author: BROWN, Judge.

text:
    In re The PATERNITY of B.B. R.B., Appellant-Petitioner, v. T.J., Appellee-Respondent.
    No. 34A02-1303-JP-243.
    Court of Appeals of Indiana.
    Nov. 20, 2013.

      Maureen T. Keefe, Law Office of Maureen T. Keefe, Carmel, IN, Attorney for Appellant.
    David R. Rosselot, Kokomo, IN, Attorney for Appellee.
   OPINION

BROWN, Judge.

R.B. ("Father") appeals the trial court's order modifying eustody, visitation, and support of B.B. to TJ. ("Mother"). Father raises two issues, which we revise and restate as:

I. Whether the court abused its discretion by admitting evidence of text messages purportedly exchanged between Father and Mother; and
II. Whether the court abused its discretion by granting Mother's petition to modify physical and legal custody of B.B.

We affirm.

FACTS AND PROCEDURAL HISTORY

B.B. was born out of wedlock to Mother and Father on July 30, 2008, and the following day the parents signed a paternity affidavit. At the time of B.B.'s birth, Father was eighteen years old, Mother was seventeen years old, and both were living in Kokomo, Indiana. On August 20, 2010, following a petition to establish paternity filed by Father, the court issued its Order Establishing Paternity and Other Matters in which it left open the matter of custody of B.B. Soon after, on August 23, 2010, Mother filed a verified petition to modify order and petition for support, the court held a hearing on March 4, 2011, and on April 11, 2011, the court issued its Order Re: Child Custody and Parenting Time awarding joint legal custody of B.B. and shared custody in which the parents exercised equal parenting time.

In October of 2011, Father filed a notice of intent to relocate, and Mother filed an affidavit for contempt/petition to modify custody and an objection to notice of intent to move. The court held a hearing, and on January 17, 2012, entered an order in which it noted that in the summer of 2011 Father enrolled B.B. in pre-school at St. Joan of Are/St. Patrick campus in Kokomo ("St. Joan of Arce"), and that although Mother had initial reservations, she ultimately agreed to B.B. attending the school. The court's order noted that in October 2011, Father relocated his residence to Westfield, Indiana, approximately thirty-six miles from Kokomo, that Father advised Mother of his intent to relocate approximately two weeks in advance, and that Father filed his notice of intent to relocate three days after Mother filed her affidavit of citation/petition to modify eus-tody. The court noted that Father, in anticipation of his move and without consulting Mother, withdrew B.B. from St. Joan of Are and enrolled him in a preschool at St. Maria Goretti School in West-field. The court modified the custody and parenting time provisions of its prior order so that B.B. could continue to attend St. Joan of Are but continued the joint legal and physical custody arrangement. The court also admonished Father for his actions in enrolling B.B. in school twice without consulting Mother, and ordered him to consult with her on all major decisions affecting the child.

In February and March of 2012, both parents filed contempt citations related to the other parent claiming B.B. as a dependent on their tax returns in violation of previous court orders. On May 25, 2012, Mother filed a petition to modify decree asking that the court modify custody of B.B. due to a substantial change in the cireumstances of the parties, specifically stating:

(a) [Father] has re-entered into or maintained a life-style involving alcohol[.]
(b) That said lifestyle impedes his ability to operate a motor vehicle and properly care for the child.
(c) The court entered an Order of joint custody at a time when the parties were able to communicate with one another. On or about April 22, 2012 [Mother] was told by [Father] not to call or communicate with him any further. Communication has been terminated as a result of this incident.
(d) At the time of the Court Order [Father] had a girlfriend/wife. A new child has been born into that relationship and [Father] has lost interest in [B.B.].
(e) That [B.B.] has grown older, can begin the "Headstart Program" in August, a five day per week school. This option would alter the current parenting time order. [Mother] does not intend to enroll the child in Headstart absent the Court's permission.
(£) For other unspecified reasons, it is in the best interest of the child that custody be modified.

Appellee's Appendix at 82. In July of 2012, the parents filed a Joint Agreement for Appointment of Mediator, and on August 27, 2012, the mediator filed her report finding that mediation was unsuccessful. Appellant's Appendix at 10. Also, in January of 2018 both Mother and Father filed affidavits of citation for contempt alleging that the other parent denied them parenting time or visitation in violation of previous court orders.

On January 17 and January 30, 2018, the court held a hearing on the parents' various court filings. On February 25, 2013, the court issued its order modifying custody, visitation and support (the "Modification Order") and included the following relevant findings:

42. _.... In October 2011, after relocating to Westfield, [Father] enrolled [B.B.] in pre-school at St. Maria of Goretti School in Westfield, without consulting [Mother]. ...
*s * * * # *
44. [B.B.] began the fall 2012 school year on August 20, 2012, at [St. Joan of Arc]. Although [Father] had [B.B.] in his custody the first day of school, he failed to arrange for [B.B.'s] transportation, and [Mother] drove to [Father's] residence and took [B.B.] to school for his first day.
i # # * # x
51. Mother and [Father] have a contentious relationship, and on most occasions fail to communicate constructively or at all. During one day in the spring 2012, [Mother] called or texted [Father] ten (10) or more times in an attempt to speak with [B.B.], which requests [Father] refused. Father contacted law enforcement alleging [Mother] was harassing him, and she was told not to contact [Father] any more in the future.
52. On November 25, 2012, the parties signed an agreement between them as to how parenting time with [B.B.] would be divided during the period December 15 through 31st, 2012. ... At the hearing in January 2013, each parent alleged the other had violated the agreement in some respect.
58. The parents have a mutual dislike and distrust of each other. Of the two parents, [Father] is the most negative of the two in terms of his language, demeanor, and attitude toward [Mother]. In his discovery responses and hearing testimony, he indicated "none" in response to a question about [Mother's] positive attributes.

Id. at 166, 168.

The Modification Order included conclusions of law and specifically concluded that "it is in [B.B.'s] best interest that the prior orders be modified to provide that his legal and physical custody be awarded to [Moth-erl, and that [Father] be awarded parenting time ... per the Indiana Parenting Time Guidelines with an additional overnight on alternate weekends." Id. at 171. Additional facts will be provided below as necessary.

L.

The first issue is whether the court abused its discretion by admitting evidence of text messages purportedly exchanged between Father and Mother. We observe that the decision to admit or exclude evidence is reviewed for an abuse of discretion. Cain v. Back, 889 N.E.2d 1253, 1256 (Ind.Ct.App.2008), trans. denied. An abuse of discretion occurs if the trial court's decision is clearly against the logic and effect of the facts and cireum-stances before it, or the reasonable, probable, and actual deductions to be drawn therefrom. Id. at 1257. Moreover, we will not reverse the trial court's decision to admit evidence if that decision is sustainable on any ground. Gomez v. Gomez, 887 N.E.2d 977, 982 (Ind.Ct.App.2008).

Father argues that the court admitted as Respondent's Exhibit D a document purportedly containing text messages exchanged between the parents (the "Text Messages") "as a statement by a party-opponent" and that it "accepted [Mother's] assertion the texts were complete and accurate in spite of her inability to describe with any clarity the process she employed to transfer them from her phone to her computer, or to print them." Appellant's Brief at 7. Father argues that "[wJritings and recordings, including text messages, must be authenticated pursuant to Ind. Evidence Rule 901 before being admitted into evidence." Id. at 8. Father argues that "[the messages do not appear to follow or flow logically and any number of them lack context" and "appear to begin in the middle of a thought or argument." Id. at 9. Father also argues that the Text Messages "appear to have played a role in the court's decision to modify custody," noting that "paragraphs 5, 7, 8, and 11 of the Order granting modification make reference to, or appear to infer from testimony and evidence there is a change of circumstances relevant to communication between the parties" Id. Father maintains that "absent the improperly admitted text messages, the evidence the court had to consider was, at best, equivocal." Id.

Mother argues that the court did not abuse its discretion in admitting the Text Messages, noting that Mother identified the messages as being between her and Father between March 11, 2012 and June 1, 2012, that Father identified the phone numbers as his and that of Mother, that Father testified when asked to identify the Text Messages that he did not "doubt that this isn't, isn't me," and that Mother explained how she generated the document using her cell phone and a computer. Ap-pellee's Brief at 7.

When the substance of a text message is offered for an evidentiary purpose, the text message must be separately authenticated pursuant to Ind. Evidence Rule 901(a). Hape v. State, 903 N.E.2d 977, 990 (Ind.Ct.App.2009), trams. denied. Rule 901 provides that "[the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Absolute proof of authenticity is not required. Fry v. State, 885 N.E.2d 742, 748 (Ind.Ct.App.2008), trans. denied. When evidence establishes a reasonable probability that an item is what it is claimed to be, the item is admissible. Thomas v. State, 734 N.E.2d 572, 573 (Ind.2000). Ind. Evidence Rule 901(b) provides "(bly way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule" and includes:

Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (i) in the case of a person, cireumstances, including self-identification, show the person answering to be the one called, or (ii) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

Ind. Evidence Rule 901(b)(6).

When presented with the Text Messages, Father indicated that the two phone numbers featured on the document belonged to him and Mother. When he was asked whether he recognized the Text Messages, the following exchange occurred:

A I don't doubt that this isn't, isn't me. I believe I remember this right here at the beginning, there's quite a lot here to go through ....
Q Just take a glance through it and see if there's anything that sticks out and that leads you believe [sic] that's not the action transcribed message.
A I don't doubt that it is. I would have to go through it in more detail,
Q Do you remember making any of these calls or texts?
A I remember vaguely the first sentence. I can't remember what the situation was though.
Q Did you folks have telephone conversations between each other during this same period of time which would have been, these texts range from March lith through June ist last year, did you also talk to each other on the phone at the same time?
* * * *#
A Yes.
Q OK. So this wouldn't be comprehensive of all the communications you had? These would just be indicative of the texts that went back and forth between the two of you?
A We did things through text as well as phone conversation.
Q OK.
A We prefer text because it's-, we don't really talk very well together.
Q You don't really talk well over the phone?
A No, we don't get along. Quite a lot of bickering so we actually preferred text.
Q And that text preference, is that your preference as well as hers or-
A I think that's fair to say, yes.
x # x x x #
Q And I'd like to ask you, is the language in the conversations still the same now as it is throughout these texts?
A Actually I think it's safe to say that we've been doing better. We do have our moments but I've been working really hard to try to do my best to get along with her for [B.B.'s] sake.
Q OK, so you're working hard to try to improve not only the language but the demeanor and attitude that's portrayed in some of these?
A It's not just me but yes, I have been working hard to not argue as much.

Transcript at 27-29.

Also, during Mother's testimony she was presented with the Text Messages and indicated that the document contained the text messages occurring between her and Father between March and June ist of 2012. She indicated that she created the "document by plugging [her] phone into a computer program" which "transeribed" the text messages to the document. Id. at 70. Mother's counsel then offered into evidence the exhibit, and Father's counsel proceeded to ask Mother preliminary questions as follows:

Q Ma'am, what program did you use to obtain these?
A I had it saved on my flash drive. It went from my cell phone straight to my lap top [sic] to my flash drive to my computer to (inaudible).
Q Do you recall what the name of the program is?
A I still have my old cell phone that has all the things on it, Microsoft, I think.
Q So how did you obtain these printed items?
A I don't know how the computer works. It just kind of goes through file, open, copy and paste.
Q And you're saying this represents the entirety of all the text messages from March 11th to June 1st?
A Yes.
Q So this was generated by a program that you had on your phone?
A No.
Q OK, that's what, that's just what I'm trying for foundation purposes, what-
A A cord, they have a cord that goes from your phone, goes to your computer and it (inaudible) file in-
Q OK, right.
A -goes file, open.
Q And what program on your computer did you access?
A Microsoft.
Q Well, I'm not a computer expert but I think Microsoft is a big company that makes software. Can you remember the name of the program?
A It's, it kind of just went to it, just a file that was open and just pasted it on Microsoft. I mean, it went straight from the phone to the computer (inaudible).
Q So did you pick and choose between what texts are going to be on there, what days?
A Every text should be there. It was went through, printed and given to my lawyer.

Id. at 70-71.

Following this exchange, Father's counsel objected to the entry of the Text Messages for lack of a proper foundation, arguing that there was no certification that it was an accurate or true copy and that he had "no idea what program this is accessed through, the reliability of it...." Id. at 72. Mother's counsel argued that "these are text messages that [Mother] said she actually observed on her phone" and that "she did not pick or choose." Id. Mother's counsel stated that he did not "know what could be more reliable than going from the phone itself, through a cord, to the computer, and printing." Id. The court stated that it was "looking at it a little differently. This is a communication between these two people which would otherwise come into evidence as being, the declarant being the opposing party." Id. at 78. The court then said: "As long as she says on oath in reviewing that this is what either I said, texted or what I received from him as texted, I think it comes in...." Id. Mother then reviewed the exhibit and indicated that they were the text messages "sent to [her] or by [her] on the date specified in the document," and the court admitted the exhibit. Id. at T5.

Also, on the second day of the hearing, Father was again asked about the Text Messages. He testified that he had reviewed the exhibit and believed it to be inaccurate, stating that "there's stuff missing out of them and of course, it's [Mother's] stuff." Id. at 204. He testified that "in some of the conversations, if you just read through them you can see that they don't make sense." Id.

Thus, Father does not argue that the text messages contained in the document were not exchanged between him and Mother; rather, Father's main challenge to the Text Messages is his general belief that Mother must have deleted certain text messages in order to make her appear to be the more sympathetic figure. We note, however, that Father never directed the court's attention to a specific part of the document where he believed that content was missing, nor did he attempt to admit evidence of any deleted text messages. As a party to the text messages, Father could have obtained a copy of the text message exchange between him and Mother on his phone, and he did not testify that a record of the text messages was unavailable to him at the time of the hearing. We also note that the second day of the hearing took place about two weeks after the first day, that Father was recalled on the second day of the hearing and testified that the exhibit, which had already been admitted into evidence, did not contain all of the text messages, but he did not offer evidence to support his claim.

Indeed, we observe that Father's argument appears to be little more than an argument to apply the doctrine of completeness, which is a common law doctrine that "[when one party introduces part of a conversation or document, the opposing party is generally entitled to have the entire conversation or entire instrument placed into evidence." Lewis v. State, 754 N.E.2d 603, 606 (Ind.Ct.App.2001) (quoting McElroy v. State, 553 N.E.2d 835, 839 (Ind.1990), trans. denied ), trams. denied. The doctrine of completeness has been incorporated into the Indiana Evidence Rules as Evidence Rule 106. Norton v. State, 772 N.E.2d 1028, 1033 (Ind.Ct.App.2002), trans. denied. The rule states:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require at that time the introduction of any other part or any other writing or recorded statement which in fairness ought to be considered contemporaneously with it.

Ind. Evidence Rule 106.

The purpose of Evidence Rule 106 is to avoid misleading impressions from out-of-context statements or from the introduction of only selective parts of evidence. Lieberenz v. State, 717 N.E.2d 1242, 1248 (Ind.Ct.App.1999) (citing 13B R. Jr., Inpotana Practices § 106 at 283 (Supp. 1998)), trans. denied. The doctrine of completeness provides "context for otherwise isolated comments when fairness requires it." Barnett v. State, 916 N.E.2d 280, 286 (Ind.Ct.App.2009) (quoting Sanders v. State, 840 N.E.2d 319, 323 (Ind.2006)), trans. denied. Portions of evidence not expository of nor relevant to already-introduced sections of evidence need not be admitted. Id.

The purpose of the doctrine of completeness is to allow the introduction of additional material to place incomplete, misleading evidence in its full context. Nothing in the record indicates that Father sought to submit evidence of the allegedly deleted text messages. His objection was not an attempt to have the purported remainder introduced into evidence, but rather an effort to wholly exclude the Text Messages. To the extent that he suggests that, without the purported omitted text messages, a misleading impression was created, we note that he did testify on the second day of the hearing that he believed certain text messages were not contained in the exhibit, the court heard Father's testimony, and we cannot say that the court failed to account for such testimony.

We find that evidence was presented sufficient to support a finding that the Text Messages were what Mother claimed them to be, and that a sufficient foundation was laid for their admission, and accordingly, we conclude that the court did not abuse its discretion when it admitted the Text Messages.

IL.

The second issue is whether the court abused its discretion by granting Mother's petition to modify physical and legal custody of B.B. We review custody modifications for an abuse of discretion and have a "preference for granting latitude and deference to our trial judges in family law matters." Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.2002). "We set aside judgments only when they are clearly erroneous, and will not substitute our own judgment if any evidence or legitimate inferences support the trial court's judgment." Id. The Indiana Supreme Court explained the reason for this deference in Kirk:

While we are not able to say the trial judge could not have found otherwise than he did upon the evidence introduced below, this Court as a court of review has heretofore held by a long line of decisions that we are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and serutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence, or that he should have found its preponderance or the inferences therefrom to be different from what he did.

Id. (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)). Therefore, "[oJn appeal it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal." Id. In the initial custody determination, both parents are presumed equally entitled to custody, but a petitioner seeking subsequent modification bears the burden of demonstrating the existing custody should be altered. Id. We may neither reweigh the evidence nor judge the credibility of the witnesses. Fields v. Fields, 749 N.E.2d 100, 108 (Ind.Ct.App.2001), trans. denied.

The trial court's findings were entered pursuant to Ind. Trial Rule 52(A) which prohibits a reviewing court on appeal from setting aside the trial court's judgment "unless clearly erroneous." Dunson v. Dunson, 769 N.E.2d 1120, 1123 (Ind.2002). When reviewing the trial court's findings of fact and conclusions thereon, we consider whether the evidence supports the findings and whether the findings support the judgment. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind.1997). Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference. Id. A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts. Id. In order to determine that a finding or conclusion is clearly erroneous, our review of the evidence must leave us with the firm conviction that a mistake has been made. Id.

The child custody modification statute provides that "[the court may not modify a child eustody order unless: (1) the modification is in the best interests of the child; and (2) there is a substantial change in one (1) or more of the factors that the court may consider under [Ind. Code § 31-17-2-8]...." Ind.Code § 31-17-221. Ind.Code § 31-17-2-8 lists the following factors:

(1) The age and sex of the child.
(2) The wishes of the child's parent or parents.
(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child's parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(5) The child's adjustment to the child's:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent....

Father argues that the court "improperly weighed and considered evidence presented at trial in concluding that a substantial change of cireumstances occurred ...." Appellant's Brief at 1. Specifically, he argues that the court found in Finding 20 that each parent cared for B.B. approximately one-half of the time but the evidence presented demonstrated that he cared for B.B. "approximately two-thirds (2/3) of the time" and Mother "did not provide evidence to refute this." Id. at 18. Father notes that Finding 40 found that during his parenting time "B.B. spends an average of a day and/or overnight with his paternal grandfather in Kokomo" but that "it was unrefuted [La.B.] spends about three to four months out of every year in Florida, and he does not see or have B.B. during those times." Id. He asserts that Finding 41 found that he and Samantha smoke, but the court failed to account for Father's testimony that "neither [he] nor his wife smoke in their home" and "[if they 'smoke' in the home it is by using 'green' cigarettes." Id. Next, Father contends that in Finding 48 the court appeared to penalize Father for not contributing toward B.B.'s education despite the fact that he was not required to pay for school expenses, and it ignored the fact that he provides for all of B.B.'s transportation, which is significant. He notes that Finding 48, which addresses B.B.'s acting out in a sexual manner, "noted that [Mother] claimed [Father] knew about the behavior for one year" but "failed to note [he] denied that allegation" and "failed to find that it was [him], not [Mother], who took action to address the behavior." Id. at 14. Father also argues that Finding 51, in which the court found that Mother has called or texted him "ten or more times to speak to B.B. but [he] refused her requests" failed to recognize that in such instances there "was no emergency or other legitimate reason for the large number of calls and texts," and that Mother's behavior "rises to the level of harassment and interference, not an attempt by a concerned mother to check her child's well being." Id.

Father next maintains that the court made conclusions of law based on these erroneous findings. Specifically, Father challenges the following Conclusions of Law:

7. The court further finds and concludes that since the court's prior orders awarding shared custody of the child to the parents, there have occurred substantial changes as noted in the court's findings herein, and in particular with respect to the interaction and interrelationship of the child with each parent.
8. The parents are no longer able or willing to constructively communicate or work together on a shared custody arrangement.
9. The court further finds that it is in the best interest of [B.B.] that his primary physical and legal custody be with one parent. During the past year or more, [B.B.'s] behaviors and academic development have suffered under the shared custody arrangement.
10. As [B.B.] has grown older and is approaching a time where he will be attending school full-time, he requires a suitable and consistent stability, so that he can regard one home as his primary residence.
11. Between the two parents, [Mother] is the one who is most likely not to interfere or diminish the non-custodial parent's role with the child.

Appellant's Appendix at 171-172. Father argues that there is little in the record to support Conclusions 7 and 9, that the basis for Conclusion 8 is "likely ... the content of the erroneously admitted text messages," and that "[wlhat is far more likely to be causing B.B.'s problems is his apparent exposure to someone or something that viectimizes him sexually." Appellant's Brief at 15. Regarding Conclusion 10, he contends that "the fact that a child has grown older does not in itself constitute a substantial change of cireumstances" and "the court made no finding that [Mother] would provide a more stable household." Id. at 16. Finally, as to Conclusion 11, which concludes that Mother is most likely to not interfere with Father's role in parenting B.B., he asserts that this also appears to be based upon the erroneously-admitted Text Messages and fails to account for evidence to the contrary.

Mother argues that any extra time B.B. spent with Father can be attributed to her flexibility in allowing B.B. to visit with him, including traveling to Florida, or Father taking credit for overnights in which B.B. was allowed to visit with La.B. Mother states that the court "properly admonished all parties not to expose [B.B.] to smoke" in Finding 41. Appellee's Brief at 10. She argues that the evidence supports Finding 48 in that Father was able to financially contribute to B.B.'s education costs, noting that it was Father who originally enrolled B.B. at St. Joan of Arc. She maintains that, to the extent Father suggests that the transportation costs he covers offset the costs of B.B.'s education, it was Father's choice to move to Westfield and Father testified that he "offered to do that." Id. Regarding B.B.'s behavior, Mother posits that evidence in the record reveals that Father knew about such behavior for a year and, "instead of acting positively, contacted [CPS] blaming [Mother]." Id. at 11. She also argues that, as to the phone calls, "the important factor is that [Father] refused to allow her to speak to" B.B. over the phone. Id. Finally, she points to various findings and other parts of the record supporting each of the court's conclusions challenged by Father.

To the extent that Father challenges the findings of fact, we initially note that his arguments are essentially a request to reweigh the evidence and judge the credibility of the witnesses, which we may not do. Fields, 749 N.E.2d at 108. Regarding Finding 20, the court noted in that finding that the previous order in place was for the parents to have joint legal and physical custody and that "each parent has cared for [B.B.] approximately one-half of the time...." Appellant's Appendix at 161 (emphasis added). Also, to the extent that Father challenges Finding 40 that "[dlur-ing [Father's] custody time, [B.B.] spends an average of a day and/or overnight with [La.B.1" and that LaB. "takes [B.B.] to pre-school on Mondays and Fridays," in that the court failed to account for months La.B. spends in Florida, we observe that Father gave specific testimony regarding La.B.'s participation in caring for B.B., and he indicated that La.B. transported B.B. to and from his house and that sometimes B.B. will stay overnight at La.B.'s house and noted that "[wle try to get [B.B.] over there at least ... once a week." Tran-seript at 41. It is also unclear to what extent any purported error by the court in not recognizing the time La.B. spends in Florida had on any of the relevant conclusions of law.

Regarding Finding 41, which deals with the parties' smoking habits, Finding 41 "Mother has smoked states specifically: cigarettes, but quit January 1, 2018. Her mother Angela smokes in her home. Father and his wife Samantha both smoke. [B.B.] should not be exposed to any cigarette smoke." Appellant's Appendix at 166. None of Father's arguments regarding Finding 41 refute the language of the court's finding, but Father challenges the court's failure to account for his testimony that neither he nor Samantha smoke in their home. We note, however, that the finding only mentions that Angela smokes in the home. Also, regarding Finding 43, the court specifically found that "the court's orders were silent as to the parents' responsibility to pay tuition and school expenses for" B.B. Id. Further, the court recognized in Finding 11 that Father was responsible for all transportation of B.B. to effect the joint custody schedule. Id. at 160. Father's remaining arguments regarding Findings 48 and 51 similarly impermissibly request that this court reweigh the evidence presented at the hearing.

Having determined that the court did not abuse its discretion in rendering its findings of fact, we observe that, as noted above in the conclusions challenged by Father, the crux of the court's conclusions is that the shared custody arrangement was no longer viable because: 1) Mother and Father have demonstrated an inability to communicate with one another for any prolonged period of time which has impacted B.B.'s behaviors and development; 2) B.B. is approaching an age in which he will be attending school five days a week which, under the cireumstances, necessitates that B.B. have a primary residence; and 3) between the two parents, Mother is most likely not to interfere or diminish the noncustodial parent's role with B.B. We note that with regard to B.B.'s need for a primary residence as he approaches the start of full-time school, both parents are in agreement and that Father specifically testified that "[when it comes times for him to go to kindergarten, this will not work." Transcript at 210-211.

Regarding the parents' failure to communicate and their relative responsibility for such failure, the court made a number of findings as recited above in support of these conclusions, including that Father moved to Westfield and enrolled B.B. in preschool without consulting Mother and failed to arrange transportation for B.B. to attend his first day of school despite having B.B. in his custody. The court also specifically found in Finding 51 that the parents "have a contentious relationship, and on most occasions fail to communicate constructively or at all," and noted that Mother has on occasion called or texted Father ten or more times in a day in an attempt to speak with B.B., and Father responded by contacting law enforcement. Appellant's Appendix at 168. The court noted in Finding 52 that the parents entered into an agreement regarding parenting time during the last two weeks of December of 2012, and at the hearing in January of 2013 both parents alleged that the other had violated the agreement. Also, the court specifically found in Finding 538 that "[the parents have a mutual dislike and distrust of each other" and that Father "is the most negative of the two in terms of his language, demeanor, and attitude toward [Mother]." Id.

We note that the testimony at the hearing supports both the findings as well as the court's conclusions. Father testified that he and Mother have problems with communication "[tJwice a week or more." Transcript at 44. He stated that "he has] always tried to come to the middle [and] always tried to go the extra mile, over and over and over, and [he] constantly get[s] shafted for it and just got frustrated." Id. at 25. Father was asked specifically if he believed communication between Mother and him would improve if he had full custody of B.B., and his response was "I don't think our communication would be any better, no. I mean, we are gradually making progress so possibly, if we both continue to work at it." Id. at 35.

Further, the court was able to examine the Text Messages admitted into evidence by Mother which contains messages between the parents. As an example of the many messages included with a similar tenor, the Text Messages show that on April 15, 2012, Father texted Mother:

No one is going around the truth but you. My life is great. My family and wife is great. My finances great. My physical belongs [sic] great. My job great. My. [sic]) Community great. The only unsatisfactory thing about my life is you. Unfortunately conected [sic] to me like a ball n chain. You never agree. Never make your own decision never put [B.B.] first never go the extra mile for him. Your [sic] nothing but a pest that I feel sorry for out of pity. Not out of love. Your lost broke have no home can barley [sic] take care of your son, or yourself. Please stop chastising me like ur fuckin honest abe.

Respondent's Exhibit D at 4.

The parents were in agreement that, because B.B. was set to begin school on a fulltime basis and the parents live in different cities, it was in B.B.'s best interest that a primary residence for him be established. The trial court was able to listen to the testimony and evidence presented and weigh the credibility of the witnesses, including evidence regarding the parents' communication with one another as well as evidence that Father had been recently convicted for OW!I, and that Father filed a CPS report implicating Mother's boyfriend which was unsubstantiated. The court ruled that Mother was in the best position to act as B.B.'s primary caretaker and awarded her physical custody. After review, we cannot say that the court's findings or conclusions were clearly erroneous, and we conclude that the court did not abuse its discretion in granting Mother's petition to modify custody.

CONCLUSION

For the foregoing reasons, we affirm the trial court's order modifying custody, visitation and support of B.B. to Mother.

Affirmed.

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

      . Specifically, regarding physical custody the court ordered that Mother "shall have physical custody ... from Mondays 9 a.m. through Wednesdays 5 p.m. and alternate weekends, Fridays 5 p.m. to Mondays 9 a.m." Appellant's Appendix at 26. It ordered that Father "shall have physical custody ... from Wednesday 5 p.m. to Friday 5 p.m. and alternate weekends, Fridays 5 p.m. to Mondays 9 a.m." Id. The court's order also made pronouncements regarding holidays and stated that the custodial parent must first offer the other parent the opportunity to care for B.B. should the need arise.

      . Specifically, the court awarded Mother custody from Tuesday morning through Thursday evening, as well as alternate weekends and alternate holidays per the Indiana Parenting Time Guidelines, and awarded Father custody from Sunday evening until Tuesday morning and from Thursday evening to Friday evening, as well as alternate weekends and holidays per the Guidelines.

      . Mother claimed B.B. as a dependent on her tax return for the year 2010, which was contrary to a court order issued on August 18, 2010, and Father claimed B.B. as a dependent on his tax return for the year 2011, which was contrary to a court order issued on April 11, 2011.


source: Caselaw Access Project

author: SHEPARD, Senior Judge.

license: Public Domain

text:
    INDIANA HIGH SCHOOL ATHLETIC ASSOCIATION, INC., Appellant-Defendant, v. Gregory S. SCHAFER and Shane Schafer b/n/f Gregory S. Schafer, Appellees-Plaintiffs.
    No. 37A03-1303-CP-86.
    Court of Appeals of Indiana.
    Dec. 17, 2013.

      Robert M. Baker III, Law Office of Robert M. Baker III, Indianapolis, IN, Attorney for Appellant.
    Timothy S. Schafer, Schafer and Schafer, Merrillville, IN, Attorney for Appel-lees.
   OPINION

SHEPARD, Senior Judge.

A trial court may award attorney's fees when a party continues to litigate the case after the party's claims have become frivolous, unreasonable, or groundless. Here, the trial court ordered fees after finding that the litigation conduct by the Indiana High School Athletic Association in trying to prevent a student from playing for his school demonstrated all three of these.

We conclude that, at the least, the trial court was within its discretion to hold that the course of conduct by IHSAA was "unreasonable" and that it could consider the multiple rulings adverse to IHSAA in reaching that decision.

. We thus affirm the imposition of fees.

FACTS AND PROCEDURAL HISTORY

During the 1990-91 school year, Shane Schafer was a junior at Andrean High School in Merrillville, Indiana. He played on the basketball team. Shane withdrew from school during the spring semester, suffering from a severe, chronic sinus infection for several months. It required several surgeries to correct. Shane's medical condition had hampered his academic performance during the fall and spring semesters. Andrean did not give Shane grades for his spring classes and permitted him to repeat his junior year in the 1991-92 school year.

In June 1991, Shane asked IHSAA to rule that the 1990-91 school year would not count against his eligibility to play interscholastic basketball. IHSAA did not dispute that Shane's medical condition was genuine and had caused his academic difficulties. It nevertheless denied Shane's request, citing IHSAA Rule 12. Assistant Commissioner Ray Craft advised Andrean officials that any administrative appeal would be "fruitless" because IHSAA's Executive Committee, which would consider the appeal, lacked authority to set aside the rule. Appellees' App. p. 48.

Nevertheless, Shane and his parents appealed through IHSAA's process. After Shane and his parents filed the appeal, IHSAA officials informed them that IHSAA Rule 18 also barred Shane from participating in athleties for the fall 1991 semester.

On October 18, 1991, IHSAA's Executive Committee upheld the decision of the commissioner that, under Rule 12, the 1990-91 school year would count against Shane's eligibility to play high school basketball.

On November 12, 1991, Shane, by his father Gregory Schafer, filed suit in the Lake Superior Court, seeking review of IHSAA's rulings, injunctive relief, and damages. The next day, the trial court issued an ex parte temporary restraining order allowing Shane to play basketball during the fall semester. On November 15, 1991, IHSAA's Executive Committee affirmed the commissioner's ruling that Rule 18 was a second reason Shane was ineligible during the fall 1991 semester. Shane did not play basketball at Andrean that fall.

On November 19, 1991, after a hearing attended by both parties, the court dissolved the TRO. It declined to enter a temporary injunction, determining that Shane "appears to be entitled to take part in athletic competition beginning in the second semester at Andrean in January of 1992; but there exists no emergency for the granting of a temporary restraining order or temporary injunction at this time." Appellant's App. p. 71.

Next, the case was venued to the Jasper Cireuit Court at IHSAA's request. Special Judge Raymond Kickbush held a hearing and, in a January 9, 1992 order, determined that IHSAA's rules, as applied to Shane, were "arbitrary and capricious" and had resulted in an "absurdity." Id. at 93. Consequently, the court enjoined IHSAA from barring Shane's participation in interscholastic athletics. It withheld action on the Schafers' claim for damages.

The court certified its order for interlocutory appeal, at IHSAA's request. The Court of Appeals accepted the appeal. While the appeal was pending, the trial court and the Court of Appeals both denied IHSAA motions to stay the trial court's injunction. IHSAA also moved the trial court to modify or stay its injunction to prevent Shane from playing sports during the fall 1992 semester. The court denied IHSAA's request on August 14, 1992.

This Court issued a decision on August 24, 1992, largely affirming the trial court's grant of injunctive relief. Ind. High Sch. Athletic Ass'n v. Schafer (Schafer 1), 598 N.E.2d 540 (Ind.Ct.App.1992), trans. denied. Our panel held that the trial court properly concluded that IHSAA Rule 18 was arbitrary and capricious as applied to Shane. However, the Court also concelud-ed that the injunction was overly broad and remanded for issuance of a more narrowly tailored injunction, including "an endpoint for [Shane's] eligibility." Id. at 558.

During this remand, IHSAA again moved to amend the injunction, asserting that Shane had exhausted his eligibility and could not play in the 1992-98 year. In response to the Court of Appeals' opinion and IHSAA's motion, the trial court enjoined IHSAA from barring Shane during the 1992-98 year and from taking any action against Andrean as a result of Shane's participation in basketball.

On December 16, 1992, the Indiana Supreme Court denied IHSAA's petition for transfer in Schafer I, ending that appeal.

The trial court subsequently held a jury trial on the Schafers' claims for damages, and IHSAA prevailed on those claims.

The Schafers then requested a hearing on their request for attorney's fees, relying on Indiana Code section 34-52-1-1 (1998) and separately on IHSAA's alleged abuse of process in opposing injunctive relief. The court heard the fee matter in November 1996. The case was subsequently transferred among several different judges, ultimately arriving before Special Judge Daniel J. Molter. In 2003, Judge Molter awarded the Schafers fees of $86,231.25. The award covered legal work performed during about thirteen months in 1991-1992, from the Lake Superior Court's denial of the Schafers' request for a preliminary injunction through the Supreme Court's denial of transfer in Schafer I. The court's award was based entirely on Indiana Code section 34-52-1-1.

The fee award did not become final until 2008, when the Schafers dismissed their allegation of abuse of process. IHSAA appealed the fee award, and a panel of this Court reversed. Ind. High Sch. Athletic Ass'n v. Schafer (Schafer II), 913 N.E.2d 789 (Ind.Ct.App.2009). The panel concluded that the trial court had not made sufficient findings of fact to support the fee award. Rather than reverse outright, the panel remanded for further proceedings, determining "the findings in this case are currently insufficient to support the judgment, but ... it appears the evidence in the record might." Id. at 798. Subsequently, the trial court issued a new order, again awarding $86,231.25. This appeal followed.

ISSUE

IHSAA now challenges both the trial court's findings of fact and its determination that IHSAA's approach to defending against the request for injunctive relief had been unreasonable.

DISCUSSION AND DECISION

Indiana adheres to the American rule that a party must generally pay his or her own attorney's fees absent an agreement between the parties, a statute, or other rule to the contrary. R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 458 (Ind.2012). Indiana Code section 34-52-1-1(b) provides an exception:

In any civil action, the court may award attorney's fees as part of the cost to the prevailing party, if the court finds that either party:
(1) brought the action or defense on a claim or defense that is frivolous, unreasonable, or groundless;
(2) continued to litigate the action or defense after the party's claim or defense clearly became frivolous, unreasonable, or groundless; or
(3) litigated the action in bad faith.

The trial court cited subsection (b)(2) of the rule in awarding fees, determining that IHSAA continued to attempt to bar Shane from playing basketball after its defenses clearly became frivolous, unreasonable, or groundless.

IHSAA had asked the trial court to issue special findings and conclusions pursuant to Indiana Trial Rule 52(A). Our standard of review for special findings awarding attorney's fees under Indiana Code section 34-52-1-1 is as follows:

We first review the trial court's findings under a clearly erroneous standard. In reviewing the findings of fact, we neither reweigh the evidence nor judge witness credibility, but rather we review only the evidence and reasonable inferences drawn therefrom that support the trial court's findings and decision. In reviewing under the clearly erroneous standard, we will not reverse unless we are left with a definite and firm conviction that a mistake has been made. The second step is to review de novo the trial court's legal conclusions. And finally, the third step of our appellate review is to review the trial court's decision to award fees and the amount thereof under an abuse of discretion standard.

Neu v. Gibson, 968 N.E.2d 262, 278 (Ind.Ct.App.2012) (citations and quotation omitted), trans. denied.

Challenges to the Findings

IHSAA argues that the trial court's special findings are unsupported by the evidence. We address the most viable contentions.

"Litany of Adverse Rulings." IHSAA challenges the court's statements that "various appeals and requests for stays have been resolved in favor of Shane" and that there were "a litany of adverse court rulings against the IHSAA." Appellant's App. pp. 14, 16.

The trial court did indeed cite the numerous rulings the Schafers won against IHSAA. The record establishes: (1) the Lake Superior Court granted the Schafers an ex parte TRO ordering IHSAA not to bar Shane from playing; (2) the same court later declined to issue temporary injunctive relief, but only because it deemed such relief unnecessary at that time, inasmuch as Shane "appears to be entitled to take part in athletic competition beginning in the second semester at An-drean in January of 1992," id. at 72; (3) the Jasper Circuit Court granted the Schafers injunctive relief, determining IHSAA's rules, as applied to Shane, were "arbitrary and capricious" and produced an "absurdity," id. at 94; (4) the trial court and the Court of Appeals both declined to grant a stay pending IHSAA's appeal in Schafer I; (5) while the appeal was pending, the trial court denied IHSAA's request to modify the injunction to bar Shane from playing sports during the fall 1992 semester; (6) the Court of Appeals largely upheld the trial court's injunction, determining that IHSAA's application of Rule 18 was arbitrary and capricious; and (7) after the Court of Appeals remanded with instructions to establish an endpoint for the injunction, but while transfer was still pending, the trial court rejected a new TIHSAA argument that Shane had exhausted his eligibility for the 1992-93 year.

This evidence supports the trial court's findings that the Schafers consistently prevailed at the trial court and on appeal during the period for which fees have been ordered. Many of these were not simple adverse rulings, but rather judicial declarations so striking as to support a conclusion that IHSAA's course of defense was "unreasonable."

"IHSAA on Notice" IHSAA challenges the court's finding that it had previously "been made aware of potential inequities or concerns with the interpretation and/or application of Rule 18.5," and had been told in another case that "Rule 18.5 in its present form does not promote wholesome amateur athletics." Id. at 15.

Finding that IHSAA was aware of prior inequalities arising out of application of Rule 18, the trial court cited a federal case, Anderson v. Indiana High School Athletic Association, 699 F.Supp. 719 (S.D.Ind.1988). IHSAA correctly notes that Rule 18 was not at issue in that case and that the student did not prevail on her constitutional claim for injunctive relief (because the court determined that IHSAA's decision was not state action). Still, Anderson stands for the proposition that IHSAA must consider and avoid potentially unconstitutional applications of its rules. In that case, the student transferred from one school to another and sought to play volleyball. It was undisputed that the transfer was not undertaken for athletic reasons and was not academically improper. Nevertheless, IHSAA suspended Anderson from interscholastic competition for 8365 days pursuant to its Rule 19.

The federal district court noted that the rule in question provided no exceptions and concluded that the rule was arbitrary and capricious because "all students are covered by a blanket classification which has no relationship to whether a particular student's reasons for changing schools are athletic." Id. at 730. It further stated that in the absence of an opportunity for an individual applicant "to demonstrate the harmless effect of its request," the rule "is unfair, lacks sensitivity" and lacks "provision for the application of common sense and reasonableness." Id. at 731. The court concluded that applying the rule in those cireumstances did not promote healthy amateur athleties.

The Anderson decision notified IHSAA that where it applies its rules to bar a student from competition regardless of whether the student is acting in good faith, and without providing an opportunity to demonstrate the harmlessness of a requested exemption, IHSAA risks having its decisions deemed unconstitutionally arbitrary and capricious. We conclude the Anderson decision supports the trial court's finding that IHSAA was on notice as to the implications of its eligibility decisions.

"Absurd and Devoid." IHSAA also challenges the court's findings that "evidentiary hearings and subsequent rulings clearly illustrated the 'absurdity' of the position undertaken," and that IHSAA's positions "were found to be devoid of good logic and did not promote the true intended purpose of the rules in place." Appellant's App. at 16-17.

IHSAA has never disputed that Shane suffered from a serious medical condition that hampered his academic performance in the 1990-91 year and caused him to withdraw from school. Likewise, IHSAA has never disputed that Shane had sufficiently recovered from his medical condition to both fulfill his academic requirements and play basketball during 1991-92. IHSAA Commissioner Eugene Cato testified that, if he considered Shane as an individual, he "would declare him eligible." Appellees' App. p. 57.

Nevertheless, IHSAA persisted in attempting to strip Shane of a year of eligibility and prevent him from playing basketball not only in the 1991-92 year, but in the following year as well. After declaring ahead of time that any appeal of its determination under Rule 12 would be "fruit, less," IHSAA invoked Rule 18 in attempting to bar Shane from playing. As for causing delay when time was of the essence in obtaining judicial review of IHSAA's decisions, IHSAA delayed a determination of the Schafers' claims by seeking a change of venue during an in-juncetive matter and unsuccessfully requesting to postpone a hearing on injunc-tive relief, Finally, after the trial court and the Schafer I court clearly declared that IHSAA's attempts to limit Shane's eligibility were arbitrary and capricious, IHSAA again asked the trial court to determine that Shane had exhausted his eligibility and could not play interscholastic basketball during the 1992-98 school year. While some of these actions standing alone might not support the trial court's findings, they did not happen alone. The pattern of activities supports the trial court.

"Vindictiveness." IHSAA challenges the trial court's finding that it acted with vindictive purpose, which the court deemed demonstrated when Commissioner Cato testified "I don't know" when asked why IHSAA appealed Judge Kickbush's grant of injunctive relief. Id. at 17.

After the Schafers prevailed in the trial court, Commissioner Cato decided to appeal. Later asked why he decided to appeal, the commissioner answered, "I don't know." Appellees' App. p. 116. To be sure, this answer is hardly a smoking gun proving vindictiveness, but we do think a reasonable finder of fact could infer that IHSAA intended to defeat the Schafers by drawing out the litigation process and possibly mooting the question of Shane's eligibility.

We conclude that the evidence supports the trial court's special findings.

Abuse of Discretion

Next, IHSAA contends that the trial court's decision to award fees was an abuse of discretion. Noting that the court's award relied on Indiana Code seetion 34-52-1-1(b)(2), which addresses continued litigation by a party after the party's claim or defense clearly became frivolous, unreasonable, or groundless, IHSAA claims that events occurring before the Schafers filed this lawsuit are irrelevant.

Subsection (b)(2) contemplates an examination of the legal and factual basis of a claim and the arguments advanced in support thereof. Kahn v. Cundiff, 533 N.E.2d 164, 171 (Ind.Ct.App.1989), aff'd, 543 N.E.2d 627 (Ind.1989). Events occurring before a lawsuit are part of the legal and factual basis for a claim, and we see no reason to exclude such events when considering a fee award. While the panel in Schafer II opined that various judicial conclusions (like the "absurdity of the application of this rule" to Shane), when declared without reference to particular facts, could not support the fee award, the underlying facts surrounding the course of litigation must surely be relevant.

Here, IHSAA had no reason to believe that Shane was faking his medical condition. It was also on notice, per the Anderson decision, that its decisions as to eligibility could be found arbitrary and capricious where it did not allow students to seek good-faith exceptions. Nevertheless, TIHSAA officials told Andrean officials that any appeal of the decision under Rule 12 would be "fruitless" and, when the Schaf-ers appealed, lifted up Rule 18 to further bar Shane's participation in athletics.

IHSAA also argues that the record merely shows that it lost its case, and unfavorable rulings alone are insufficient proof of a frivolous, unreasonable, or groundless defense. It shows more than that.

A claim or defense is "groundless" if no facts exist which support the legal claim presented by the losing party. Alaska Seaboard Partners, Ltd. v. Hood, 949 N.E.2d 1247, 1256 (Ind.Ct.App.2011). The Commissioner's inability to describe any reason for appealing the trial court's grant of the injunction does suggest "groundlessness." Furthermore, a claim or defense is "unreasonable" if, based on the totality of the cireumstances, including the law and the facts known at the time of filing, no reasonable attorney would consider that the claim or defense was worthy of litigation. Id. at 1255. Here, IHSAA continued to argue for barring Shane even after both the trial court and this Court had rejected its effort to do so. We cannot say that the trial court erred by identifying IHSAA's continuing litigation as unreasonable.

As if to provide an additional illustration of this pattern, IHSAA in this third appeal challenges the validity of the decision in Schafer I, noting that Schafer I cited to Sturrup v. Mahan, 261 Ind. 463, 305 N.E.2d 877 (1974), subsequently overruled by Indiana High School Athletic Association v. Carlberg, 694 N.E.2d 222, 239 (Ind.1997). In considering whether IHSAA continued to litigate after its defense clearly became frivolous, unreasonable, or groundless, we think it sound to consider the facts and precedent that were in effect when IHSAA made its decision, not changes in the law that occurred years later.

Finally, we are not the first appellate court to take notice of IHSAA's arbitrary and capricious decision-making toward the Schafers. Such decision-making can result in substantial harm to the individual student-athletes the rules are intended to serve. The Schafer I court pointed out the absurdity resulting from IHSAA's positions in this case as follows:

The trial court found this case to present a student who decided, after consulting with his parents and school officials, to repeat his junior year in high school because a chronic but undiagnosed illness may have hampered his academic performance in college preparatory courses. All the evidence on the point showed the decision reflected a judgment that repeating was in the student's best interest academically. There was no evidence that repeating was intended to circumvent Rule 18 by allowing the student an easy ride in repeated courses so that he could turn his full attention to developing his basketball prowess. Yet, IHSAA deprived the student of eligibility for athletics on the basis of a rule that purportedly seeks to "upgrade student academic performance." That Schafer ended up repeating his junior year coursework flowed more from his illness than from any attempt to gain an advantage in sports competition.

598 N.E.2d at 554. Similarly, the Schafer II panel stated its disapproval of IHSAA's tactics, quoting a prior decision that turned on a fee award due to IHSAA litigation tactics:

We share the trial court's concern that the IHSAA may have been motivated to run up fees and expenses during the course of this litigation. We further fear that the IHSAA might wish to send a message to parents and student athletes in Indiana about the great risk and expense involved in challenging a ruling, and thus discourage them from appealing a denial of eligibility.

913 N.E.2d at 796-97 (quoting Ind. High Sch. Athletic Ass'n v. Vasario, 726 N.E.2d 325, 335 (Ind.Ct.App.2000), trans. denied ). Such were the views of the appellate judges in Vasario who granted IHSAA partial relief and ordered a remand. The judge who thought the award should have been affirmed without further proceedings put it differently:

The importance of this case, for me, lies in the fact that students learn at the hands of the IHSAA some of their early lessons about what constitutes fair play in decision making. Unfortunately, students acquainted with the IHSAA's conduct in this case might reasonably conclude that winning at all costs is more important than fair play.

Vasario, 726 N.E.2d at 335-36 (Baker, J., dissenting).

We associate ourselves with these observations without adding to them. The trial court did not abuse its discretion by awarding attorney's fees to the Schafers.

CONCLUSION

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

Affirmed.

VAIDIK, J., and BRADFORD, J., concur.

      . At that time, the statute was codified as Indiana Code section 34-1-32-1.

      . IHSAA does not challenge the amount of the award.


author: MAY, Judge.

text:
    MERIDIAN MUTUAL INSURANCE COMPANY, n/k/a State Automobile Mutual Insurance Company, Appellant-Defendant, v. MAJESTIC BLOCK & SUPPLY, INC., n/k/a Tutewiler Corporation, Appellee-Plaintiff.
    No. 49A05-1210-PL-533.
    Court of Appeals of Indiana.
    Dec. 19, 2013.

      Barry C. Cope, Karl L. Mulvaney, Kandi Kilkelly Hidde, Bingham Greenebaum Doll LLP, Indianapolis, IN, Attorneys for Appellant.
    George M. Plews, Colin E. Connor, Plews Shadley Racher & Braun LLP, Indianapolis, Indiana, Attorneys for Appel-lee.
   OPINION

MAY, Judge.

Meridian Mutual Insurance Company, »/k/a State Automobile Mutual Insurance Company ("State Auto") appeals a summary judgment for Majestic Block & Supply, Inc. n/k/a Tutewiler Corporation ("Majestic"). State Auto presents the following issues for our review:

1. Whether the "known loss" clause of the insurance contract bars Majestic's recovery;
2. Whether Majestic's recovery was barred by late notice to State Auto of Majestic's environmental claim;
3. Whether Majestic received double recovery of its post-notice costs; and
4. Whether the trial court abused its discretion when it ordered State Auto to pay pre-judgment interest.

Majestic cross-appeals, arguing the trial court should have granted Majestic's request for attorney fees.

We affirm.

FACTS AND PROCEDURAL HISTORY

Majestic manufactured concrete blocks in Mooresville for fifty years. In 1972, Majestic installed a 10,000-gallon underground storage tank (UST) and dispensing pumps to provide diesel fuel for its delivery vehicles. On November 14, 1997, Majestic told the Indiana Department of Environmental Management (IDEM) it intended to permanently close the tank. IDEM directed Majestic to comply with IDEM's 1995 UST Site Closure Guidelines.

Majestic hired Swinney Brothers Excavating to remove the UST, and Swinney hired 3D Enterprises to assist with the removal. On December 16, 1997, 3D removed the tank according to IDEM's guidelines. A day later, 3D took soil samples from the site and noted the "sample results [are] potentially contaminated by general site conditions." (App. at 660.)

On January 1, 1998, Majestic bought a commercial general liability policy from State Auto for the term of one year. On January 13, 1998, 3D issued a UST Site Closure Report to IDEM, stating:

Due the [sic] location of the tank pit, over exeavation was not a good alternative at this time, based on the high levels, and location of the soil contamination. We would recommend an Initial Site characterization (ISC) to determine a feasible Corrective Action Plan (CAP). No ground water encountered at a depth of fourteen feet.

(Id. at 628.) No further action was taken regarding the site for almost a decade.

In February 2006, IDEM requested a site investigation. On September 22, 2006, IDEM issued a violation letter to Majestic based on the soil contamination on the site and told Majestic to address the contamination issues within 45 days. Majestic hired Alt & Witzig Engineering, Inc., who submitted a report to IDEM on January 3, 2007, based on soil samples taken November 9, 2006. Those samples revealed TPH ERO contamination above industrial cleanup levels. The report indicated the groundwater on the site contained various other chemicals of concern in levels above residential cleanup levels; two were above industrial cleanup levels.

Cleanup continued, and in October 2007, Majestic applied for reimbursement of the cleanup costs from IDEM's Excess Liability Trust Fund (ELTF). IDEM indicated it would pay 91% of Majestic's reimbursable costs, minus the ELTE's $35,000 deductible However, no money was reimbursed at that time, and the IDEM response indicated the ELTF would not reimburse Majestic until a CAP was filed.

On July 15, 2009, Majestic filed a claim with State Auto for coverage for the cleanup costs at the tank site. State Auto denied the claim based on "Known Loss or Loss-in-Progress" and "Late Notice and Pre-tender Fees and Expenses." (Id. at 317.) Majestic brought a complaint against State Auto for declaratory judgment and damages, seeking coverage for its cleanup costs. In the meantime, Majestic filed a CAP with IDEM, which was required for reimbursement from the ELTF.

The trial court granted partial summary judgment for Majestic and partial summary judgment for State Auto, finding coverage under the State Auto policy was not barred by the "known loss" or "voluntary payment" provisions, coverage was for post-notice costs only, Majestic Block may be entitled to pre-judgment interest, and the State Auto policy provided no personal injury coverage for the claim. (App. at 21-22.) The trial court stayed the issue of the application of the modified absolute pollution exclusion in the State Auto policy pending our Indiana Supreme Court's decision in State Auto. Mut. Ins. Co. v. Flexdar, Inc., 964 N.E.2d 845 (Ind.2012), reh'g denied. Flexdar was decided in March 2012, and shortly thereafter both parties moved for summary judgment.

On September 28, 2012, the trial court entered its Order Lifting Stay, Entering Final Judgment, and Denying Attorneys Fees for Plaintiff, ordering State Auto to pay Majestic post-notice costs of $33,367.85 plus all tendered subsequent and future costs and prejudgment interest on that amount from October 11, 2011.

DISCUSSION AND DECISION

1. Summary Judgment

Our standard for reviewing a summary judgment was set forth in Dugan v. Mittal Steel USA, Inc., 929 N.E.2d 184, 185-86 (Ind.2010):

A party is entitled to summary judgment upon demonstrating the absence of any genuine issue of fact as to a determinative issue unless the non-moving party comes forward with contrary evidence showing an issue of fact for trial. An appellate court reviewing a trial court summary judgment ruling likewise construes all facts and reasonable inferences in favor of the non-moving party and determines whether the moving party has shown from the designated evi-dentiary matter that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. But a de novo standard of review applies where the dispute is one of law rather than fact.

As construction of the terms of a written contract presents a pure question of law, our review is de novo. Harrison v. Thomas, 761 N.E.2d 816, 818 (Ind.2002). Moreover, the proper interpretation of an insurance policy, even if it is ambiguous, generally presents a question of law that is appropriate for summary judgment. Bosecker v. Westfield Ins. Co., 724 N.E.2d 241, 243 (Ind.2000).

A. Known Loss

State Auto first argues Majestic's recovery is barred by the "known loss" doctrine. That doctrine bars coverage if "an insured has actual knowledge that a loss has occurred, is occurring or is substantially certain to occur on or before the effective date of the policy." Gen. Housewares Corp. v. Nat'l Sur. Corp., 741 N.E.2d 408, 414 (Ind.Ct.App.2000). "The burden of proving the loss was known is on the party seeking to avoid coverage," id., here, State Auto.

The trial court rejected the "known loss" defense:

State Auto's policy took effect on January 1, 1998. Field tests were taken on December 19, 1997, which noted possible contamination. Samples were sent to the laboratory for confirmatory testing. The results confirming contamination were received in January 1998, after State Auto's policy incepted and Majestic Block's consultant reported the results to IDEM in 1998. IDEM did not respond, and did not request any further action until eight years later, in 2006.
These facts do not support a known loss defense. First, Majestic Block's consultant did not learn of the results of laboratory test noting contamination until January 6, 1998, after the State Auto policy incepted. Second, IDEM itself took no action for eight years, which shows a lack of certainty of liability or even regulatory interest. Third, Majestic Block itself did not learn of the release or, more importantly, that IDEM claimed a cleanup was required until 2006. But even if Majestic is presumed to know of possible contamination in December 1997, this is not enough for a "known loss." Majestic Block was not "substantially certain" that a liability existed or was even claimed until the policy was in effect.

(App. at 17-18.) The trial court relied on the definitions set forth in General Housewares regarding the level of certainty required for the "known loss" doctrine to avoid insurance policy coverage. We do the same, and we come to the same conclusion.

Under General Housewares, the "known loss" doctrine applies to avoid insurance coverage when an insured has actual knowledge a loss: (1) has occurred, (2) is occurring, or (8) is substantially certain to occur. General Housewares, 741 N.E.2d at 414. As noted in the trial court's finding, the laboratory results from the soil sample were not known until after the policy had commenced. Even if preliminary results indicated contamination, the ultimate results apparently were not significant enough to warrant an IDEM investigation until 2006. For the loss to be "substantially certain" to occur, the loss must be "not only likely to oceur, but ... virtually inevitable. The inquiry should be more of temporality than probability-when an event will cceur, not whether an event will occur." Id.

Based on IDEM's inaction after the 1998 report and for almost a decade after another sample was taken at the site, we cannot say the "known loss" doctrine applies; the ultimate loss had not occurred, was not occurring, and was not substantially certain to occur at the time State Auto and Majestic Block entered into the insurance contract.

B. Late Notice

Nor is Majestic barred from recovery under the late notice doctrine. The insurance contract provides:

2. Duties In The Event of Occurrence, Offense, Claim or Suit
a. You must see to it that we are notified as soon as practicable of an "occurrence" or an offense which may result in a claim. To the extent possible, notice should include:
(1) How, when and where the "occurrence" or offense took place;
(2) The names and addresses of any injured persons and witnesses; and
(3) The nature and location of any injury or damage arising out of the "occurrence" or offense.
b. If a claim is made or "suit" is brought against any insured ... [ylou must see to it that we receive prompt written notice of the claim or "suit" as soon as practicable.
c. You and any other involved insured must:
(1) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or "suit";
(2) Authorize us to obtain records and other information;
(8) Cooperate with us in the investigation, settlement or defense of the claim or "suit"; and
(4) Assist us, upon our request, in the enforcement of any right against any person or organization which may be liable to the insured because of injury or damages to which the insurance may also apply.
d. No Insureds will, except at their own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent.

(App. at 197.) Majestic Block first learned of confirmed contamination of the closed site in 1998, was not required by IDEM to take action until 2006, and gave State Auto notice of its claim in 2009.

Normally, the late notice doctrine bars coverage for an insured who delays reporting a claim when the insurance company suffers prejudice because of that delay. Tri-Etch, Inc. v. Cincinnati Ins. Co., 909 N.E.2d 997, 1005 (Ind.2009), reh'g denied. "[Plrejudice to the insurer is presumed by the insured's late notice, but the insured may rebut the presumption with evidence showing that the late notice cere-ated no prejudice." Id. The trial court did not address whether Majestic's late notice resulted in prejudice. Instead, it followed our Indiana Supreme Court's decision in Dreaded Inc. v. St. Paul Guardian Insurance Co., 904 N.E.2d 1267, 1273 (Ind.2009), and our subsequent decision applying Dreaded, Travelers Ins. Companies v. Maplehurst Farms, Inc., 953 N.E.2d 1153 (Ind.Ct.App.2011), reh'g denied, trans. denied.

The facts in Dreaded are similar to those before us. In 2000, Dreaded received notice from IDEM demanding the investigation and cleanup of possible soil contamination on a former business site. Dreaded responded to the demand, and hired an attorney and a contractor to protect its interests during the process. The contractor investigated the site, and forwarded two reports, one from 2001 and one from 2002, to IDEM regarding the soil contamination. In 2003, IDEM ordered Dreaded to conduct further investigation and "provide a full delineation of the contamination." (Dreaded, 904 N.E.2d at 1269.) In March 2004, almost four years after receiving notice from IDEM, Dreaded contacted its insurer, St. Paul, to make a claim under its policy for all costs up to that point and all costs going forward.

St. Paul told Dreaded it would pay all costs going forward from the date it received notice of the claim, but not pre-notice costs. Based on St. Paul's acceptance of responsibility for post-notice costs, our Indiana Supreme Court distinguished a series of decisions in which the insurance company explicitly denied any coverage based on late notice. In those decisions, it was required that the insurer show it was prejudiced by the late notice, usually by the insurer's failure to rebut the presumption of prejudice. See Miller v. Dilts, 463 N.E.2d 257, 265-66 (Ind.1984) (prejudice will "be presumed from an unreasonable delay in notifying the company;" but that presumption may be rebutted by the insured's presentation of evidence demonstrating insurer was not prejudiced by late notice.)

In addition, our Indiana Supreme Court explicitly distinguished fact patterns that were not applicable to its holding in Dreaded.

It is important to first recognize what this case is not about. Dreaded is not seeking reimbursement for defense costs it incurred because St. Paul refused to defend after receiving notice of the IDEM claim. See, e.g., Walton v. First Am. Title Ins. Co., 844 N.E.2d 143, 146-49 (Ind.Ct.App.2006), trams. demied. Dreaded is not seeking indemnity for a damages judgment entered against it because St. Paul failed to defend after notice. See, e.g., Stevenson v. Hamilton Mut. Ins. Co., 672 N.E.2d 467 (Ind.Ct.App.1996), trans. denied. Dreaded does not here contend that it provided a timely notice of claim that, while defective in some respect, nevertheless substantially complied with the policy requirements or that its failure to give notice is legally excused. See, e.g., Commercial Underwriters Ins. Co. v. Aires Envtl. Servs., Ltd., 259 F.3d 792, 796 (7th Cir.2001). Nor is this case about whether St. Paul had sufficient constructive notice from other sources to trigger its duty to defend notwithstanding a lack of notice directly from Dreaded. See, e.g., Frankenmuth Mut. Ins. Co. v. Williams, 645 NE.2d 605 (Ind.1995); Wolf Lake Terminals, Inc. v. Mut. Marine Ins. Co., 433 F.Supp.2d 933, 951-52 (N.D.Ind.2005) (collecting cases); Brandon v. Nationwide Mut. Ins. Co., 97 N.Y.2d 491, 743 N.Y.S.2d 53, 769 N.E.2d 810 (2002).

Id. at 1272-73. Those fact patterns are also distinguishable here. State Auto, in its response to Majestic's notice of claim, stated: "State Auto received notice of this claim on July 30, 2009. Any costs or expenses incurred prior to the date of notice are not covered." (App. at 318.) Majestic, in its complaint, took that statement to mean State Auto would not pay any of the claim, but that is not what State Auto said in its reply letter.

Dreaded did not comply with the notice requirement because it did not provide St. Paul with a notice of its claim until three years after it became aware of IDEM's environmental claim. Id. at 1273. Because of that delay, the Court held St. Paul could not be required to defend a claim of which it had no knowledge and affirmed the trial court's summary judgment for St. Paul. Id.

Here, Majestic learned in late 1997 or early 1998 there might be contamination, and IDEM did nothing to require action until 2006. State Auto indicated it would not pay pre-notice costs, and did not explicitly indicate whether it would pay post-notice costs. Because there was not a complete denial of coverage, Dreaded applies, and summary judgment ordering State Auto to pay only Majestic's post-notice costs was appropriate.

C. Double Recovery

Majestic applied for reimburse ment of the cleanup costs from the ELTF, and IDEM indicated it would pay 91% of Majestic's reimbursable costs, minus the ELTEF's $35,000 deductible The trial court ordered State Auto to pay Majestic's post-notice costs in the amount of $33,367.85 plus all tendered subsequent and future costs and prejudgment interest on that amount from October 11, 2011. It did not address in its order the effect of Majestic's recovery from the ELTF or the $35,000 deductible.

On appeal, State Auto argues Majestic received a double recovery because almost all of Majestic's post-notice costs were reimbursed by the ELTF. Because the purpose of insurance is to indemnify, double recovery by an insured is prohibit, ed even when multiple policies apply to a loss. Wagner v. Yates, 912 N.E.2d 805, 812 (Ind.2009).

As of July 16, 2012, the date of State Auto's summary judgment motion, Majestic had incurred total cleanup costs of $74,8389.46. The ELTF deductible was $35,000, so Majestic could recover from the ELTF $36,844.41, which is 91% of the amount over the deductible. Therefore, the amount of its total costs that Majestic could not recover from the ELTF is $38,545.05, which represents the $35,000 deductible plus the nine percent of its costs in excess of the deductible.

State Auto asserts almost all of Majestic's post-notice costs were paid by the ELTF. That argument is premised in large part on evidence "$36,131.34 of [Majestic's] costs (including the $35,000 ELTF deductible) were incurred prior to notice and $23,827.95 were incurred after notice, but Majestic sought only 9% of those post-notice costs, which totaled $2,099.52, plus prejudgment interest." (Br. of Appellant Meridian Mutual Insurance Company, n/k/a State Automobile Mutual Insurance Company, hereinafter "State Auto Br." at 15.)

We decline to reverse based on a characterization of the payments from the ELTF or Majestic's responsibility for its deductible amount as pre-notice or post-notice. The ELTF is not an insurance contract pursuant to which the date of notice might be determinative of coverage. Rather, it was established to, among other things, provide "a source of money to satisfy liabilities incurred by owners and operators of underground petroleum storage tanks under IC 13-23-13-8 for corrective action." Ind.Code § 13-23-7-1. State Auto cannot avoid coverage for the ELTF deductible amount by assigning ELTF funds to a period before its policy took effect.

If Majestic recovers from State Auto all of its post-notice costs, it will have ultimately recovered slightly less than the total expense it incurred to clean up the site. We decline to characterize that less-than-full recovery as "double," and State Auto may not avoid coverage on that basis.

It has long been our law that:

An insurance policy should be so construed as to effectuate indemnification to the insured or his dependent beneficiary against loss, rather than to defeat it. Where any reasonable construction can be placed on a policy that will prevent the defeat of the insured's indemnification for a loss covered by general language, that construction will be given.

Masonic Acc. Ins. Co. v. Jackson, 200 Ind. 472, 482, 164 N.E. 628, 631 (1929) (citations omitted). Characterizing the entire ELTF deductible amount as "pre-notice" would defeat indemnification to State Auto's insured. This was not "double recovery."

2. Prejudgment Interest

The trial court awarded Majestic prejudgment interest "from the date of notice to October 11, 2011 on the amount of $33,867.85." (App. at 12.) The award was not an abuse of the trial court's disceretion.

Prejudgment interest may be awarded where the amount of damages can be ascertained by simple mathematical computation and has been allowed even where some degree of judgment must be used to measure damages. Hayes v. Chapman, 894 N.E.2d 1047, 1054 (Ind.Ct.App.2008), trams. demied. The "ascertainable" standard refers to the amount of damages as distinguished from the liability for those damages. Ind. Indus. v. Wedge Prods., Inc., 430 N.E.2d 419, 427 (Ind.Ct.App.1982).

We review a ruling on a request for prejudgment interest for an abuse of discretion. Inman v. State Farm Mut. Auto. Ins. Co., 981 N.E.2d 1202, 1204 (Ind.2012). An abuse of discretion occurs when a decision is clearly against the logic and effects of the facts and circumstances before the court or if the court has misinterpreted the law. Id. We consider only the evidence favorable to the judgment. Johnson v. Eldridge, 799 N.E.2d 29, 33 (Ind.Ct.App.2003), reh'g denied, trans. denied.

State Auto argues Majestic is not entitled to prejudgment interest because the amount of Majestic's claim was not ascertainable from the terms of its insurance contract with State Auto. The amount was ascertainable, and it was ascertained. State Auto relies on a recent statement from this court that "[pirejudgment interest is appropriate in a breach of contract action when 'the amount of the claim rests upon a simple calculation and the terms of the contract make such a claim ascertainable'" Kummerer v. Marshall, 971 N.E.2d 198, 201 (Ind.Ct.App.2012) (quoting Olcott Int'l & Co. v. Micro Data Base Sys., Inc., 793 N.E.2d 1063, 1078 (Ind.Ct.App.2003), trans. denied ), reh'g denied, trans. denied.

Kummerer does not control. Marshall and Kummerer were attorneys, and Marshall agreed to take over four of Kummerer's cases while Kummerer was suspended from the practice of law. They agreed they would split equally any contingent fees recovered without a trial. Three of the four cases were resolved without incident, but when the fourth case settled, Marshall asserted that he should receive 90% of the fee. Kummerer disagreed, and Marshall filed suit. Kummerer prevailed at trial, but the court denied his request for prejudgment interest and we affirmed. We noted that the trial court had to look beyond the face of the parties' fee splitting agreement and decide whether the parties' forecast of the amount of work each would do in the case was reasonable under Indiana Professional Conduct Rule 1.5(a) and (e). This decision required an exercise of judgment, and thus prejudgment interest was inappropriate.

By contrast, the case before us does not involve fee splitting or forecasting what work would be done in the cases. Instead, Majestic submitted to the court evidence showing the costs it incurred for the cleanup of the site. Consequently, Kummerer does not mandate reversal of the trial court's judgment.

It is not always a prerequisite to the allowance of prejudgment interest that the amount of the damages be liquidated. Travelers Indent. Co. v. Armstrong, 442 N.E.2d 349, 365 (Ind.1982). Rather, the test as to whether interest should be allowed before judgment in a given case is not "whether the damages are unliquidat-ed or otherwise, but whether the injury and consequent damages are complete and must be ascertained as of a particular time and in accordance with fixed rules of evidence and known standards of value, which the court or jury must follow in fixing the amount." Id. at 865-66 (quoting Fell v. Union Pac. Ry. Co., 32 Utah 101, 88 P. 1003, 1007 (1907)). The trial court in the case before us so ascertained the damages, and we cannot find the award of prejudgment interest an abuse of discretion.

3. Majestic's Attorney Fees

Ind.Code § 34-52-1-1(b) provides:

In any civil action, the court may award attorney's fees as part of the cost to the prevailing party, if the court finds that either party:
(1) brought the action or defense on a claim or defense that is frivolous, unreasonable, or groundless;
(2) continued to litigate the action or defense after the party's claim or defense clearly became frivolous, unreasonable, or groundless; or
(8) litigated the action in bad faith.

The trial court found Majestic had not met "Indiana's long-standing high burden to merit award of attorney fees for frivolous, unreasonable, or groundless claims," (App. at 11), and we agree.

We review under an abuse of discretion standard the decision whether to award attorney's fees. Maplehurst, 953 N.E.2d at 1162. A defense is "frivolous" if it is advanced primarily for the purpose of harassment, if counsel is unable to make a good faith and rational argument on the merits of the action, or if counsel cannot support the action taken by a good faith and rational argument for an extension, modification, or reversal of existing law. Id. A claim or defense is "unreasonable" if, based on the totality of the cireumstances, including the law and the facts known at the time of filing, no reasonable attorney would consider that the claim or defense was worthy of litigation. Id. A defense is "groundless" if no facts exist that support the legal claim presented by the losing party. Id. A trial court is not required to find an improper motive to support an award of attorney fees; rather, an award may be based solely on the lack of a good faith and rational argument in support of the claim. Id.

Although the trial court ultimately found most of State Auto's claims to be without merit, and we have affirmed, we cannot find its defenses are unreasonable or so lacking in factual or authoritative support that they are frivolous, unreasonable, or groundless. The fact that a party's legal argument to the trial court fails is not dispositive; a claim or defense is not groundless or frivolous merely because the party loses on the merits. Smyth v. Hester, 901 N.E.2d 25, 35 (Ind.Ct.App.2009), trams. denied. We further note State Auto did prevail below to the extent it argues Majestic could not recover its pre-notice costs.

As for the substance of State Auto's arguments, we cannot characterize any as "baseless." While we find its arguments unpersuasive, State Auto supported its arguments with cogent reasoning and legal authority. Its defenses were "consistent with reasonable advocacy," Ballaban v. Bloomington Jewish Cmty., Inc., 982 N.E.2d 329, 340 (Ind.Ct.App.2013), and the denial of Majestic's request for attorney fees was not an abuse of discretion.

CONCLUSION

Majestic's coverage was not barred by late notice or known loss, it did not benefit from a double recovery, and it was entitled to prejudgment interest. However, we cannot characterize State Auto's arguments as so frivolous, unreasonable, or groundless as to require an award of attorney fees to Majestic. We accordingly affirm the trial court.

Affirmed.

BAKER, J., and MATHIAS, J., coneur.

      . TPH is total petroleum hydrocarbon. ERO is extended range organics. http//www.in. gov/idem/4299.htm (last visited November 6, 2013).

      . State Auto asserts Majestic is not entitled to "full recovery" because "it intentionally violated the policy's notice provisions and the trial court correctly ruled that part of its loss was uncovered." (Cross-Appellee's Br. and Reply Br. of Appellant Meridian Mutual Insurance Company, n/k/a State Automobile Mutual Insurance Company (hereinafter "State Auto Reply Br.") at 11.) The trial court did rule State Auto was not obliged to cover costs incurred before Majestic provided it notice. But as explained above, we agree with the trial court that Majestic did not "intentionally violate the policy's notice provisions."