author: NAJAM, Judge.

text:
    James T. MITCHELL, Appellant, v. 10TH AND THE BYPASS, LLC, and Elway, Inc., Appellees.
    No. 53A01-1112-PL-593.
    Court of Appeals of Indiana.
    Aug. 28, 2012.

      Michael L. Carmín, Gregory A. Bullman, Andrews Harrell Mann Carmín & Parker,
    P.C., Bloomington, IN, Attorneys for Appellant.
    Donn H. Wray, Nicholas K. Gahl, Stewart & Irwin, P.C., Indianapolis, IN, Stephen Schrumpf, Brown Deprez & Johnson, P.A., Shelbyville, IN, Attorneys for Appel-lees.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

James T. Mitchell appeals from the trial court’s order that vacated partial summary judgment for Mitchell and against 10th and The Bypass, LLC (“the LLC”). The LLC and Elway, Inc. (“Elway”) filed a joint motion to vacate the partial summary judgment and tendered new evidence against Mitchell, and the trial court granted the motion and reinstated Mitchell as a defendant. Mitchell contends that, because the LLC and Elway did not move to alter the thirty-day time limit for the designation of evidence under Trial Rule 56(C) and partial summary judgment was entered, it was too late for the LLC and Elway to designate additional evidence. We conclude that the partial summary judgment was interlocutory under Trial Rule 56(C) and subject to revision under Trial Rule 54(B). Thus, we hold that the trial court did not abuse its discretion when it vacated its previously entered partial summary judgment.

We affirm.

FACTS AND PROCEDURAL HISTORY

On December 30, 2008, the LLC filed a complaint against Mitchell, Elway, J.T. Mitchell, Inc., and Sevan Corporation (collectively “the Defendants”), alleging that the Defendants had caused environmental damage while operating dry cleaning businesses at a site known as 10th and The Bypass in Bloomington owned by the LLC. In relevant part, the complaint alleged that Mitchell was individually liable under the responsible corporate officer doctrine.

On June 30, 2009, Mitchell filed a motion for partial summary judgment, alleging that there was no genuine issue of material fact with respect to his individual liability. On September 3, the LLC filed its cross-motion for partial summary judgment on that question. Mitchell and the LLC each filed replies and, on September 30, the trial court held a hearing on the competing motions. On January 11, 2010, the trial court entered an order granting Mitchell’s motion for partial summary judgment and denying the LLC’s cross-motion (the “January Order”). In the January Order the trial court did not direct the entry of a final judgment for Mitchell as provided in Indiana Trial Rule 54(B).

Seventeen months later, on June 3, 2011, the LLC and Elway (hereinafter collectively referred to as “the LLC”) filed a joint motion to vacate the partial summary judgment granted to Mitchell in the January Order (“the Motion to Vacate”). With the Motion to Vacate, the LLC tendered a written statement taken January 26, 2011, from Susan Johnson, a former employee of Mitchell’s corporation, and the transcript of Johnson’s deposition, taken March 22, 2011. The trial court summarized Johnson’s statement and deposition as follows:

Ms. Johnson was an employee of J.T. Mitchell, Inc. during the timeframe in which J.T. Mitchell, Inc. operated a dry cleaning facility at the Site; on one occasion, she received a call from James Mitchell stating that he had accidentally left a valve open on the back of a dry cleaning machine that was attached to a 50 gallon perc drum, resulting in a perc spill. Ms. Johnson came to the dry cleaners, where Defendant Mitchell instructed her to mop up the spill and to put a fan on the spill spot so that it would evaporate. Ms. Johnson states that Defendant Mitchell never used an “environmental company” to assist with the spill, and that the manner of cleanup did not comport with environmental regulations. She further states that she sustained certain health problems as a result of her clean-up of the perc spill, and that Defendant Mitchell personally paid for her medical expenses. She also discusses other spills that occurred at other J.T. Mitchell, Inc. locations.

Appellant’s App. at 15. Mitchell responded that the Motion to Vacate should be denied because it sought to designate evidence on summary judgment well after the thirty-day time limit contained in Indiana Trial Rule 56(C). Mitchell also argued that the Motion to Vacate should be denied under Indiana Trial Rule 60(B). The trial court concluded that Trial Rule 60(B) applies only to final judgments and, relying on Trial Rule 54(B), vacated the January Order and reinstated Mitchell as a defendant (“the Order to Vacate”).

Thereafter, Mitchell requested the trial court to certify the Order to Vacate for interlocutory appeal, which the trial court did. We accepted jurisdiction in February 2012. The trial court entered a stay of the proceedings pending appeal.-

DISCUSSION AND DECISION

This appeal requires that we consider the relationship between Trial Rule 54(B) and Trial Rule 56(C) when new evidence is submitted to the trial court following entry of partial summary judgment. Our standard of review from Trial Rule 54(B) decisions is an abuse of discretion, see Legg v. O’Connor, 557 N.E.2d 675, 676 (Ind.Ct.App.1990), but our standard of review in appeals from a judgment under Trial Rule 56(C) is de novo, see Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind.2009). Accordingly, we must determine which rule controls the outcome in this appeal.

Mitchell contends that the designation of new evidence together with the Motion to Vacate, seventeen months after the trial court entered partial summary judgment in Mitchell’s favor, violates Trial Rule 56(C). That Rule provides as follows:

The motion [for summary judgment] and any supporting affidavits shall be served in accordance with the provisions of Rule 5. An adverse party shall have thirty (SO) days after service of the motion to serve a response and any opposing affidavits. The court may conduct a hearing on the motion. However, upon motion of any party made no later than ten (10) days after the response was filed or was due, the court shall conduct a hearing on the motion which shall be held not less than ten (10) days after the time for filing the response. At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. A party opposing the motion shall also designate to the court each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto. The judgment sought shall be rendered forthwith if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment may be rendered upon less than all the issues or claims, including without limitation the issue of liability or damages alone although there is a genuine issue as to damages or liability as the case may be. A summary judgment upon less than all the issues involved in a claim or with respect to less than all the claims or parties shall be interlocutory unless the court in writing expressly determines that there is no just reason for delay and in writing expressly directs entry of judgment as to less than all the issues, claims or parties. The court shall designate the issues or claims upon which it finds no genuine issue as to any material facts. Summary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits or evidence, but the court shall make its determination from the evidentiary matter designated to the court.

Ind. Trial Rule 56(C) (emphases added).

According to Mitchell, the thirty-day time limit for a party responding to a motion for summary judgment to designate its evidence is “a hard and fast rule that trial courts must enforce.” Appellant’s Br. at 7. In support of that contention, Mitchell relies on our supreme court’s decision in HomEq Servicing Corp. v. Baker, 883 N.E.2d 95 (Ind.2008). In HomEq, our supreme court affirmed the trial court’s refusal to consider designated evidence more than thirty days after the entry of final judgment. 883 N.E.2d at 98-99. Indeed, it is well settled that a party must request an extension of time to designate evidence before the thirty days allowed by Trial Rule 56(C) has expired. See Desai v. Croy, 805 N.E.2d 844, 849 (Ind.Ct.App.2004), trans. denied; see also City of Elkhart v. SFS, LLC, 968 N.E.2d 812, 816 (Ind.Ct.App.2012) (“a trial court may not consider the untimely designation of evidence”); Borsuk v. Town of St. John, 820 N.E.2d 118, 123 n. 5 (Ind.2005) (approving of Desai). Mitchell contends, in effect, that the LLC’s Motion to Vacate is an impermissible attempt to circumvent the Trial Rule 56(C) requirement that an adverse party respond to a motion for summary judgment or request an extension of time within which to file a response within the thirty days allowed under the Rule. See City of Elkhart, 968 N.E.2d at 816.

But the time limitation on the designation of evidence under Trial Rule 56(C) does not end our inquiry. Rule 56(C) also provides that a summary judgment with respect to fewer than all the parties “shall be interlocutory unless the court in writing expressly determines there is no just reason for delay and ... directs entry of judgment....” T.R. 56(C). Here the trial court entered partial summary judgment only for Mitchell and for no other party. The trial court did not direct the entry of final judgment for Mitchell. And HomEq, which enforced the thirty-day time limit for filing an affidavit in opposition to summary judgment, was an appeal from a final judgment and is, therefore, inapposite.

Rather, as the trial court correctly determined, the Motion to Vacate is controlled by Trial Rule 54(B). That rule provides:

When more than one (1) claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other fotm of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. A judgment as to one or more but fewer than all of the claims or parties is final when the court in writing expressly determines that there is no just reason for delay, and in writing expressly directs entry of judgment, and an appeal may be taken upon this or other issues resolved by the judgment; but in other cases a judgment, decision or order as to less than all the claims and parties is not final.

T.R. 54(B) (emphases added). Applying the plain meaning of Rule 54(B), the entry of partial summary judgment here did not terminate the action as to Mitchell, and the January Order was “subject to revision at any time before the entry” of final judgment. Id.; see also Berry v. Huffman, 643 N.E.2d 327 (Ind.1994).

Still, Mitchell contends, without citation to authority, that Rule 54(B)’s “subject to revision” term allows only for technical changes and not for the consideration of newly tendered evidence. Appellant’s Br. at 8. But that interpretation would preclude the trial court from making a material modification to an interlocutory order, which remains in fieri with the trial court until the entry of final judgment. This provision in Trial Rule 54(B) is clear and unambiguous. The term “revision” as used in the Rule is unqualified. The plain meaning of that term as used in the rule is that, at any time before the entry of final judgment, a trial court may reconsider and, where appropriate, revise its interlocutory order. Thus, it is clear that under Trial Rule 54(B) a trial court has the authority to reconsider and revise its partial summary judgment based on newly discovered evidence.

Even if the Motion to Vacate were considered a repetitive motion for summary judgment, we have held that a trial court may entertain repetitive motions for summary judgment so long as the previous ruling remains in fieri. Specifically, we have stated that

the trial court has inherent power to reconsider any of its previous rulings so long as the action remains in fieri, or until judgment is entered. There is no dispute that this action was in fieri at the time the [repetitive] motions for summary judgment were filed. Thus, the trial judge had discretion to rule on the defendants’ summary judgment motions, even if they were repetitive and the five day period referred to in T.R. 53.4(B) had expired.

Gibson v. Evansville Vanderburgh Bldg. Comm’n, 725 N.E.2d 949, 952 (Ind.Ct.App.2000) (citation omitted), trans. denied. Given that a trial court has inherent power to reconsider a previous ruling, and to consider a repetitive motion for summary judgment, so long as the previous ruling is in fieri, it follows that the court may reconsider a previous ruling when presented with newly discovered evidence, provided that the previous ruling was not entered as a final judgment.

Our reading of Rules 54(B) and 56(C) is consistent with how the federal courts have interpreted the corresponding federal rules. As the United States Court of Appeals for the Second Circuit succinctly stated with respect to a partial summary judgment order under Federal Rule of Civil Procedure 56(c):

Under the express terms of Rule 54(b) itself, such an interlocutory judgment is “subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” See John Simmons Co. v. Grier Brothers Co., 258 U.S. 82, 88, 42 S.Ct. 196, 66 L.Ed. 475 (1922); United States v. Desert Gold Mining Co., 438 F.2d 713, 715 (9th Cir.1970); Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 862 (5th Cir.1970); C. Wright and A. Miller, Federal Practice & Procedure, Civils 2737, text at notes 92-99. Whether such revision is appropriate in any given case is within the sound discretion of the trial judge.

Acha v. Beame, 570 F.2d 57, 63 (2d Cir.1978); see also Doctor John’s, Inc. v. City of Sioux City, 438 F.Supp.2d 1005,1026-27 (N.D.Iowa 2006); Hydranautics v. Film-Tec Corp., 306 F.Supp.2d 958, 968 (S.D.Cal.2003); Cont’l Cas. Co. v. Great Am. Ins. Co., 732 F.Supp. 929, 931-32 (N.D.Ill.1990). Federal authority interpreting the Federal Rules of Civil Procedure is not binding on this court but is persuasive authority. See Stonger v. Sorrell, 776 N.E.2d 353, 355-57 (Ind.2002).

Mitchell also contends that “to the extent that Trial Rule 60(B) applies to this case” the LLC’s Motion to Vacate fails the due diligence requirement for relief from judgment under that rule. Appellant’s Br. at 13. Hence, Mitchell concludes that the LLC’s “belatedly-designated evidence” from Johnson may not be considered. Id. Mitchell makes a credible argument that the LLC was not sufficiently diligent, that the LLC had identified Johnson as a potentially significant witness well before the Order to Vacate was entered, and that the LLC could have either located her before the summary judgment hearing or requested an extension of time in order to locate her as provided under Trial Rule 56(1). We agree that, under Trial Rule 60(B)(2), a particularized showing of due diligence is required. See Hartig v. Stratman, 760 N.E.2d 668, 671 (Ind.Ct.App.2002), trans. denied. If the due diligence requirement of Trial Rule 60(B)(2) applied here, we might hold that the LLC failed to exercise due diligence in locating Johnson, especially if, as Mitchell contends, Johnson was at all relevant times living and working in Bloomington in the dry cleaning business and that Mitchell knew where Johnson could be found but the LLC never bothered to ask him. These contentions, if true, would support a conclusion that the LLC was not diligent in its effort to locate Johnson before partial summary judgment was entered.

But Trial Rule 60(B) does not apply here. In Allstate Insurance Co. v. Fields, 842 N.E.2d 804, 806 (Ind.2006), our supreme court stated that Trial Rule 60(B) “authorizes a motion for relief only from final, not interlocutory, orders.” Mitchell asserts that Allstate is not controlling because Rule 60(B) was amended in 2008 to replace the term “final judgment” with the term “judgment.” Appellant’s Br. at 13. We are not persuaded that our supreme court meant for this 2008 amendment to overrule its recent 2006 holding in Allstate that Trial Rule 60 applies only to final judgments. The trial rules “are to be construed together and harmoniously if possible.” Carter-McMahon v. McMahon, 815 N.E.2d 170, 175 (Ind.Ct.App.2004). Mitchell’s interpretation would, in effect, add a due diligence requirement to the subject-to-revision provision applicable to interlocutory orders under Trial Rule 54(B), a requirement which is simply not there. While diligence is a factor to be considered in determining whether to grant relief from an interlocutory order under Trial Rule 54(B), it may not be the controlling factor if outweighed by other relevant considerations.

Neither are we persuaded by Mitchell’s assertion that “Indiana courts have applied Rule 60(B) to partial summary judgments on multiple occasions in the past.” Appellant’s Br. at 13. Mitchell cites Hartig, 760 N.E.2d at 668, where the trial court granted relief from the partial summary judgment that this court had granted in the first Hartig appeal, see Hartig v. Stratman, 729 N.E.2d 237 (Ind.Ct.App.2000), based on newly discovered evidence. Our opinion in the first Hartig appeal begins with the declaration that “[t]his case comes to us on interlocutory appeal,” id. at 238, but there is no such or similar statement in the second Hartig opinion, 760 N.E.2d 668. Rather, our second Hartig opinion describes only the first appeal as an interlocutory appeal. 760 N.E.2d at 670. And it is clear from the second Hartig opinion, which relied entirely on Trial Rule 60(B), that the parties, the trial court, and this court considered the judgment entered by our opinion in the first Hartig appeal a final judgment. See Ind. Appellate Rule 66(C)(6) (the Court of Appeals may, in whole or in part, order entry of Final Judgment) (emphasis added). Thus, in the second Hartig opinion, Trial Rule 60(B) was applied to a final judgment while here, in contrast, the January Order remains interlocutory and in fieri with the trial court. As such, Hartig is inapposite.

Mitchell also relies on Sequa Coatings Corp. v. Northern Indiana Commuter Transportation District, 796 N.E.2d 1216 (Ind.Ct.App.2003), clarified on other grounds on reh’g, 800 N.E.2d 926, trans. denied, in support of his assertion that reconsideration of a partial summary judgment is not permissible under Trial Rule 54(B). In Sequa, the parties filed their respective motions for summary judgment and designated evidence and, on February 7, 2003, the trial court entered partial summary judgment for the Northern Indiana Commuter Transportation District (“NICTD”). One month later, Sequa filed a motion to reconsider and a renewed motion for summary judgment along with newly designated evidence. The trial court denied Sequa’s request as duplica-tive.

On appeal, we held as follows:

Upon close review of Sequa’s motion for reconsideration and renewed motion for summary judgment, we also conclude that consideration of its newly designated evidence would be inappropriate given the facts of this case. First, Sequa’s motion raises no new issues and restates many of the issues raised in opposition to NICTD’s motion for summary judgment and its cross motion for summary judgment. Second, the designated evidence was not newly discovered evidence and was not otherwise unavailable prior to the trial court’s February 7, 2003[,] order. Third, Sequa filed its motion on March 10, 2003, and the trial court ruled on it following a status conference on April 4, 2003, at which the trial court indicated that it was unnecessary for NICTD to respond to Sequa’s motion. Thus, NICTD was not given the proper opportunity to respond to the motion.
Moreover, we find no merit to Sequa’s claim that it was entitled to file newly designated evidence because the parties’ motions were partial motions for summary judgment. Although the issues may not have been final for appeal purposes, the trial court’s February 7, 2003[,] order completely disposed of the parties’ indemnity issues. Further, we remain unconvinced that Sequa should have been able to correct the trial court’s “mistaken impressions” with newly designated evidence that was discoverable and could have been made available to the trial court before it issued its order. Thus, we will not consider Sequa’s newly designated evidence on appeal because to do so would essentially give Sequa a second bite at the apple.

Id. at 1221-22.

Mitchell cites Sequa to support his contention that the LLC cannot use Trial Rule 54(B) “as a back door method to designate evidence” after the time allowed. Appellant’s Br. At 12. But Sequa does not stand for the proposition that Rule 54(B) prohibits a trial court from reconsidering an interlocutory motion for partial summary judgment. Indeed, Sequa does not discuss Rule 54(B), let alone preclude reconsideration of a partial summary judgment under that rule. While the trial court’s original order in Sequa was interlocutory, the court declined to reconsider Sequa’s newly discovered evidence and denied Sequa’s motion to reconsider and its renewed motion for summary judgment. The trial court then made its order on the parties’ summary judgment motions a “final appealable order.” Sequa, 796 N.E.2d at 1221. On appeal this court reviewed the trial court’s decision not to reconsider its partial summary judgment under Trial Rule 60(B), not under Trial Rule 54(B). Thus, Sequa is also inapposite.

Mitchell characterizes the issue on appeal as a “procedural dispute.” Appellant’s Br. at 4. At first blush it appears that Trial Rules 56(C) and 54(B) are at odds. But, on the facts presented in this case, we conclude that those rules actually complement each other. See Carter-McMahon, 815 N.E.2d at 175. Trial Rule 56(C) declares that a partial summary judgment with respect to less than all the parties is interlocutory. And the text in both rules requires an express determination that there is no just reason for delay and an express direction for entry of judgment to convert a partial summary judgment to a final judgment. This is not an interlocutory appeal from the trial court’s January Order under Trial Rule 56(C), which we would review de novo. This is an interlocutory appeal from the trial court’s Order to Vacate and revise its January Order. As such, Trial Rule 54(B) controls the disposition of this case, and we review the trial court’s Rule 54(B) decision for an abuse of discretion. An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. See Legg, 557 N.E.2d at 676.

Applying this standard, we conclude that the trial court did not abuse its discretion when it entered the Order to Vacate. The trial court weighed various factors before vacating its previous order and said:

The designated Statement and Deposition of Ms. Johnson demonstrate facts extremely relevant to the responsible corporate officer doctrine and whether there is a genuine issue of material fact that Defendant Mitchell was directly involved in the environmental spill at issue in this case. The evidence directly refutes the conclusions of the [January Order] on summary judgment....
The Court has considered the latitude of T.R. 54(B), the important nature of the newly designated evidence, the existent (but not overwhelming) efforts of [the LLC] to locate the evidence prior to the hearing on summary judgment, and the factors relevant to newly discovered evidence in the specific procedural context of this case. The Court has considered the potential prejudice that granting the Joint Motion to Vacate may cause Defendant Mitchell. Weighing all the factors, the Court concludes that the Joint Motion to Vacate should be granted....

Id. at 18-19. Thus, the trial court noted specifically that Johnson’s statement and deposition “demonstrate facts extremely relevant to the responsible corporate officer doctrine and whether there is a genuine issue of material fact.” Id. The court considered Johnson’s statement and deposition together with “the latitude of T.R. 54(B), [and] the important nature of the newly designated evidence.” Id. Indeed, this new evidence challenged the accuracy, if not the truthfulness, of Mitchell’s affidavit. The January Order relied on Mitchell’s affidavit, in which he stated, among other things, that “I never dumped nor was I at any time involved in any capacity in the dumping of[,] chemical waste on Plaintiffs real estate. Id. at 40. The trial court found that the new evidence “directly refutes the conclusions of the [January Order]” on the question of Mitchell’s personal liability. Given our standard of review, the fundamental distinction between an interlocutory order and a final judgment, and the trial court’s reasoning, we cannot say that the court’s Order to Vacate was an abuse of discretion.

In sum, in this case the trial court entered two correct judgments. When the court entered the January Order, the designated evidence did not demonstrate a genuine issue of material fact as to Mitchell’s liability, and the court properly granted partial summary judgment for him as a matter of law. But because the judgment was and remained interlocutory, after the LLC tendered new evidence that established a genuine issue of material fact on the question of Mitchell’s personal liability, the trial court properly exercised its discretion to vacate the January Order and reinstate Mitchell as a defendant. The Order to Vacate was neither against the logic and effect of the facts and circumstances before the court nor contrary to law. Thus, we hold that the court’s Order to Vacate was not reversible error.

Affirmed.

RILEY, J., and BARNES, J., concur.

      . While only Mitchell brings this appeal, all of the Defendants are parties on appeal pursuant to Indiana Appellate Rule 17(A).

      . The parties also dispute whether the due diligence and newly discovered evidence provisions of Trial Rule 60 apply. But, as discussed below, we agree with the trial court that Trial Rule 60 applies only to final judgments.

      . In his reply brief, Mitchell for the first time relies on this court’s recent opinion in DeLage Landen Financial Services. Inc. v. Community Mental Health Center. Inc., 965 N.E.2d 693 (Ind.Ct.App.2012). trans. denied. DeLage follows HomEq, and nothing in DeLage discusses Trial Rule 54(B). Thus, for the same reasons HomEq is inapposite, so is DeLage.

      . Prior to the amendment, the Rule provided that, "[o]n motion and upon such terms as are just[,] the court may relieve a party or his legal representative from an entry of default, final order, or final judgment, including a judgment by default, for the following rea-sons_" Allstate, 842 N.E.2d at 807 (quoting T.R. 60(B) (2006)) (emphasis added). The 2008 amendment, which became effective on January 1, 2009, replaced the emphasized language with the simple article "a,” so that the rule now reads that, "[o]n motion and upon such terms as are just[,] the court may relieve a party or his legal representative from a judgment, including a judgment by default, for the following reasons_" T.R. 60(B) (2009) (emphasis added).

      . Mitchell also cites Sequa Coatings Corp. v. Northern Indiana Commuter Transportation District, 796 N.E.2d 1216 (Ind.Ct.App.2003), clarified on other grounds on reh’g, 800 N.E.2d 926, trans. denied, to support his contention that courts have applied Rule 60(B) to appeals from partial summary judgment. As discussed below, Sequa was not an appeal from an in fieri order and, therefore, does not support Mitchell’s contention.

      . We cannot agree with Mitchell that the trial court erred when it referred to this court’s opinion in Liggett v. Young, 851 N.E.2d 968 (Ind.Ct.App.2006). Our supreme court granted a petition to transfer jurisdiction in that case, vacating this court’s opinion as precedent, and reversed this court’s disposition. See Ind. Appellate Rule 58(A); Liggett v. Young, 877 N.E.2d 178 (Ind.2007). But here the trial court did not "rely” on Liggett as authority. Instead, the trial court found "limited guidance” in that opinion’s reasoning, and that reasoning was not the basis for the supreme court's reversal of that opinion.


source: Caselaw Access Project

author: CRONE, Judge.

license: Public Domain

text:
    Gunther KRANZ and Carol Kranz, Appellants-Petitioners, v. MEYERS SUBDIVISION PROPERTY OWNERS ASSOCIATION, INC., Christopher Bartoszek, and Indiana Department of Natural Resources, Appellees-Respondents.
    No. 75A03-1112-PL-577.
    Court of Appeals of Indiana.
    Aug. 28, 2012.

      Jere L. Humphrey, Wyland, Humphrey, Wagner & Clevenger, LLP, Plymouth, IN, Attorney for Appellants.
    Gregory F. Zoeller, Attorney General of Indiana, Andrew R. Falk, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION ON REHEARING

CRONE, Judge.

Case Summary

Gunther and Carol Kranz petition for rehearing in the case of Kranz v. Meyers Subdivision Property Owners Association, 969 N.E.2d 1068 (Ind.Ct.App.2012). We grant rehearing solely to clarify why we believe that our interpretation of a regulation promulgated by the Department of Natural Resources (“the DNR”) is consistent with that of the agency’s. Therefore, we reaffirm our original opinion in all respects.

Facts and Procedural History

The Kranzes own property on Bass Lake that is subject to an easement by other landowners in the Meyers Subdivision (“the Subdivision”). In prior, separate proceedings, the Natural Resources Commission (“the NRC”) determined that the easement holders had the right to place a pier at the end of the easement, but they would have to apply for a permit for a group pier (“the Group Pier”) from the DNR. The DNR initially denied the permit, and the easement holders requested a hearing before an administrative law judge (“the ALJ”), who determined that the easement holders should be allowed to have a group pier and that the Kranzes should move their pier to accommodate the Group Pier. The Kranzes appealed to the NRC, which adopted the ALJ’s decision.

The Kranzes then sought judicial review in the Starke Circuit Court. The Kranzes advanced four reasons for reversing the NRC’s decision: (1) that the NRC lacked jurisdiction to determine property rights; (2) that the decision was arbitrary and capricious because the NRC did not follow its own rule; (3) that the decision was not supported by substantial evidence; and (4) that the decision effected an unconstitutional taking. The trial court affirmed, and the Kranzes appealed to this Court.

On appeal, we held that: (1) the NRC has jurisdiction to render a decision concerning property rights to the extent necessary to implement the permit process; (2) that the NRC properly interpreted and applied its own rule; (3) that the evidence favorable to the decision supported the NRC’s ruling; and (4) that there was not an unconstitutional taking of the Kranzes’ property. Id. at 1080.

The Kranzes filed a petition for rehearing in which they argue that our interpretation of the DNR regulation at issue is not consistent with the way in which the agency interpreted it. Recognizing that an agency’s interpretation of its own regulations is typically accorded great weight, we grant rehearing to clarify why we believe that our interpretation of the regulation is consistent with the NRC’s. See Ind. Dep’t of Envtl. Mgmt. v. Steel Dynamics, Inc., 894 N.E.2d 271, 274 (Ind.Ct.App.2008) (“[A]n interpretation of statutes and regulations by the administrative agency charged with enforcing those statutes and regulations is entitled to great weight, and the reviewing court should accept the agency’s reasonable interpretation of such statutes and regulations, unless the agency’s interpretation would be inconsistent with the law itself.”), trans. denied (2009).

Discussion and Decision

On appeal, the Kranzes argued that the NRC’s decision was arbitrary and capricious because it failed to follow one of its own rules, 312 Indiana Administrative Code 11 — 4—S(c)(l). That rule states:

(c) The [DNR] shall condition a license for a group pier so the placement, configuration, and maintenance of the pier ...:
(1) Provide a reasonable buffer zone between the pier and the:
(A) portion of the lake two hundred (200) feet from the shoreline or water line; and
(B) riparian zone of adjacent property owners to provide for reasonable navigation by the adjacent property owner and by the public. Except as otherwise provided in this clause, the department shall require at least five (5) feet of clearance on both sides of a riparian line (for a total of ten (10) feet). The department may require as much as ten (10) feet of clearance on both sides of a riparian line (for a total of twenty (20) feet) if, based upon the opinion of a qualified professional, additional clearance is required for reasonable navigation. The department may approve an exception to this clause where adjacent riparian owners use a common pier along their mutual property line, and the purposes of this clause are satisfied by waters elsewhere within their riparian zones.

312 Ind. Admin. Code ll-4-8(c)(l).

The Kranzes argued that this rule required ten feet of clearance between each side of the Group Pier and the boundaries of the easement; therefore, because the easement is only fifteen feet wide, the permit had to be denied. We noted that the rule requires only five feet of clearance on each side of a riparian line. We further held that the easement owners did not have their own riparian zone, but merely had the right to use a portion of the Kranzes’ riparian rights. See Kranz, 969 N.E.2d at 1079 (citing Klotz v. Horn, 558 N.E.2d 1096, 1097 (Ind.1990)). Thus, we explained the application of the rule as follows:

In Adochio,[ ] the NRC determined that the easement included the use of the Kranzes’ riparian rights in the area corresponding to the boundaries of the easement. This fifteen-foot area is not a separate riparian zone, but falls entirely within the Kranzes’ riparian zone. Thus, the references in 312 Indiana Administrative Code 11 — 4—8(c)(1) to riparian lines and zones do not refer to the boundaries of the easement, but to the boundaries of the Kranzes’ riparian zone. Both the Group Pier and the Kranzes’ pier are entirely within the Kranzes’ riparian zone, and both piers are at least five feet from the boundaries of the Kranzes’ riparian zone.
.... In other words, there must be five feet of clearance between Bartosz-ek’s pier and the Bartoszek-Kranz riparian line, and five feet of clearance between the riparian line and the Group Pier.[] On its face, the rule does not appear to address the amount of clearance that should exist between the Group Pier and the Kranzes’ pier, which are both located in the same riparian zone. Nevertheless, the NRC created a buffer of approximately sixteen feet, which is consistent with the spirit of the rule. Thus, we conclude that the NRC correctly applied 312 Indiana Administrative Code ll^i — 8(c)(1).

Id. at 1079-80.

In their petition for rehearing, the Kranzes argue that the NRC did intend to create a separate riparian zone for the easement holders. We acknowledge that there are a few references in the NRC’s opinion to the easement holders having a riparian zone; however, reading the opinion as a whole, we conclude that these references are nothing more than a few isolated instances of lack of precision in the use of a term of art. The NRC cited and clearly intended to apply Klotz, which held that an easement holder does not acquire riparian rights, but may acquire the right to use the riparian rights of the servient estate. The greater number of the NRC’s findings are consistent with Klotz. See e.g., Appellants’ App. at 12 (stating that the Subdivision holds an easement “which crosses a portion of the lands and the riparian waters of the Kranzes”); id. at 13 (again stating that the subdivision holds an easement “over the lands and riparian waters of the Kranzes” and describing the subdivision’s riparian rights as “derivative”); id. at 15 (setting forth the Klotz rule and stating that the easement holders “are not riparian owners”); id. at 19 (noting that the parties had stipulated that the “appropriate delineation of riparian zones was described by the straight-line extension of property lines”).

The Kranzes argue that paragraph 77 of the NRC’s order indicates that it intended to create a separate riparian zone for the easement holders. That paragraph included a diagram of the Kranzes’ property, Bartoszek’s property, and the easement. A line marked “1” extends from the Kranz-Bartoszek property line (which is also the western border of the easement) into Bass Lake. The text of paragraph 77 contains the following description of line 1:

This solid line is the straight-line extension into Bass Lake of the common terrestrial property line of Bartoszek Lot 48 and Kranz Lot 49 and depicts the delineation of riparian zones between those properties. In addition, the line depicts the delineation of riparian zones between Bartoszek Lot 48 and the subject easement.

Id. at 31. While this comment seems to refer to the easement holders having a riparian zone, it also reflects that that zone is subsumed within the Kranzes’ riparian zone. Although this language is not a very precise application of Klotz, the end result is essentially correct and consistent with our opinion.

Finally, the Kranzes rely on the statement of contentions that the DNR submitted in the Adochio case and the testimony of Lieutenant Shepherd, a conservation officer who had originally recommended denial of the permit for the Group Pier. However, the NRC is the final authority for interpreting the regulation at issue, and as explained above, we believe that our opinion is consistent with how the NRC interpreted it. Therefore, we reaffirm our previous opinion in all respects.

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

      . The Kranzes raise two additional issues, which we believe were adequately addressed in our original opinion.

      . Adochio v. Kranz, 11 CADDNAR 400, 413 (2008), available at www.in.gov/nrc/decision/ 07-204w.vl l.htm.

      . Bartoszek is the Kranzes’ neighbor to the west; the Bartoszek-Kranz property line is also the western boundary of the easement.


author: GARRARD, Senior Judge.

text:
    Terrell HAWKINS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 49A04-1201-CR-12.
    Court of Appeals of Indiana.
    Aug. 28, 2012.

      Terrell Hawkins, Greencastle, IN, Appellant Pro Se.
    Gregory F. Zoeller, Attorney General of Indiana, Kathy Bradley, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

GARRARD, Senior Judge.

Terrell Hawkins appeals the denial of his request for educational credit time. We affirm.

Hawkins is incarcerated at the Putnam-ville Correctional Facility. He is serving a twenty-year sentence following a plea of guilty to dealing in cocaine, a Class A felony. Ind.Code § 35-48-4-1 (2001). At Putnamville, Hawkins began taking college courses through Ivy Tech Community College (“Ivy Tech”) for an associate’s degree, with the intention of receiving educational credit time.

In the past, the State of Indiana funded postsecondary education programs in correctional facilities. However, in 2011 the General Assembly amended the governing statute, Indiana Code section 21-12-3-13, to provide that such funding cannot be used to assist an inmate who has been convicted of a felony and is confined for that felony in a penal facility. 2011 Ind. Acts 3791. The statutory amendment caused Ivy Tech to end its postsecondary education program at the point when Hawkins had completed two semesters of his associate’s degree program and was halfway done. As a result, Hawkins was unable to complete the degree program. He filed a Verified Petition for Additional Credit Time. The trial court denied Hawkins’ petition, and this appeal followed.

Hawkins presents the following issue for review: Whether the trial court erred in denying his request for educational credit time.

An incarcerated person may earn educational credit time by obtaining an associate’s degree or a bachelor’s degree from a postsecondary educational institution. Ind.Code § 35-50-6-3.3 (2011). This encourages rehabilitation by providing an incentive to further one’s education while incarcerated. Budd v. State, 935 N.E.2d 746, 752 (Ind.Ct.App.2010), clarified on reh’g, 937 N.E.2d 867 (2010).

Hawkins contends that the statutory amendment to Indiana Code section 21-12-3-13, which caused Ivy Tech to end the program through which he was pursuing his degree, violates federal and state constitutional prohibitions against ex post facto laws. An ex post facto law applies retroactively to disadvantage an offender’s substantial rights. Budd, 935 N.E.2d at 752. We determine whether a particular statute is an ex post facto law by examining whether the change increases the penalty by which a crime is punishable or alters the definition of criminal conduct. Id.

Here, the statutory amendment that resulted in the end of the educational program in which Hawkins was participating applied prospectively rather than retroactively. Furthermore, although Hawkins may have lost an opportunity to obtain educational credit time, the amendment did not increase his twenty-year sentence or alter the definition of his criminal conduct. Consequently, his federal and state ex post facto claims fail. See id. at 753 (determining that an amendment to the educational credit time statute did not constitute an ex post facto law because Budd’s sentence was not increased).

Next, Hawkins claims that his federal constitutional right to equal protection was violated because he asserts that other inmates were allowed to complete their degree programs and obtain credit time. When addressing a federal equal protection claim, we first determine the applicable level of scrutiny. Id. Hawkins has not identified himself as a member of a suspect class. Furthermore, a prisoner has no constitutional right to receive educational credit time. Id. Classifications not involving a suspect class or a fundamental right are reviewed under a rational basis test, so we apply that test here. Bennett v. State, 801 N.E.2d 170, 175 (Ind.Ct.App.2003). Under the rational basis test, we consider whether the government’s action is rationally related to a legitimate governmental purpose. Fancher v. State, 918 N.E.2d 16, 20 (Ind.Ct.App.2009).

In this case, the record reflects that after funding for postsecondary educational programs in correctional facilities was cut, Ivy Tech and the Department of Correction (“DOC”) considered whether to allow inmates with one semester of studies remaining to complete their degree programs. There is no indication that they implemented that course of action. Nevertheless, even if Hawkins, who was only halfway toward completing his degree program, was not allowed to complete his classes while inmates with one semester left were allowed to finish, his right to equal protection was not violated. “[U]n-der rational basis review, we will not invalidate a challenged distinction simply because the classification is not made with mathematical nicety or because in practice it results in some inequality.” Budd, 935 N.E.2d at 753 (quoting United States v. Jester, 139 F.3d 1168, 1171 (7th Cir.1998)). The distinction between inmates with one semester of studies left and other inmates who were not as close to finishing their degree programs has a rational basis and serves a legitimate governmental purpose of encouraging inmate rehabilitation despite budgetary challenges. We find no error.

Hawkins also argues that allowing other inmates to complete their degree programs while he was barred from doing so violated his right to equal treatment under the Indiana Constitution. The purpose of Indiana’s equal privileges clause is to prevent the distribution of extraordinary benefits or burdens to any one group. State v. Price, 724 N.E.2d 670, 675 (Ind.Ct.App.2000), trans. denied. To determine whether governmental action violates the equal privileges clause, we first consider whether the disparate treatment accorded by the legislation is reasonably related to inherent characteristics that distinguish the unequally treated classes. Id. We also consider whether the preferential treatment is uniformly applicable and equally available to all persons similarly situated. Id. A challenger bears the burden of negating every reasonable basis for the classification. Gibson v. Ind. Dep’t of Corr., 899 N.E.2d 40, 50 (Ind.Ct.App.2008), trans. denied.

Here, accepting Hawkins’ assertion that Ivy Tech and the DOC allowed inmates to complete their degree programs if they had one semester left, such a decision was reasonably related to an inherent characteristic, specifically the amount of work an inmate had remaining to complete a degree program. Ivy Tech and the DOC were attempting to balance inmate rehabilitation through education against the loss of funding. Furthermore, the preferential treatment at issue here, specifically allowing inmates with only one semester left to finish their classes, is uniformly applicable to all inmates in those circumstances. The distinction between inmates who only had one semester of studies left and inmates who were not as close to being finished has a rational basis, and we find no violation of Indiana’s equal privileges clause.

Finally, Hawkins argues that the trial court’s denial of credit time for his partial completion of the degree program violates the language and intent of Indiana Code section 35-50-6-3.8. We disagree. We interpret a statute according to the ordinary and plain meaning of the language used, absent clearly manifested intent to do otherwise. Jacks v. State, 853 N.E.2d 520, 522 (Ind.Ct.App.2006). Here, the statute provides, in relevant part, “[A] person earns credit time if the person ... successfully completes requirements to obtain ... [a]n associate’s degree from an approved postsecondary educational institution.” Ind.Code § 35-50-6-3.3 (emphasis added). Thus, the statute by its plain language provides that an inmate is entitled to credit time only for completing a postsecondary degree program. It does not authorize partial credit for partial completion, and it does not compel the DOC to provide funding for a postsecondary degree program. We find no error.

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

Affirmed.

NAJAM, J., and DARDEN, SR. J., concur.

      . The State argues that Hawkins failed to exhaust his administrative remedies prior to filing his Verified Petition for Additional Credit Time and that the Court should not address the merits of his claim. After reviewing the record, we reject the State's argument and proceed to the merits.

      . United States Constitution Article 1, Section 9 provides, in relevant part: “No ... ex post facto Law shall be passed.” Indiana Constitution article 1, section 24 provides, in relevant part: “No ex post facto law ... shall ever be passed.”

      . The Equal Protection Clause of the United States Constitution provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1.

      . Article 1, section 23 of the Indiana Constitution, also known as the equal privileges clause, provides, "[t]he General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.”


author: BAILEY, Judge.

text:
    Ann Rachelle JOHNSON, Appellant, v. DR. A., Dr. B., and Medical Provider, Appellees.
    No. 90A05-1109-PL-487.
    Court of Appeals of Indiana.
    Aug. 28, 2012.

      Andrew B. Miller, Esq., Starr Austen & Miller, LLP, Logansport, IN, Attorney for Appellant.
    Edward L. Murphy, Jr., William A. Ramsey, Murphy Ice & Koeneman LLP, Fort Wayne, IN, Attorneys for Appellees.
   OPINION

BAILEY, Judge.

Case Summary

Ann Rachelle Johnson (“Johnson”), an Indiana resident, filed a proposed complaint with the Indiana Department of Insurance (“Department of Insurance”), alleging medical malpractice by Dr. A, Dr. B, and their medical practice (collectively, “Defendants”), all of which are located in Indiana. Discovery disputes arose over the Defendants’ attempts to obtain discovery of records concerning the work history of Dr. Hansel M. DeBartolo, Jr. (“Dr. De-Bartolo”), an Illinois-based physician retained by Johnson as an expert witness. Upon the Defendants’ motion, the trial court ordered Dr. DeBartolo to execute a release that requires him to indemnify one of his prior employers from liability that may result from inadvertent disclosure of confidential information (“the Release”). Johnson appeals the trial court’s order.

We dismiss.

Issues

Johnson’s appeal raises several issues, which we reframe as whether the trial court abused its discretion when it ordered Dr. DeBartolo to execute the indemnifying release. As threshold matters, the Defendants raise the following issues:

I. Whether this Court has jurisdiction to hear Johnson’s appeal; and

II. Whether, if the Court has jurisdiction to hear the appeal, Johnson has standing to pursue this appeal.

Facts and Procedural History

On December 4, 2008, Johnson filed a proposed complaint with the Department of Insurance, in which complaint she alleged that the Defendants were negligent in providing her medical care and treatment. See Ind.Code § 34-18-8-4. On February 19, 2009, Johnson filed an anonymous complaint in the trial court against the Defendants, alleging the same negligent acts. See I.C. § 34-18-8-7. On March 5, 2009, the Defendants filed a motion to stay the proceedings except for determination of legal issues and discovery matters. See I.C. § 34-18-11-1.

At some point in the proceedings, Johnson designated Dr. DeBartolo, who practiced medicine in Sugar Grove, Illinois, as an expert witness. The Defendants deposed Dr. DeBartolo for several hours on May 10, 2010. The deposition was adjourned and reconvened on June 29, 2010; the June 29, 2010 portion of the deposition was video-recorded.

During the June 29, 2010, deposition, Dr. DeBartolo declined to sign documents authorizing disclosure to the Defendants “of records and documents concerning his education, background, and medical and surgical experience.” (Appellees’ App. at 3.) These included an authorization to obtain copies of Dr. DeBartolo’s academic records from medical school and surgical records and litigation-related documents of one of Dr. DeBartolo’s former employers, Delnor Community Hospital (“the Authorization”).

Consequently, on August 9, 2010, the Defendants filed a consolidated Motion for Preliminary Determination and Motion to Set Reasonable Expert Witness Fees and Motion to Compel (“Defendants’ First Motion to Compel”). In Defendants’ First Motion to Compel, the Defendants sought an order compelling “Dr. DeBartolo to sign any record authorizations.” (Appel-lees’ App. at 4.)

The parties’ dispute over discovery matters continued. On March 4, 2011, Johnson filed a Motion to Compel (“Plaintiffs Motion to Compel”) requesting an order for the Defendants to provide signed authorizations for the release of records related to the Defendants’ credentials and professional histories. On April 14, 2011, the trial court conducted a hearing on the Defendants’ First Motion to Compel and Plaintiffs Motion to Compel. After taking the motions under advisement, on May 12, 2011, the trial court entered numerous orders on the case; among them was an order compelling Dr. DeBartolo to execute releases to several hospitals at which he worked. Dr. DeBartolo complied with the order.

On July 12, 2011, counsel for the Defendants communicated to counsel for Johnson that one of the hospitals at which Dr. DeBartolo had worked, Delnor Community Hospital (“Delnor”), “refusfed] to provide the records Dr. DeBartolo authorized the hospital to provide” in the Authorization because of “fears that Dr. DeBartolo [would] institute legal proceedings against the hospital for complying.” (Appellant’s App. at 17.) In addition, counsel for Del-nor had informed Defendants’ counsel that Dr. DeBartolo had previously filed an action in a Kane County, Illinois, court against Delnor.

To “quell [Delnor’s] fear of your expert,” counsel for the Defendants submitted a release (“the Release”) to Johnson’s attorney for Dr. DeBartolo to execute. (Appellant’s App. at 17.) The Release provided that Dr. DeBartolo would

release, acquit and forever discharge [Delnor], and any other person firm or corporation as its agent from all actions, suits, causes of action, claims, or demands of any kind in nature whatsoever, whether known or unknown at this time, on account of Delnor or its agents’ compliance with [the Authorization] signed by [Dr. DeBartolo].
(Appellant’s App. at 18.) The Release also provided that, by signing, Dr. DeBartolo agreed [to] indemnify and forever hold harmless [Delnor] and its agents against any expenses, costs, or payments of any kind, including court costs and attorneys’ fees, which they may be compelled to make or expend based on any litigation that I or any person or entity bring against Delnor regarding the Request Authorization for Access to Records or action taken by Delnor pursuant [to the Request].

(Appellant’s App. at 18.)

Dr. DeBartolo did not sign the Release provided to counsel for Plaintiff. On August 17, 2011, the Defendants filed a Motion to Enforce Order, contending that the Second Release “does not require Dr. De-Bartolo to take any steps not ordered by the Court” and that “there is no reason for Dr. DeBartolo not to sign ... unless he plans on suing [Delnor] for complying with the Authorization.” (Appellant’s App. at 13.) To “ensure that the spirit of the Court’s Order of May 12, 2011, is followed,” the Defendants requested “an Order requiring Dr. DeBartolo to execute the Release.” (Appellant’s App. at 13.)

On September 1, 2011, the trial court entered an Order requiring Dr. DeBartolo to sign the Release and Authorization and return the signed documents to counsel for the Defendants within seven days (“the Order”).

On September 13, 2011, Johnson filed her Notice of Appeal, pursuing interlocutory appeal of the Order and citing as the basis for our jurisdiction Appellate Rule 14(A)(2). On November 4, 2011, the Defendants filed a Motion to Dismiss in this Court. The Motion to Dismiss argued that the Order is not of the type required to create interlocutory appellate jurisdiction under Appellate Rule 14(A)(2) and that Johnson lacked standing to bring the appeal. Johnson filed her response to the Defendants’ Motion to Dismiss on December 8, 2011. On December 6, 2011, the Defendants filed their Motion for Leave to File Reply to Johnson’s responsive briefing on the Motion to Dismiss.

On January 20, 2012, this Court held in abeyance both the Defendants’ Motion to Dismiss and their Motion for Leave to File Reply.

Discussion and Decision

Defendants argue in their Motion to Dismiss that this Court lacks jurisdiction over this appeal. This Court has jurisdiction “in all appeals from Final Judgments of Circuit, Superior, Probate, and County Courts,” Ind. Appellate Rule 5(A), and has jurisdiction “over appeals of interlocutory orders under [Appellate] Rule 14,” App. R. 5(B), except for certain appeals over which our Supreme Court holds sole appellate jurisdiction. “Judgments or orders as to less than all of the issues, claims, or parties remain interlocutory until expressly certified as final by the trial judge,” Berry v. Huffman, 643 N.E.2d 827, 329 (Ind.1994), except as authorized by the Indiana Constitution, statutes, and rules of court. Allstate Ins. Co. v. Scroghan, 801 N.E.2d 191, 193 (Ind.Ct.App.2004) [hereinafter Scroghan I], trans. denied. We must dismiss “any attempt to perfect an appeal without such authorization.” Id. (citing Anthrop v. Tippecanoe Sch. Corp., 257 Ind. 578, 277 N.E.2d 169, 171 (1972)).

Here, Johnson sought interlocutory review of the trial court’s Order of September 1, 2011 under Appellate Rule 14(A)(2), which provides for interlocutory appeal as of right from orders “[t]o compel the execution of any document.” Defendants in their Motion to Dismiss argue that the appealed Order, which required Dr. De-Bartolo to execute the Release, is not an order to compel the execution of a document as contemplated by Appellate Rule 14(A)(2) because it is a discovery order and not appealable as of right.

While Defendants’ conclusion is consistent with prior decisions of this Court and our Supreme Court, these decisions have all addressed the case of a party seeking to avoid its own direct participation in discovery. Such disputes have generally centered on the party’s refusal to execute a medical release or to otherwise participate in discovery on a matter in dispute. See Cua v. Morrison, 600 N.E.2d 951, 952-53 (Ind.Ct.App.1992) trans. denied (concluding that a party ordered to execute a medical release form does not have a right to seek interlocutory appeal under the predecessor to App. R. 14(A)(2)); State v. Hogan, 582 N.E.2d 824, 825 (Ind.1991) (stating that “matters which are appeal-able as of right ... involve trial court orders which carry financial and legal consequences akin to those more typically found in final judgments”); also Rausch v. Finney, 829 N.E.2d 985 (Ind.Ct.App.2005) (dismissing an interlocutory appeal seeking review under App. R. 14(A)(2) of a discovery order requiring a party’s execution of a medical release).

This case does not present such a situation. Rather, here a nonparty has been ordered by a trial court to execute a broad Release with significant and unexplored legal consequences for that nonparty, and that order comes dangerously close to the type of “ ‘fishing expedition’ ” our discovery rules are intended to foreclose. Crawford v. State, 948 N.E.2d 1165, 1168 (Ind.2011) (quoting State v. Cline (In re WTHR-TV), 693 N.E.2d 1, 6 (Ind.1998)). In such circumstances — and especially where the nonparty is not otherwise subject to the jurisdiction of an Indiana court — we think that Appellate Rule 14(A)(2) permits an interlocutory appeal as of right.

We nevertheless conclude we cannot exercise jurisdiction in this matter because Johnson’s appeal was not properly perfected. As we observed in Allstate Ins. Co. v. Scroghan, 851 N.E.2d 317 (Ind.Ct.App.2006) [hereinafter Scroghan II ], though “we do not condone the practice of intentionally violating discovery orders to obtain appellate review ... we recognize that such a practice can act as an important ‘safety valve,’ which relieves parties from generally non-appealable discovery orders.” Scroghan II, 851 N.E.2d at 322 (citing Marrese v. Am. Acad. of Orthopaedic Surgeons, 726 F.2d 1150, 1157 (7th Cir.1984), rev’d on other grounds, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985), and quoting Marrese for the proposition, “incur[ring] a sanction for contempt is a crude but serviceable method, well established in case law, of identifying the most burdensome discovery orders and in effect waiving the finality requirement for them”). Thus, unless there is some sanctioning action against a party by the trial court resulting from failure to comply with the Order that Dr. DeBartolo execute the release, or alternately the denial of a motion by Johnson seeking a protective order under Trial Rule 26(C), we cannot conclude that the Order gives rise to an interlocutory appeal as of right.

In other words, absent a clear showing of prejudice in a failed attempt to obtain a protective order, or the entry of an order making it clear that some sanction will be imposed upon a party or the nonparty subject to the order, an appeal from an order compelling a nonparty’s execution of a document is not properly perfected.

We only very rarely issue advisory opinions, though we observe that on at least one occasion, this Court has issued an opinion reversing a trial court’s order on a pretrial matter where it appeared that the court’s interpretation of a prior order would clearly prejudice parties not immediately affected by the appealed-from order. See Travelers Indem. Co. v. P.R. Mallory & Co., 772 N.E.2d 479 (Ind.Ct.App.2002). Here, however, Johnson has not yet been subject to any order that has actively prejudiced her case. We therefore cannot conclude that Johnson’s appeal is properly perfected.

Yet neither are we certain that the Defendants’ decision to pursue the Order and the trial court’s grant of the Order are acceptable discovery practices under our Trial Rules. The Release would shift the liability risks associated with the discovery participation of one Illinois-resident non-party (Delnor) onto another Illinois-resident nonparty (Dr. DeBartolo). Yet our trial rules provide that the party seeking production from a nonparty must provide that indemnification. T.R. 34(C)(3). Our trial rules also provide a defined path for seeking discovery from an out-of-state nonparty, whereby the party seeking discovery may obtain an order compelling participation in discovery from the Indiana trial court and pursue the appropriate form of action in the courts of the out-of-state nonparty to enforce the Indiana discovery order. T.R. 28(D).

It thus seems that the appropriate route for the Defendants here is to pursue an order from the trial court compelling Del-nor to produce documents and then to use the appropriate Illinois process to obtain that production. However inefficient it may have been to follow the discovery procedures set forth in our Trial Rules— and whatever common practice among litigants may be — it is not clear to us that the trial court could sanction Johnson for Dr. DeBartolo’s failure to comply with the Order without abusing its discretion.

Nevertheless, because Johnson does not yet face actual prejudice from the trial court’s order, we dismiss her appeal.

Dismissed.

ROBB, C.J., and MATHIAS, J., concur.

      . Defendants also filed a motion for leave to file a reply to Johnson’s submission in opposition to the Motion to Dismiss. The Court disposes of this motion in a separate memorandum issued contemporaneously to our decision today.

      . We held oral argument on Johnson’s appeal and the Defendants’ Motion to Dismiss on August 8, 2012. We thank the parties for their able advocacy.

      . Generally, plaintiffs in medical malpractice actions in Indiana must file proposed complaints with the Department of Insurance and wait for an opinion from a medical review panel before filing suit in a trial court against a defendant. Ind.Code § 34-18-8-4. However, a plaintiff "may commence an action in court for malpractice” while the proposed complaint is still being considered by a medical review panel, so long as the complaint does not "contain any information that would allow a third party to identify the defendant.” I.C. § 34 — 18—8—7(a)(1). The plaintiff may not pursue the claim at the trial court until after the medical review panel has issued its opinion, and the trial court’s actions upon the complaint are limited to dismissal of the action, making certain preliminary determinations, and overseeing portions of the discovery process. I.C. §§ 34-18-8-7(a) & (b), -8; I.C. § 34-18-11-1 etseq.

      . Appellate Rule 14(A) provides the types of orders from which an appellant may seek review of a trial court's order as of right prior to the entry of final judgment in a case. Among the orders from which a party may pursue interlocutory appeal as a matter of right is an order "[t]o compel the execution of any document.” Ind. Appellate Rule 14(A)(2).

      . This might under some circumstances encompass a ruling in limine that failure of a nonparty to comply with a discovery order would result in exclusion at trial of evidence from that nonparty.


author: BROWN, Judge.

text:
    Willis PRYOR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1202-CR-101.
    Court of Appeals of Indiana.
    Aug. 29, 2012.
    Suzy St. John, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Seharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Willis Pryor appeals his conviction for resisting law enforcement as a class A misdemeanor and argues that he received ineffective assistance of trial counsel. Pryor raises one issue, which we revise and restate as whether trial counsel’s failure to preserve Pryor’s right to a jury trial denied him the effective assistance of counsel. We reverse and remand.

The relevant facts follow. On July 19, 2011, the State charged Pryor with resisting law enforcement as a class A misdemeanor. On August 8, 2011, the court scheduled a hearing for November 1, 2011. On November 1, 2011, the court held a pre-trial hearing. An “Off the Record Request for New Court Date” form signed by the deputy prosecuting attorney, Pryor, and defense counsel on November 1, 2011, included the date of “1-23-12” next to the pre-printed words “Bench Trial on” and the time of “1:00 pm” was circled. Appellant’s Appendix at 24.

On January 17, 2012, Pryor, by counsel Daniel Cicchini, filed a request for a jury trial. On January 28, 2012, prior to the scheduled bench trial the court heard arguments and testimony from Pryor on Pryor’s request for a jury trial. Pryor’s counsel initially stated that he believed that the jury request had been timely filed due to the weekend and holiday. The court noted: “Well Judge Brown looked at this just now, you know, as I walked in she was looking at it and denied the motion. She must have calculated the dates.” Transcript at 5-6. Pryor’s counsel then argued that, if the court was “not persuaded that the motion was timely, unfortunately [ ] Pryor has received ineffective assistance of counsel by the Public Defender’s Agency,” that “[tjhere’s no strategic reason for filing a Jury Demand tardy,” and that “[i]t is reversible error on appeal if the defendant is wrongfully denied a jury trial,” citing Stevens v. State, 689 N.E.2d 487 (Ind.Ct.App.1997), and Lewis v. State, 929 N.E.2d 261 (Ind.Ct.App.2010). Id. at 6. Pryor testified, in response to questions from defense counsel, that he was represented by public defenders. When asked “[wjhen you spoke with members of, attorneys with the Public Defender’s Agency, did you inform them that you wanted a jury trial,” Pryor testified “Yes, the last time I was here before.” Id. at 9. Pryor’s counsel then argued that Pryor notified his attorneys that he wanted a jury trial, that the court has determined that the motion for a jury trial was filed untimely, that there is no strategic reason to file a late motion, and if Pryor is forced to proceed with a bench trial he would be deprived of his fundamental right to a jury trial through no fault of his own. The court denied Pryor’s request and stated “well given all those circumstances and everything, I’m going to well, reaffirm if you will, Judge Brown’s denial of the request for trial by jury and I don’t see ineffective assistance of counsel being a remedy to get around a rule for, that’s been in place ever since I can remember,” that “[fit’s very well defined, and if there was a slip up on somebody’s behalf, I guess it would just say so be it,” and “[s]o we’re going to go ahead with trial today then.” Id. at 11.

The court then proceeded to hold a bench trial, at which the State presented the testimony of Indianapolis Police Department Officer Todd Scroggins that on July 19, 2011, he had stopped Pryor for committing a traffic violation while riding his bicycle, that when an officer attempted to handcuff him, Pryor attempted to break the officer’s grip, and officers placed Pryor on the ground and handcuffed him. The court stated that “I am not into the bike lane violation, but I think the evidence here supports the finding of guilty on the Resisting charge” and acknowledged that Pryor “has some infirmities and things and we appreciate that.” Id. at 55. The court found Pryor guilty as charged, sentenced him to 365 days with 359 days suspended, and ordered Pryor to be placed on probation for 180 days and to complete thirty hours of community service work.

The issue is whether trial counsel’s failure to preserve Pryor’s right to a jury trial denied him the effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his counsel’s performance was deficient and that the petitioner was prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), reh’g denied), reh’g denied, cert. denied, 534 U.S. 830, 122 S.Ct. 74, 151 L.Ed.2d 39 (2001). A counsel’s performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind.2002). To meet the appropriate test for prejudice, the petitioner must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind.2001). Failure to satisfy either prong will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.

When considering a claim of ineffective assistance of counsel, a “strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Morgan v. State, 755 N.E.2d 1070, 1072 (Ind.2001). “[C]ounsel’s performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73 (Ind.2002). Evidence of isolated poor strategy, inexperience, or bad tactics will not support a claim of ineffective assistance of counsel. Clark v. State, 668 N.E.2d 1206, 1211 (Ind.1996), reh’g denied, cert, denied, 520 U.S. 1171, 117 S.Ct. 1438, 187 L.Ed.2d 545 (1997). “Reasonable strategy is not subject to judicial second guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind.1986).

We observe that Pryor is raising a claim of ineffective assistance of counsel on direct appeal. In Lewis, we noted that a post-conviction hearing is normally the preferred forum to adjudicate an ineffectiveness claim. 929 N.E.2d at 263 (citing Woods v. State, 701 N.E.2d 1208, 1219 (Ind.1998), reh’g denied, cert. denied, 528 U.S. 861, 120 S.Ct. 150, 145 L.Ed.2d 128 (1999)). We also noted that, “[njevertheless, some claims of ineffective assistance of counsel can be evaluated on the trial record alone, and such claims are resolvable on direct appeal.” Id. “Some claims of ineffective assistance of trial counsel concern a decision by trial counsel that is perhaps within the range of acceptable tactical choices counsel might have made, but in the particular instance is claimed to be made due to unacceptable ignorance of the law or some other egregious failure rising to the level of deficient attorney performance.” Id. (citation and internal quotation marks omitted). “In those cases, the reasoning of trial counsel is sometimes apparent from the trial record.” Id. “When the reasoning of trial counsel is apparent from the record, the claim of ineffective assistance of trial counsel can be appropriately addressed on direct appeal.” Id. Here, Pryor’s counsel presented arguments before the court and elicited sworn testimony from Pryor regarding his claim. There is sufficient evidence in the record to address Pryor’s claim. See id. at 263 n. 4 (acknowledging that neither Lewis nor his attorneys testified under oath at the hearings in the matter but nevertheless concluding that there was sufficient evidence in the record to address Lewis’s claim).

Pryor argues that he received ineffective assistance of counsel when his attorney failed to file a timely demand for a jury trial because he inadvertently miscalculated the deadline date. Pryor argues that “[t]he record is unclear as to when trial Attorney Cicchini learned of Pryor’s desire to be tried by jury” but that “it must have been sometime on or before January 17, 2011.” Appellant’s Brief at 7. Pryor points to this court’s opinions in Stevens and Lewis and asserts that the failure to file a timely demand was a mistake and not a choice or strategy and that he was prejudiced by his trial counsel’s deficient performance.

The State argues that, while Pryor claimed he had made a request for a jury trial the last time he was in court, the CCS shows that the last time Pryor was in court he signed a document requesting a bench trial, that “[t]he request for a bench trial on the same date that [Pryor] claims he requested a jury trial signed by both [Pryor] and the person who he purports to have informed of his request contradicts his later claim that he made such a request,” and that “[t]his Court should reject [Pryor’s] testimony and find that the record indicates that he made no such request and affirm the trial court’s denial of his request.” Appellee’s Brief at 5. The State further argues that this court’s “rule in Stevens and Lewis acts in contradiction to the Davis/Hatton procedure” and that this court should reconsider Stevens and Lewis and “hold that the procedure outlined in Davis and Hatton is sufficient to the resolution of claims like these.” Id. at 8.

In his reply brief, Pryor argues that this court “decided Stevens fifteen years ago and its reasoning has never been questioned or viewed unfavorably by another Court since then” and in fact it was relied upon heavily in Lewis. Appellant’s Reply Brief at 2. Pryor argues that the right to a jury trial is an essential element of his right to due process, that “[t]he wrong in this case is Pryor was deprived of a fundamental right due to his attorney’s miscalculation of a deadline,” and that “[a]s a result, the best and only way to fix it is to allow him fully and fairly exercise his right to be tried by jury.” Id.

The right to a trial by jury is a fundamental linchpin of our system of criminal justice. Lewis, 929 N.E.2d at 264 (citing Kellems v. State, 849 N.E.2d 1110, 1112 (Ind.2006)). Article 1, Section 18 guarantees the right to a jury trial without distinction between felonies and misdemeanors. Id.

In Stevens v. State, the defendant was convicted following a bench trial of criminal trespass and disorderly conduct, each as misdemeanors, based upon his demonstration against the sale of animal furs at the Lazarus Store in the Castleton Square Mall in Indianapolis. 689 N.E.2d at 487-488. Following his arrest, the defendant was advised that if he wished to have a jury trial he had to submit a timely request. Id. at 488. Although the defendant notified his attorney that he desired to exercise his right to a jury trial, counsel did not file a request in the trial court. Id. Thereafter, counsel withdrew, and a new attorney appeared on the defendant’s behalf. Id. On the scheduled trial date, the defendant’s new attorney explained to the court that the defendant had requested a jury trial and indicated that she had spoken with the original attorney assigned to the case who told her that the defendant was to have a jury trial. Id. The trial court noted that the defendant had not filed a timely jury trial request and had waived his right. Id.

On appeal, the defendant argued that he was denied his right to a jury trial due to counsel’s ineffective assistance. Id. at 489. This court initially noted that “the right to a jury trial is of fundamental dimension,” that an “accused must be given every reasonable opportunity to procure a fair and impartial jury,” and that “[wjhile Criminal Rule 22 alters the manner of preserving the right to a jury trial in misdemeanor cases, the rule cannot diminish [the defendant’s] fundamental right.” Id. (citations and internal quotation marks omitted). The court then noted that the defendant’s trial counsel stated that both attorneys knew of the defendant’s desire for a jury trial, that neither filed the necessary request in a timely manner, and that the record did not support an inference that the omission was due to trial strategy but rather showed that the failure to file the request resulted from a combination of a change in representation, a burdensome case load, and confusion over the trial date. Id. at 490. The court concluded that, in failing to preserve the defendant’s fundamental right, the performance of defendant’s trial counsel fell below the range of professionally competent representation. Id. at 490. The court further noted that in certain instances prejudice from defense counsel’s performance will be presumed for purposes of ineffective assistance of counsel claims and that the right to a trial by jury is an essential element of a criminal defendant’s right to due process of law. Id. The court held that the defendant did not receive the effective assistance of counsel and, accordingly, the cause was remanded to the trial court with instructions to set aside the conviction and grant a new trial. Id. at 491.

In Lewis v. State, the defendant was convicted of domestic battery as a class A misdemeanor. 929 N.E.2d at 262. On the day of the defendant’s bench trial, the parties appeared in court, and the defendant, by counsel, told the court that he wanted a jury trial and had requested one at his initial hearing. Id. at 262-263. The defendant’s counsel informed the court that the request had not been communicated to anybody until that day. Id. at 268. After initially resetting the case for a jury trial, the trial court ultimately reset the case for a bench trial and denied the defendant’s written request for a jury trial. Id.

On appeal, the defendant argued that he received ineffective assistance of trial counsel because counsel failed to timely file a written demand for a jury trial. Id at 263-264. The court noted that the trial court’s chronological case summary demonstrated that the defendant had expressed a preference for a jury trial during an initial hearing. Id. at 264. The court further noted that, like in Stevens, the failure of the defendant’s attorneys to file a written jury trial request could not be considered a strategic choice and that the change in the defendant’s representation between hearings also doubtlessly contributed to counsel’s error. Id. at 265. The court concluded that the attorneys’ failure to timely file a written request for a jury trial fell below the range of professionally competent representation and that prejudice was presumed because the defendant was deprived of a fundamental right. Id. The court reversed the judgment of the trial court and remanded with instructions to vacate the defendant’s conviction and hold a new trial. Id.

In this case, Pryor was represented by attorney Shannon Garvey at the July 20, 2011 pre-trial conference, by attorney Fal-lon Coleman at the August 8, 2011 pretrial conference, by attorney Mark Nicholson at the November 1, 2011 hearing, and by attorney Daniel Cicchini at the time he filed his request for a jury trial on January 17, 2012, and at the January 23, 2012 proceedings and bench trial. Prior to the trial on January 23, 2012, Pryor’s counsel Cicchini stated that he believed that the jury trial request had been timely filed due to the weekend and holiday. Pryor testified, in response to questions from defense counsel, that he was represented by public defenders, and when asked “[wjhen you spoke with members of, attorneys with the Public Defender’s Agency, did you inform them that you wanted a jury trial,” Pryor testified “Yes, the last time I was here before,” see Transcript at 9, which according to the CCS was the November 1, 2011 hearing. Pryor’s counsel then argued that Pryor notified his attorneys that he wanted a jury trial, that there was no strategic reason to file a late motion, and that if Pryor was forced to proceed with a bench trial he would be deprived of his fundamental right to a jury trial through no fault of his own.

Further, like in Stevens and Lewis, the failure of Pryor’s attorneys to file a written jury trial request in a timely manner cannot be considered a strategic choice. Pryor’s defense counsel argued at length prior to the start of the bench trial on January 23, 2012, that Pryor should be given a jury trial, and this course of conduct is inconsistent with a strategic determination to seek a bench trial. See Lewis, 929 N.E.2d at 265. Also, as was the case in Stevens and Lewis, the change in Pryor’s representation between hearings contributed in part to defense counsel’s error. See id. (providing that “the change in Lewis’ representation between hearings also doubtlessly contributed to counsel’s error”); Stevens, 689 N.E.2d at 490 (noting that the record showed that “the failure to file the request resulted from a combination of a change in representation, a burdensome case load, and confusion over the trial date”). Based upon the record, we find that the failure of Pryor’s counsel to timely file a written request for a jury trial fell below the range of professionally competent representation. See Lewis, 929 N.E.2d at 265.

In addition, when counsel’s performance falls below the range of professionally competent representation and deprives a defendant of a fundamental right such as the right to a trial by jury, prejudice is presumed. See id. (citing Stevens, 689 N.E.2d at 490). Therefore, Pryor was prejudiced by his counsel’s error and did not receive effective assistance of trial counsel with respect to his request for a jury trial. See id.

Accordingly, for the foregoing reasons, we reverse the judgment of the trial court and remand with instructions to vacate Pryor’s conviction for resisting law enforcement as a class A misdemeanor and to hold a new trial by jury.

Reversed and remanded.

FRIEDLANDER, J., and DARDEN, SR. J., concur.

      . Ind.Code § 35-44-3-3 (Supp.2011) (subsequently repealed and re-codified by Pub. L. No. 126-2012, §§ 53-54 (eff. Jul. 1, 2012)).

      . The record does not contain a transcript of this hearing. The chronological case summary ("CCS”) indicates that Pryor was represented by attorney Mark Nicholson at the hearing. The CCS also indicates that Pryor had been represented by other counsel at pretrial conferences held on July 20, 2011 and August 8, 2011.

      . Senior Judge Charles Wiles presided over the January 23, 2012 proceedings in Marion Superior Court, Criminal Division, Room 10. According to the CCS, Judge Linda Brown had presided over the November 1, 2011 pretrial conference.

      . Ind. Rule of Crim. Procedure 22 provides: A defendant charged with a misdemeanor may demand trial by jury by filing a written demand therefor not later than ten (10) days before his first scheduled trial date. The failure of a defendant to demand a trial by jury as required by this rule shall constitute a waiver by him of trial by jury unless the defendant has not had at least fifteen (15) days advance notice of his scheduled trial date and of the consequences of his failure to demand a trial by jury.
      The trial court shall not grant a demand for a trial by jury filed after the time fixed has elapsed except upon the written agreement of the state and defendant, which agreement shall be filed with the court and made a part of the record. If such agreement is filed, then the trial court may, in its discretion, grant a trial by jury.

      . Pryor testified that he had "plastic screws in [his] neck” and ankle, that he had "been diffused,” that the “whole left side of [his] body” was impaired, and that he was “about twenty five (25) to about thirty five (35) percent disabled.” Transcript at 38. Pryor also testified that he had been riding his bike on a sidewalk.

      . The Davis/Hatton procedure involves a termination or suspension of a direct appeal already initiated, upon appellate counsel’s motion for remand or stay, to allow a post-conviction relief petition to be pursued in the trial court. Taylor v. State, 929 N.E.2d 912, 917 n. 1 (Ind.Ct.App.2010) (citing State v. Lopez, 676 N.E.2d 1063, 1069 (Ind.Ct.App.1997) (citing Hatton v. State, 626 N.E.2d 442 (Ind.1993); Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977)), trans. denied), trans. denied; Ind. Appellate Rule 37(A) ("At any time after the Court on Appeal obtains jurisdiction, any party may file a motion requesting that the appeal be dismissed without prejudice or temporarily stayed and the case remanded to the trial court ... for further proceedings. The motion must be verified and demonstrate that remand will promote judicial economy or is otherwise necessary for the administration of justice.”).

      . Specifically, Pryor's counsel stated that "[ijf today is included in the ten (10) day period, if we count inclusively from the 23rd backwards, including the 23rd, it would mean that the jury expiration date was January 14th which was a Saturday,” that "[c]ourt didn't re-open until Tuesday because of Martin Luther King, Jr. Holiday, and that was the date upon which I filed the Motion for the Jury Demand.” Transcript at 4.

      . We cannot say that the "Off the Record Request for New Court Date” form signed on November 1, 2011, standing alone was tantamount to an agreement by Pryor to proceed to a bench trial rather than a jury trial. The form, which by its caption and format appears to have been primarily used to schedule court dates, contained pre-printed lines for "Review of Counsel,” "Request Public Defender,” "Pre-trial Conference,” "Guilty Plea Hrg,” and “Bench Trial,” there was no pre-printed option for a jury trial, and the only written portion of the form included the date of "1-23-12” next to the words "Bench Trial” and the circle around the time of "1:00 pm” on the form. Appellant's Appendix at 24.

      . We decline to reconsider this court’s previous decisions in Stevens and Lewis or to require Pryor to suspend this direct appeal under the Davis/Hatton procedure in order to develop a record below under the circumstances and where Pryor’s counsel presented arguments before the trial court and elicited testimony from Pryor which is included in the record.