claiming that NARSI was contractually obligated to indemnify it against liabilities resulting from the roof collapse. NARSI filed a mechanic’s lien against the store and later filed suit to foreclose upon the lien, thereby beginning this case.

Eventually, Folsom and Hazelip executed settlement agreements with Menard, NARSI, and the other defendants, and they dismissed their lawsuits. Menard dismissed its cross-claims against NARSI in those lawsuits. The settlement agreements have not been included in the record, but the parties agree that Menard, NARSI, and other contractors each contributed to the settlements. Menard subsequently dismissed its federal lawsuit against the insurers.

NARSI’s case against Menard remained active, and NARSI amended its complaint to add a claim of breach of contract. In its answer to NARSI’s amended complaint, Menard raised affirmative defenses based on the contract’s indemnification clause and Section E. Next, NARSI filed a motion for partial summary judgment, limited to its claim for breach of contract. Me-nard filed a motion for summary judgment as to both of NARSI’s claims.

After a hearing, the court denied NAR-SI’s motion for partial summary judgment. The court granted Menard’s motion, determining that Menard was “entitled to judgment as a matter of law on [NARSI’s] claim for Breach of Contract.” Id. at 13. The court further determined that NAR-SI’s claim to foreclose upon the mechanic’s lien must also fail and, having disposed of both of NARSI’s claims, entered judgment in favor of Menard. This appeal followed.

DISCUSSION AND DECISION

This Court applies the same standard as the trial court when reviewing a grant or denial of summary judgment. Herron v. Anigbo, 897 N.E.2d 444, 448 (Ind.2008). Therefore, summary judgment is to be affirmed only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Id. All facts established by the designated evidence, and all reasonable inferences from them, are to be construed in favor of the nonmoving party. Id.

The party moving for summary judgment bears the burden of making a prima facie showing that there is no genuine issue of material fact and that he or she is entitled to a judgment as a matter of law. Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind.2009). Once the moving party meets these two requirements, the burden shifts to the non-moving party to show the existence of a genuine issue of material fact by setting forth specifically designated facts. Id. The fact that the parties have both filed motions for summary judgment does not alter our standard of review, as we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Reed v. Reid, 980 N.E.2d 277, 285 (Ind.2012).

NARSI argues that it is entitled to summary judgment on its claim for breach of contract because it fulfilled its obligations to Menard. Menard does not dispute that it and NARSI had a valid contract, that NARSI performed the work it was contractually obligated to perform, and that Menard has withheld payment. Thus, NARSI has set forth a prima facie claim of breach of contract, and Menard is obligated to show the existence of a genuine dispute of material fact. Menard responds that the indemnification clause and Section E authorized it to withhold NARSI’s payment.

Before examining those clauses, we review our rules of contract interpretation. The ultimate goal of any contract interpretation is to determine the intent of the parties at the time that they made the agreement. Citimortgage, Inc. v. Baratas, 975 N.E.2d 805, 813 (Ind.2012). We look at the contract as a whole. Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d 249, 252 (Ind.2005). If a contract’s provisions are clear and unambiguous, courts must give the provisions their plain and ordinary meaning. Id. at 251.

An indemnity clause involves a promise by one party (the indemnitor) to reimburse another party (the indemnitee) for the indemnitee’s loss, damage, or liability. Mead Johnson & Co. v. Kenco Group, Inc., 899 N.E.2d 1, 3 (Ind.Ct.App.2009). The basic purpose of an indemnity clause is to shift the financial responsibility to pay damages from the indemnitee to the indemnitor. Id. We construe an indemnity agreement to cover all losses and damages to which it reasonably appears the parties intended it to apply. Id.

The terms of the indemnification clause are set forth above. NARSI argues, correctly, that this clause does not require NARSI to indemnify Menard for negligent acts that are solely attributable to Menard. An indemnification clause that seeks to require indemnification for the indemnitee’s own negligence must “expressly state, in clear and unequivocal terms,” that the parties have agreed to such terms. Moore Heating & Plumbing, Inc. v. Huber, Hunt & Nichols, 583 N.E.2d 142, 146 (Ind.Ct.App.1991); see also Ind. Code § 26-2-5-1 (1975) (an indemnity clause in a “construction or design contract” that indemnifies the indemnitee against liability from the sole negligence of the indemnitee or its agents is “against public policy and ... void and unenforceable”). The clause in this case does not clearly and unequivocally require NARSI to indemnify Menard for Menard’s own negligence.

Based on the foregoing, NARSI would be obligated under the clause at issue to indemnify Menard for liability, damages, etc., arising out of NARSI’s negligence. To prevail on its motion for summary judgment on its defense to NARSI’s claim, Menard would have to demonstrate that it had incurred liability due to negligence of NARSI. The only evidence on this point is that Menard, along with NAR-SI and other contractors, contributed to settlements of the Folsom and Hazelip claims, and that Menard paid more toward the settlements than the $209,529 due to NARSI. This falls short.

The claims of Folsom and Hazelip were subject to the Indiana Comparative Fault Act, which requires that liability be apportioned among multiple defendants according to the degree of each defendant’s responsibility for an injury, rather than jointly and severally. See Ind.Code § 34-51-2-3 (1998) (“legal requirements of causal relation apply to ... fault as the basis for liability.”). In addition, the Act eliminated the right of contribution among tort-feasors where applicable but preserved rights of indemnity. Ind.Code § 34-51-2-12 (1998).

No court or agreement has allocated liability for Folsom and Hazelip’s injuries among Menard, NARSI, other contractors, and the workers. Menard, NARSI and other contractors each contributed funds to settle those lawsuits, but Menard offers nothing to show NARSI’s degree of responsibility for Folsom and Hazelip’s injuries or that the contributors paid for anything but their own shares of fault. In the absence of evidence on these points, we conclude that Menard and NARSI paid for their shares of the fault for the accident, and Menard has failed to set forth any facts that establish a genuine dispute as to whether Menard is excused from paying NARSI under the contract due to the indemnification clause.

Next, Menard contends that it is excused from paying NARSI under Section E of their contract, specifically the portion authorizing Menard to withhold payment if necessary to satisfy “third party claims filed or reasonable evidence indicating probable filing of such claims.” Appellant’s App. p. 29. Menard concedes that this provision would only allow it to withhold payment to NARSI due to “third-party claims [arising] from NARSI’s work.” Appellee’s Br. p. 9. However, Folsom and Hazelip’s third party claims have been settled and dismissed. Menard and NARSI both paid money to Folsom and Hazelip pursuant to the settlement, and Menard points to no evidence that Folsom and Hazelip’s claims otherwise remain active. In addition, Menard does not identify any other third party claims arising from the September 2007 structural collapse that remain pending. Giving Section E’s unambiguous language a plain and ordinary reading, it does not justify withholding payment from NARSI once third party claims have been resolved, absent the application of some other contractual provision such as the indemnification clause. We have already determined that Menard has failed to establish a dispute of material fact as to whether the indemnification clause applies.

In order to defeat NARSI’s motion for partial summary judgment, Menard was obligated to rebut NARSI’s prima facie case for breach of contract by establishing a dispute of material fact as to its right to withhold payment. We have determined that Menard did not establish such a dispute. Consequently, Menard also failed to establish as a matter of law that it was entitled to prevail upon its own motion for summary judgment. The trial court erred by denying NARSI’s motion for partial summary judgment and by granting Me-nard’s motion for summary judgment.

CONCLUSION

For the reasons stated above, we reverse the judgment of the trial court and remand with instructions to: (1) deny Me-nard’s motion for summary judgment on NARSI’s claims for breach of contract and foreclosure of mechanic’s lien; (2) grant NARSI’s motion for partial summary judgment on its claim for breach of contract; and (3) move forward to resolve NARSI’s claim to foreclose upon mechanic’s lien.

Reversed and remanded.

KIRSCH, J., and BRADFORD, J., concur.

      . Other provisions in the contract between Menard and NARSI required NARSI to obtain Workers Compensation Insurance, Comprehensive General Liability Insurance, and Builders Risk "All Risk” Insurance, in which policies Menard was to be designated as an "additionally insured.” Appellant's App. pp. 30-31.

      . NARSI also added a claim of unjust enrichment but later moved to dismiss that claim.


author: NAJAM, Judge.

text:
    CLAIRE’S BOUTIQUES, INC., Appellant-Defendant, v. BROWNSBURG STATION PARTNERS LLC, Appellee-Plaintiff.
    No. 32A01-1209-CC-438.
    Court of Appeals of Indiana.
    Nov. 4, 2013.

      Alice M. Morical, Hoover Hull LLP, Indianapolis, IN, John S. Letchinger, Edwards Wildman Palmer LLP, Chicago, IL, Attorneys for Appellant.
    G. John Cento, Cento Lane, LLC, Indianapolis, IN, Attorney for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Brownsburg Station Partners, LLC (“Brownsburg Station”) filed a complaint against Claire’s Boutiques, Inc. (“Claire’s”) alleging that Claire’s had breached its lease (“Lease”) for commercial retail space in Brownsburg Station Shopping Center. The parties filed cross-motions for summary judgment and, after a hearing, the trial court issued its order, with findings of fact and conclusions thereon, granting Brownsburg Station’s motion for summary judgment and denying the cross-motion filed by Claire’s (“Summary Judgment Order”). Claire’s filed a motion to reconsider, which the trial court granted, vacating the Summary Judgment Order (“Reconsideration Order”). Following a two-day bench trial, the court issued findings of fact and conclusions thereon and entered judgment in favor of Brownsburg Station but denied its request for consequential damages (“Judgment”).

Claire’s appeals the Reconsideration Order and the Judgment, and Brownsburg Station cross-appeals the Judgment denying consequential damages. We address two dispositive issues on appeal:

1. Whether the trial court erred when it construed the operating cotenancy provision in the Lease to allow Claire’s to terminate the Lease if the occupancy level fell below seventy percent of the gross leasable area rather than “70% of the non-department retail store tenants in Buildings Al and A3.”
2. If the trial court erred in its construction of the co-tenancy provision, whether the trial court also erred when it determined that Claire’s had not terminated the Lease by vacating the premises before Brownsburg Station terminated the Lease by written notice.

We reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY

Brownsburg Station owns real estate commonly known as Brownsburg Station Shopping Center (“the Shopping Center”) in Hendricks County. The Shopping Center is comprised in relevant part of two anchor retail spaces and two buildings, Buildings Al and A3, each of which is divided into smaller retail spaces. At all relevant times, CB Richard Ellis (“CBRE”) served as real estate manager of the Shopping Center.

In early 2007, Brownsburg Station negotiated a lease for retail space in the Shopping Center (“the Lease”) with Claire’s. After negotiations regarding the lease language, Claire’s and Brownsburg Station entered into the Lease for 1500 square feet of space in Building A3 with a term from November 17, 2007, to January 2013. The Lease included the following operating co-tenancy provision:

Section 2.06 Operating Co-Tenancy. Notwithstanding anything to the contrary contained in this Lease, in the event that the Shopping Center’s occupancy level falls below 70% of the non-department retail store tenants in Buildings Al and A3 or either Kohl’s or Lowe’s and [sic] open for business, [Claire’s] shall pay percentage rent only (at the rate of 5% of gross sales) and Basic Annual Rent and all other charges to [Claire’s] hereunder shall abate until such time as the occupancy level increases to over 70% of the non-department retail store tenants in Buildings Al and A3 and at least Kohl’s and Lowe’s or any comparable replacement thereof in terms of size and quality is open for business. If the occupancy level remains below the level specified herein for the period of one year or more, [Claire’s] shall have the option of terminating this Lease effective immediately.

Appellant’s App. at 134.

On May 15, 2009, Claire’s decided to leave the premises in the Shopping Center because of that store’s underperformance. On June 14, 2009, Claire’s removed its personal property and vacated the leased space at the Shopping Center without notice to CBRE or Brownsburg Station. The following day, Brownsburg Station began trying to re-lease the retail space formerly occupied by Claire’s. And on June 26, Brownsburg Station sent a notice of default to Claire’s, terminating the Lease and the Lease term and demanding payment of the accelerated balance (“termination notice”). Claire’s did not respond and made no further rent payments.

On July 17, 2009, Brownsburg Station filed a complaint for breach of lease against Claire’s. On August 31, Claire’s filed its answer, affirmative defenses, and request for jury trial. In its answer, Claire’s asserted in part that it had terminated the lease as a result of Brownsburg Station’s “failure to exceed 70% occupancy of non-department retail store tenants for more than one year.” Appellant’s Supp. App. at 222. On December 27, 2010, Brownsburg Station filed its motion for partial summary judgment, supporting brief, and designation of evidence. On January 31, 2011, Claire’s filed its cross-motion for summary judgment, opposition to Brownsburg Station’s partial summary judgment motion, supporting memoranda, and designation of evidence or, in the alternative, its motion for partial summary judgment. On February 28, Brownsburg Station filed its brief in opposition to Claire’s cross-motion for summary judgment and to its alternative motion for partial summary judgment and designation of evidence in support of its brief in opposition. And on April 27, Brownsburg Station filed its sur-reply brief in support of its motion for partial summary judgment and in opposition to Claire’s cross-motion for summary judgment and to its alternative motion for partial summary judgment.

The trial court held a hearing on the motions for summary judgment on May 11. On June 6, the court granted partial summary judgment in favor of Brownsburg Station as to liability. On August 16, Claire’s filed a motion for reconsideration, and on December 12, the trial court entered the Reconsideration Order, granted Claire’s’ motion for reconsideration, found the lease provision in dispute to be ambiguous, denied both motions for summary judgment, and set all issues for trial.

A bench trial was held on April 23-25 and June 14-15, 2012, and the parties submitted proposed findings and conclusions. And on August 30, 2012, the trial court issued its “Findings of Fact, Conclusions of Law and Judgment” in favor of Browns-burg Station on all issues except its request for consequential damages. Appellant’s Brief Addendum at 9. The trial court held that, under the operating co-tenancy provision, the occupancy level should be calculated based on the percentage of gross leasable area, that Claire’s had breached the Lease, and that Claire’s did not have an option to terminate the Lease. Claire’s now appeals the Reconsideration Order and the Judgment, and Brownsburg Station cross-appeals the Judgment denying its claim for consequential damages.

DISCUSSION AND DECISION

Standard of Review

The issues on appeal turn on the meaning of a provision in a commercial lease, a contract. “Construction of the terms of a written contract is a pure question of law for the court, reviewed de novo.” Harrison v. Thomas, 761 N.E.2d 816, 818 (Ind.2002). If an instrument’s language is unambiguous, the parties’ intent is determined from the four corners of the instrument. City of Indianapolis v. Kahlo, 938 N.E.2d 734, 744 (Ind.Ct.App. 2010), trans. denied. If a contract is ambiguous or uncertain, its meaning is determined by extrinsic evidence and its construction is a matter for the fact-finder. Kahlo, 938 N.E.2d at 744. An ambiguity exists where a provision is susceptible to more than one interpretation and reasonable persons would differ as to its meaning. Gregg v. Cooper, 812 N.E.2d 210, 215 (Ind.Ct.App.2004). But the fact that the parties disagree over the meaning of the contract does not, in and of itself, establish an ambiguity. Everett Cash Mut. Ins. Co. v. Taylor, 926 N.E.2d 1008, 1013 (Ind. 2010) (citation omitted).

When interpreting a written contract, the court should attempt to determine the parties’ intent at the time the contract was made, which is ascertained by the language used to express their rights and duties. Kahlo, 938 N.E.2d at 744. A court should construe the language of a contract so as not to render any words, phrases, or terms ineffective or meaningless. Hammerstone v. Ind. Ins. Co., 986 N.E.2d 841, 846 (Ind.Ct.App.2013).

Here, Claire’s appeals the Reconsideration Order denying Claire’s motion for summary judgment. As discussed below, we conclude that this case should have been resolved at the summary judgment stage. A motion for summary judgment is properly ■ granted only when the pleadings and designated evidence reveal that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Hair v. Schellenberger, 966 N.E.2d 693, 697 (Ind.Ct.App.2012) (citations omitted), trans. denied. Where, as here, the dispute is one of law rather than fact, our standard of review is de novo. Villegas v. Silverman, 832 N.E.2d 598, 604 (Ind.Ct.App.2005).

Issue One: Operating Co-Tenancy Provision

Claire’s first contends that the trial court erred when it construed the operating co-tenancy provision in the Lease. Again, the relevant portion of the Lease provides:

Section 2.06 Operating Co-Tenancy.

Notwithstanding■ anything to the contrary contained in this Lease, in the event that the Shopping Center’s occupancy level falls below 70% of the non-department retail store tenants in Buildings Al and AS or either Kohl’s or Lowe’s and [sic] open for business, [Claire’s] shall pay percentage rent only (at the rate of 5% of gross sales) and Basic Annual Rent and all other charges to [Claire’s] hereunder shall abate until such time as the occupancy level increases to over 70% of the non-department retail store tenants in Buildings Al and A3 and at least Kohl’s and Lowe’s or any comparable replacement thereof in terms of size and quality is Open for business. If the occupancy level remains below the level specified herein for the period of one year or more, [Claire’s] shall have the option of terminating this Lease effective immediately.

Appellant’s App. at 134 (emphases added). In the Reconsideration Order, the trial court found that language to be ambiguous and ordered a trial. And following trial, the court adopted the construction of this provision argued by Brownsburg Station and determined that the provision gave Claire’s the option to terminate the Lease only in the event the occupancy level fell below seventy percent of the gross leasa-ble area in Buildings Al and A3.

In its challenge to the Reconsideration Order, Claire’s contends that the trial court erred when it determined that the operating co-tenancy provision was ambiguous regarding the method for calculating the occupancy level under that provision. Claire’s contends that the Lease unambiguously allowed Claire’s to terminate the Lease in the event the occupancy level fell below seventy percent of the total possible tenants, not seventy percent of the gross leasable area in Buildings Al and A3. Brownsburg Station counters that the operating co-tenancy provision unambiguously supports its construction and, therefore, that the trial court erred when it entered the Reconsideration Order but correctly entered Judgment in favor of Brownsburg Station after trial. Thus, we must determine the meaning of the operating co-tenancy provision in the Lease.

Claire’s and Brownsburg Station are sophisticated parties experienced in negotiating commercial leases. As noted above, the ultimate question is the intent of the parties at the time the lease was executed as disclosed by its terms. While there are numerous rules of contract construction, the first rule to be applied is the plain meaning rule. When the terms of a contract are drafted in clear and unambiguous language, we will apply the plain and ordinary meaning of that language and enforce the contract according to those terms. Haegert v. Univ. of Evansville, 977 N.E.2d 924, 937 (Ind.2012). The text is the lodestar of a written contract, and we will not construe unambiguous provisions. See Winterton, LLC v. Winterton Investors, LLC, 900 N.E.2d 754, 759 (Ind.Ct.App.2009), trans. denied. Nor may a court write a new contract for the parties or supply missing terms under the guise of construing a contract. State Military Dep’t v. Cont’l Elec., Co., 971 N.E.2d 133, 142 (Ind.Ct.App.2012) (quotation marks and citation omitted), trans. denied. Where the subjective intent of the parties is at odds, the text controls. If necessary, the text of a disputed provision may be understood by reference to other provisions within the four corners of the document. See City of Portage v. S. Haven Sewer Works, Inc. (In re S. Haven Sewer Works, Inc.), 880 N.E.2d 706, 711 (Ind.Ct. App.2008). But when the meaning of the text is clear, recourse to other provisions of the contract is unnecessary, and we may not forage through the contract looking for other provisions. It is well settled that when the terms of a contract are clear and unambiguous, they are conclusive, and courts will not construe the contract or look to extrinsic evidence, but will merely apply the contractual provisions. Dvorak v. Christ, 692 N.E.2d 920, 925 (Ind.Ct.App.1998).

Such is the case here. The operating co-tenancy provision makes no mention of gross leasable area or square footage. Instead, the plain language of that provision refers to “70% of the non-department retail store tenants in Buildings A1 and A3[.]” Appellant’s App. at 134 (emphasis added). Because the language in the operating co-tenancy provision is clear, we need not resort to other parts of the Lease or to extrinsic evidence to understand that provision. The seventy percent rate clearly applies to the percentage of tenants, not to the percentage of gross leasable area.

At the summary judgment hearing each party argued that the Lease was unambiguous in its favor. On appeal, in countering Claire’s’ interpretation of the Lease, Brownsburg Station contends that if the meaning of the co-tenancy provision in Section 2.06 is deemed ambiguous that provision should be understood by reference to other provisions of the Lease. Specifically, Brownsburg Station contends that even though there is no mention of leasable area or square footage in the co-tenancy provision, the term “occupancy” used in the co-tenancy provision refers to square feet of occupied space. Browns-burg Station insists that the co-tenancy provision “does not define the methodology for calculation of the occupancy level.” Appellee’s Brief at 32. In other words, Brownsburg Station contends that the phrase “occupancy level ... below 70% of the non-department retail store tenants in Buildings Al and A3” is incomplete and requires reference to other Lease provisions to be understood. We cannot agree. Here, there are no missing essential terms. The methodology for calculation of the occupancy level is clearly and unambiguously defined in the operating co-tenancy provision as “70% of the non-department retail store tenants” in those buildings. Appellant’s App. at 134.

Brownsburg Station further contends that the term at issue is “occupancy level,” not “tenants,” and, thus, that the “relevant part of Section 2.06” is the second sentence, which states: “If the occupancy level remains below the level specified herein for a period of one year or more, [Claire’s] shall have the option of terminating this Lease effective immediately.” Appellee’s Brief at 28-29. Brownsburg Station maintains that Claire’s’ defense to liability “rests entirely” on the second sentence of Section 2.06. Id. at 28. Brownsburg Station continues that Claire’s relies on an interpretation of the word “tenants” and that because the word “tenants” does not appear within the second, all-important sentence, Claire’s’ interpretation of the operating co-tenancy provision relies on the “wrong term.” Id. at 28. This argument is not persuasive. It is not only incorrect to say that Claire’s “rests entirely” on the second sentence, but Brownsburg Station isolates and reads the second sentence to the exclusion of the first sentence in Section 2.06. The two sentences are related. When the second sentence refers to “the [occupancy] level specified herein,” the second sentence refers directly to the occupancy level specified in the first sentence in Section 2.06 as the percentage of “non-department store retail tenants in Buildings Al and A3.” Appellant’s App. at 134.

Brownsburg Station also contends that “the lease interpretation offered by Claire’s is not a reasonable one.” Appel-lee’s Brief at 21. And at oral argument, counsel for Brownsburg Station asserted that its interpretation is the only reasonable interpretation of the Lease. We cannot agree. Not only does the plain and ordinary meaning of Section 2.06 support Claire’s interpretation, but there is also a sound rationale for measuring the occupancy level by the number of tenants. A greater number and variety of tenants is more likely to attract more customers, increase foot traffic, and generate larger sales.

Brownsburg Station further contends that Claire’s’ interpretation of the operating co-tenancy provision “is inconsistent with the parties’ intent [and] the other provisions of the Lease.” Id. at 22. In particular, Brownsburg Station contends that “[everywhere space is discussed or identified it is discussed and identified in terms of square footage.” Id. at 23. But that argument conflates and equates space with occupancy. While space and occupancy are closely related terms, they are not one and the same term. The best evidence of the parties’ intent is the plain meaning of the words they use. Square footage defines space elsewhere in the Lease, but the words “square footage” and “space” do not appear in the operating co-tenancy provision. In that provision, the operative term is not square footage or space but “occupancy level,” which is clearly defined as the percentage of “non-department retail store tenants in Buildings Al and A3.” Appellant’s App. at 134.

Here, the rule of contract construction that specific terms control over general terms also squarely applies. Where the parties have agreed to a specific term, an apparently inconsistent general statement must yield to a more specific term. Arnold v. Burton, 651 N.E.2d 1202, 1204 (Ind.Ct.App.1995). While the Lease may at times generally discuss or identify space in terms of square footage, in the operating co-tenancy provision the Lease specifically defines the occupancy level as a percentage of tenants.

It is also significant, if not dispositive, that Section 2.06 begins with the following introductory clause: “Notwithstanding anything to the contrary contained in this Lease....” Appellant’s App. at 134. This clause qualifies the operating co-tenancy provision and means that, in spite of any other lease provision, Section 2.06 controls calculation of the occupancy level. In other words, Section 2.06 is an independent provision that sits on its own bottom. This clause subordinates any lease provision that may conflict with it and categorically renders any such contrary provision ineffective. This clause is essential to a correct understanding of the operating co-tenancy provision.

We decline Brownsburg Station’s invitation to construe and rewrite an unambiguous provision and to substitute the words “70% of gross leasable area” for the actual words, “70% of non-department retail store tenants.” We conclude that the method for calculating the occupancy level is apparent on the face of the operating co-tenancy provision in Section 2.06 and is defined by the percentage of the “non-department retail store tenants in Buildings Al and A3.” Section 2.06 simply does not say “70% of gross leasable area in Buildings Al and A3” or “70% of the square footage contained in Buildings A1 and A3.” The occupancy level is defined as the percentage of tenants.

By its plain language, the operating co-tenancy provision allowed Claire’s to terminate the Lease in the event the occupancy level fell below seventy percent of the non-department retail store tenants in Buildings Al and A3, not seventy percent of the gross leasable area or square footage contained in those buildings, for a period of one year or more. The clause “[n]otwithstanding anything to the contrary contained in this Lease” in Section 2.06 precludes consideration of other provisions that might appear to conflict with it. In reaching that conclusion, again, we have considered only the evidence designated for summary judgment. And “[sjummary judgment is especially appropriate in the context of contract interpretation because the construction of a written contract is a question of law.” Vincennes Univ. by the Bd. of Trs. of Vincennes v. Sparks, 988 N.E.2d 1160, 1165 (Ind.Ct.App.2013), trans. denied. Thus, the trial court erred as a matter of law when it concluded that the occupancy level in the operating co-tenancy provision is based on gross leasa-ble area in Buildings Al and A3, and, on that basis, denied summary judgment in favor of Claire’s.

Issue Two: Termination of the Lease

Claire’s also contends that its departure from the leased premises constituted termination permitted under the Lease pursuant to the operating co-tenancy provision and, therefore, it is not liable to Browns-burg Station for any damages. Here the parties do not dispute the relevant underlying facts, namely, that Claire’s vacated the leased premises without notice before the end of the Lease term and that the occupancy level was below seventy percent of tenants for at least one year. The issue then is a question of law, namely, whether Claire’s’ conduct in vacating the leased premises satisfies the definition of termination under the operating co-tenancy provision.

Again, the operating co-tenancy provision states, in relevant part: “If the occupancy level remains below the level specified herein for the period of one year or more, [Claire’s] shall have the option of terminating this Lease effective immediately.” Appellant’s App. at 134. But the Lease does not define “termination,” nor does it require notice or impose any other conditions or requirements for termination by Claire’s pursuant to the operating co-tenancy provision. Brownsburg Station’s argument that Claire’s did not exercise its option to terminate the Lease is not well taken.

Nevertheless, Brownsburg Station contends that Claire’s had only an option to terminate the Lease and did not timely exercise that option. Specifically, Brownsburg Station argues that Claire’s did not terminate the Lease when it vacated the premises but, rather, breached the Lease when it abandoned the premises. Brownsburg Station argues further that it terminated the Lease when it sent a termination notice to Claire’s and that Claire’s’ option to terminate did not survive Brownsburg Station’s notice of termination. Brownsburg Station is correct that an option in a lease does not survive termination of the lease unless the option is divisible from the lease. Tippmann Refrigeration Constr. v. Erie-Haven, Inc., 459 N.E.2d 407, 411 (Ind.Ct.App.1984). But the dispositive question is whether Claire’s terminated the lease when it vacated the premises. Again, the Lease does not define “termination.” Under these circumstances, we conclude that Claire’s exercised its option to terminate the Lease when it vacated the premises pursuant to the operating cotenancy provision and that the Lease does not require any other notice or action by Claire’s.

Finally, Brownsburg Station contends that Claire’s cannot raise the operating cotenancy provision as a defense to liability under the Lease after the fact because the occupancy level was not the reason that Claire’s closed its store and vacated the premises. In other words, Browns-burg Station argues that Claire’s “fabricate[d] its method to calculate occupancy” after it had vacated the premises. Appel-lee’s Brief at 17. In response, Claire’s points to College Point Boat Corp. v. United States, 267 U.S. 12, 45 S.Ct. 199, 69 L.Ed. 490 (1925). There, the United States Supreme Court held:

A party to a contract who is sued for its breach may ordinarily defend on the ground that there existed, at the time, a legal excuse for nonperformance by him, although he was then ignorant of the fact. He may, likewise, justify an asserted termination, rescission, or repudiation, of a contract by proving that there was, at the time, an adequate cause, although it did not become known to him until later. An unconditional right to cancel can be availed of for the purpose of terminating a contract, even after suit brought, unless some intervening change in the position of the other party renders that course inequitable.

Id. at 15-16, 45 S.Ct. 199. Although no prior Indiana case has applied College Point Boat Corp., the Court’s reasoning is on point here. Thus, Claire’s was entitled to assert the terms of the operating co-tenancy provision as a defense to Browns-burg Station’s complaint, even though Claire’s was apparently not aware of that defense at the time it vacated the premises.

Conclusion

We hold as a matter of law that the operating co-tenancy provision in the Lease unambiguously states that Claire’s could terminate the Lease in the event the occupancy level fell below seventy percent of the non-department retail store tenants in Buildings Al and A3, not seventy percent of the gross leasable area in those buildings, for a period of one year or more. Brownsburg Station’s construction of Section 2.06 would render the introductory clause ineffective and meaningless, disregard the plain and ordinary meaning of the actual text, and insert terms that are not there, all of which violate the rules of contract construction. In sum, Browns-burg Station would have us write a new operating co-tenancy provision for the parties, which we will not do.

We also hold that Claire’s properly terminated the Lease. The parties do not dispute that the occupancy level of Buildings Al and A3, defined by the number of tenants, had fallen below seventy percent for one year when Claire’s vacated the leased premises. And the Lease does not require notice or that any other action be taken in order for Claire’s to terminate its tenancy under that provision. As such, we conclude that Claire’s exercised its option under the operating co-tenancy provision to terminate the Lease when it vacated the premises. Therefore, the trial court erred as a matter of law when it denied Claire’s’ motion for summary judgment as to liability under the lease. We vacate the Judgment and remand for the trial court to enter summary judgment in favor of Claire’s.

Reversed and remanded with instructions.

BAILEY, J., and BARNES, J., concur.

      . We heard oral argument on August 27, 2013.

      . The parties have not included a copy of the complaint in the record on appeal.

      . In its appellate brief and at oral argument, Brownsburg Station argued in favor of referring to extrinsic evidence in order to determine whether the operating co-tenancy provision in the Lease is ambiguous. In support, Brownsburg Station cites cases from other jurisdictions. But we are not bound by the law in other jurisdictions. See Lyons v. McDonald, 501 N.E.2d 1079, 1081 (Ind.Ct.App. 1986). Instead, we are bound by the law of this jurisdiction, which provides that extrinsic evidence may be used to construe a contract only if the court determines that the contract is ambiguous. See Kahlo, 938 N.E.2d at 744. As discussed below, we conclude that the operating co-tenancy provision is unambiguous. Therefore, we do not consider extrinsic evidence.

      . Brownsburg Station also makes an intricate grammatical argument, which is no match for the plain and ordinary meaning of the text and could not have been contemplated by the parties at the time the Lease was made.

      . While our opinion.does not consider or rest upon the trial court’s findings and conclusions, we note the trial court’s finding that "[calculating occupancy level in operating co-tenancy provisions based on number of tenants as opposed to gross leasable area ... is an industry-recognized practice.” Appellant’s App. at 22.

      . Because we conclude that the trial court should have granted summary judgment as to liability in favor of Claire’s, we need not address Brownsburg Station’s claim on cross-appeal that the trial court erred when it declined to award consequential damages.


author: BAILEY, Judge.

text:
    Andrew WANN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 32A01-1303-CR-123.
    Court of Appeals of Indiana.
    Nov. 5, 2013.
    Rehearing Denied Feb. 7, 2014.

      Christina M. Trent, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Andrew Wann (“Wann”) appeals an order revoking his probation and ordering that he serve 90 days of a 365-day suspended sentence. We affirm.

Issues

Wann presents two issues for review:

I. Whether the trial court admitted a urinalysis report in violation of Wann’s due process rights as a probationer; and
II. Whether the order that he serve 90 days of his suspended sentence contravenes statutory authority.

Facts and Procedural History

On November 10, 2009, Wann pled guilty to Possession of Marijuana, as a Class A misdemeanor. He was sentenced to 365 days of imprisonment, all suspended to probation. As conditions of his probation, Wann agreed to drug testing and also that toxicology results obtained by a probation officer would be admissible in revocation proceedings.

After testing positive for marijuana use, Wann was arrested. He was released on bond the following day, admitted to a probation violation, and was ordered to serve 30 days of his suspended sentence (with credit for one day actually served and one day of good time credit). He was released and returned to probation.

The State filed a second Notice of Probation Violation, alleging that Wann had tested positive for marijuana use on September 16, 2010. Nearly two years later, on July 13, 2012, Wann was arrested. He was released from jail on August 7, 2012 to await a hearing.

At the evidentiary hearing conducted on March 12, 2013, Wann argued that he had effectively served 308 days of his suspended sentence by serving 308 days of probation and, when aggregated with his 82 days of imprisonment, his misdemeanor sentence had been fully served. The trial court found that Wann was still on probation when he violated a term of his probation by using marijuana. Wann’s probation was revoked and he was ordered to serve 90 days of his previously-suspended sentence in the Hendricks County Jail.

Discussion and Decision

I. Toxicology Report

Wann contends that the trial court improperly admitted hearsay evidence in determining whether he had violated a term of his probation. Over Wann’s hearsay objection, a probation officer was permitted to testify that Wann had “tested positive” for marijuana. (Tr. 3.) Contemporaneously, the trial court admitted as an exhibit a toxicology report from Redwood Toxicology Laboratory indicating that Wann’s screen of September 16, 2010 had shown “positive” results for marijuana. (St.Ex.2.) Wann now asserts that the documentary evidence was not substantially trustworthy so as to satisfy his due process rights as a probationer. In particular, he suggests that an affidavit from the testing toxicologist was required.

A probation revocation hearing is not equivalent to an adversarial criminal proceeding. Cox v. State, 706 N.E.2d 547, 550 (Ind.1999). However, the Due Process Clause applies to probation revocation proceedings, and the due process rights of a probationer include: “written notice of the claimed violations, disclosure of the evidence against him, an opportunity to be heard and present evidence, the right to confront and cross-examine witnesses, and a neutral and detached hearing body[.]” Id. at 549.

Because probation revocation procedures “are to be flexible, strict rules of evidence do not apply.” Id. The scope of the right to confrontation as defined in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), does not apply in such proceedings. Reyes v. State, 868 N.E.2d 438, 440 n. 1 (Ind.2007). In Cox, the Court held that judges could consider hearsay “bearing some substantial indicia of reliability,” but declined to adopt a particular approach to determining that reliability. 706 N.E.2d at 551. Subsequently, in Reyes, the Indiana Supreme Court adopted a “substantial trustworthiness” test. 868 N.E.2d at 440.

In Reyes, the State had filed a notice of probation violation alleging that Reyes had violated his probation by testing positive for cocaine. Id. at 439. At a hearing, the State submitted the affidavit of the scientific director of the laboratory that conducted the urinalysis of Reyes’s sample, together with related documents. Id. The director did not testify at the hearing, and Reyes objected to the affidavits as hearsay and claimed that the admission of the affidavit without live testimony would violate his right of confrontation. Id. The trial court admitted the affidavits and revoked Reyes’s probation. Id. The probation revocation was affirmed by the Indiana Supreme Court. Id. at 443.

In reaching its decision, the Court observed that hearsay evidence may not be admitted “willy-nilly.” Id. at 440. However, although there may sometimes be no adequate alternative to live testimony, due process does not prohibit substitutes where appropriate, including affidavits, depositions, and documentary evidence. Id. (citing Gagnon v. Scarpelli, 411 U.S. 778, 782-83 n. 5, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)). Where the State has shown that the hearsay “bears substantial guarantees of trustworthiness,” the State need not additionally show good cause for not producing live testimony. Id. at 441. The trial court must evaluate the reliability of the hearsay evidence and, ideally, the trial court should explain on the record why the hearsay is reliable and why that reliability is substantial enough to supply good cause for not producing live witnesses. Id. at 442.

Here, probation officer McCleese testified that he had observed the administration of the drug screen to Wann and that the sample was then sealed, labeled, and sent to Redwood Toxicology Laboratory for testing. According to McCleese, similar tests were administered by his department and sent to Redwood Toxicology on a routine basis. The trial court concluded that the report was admissible. Wann now contends that the trial court’s conclusion is erroneous, because the hearsay evidence in his case falls short of the level of trustworthiness of that submitted in Reyes. He implicitly argues that the “substantial trustworthiness” test of Reyes requires an affidavit and a scientific opinion validating drug screen results. We discern no such requirement in Reyes

Moreover, Wann ignores a crucial distinction between his circumstances and those present in Reyes. Wann had signed an agreement containing the provision: “You shall submit to alcohol and drug tests when requested by the Probation Department or any Law Enforcement Officer. You shall waive any objection to the admissibility of the results of the test as they are received by the Court into evidence at any Revocation Hearing.” (State’s Ex. 1.) That is, Wann agreed in advance to the admissibility of the test results and made no claim in probation revocation proceedings that the admissibility agreement is unenforceable. Wann has thus not demonstrated that the trial court admitted the toxicology report in contravention of his due process rights.

II. Order to Serve 90 Days of Sentence

Probation may be revoked for a violation of a probation condition. Runyon v. State, 939 N.E.2d 613, 616 (Ind.2010). Indiana Code Section 35-38-2-3(h) provides as follows:

If the court finds that the person has violated a condition at any time before termination of the period, and the petition to revoke is filed within the probationary period, the court may impose one (1) or more of the following sanctions:
(1) Continue the person on probation, with or without modifying or enlarging the conditions.
(2) Extend the person’s probationary period for not more than one (1) year beyond the original probationary period.
(3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.

Generally speaking, as long as the trial court follows the procedures outlined in Indiana Code Section 35-38-2-3, the trial court may properly order execution of a suspended sentence. Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind.Ct.App.2006).

Here, however, Wann argues that the order that he serve of a portion of his previously-suspended sentence contravenes other statutory authority. Wann had served 308 days on probation prior to his violation. By the time of the revocation hearing, he had been incarcerated for a total of 82 days (inclusive of good time credit). He claims that his sentence has been fully served and the order for 90 days imprisonment violates the statutory maximum of Indiana Code section 35-50-3-1, which provides in relevant part:

The court may suspend any part of a sentence for a misdemeanor....
However, the combined term of imprisonment and probation for a misdemean- or may not exceed one (1) year.

He directs our attention to Jennings v. State, 982 N.E.2d 1003 (Ind.2013). Appellant Jennings, convicted of a Class B misdemeanor, had been sentenced to 30 days executed time, 150 days suspended, and 360 days of probation; on appeal he challenged the sentence as in excess of the statutory maximum of section 35-50-3-1 and thus illegal. Id. at 1004. The Court was asked to decide whether a suspended sentence was part of the term of imprisonment. See id.

Wann asserts that our Supreme Court determined in Jennings that the trial court may not order an executed sentence and term of probation that aggregate to more than one year but “to the best of Wann’s knowledge, there is no case law discussing how this provision should be interpreted as applied to revocations of probation, after a term of probation has already been served.” Appellant’s Brief at 7. He urges a construction such that a suspended sentence is “run concurrently with probation on a misdemeanor conviction.” Appellant’s Brief at 8.

Wann is correct insofar as he observes that Jennings clarified: “a combined term of probation and imprisonment may not exceed one year, notwithstanding the maximum term of imprisonment for the misdemeanor.” 982 N.E.2d at 1005. Additionally, our Supreme Court specifically held that the phrase “term of imprisonment” embodied in Indiana Code Section 35-50-3-1, for purposes of misdemeanor sentencing, does not include suspended time. Id. at 1005-06. “For the purpose of Indiana Code § 35-50-3-1, ‘term of imprisonment’ means the total amount of time a misde-meanant is incarcerated.” Id. at 1009. Ultimately, the Court remanded Jennings’ case “for imposition of a probationary period consistent with this opinion, not to exceed 335 days — the difference between one year (365 days) and the 30 days Jennings was ordered to serve in prison.” Id.

The State does not dispute that Wann was on probation for 308 days or imprisoned for 82 days. Rather, the State argues that Wann’s “days of probation” are not included in the “term of imprisonment” limited by Indiana Code § 35-50-1-3 and that Wann has not “served his sentence” by having been on probation. State’s Brief at 11.

As a threshold matter, we observe that the statute construed in Jennings deals with the trial court’s imposition of a misdemeanor sentence. Wann is not directly appealing his 365-day sentence as exceeding the misdemeanor statutory maximum. Instead, he seeks to extrapolate language from Jennings to calculate his time served in a manner that would lead to the conclusion that he was no longer subject to any period of incarceration by the time of his probation revocation hearing. Wann requests that we determine that for each day he served on probation he also served one day of his suspended sentence. In other words, he would be credited with having been on probation 308 days and having served 308 days of his suspended sentence (in addition to serving 82 days of his suspended sentence while in actual confinement). Thus, in his view, no day of his suspended sentence remained.

At first blush, there appears to be language in Jennings supportive of Wann’s position: “[probation and suspended sentences are widely imposed concurrently in order to ensure the probationer’s good behavior. The two work in concert.... A suspended sentence, in effect, is a form of probation.” Jennings, 982 N.E.2d at 1008. Importantly, however, Jennings involved an allegation that the sentence imposed exceeded statutory authority and did not overrule any probation revocation statute.

Consistent with the reasoning of Jennings, Wann as a misdemeanant was subject at his sentencing hearing to a maximum term of 365 days, all executed, all on probation, or divisible between probation and imprisonment. He received a sentence within that statutory range. See I.C. § 35-50-3-1. Subsequently, the issues before the trial court considering the probation revocation petition were whether the petition to revoke was timely filed, whether Wann was on probation on September 16, 2010 — the date of the drug screen — and whether he violated a term of his probation.

From the date of Wanris November 10, 2009 sentence to his September 16, 2010 violation, 308 days had elapsed. The State alleged the violation within the probationary period, and subsequently proved the violation. Accordingly, the options of Indiana Code section 35 — 38—2—3(h) were available to the trial court, including an order for “execution of all or part of the sentence that was suspended at the time of initial sentencing.” The trial court acted within its statutory discretion to order that Wann serve 90 days in jail.

Conclusion

Wann has not shown that he was denied due process by the admission of hearsay evidence at the probation revocation hearing. Additionally, the order that he serve 90 days of his previously-suspended sentence does not contravene statutory authority.

Affirmed.

MAY, J., and BRADFORD, J., concur.

      . This resulted in credit for 26 days of actual incarceration and 26 days good time credit, for an aggregate of 52 days. Combined with the prior 30 days, Wann's total period of incarceration was 82 days.

      . He does not develop a separate argument with respect to the admissibility of the probation officer's testimony.

      . In the record, the probation officer is identified only by his surname.

      . A panel of this Court has recently concluded that the record of probation revocation proceedings supported a determination of substantial trustworthiness of "a routine report demonstrating that [appellant] had tested positive for marijuana.” Williams v. State, 937 N.E.2d 930, 934 (Ind.Ct.App.2010). The urinalysis had been performed by the president of the company handling Williams's home detention, the report contained a signed chain of custody signed by Williams and the president, and an employee of the home detention company had testified and explained the report and the date and time of sample collection. Id..; see also Holmes v. State, 923 N.E.2d 479, 484 (Ind.Ct.App.2010) (substantial trustworthiness existed for urinalysis report where the toxicologist affirmed under penalty of perjury that the sample was received under controlled conditions and processed in accordance with laboratory standard operating procedures and the scientist affirmed that the sample was handled in accordance with applicable requirements).

      . The Court also observed that, in prior case-law, “probation and suspended sentence were considered together as two parts of the same whole.” Jennings, 982 N.E.2d at 1006 (citing Smith v. State, 621 N.E.2d 325 (Ind.1993)).