author: NAJAM, Judge.

text:
    Deborah A. CLEVELAND, as Personal Representative of the Estate of Robin W. Cleveland, Appellant-Plaintiff, v. CLARIAN HEALTH PARTNERS, INC., Appellee-Defendant.
    No. 49A02-1110-CT-948.
    Court of Appeals of Indiana.
    Oct. 3, 2012.
    Rehearing Denied Jan. 2, 2013.

      James H. Young, Young & Young, Edward R. Hannon, Hannon Kolas & Centers, P.C., Indianapolis, IN, Attorneys for Appellant.
    Brian J. Paul, Kelly J. Pitcher, Jason McNiel, Ice Miller LLP, Indianapolis, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Deborah Cleveland, as Personal Representative of the Estate of Robin W. Cleveland, appeals the trial court’s denial of her motion to correct error and for relief from judgment in her action against Ciarían Health Partners, Inc. (“Ciarían”). Cleveland raises four issues for our review, which we restate as the following three issues:

1. Whether she may raise her claim of surprise in the purported change in a nonparty fact witness’s testimony at trial for the first time on appeal;
2. Whether Indiana Trial Rule 26(E)(2) imposes a duty on a party to amend a nonparty witness’s deposition testimony when that party learns of a change in the testimony before trial; and
3. Whether Clarian’s counsel committed misconduct under Trial Rule 60(B)(3) when counsel did not supplement the deposition testimony of Clarian’s nonparty employee prior to trial.

We hold that Cleveland may raise a claim of surprise on appeal for the first time. But, on these facts, we need not address Cleveland’s second issue. Rather, assuming for the sake of argument that Rule 26(E)(2) imposes a duty on a party to amend the prior deposition testimony of a party’s nonparty employee, on this record we cannot say that Ciarían committed misconduct under Trial Rule 60(B)(3) when it did not supplement that prior deposition testimony. Thus, we affirm the trial court’s denial of Cleveland’s motion to correct error and for relief from judgment.

FACTS AND PROCEDURAL HISTORY

On July 3, 2002, Robin W. Cleveland (“Robin” or “Rob”) fell approximately thirty feet from scaffolding while working at a construction site. Paramedics designated Robin as a level one trauma patient and transported him to Methodist Hospital, a level one trauma center. A level one trauma center is required to have an operating room readily available at all times for trauma patients. Robin arrived at Methodist Hospital at 9:53 a.m.

The trauma team at Methodist that day consisted of Dr. George Rodman, head of trauma; Dr. Scott Otto, chief resident; Dr. Jennifer Choi, a second-year resident; and several nurses and other staff members. The trauma team intubated Robin shortly after his arrival at the hospital and also gave him blood and crystalloid, a saline-electrolyte solution. To further assess the extent of Robin’s injuries, the trauma team placed a tube in the right side of Robin’s chest at 10:00 a.m. This tube revealed internal bleeding. The trauma team also took an x-ray of Robin’s chest at 10:09 a.m. The trauma team received the x-ray results several minutes later. Those results showed that the right part of Robin’s chest was fairly clear but suggested that there was blood in the left part of his chest. After receiving the results of the x-ray, the trauma team placed a chest tube in the left side of Robin’s chest, which revealed substantial internal bleeding.

The trauma team transported Robin from the emergency department at 10:45 a.m., and Robin arrived in the operating room at 10:53 a.m. In surgery, the trauma team discovered that there was a tear in Robin’s heart, another potential tear in his heart, and a small tear in the pericardium, the sac surrounding the heart. Robin bled to death while in surgery.

On November 20, 2003, Cleveland filed a proposed medical malpractice complaint with the Indiana Department of Insurance. In the proposed complaint, Cleveland named Ciarían, Methodist Hospital of Indiana, Inc., George Rodman, M.D., Scott Otto, M.D., and Jennifer Choi, M.D., as defendants.

On November 10, 2004, Cleveland deposed Dr. Choi. At her deposition, Dr. Choi testified about when the decision was made to take Robin to surgery and when an operating room became available once the decision to go to surgery had been made. According to Dr. Choi’s deposition testimony:

CLEVELAND’S COUNSEL: Were you concerned when you placed that second chest tube and saw such a great amount of blood carné out? Were you concerned that he was still bleeding?
DR. CHOI: Yes.
CLEVELAND’S COUNSEL: After you placed the second chest tube at 10:20, what was in the differential diagnosis at that time?
DR. CHOI: Major vascular injury and a cardiac injury.
CLEVELAND’S COUNSEL: Just those two things?
DR. CHOI: Essentially.
CLEVELAND’S COUNSEL: And the only way to find out if you have those or to repair those is to do surgery?
DR. CHOI: Yes.
CLEVELAND’S COUNSEL: So at 10:20 is it fair to say you knew that this patient needed to go to the operating room?
DR. CHOI: Yes.
CLEVELAND’S COUNSEL: Would you agree that when it was known that the patient had unstable vital signs since he arrived at 9:53; that it was known that he had a right chest tube that was positive for bleeding and a chest x-ray that showed a large left hemothorax; it was known that he had fallen 30 to 35 feet and had this flail chest that at that point in time, 10:09, you had information necessary that you knew that this patient needed to go to the operating room?
DR. CHOI: Although that chest x-ray was taken at 10:09, all of that information, particularly the left hemothorax and the left chest injury, were not known until 10:20 when the chest x-ray results were back and the chest tube was placed.
CLEVELAND’S COUNSEL: What you’re saving is that when you had the results from that chest x-ray at 10:09, whenever you had those results, that’s when you knew he needed to go to surgery ?
DR. CHOI: Yes.
CLEVELAND’S COUNSEL: Is 10:09 the time of exposure?
DR. CHOI: Yes.
CLEVELAND’S COUNSEL: Okay. What was your treatment plan once you received the information from the reading of the 10:09 chest x-ray?
DR. CHOI: We planned to go to the operating room.

Table of Exhibits, Vol. 2, at 10 (emphases added).

But almost immediately after testifying that the trauma team had planned to take Robin to the operating room upon reading the 10:09 chest x-ray, Dr. Choi then stated as follows:

CLEVELAND’S COUNSEL: Did you think in your mind before they expressed the need for the patient to go to the operating room that this patient should go to the operating room?
DR. CHOI: I don’t remember. The events happened very quickly, and on paper it looks like twenty minutes is a long time. The way things are going in this kind of trauma situation, I can’t tell you exactly ivhen I decided that I thought the patient needed to go to the operating room.

Id. at 11 (emphasis added). And, on redirect examination by Clarian’s counsel, Dr. Choi gave the following deposition testimony regarding when the decision was made to go to surgery:

CLARIAN’S COUNSEL: Do you have a specific recollection as to the exact time a decision was made to take this patient to surgery?
DR. CHOI: No.

Id. at 20.

Regarding the availability of an operating room, Dr. Choi testified as follows:

CLEVELAND’S COUNSEL: Why was there the time difference between 10:20 and 10:45?
DR. CHOI: Once we realized we needed to go to the operating room for sure, we ma[d]e a phone call to the operating room and let them know the injury and the operating room needs. Given that he had a chest injury and a possible cardiac injury, we needed to be in a cardiac room. We were informed that a patient was leaving the room and they would have a room available soon but it would take a few minutes to set up.
CLEVELAND’S COUNSEL: What time was that call made to the operating room to find out about the fact that there would be a little wait?
DR. CHOI: That time is not recorded.
* ⅜ *
CLEVELAND’S COUNSEL: You mentioned that the call went to the operating room and that you were told that there was a patient leaving that room.
DR. CHOI: As I remember, there was something to that effect, yes.
CLEVELAND’S COUNSEL: Okay. At 10:45 on page 12 where it says to OR, that’s when the patient left the emergency department and started to the OR: is that correct?
DR. CHOI: Yes, sir.
CLEVELAND’S COUNSEL: Did the operating room call and say they’re ready for you now? Is that what happened?
DR. CHOI: They did not.
CLEVELAND’S COUNSEL: How did that work?
DR. CHOI: We decided we’d waited on them long enough.
CLEVELAND’S COUNSEL: You never did receive a call from them?
DR. CHOI: I can’t tell you for sure we didn’t receive a call. What we did as we were wheeling him to the operating room, to the elevator, we called the charge nurse and said, ‘We’re coming. What room shall we go to?”
CLEVELAND’S COUNSEL: Let’s look at the anesthesia record, which is on page 13. It says [the surgery] started at 11:00; correct?
DR. CHOI: It takes time to move the patient from the emergency room cart to the table. It takes time to position him the way he should be positioned to make a correct incision. As I recall, given our haste in bringing the patient, the room was not completely set up with all equipment out and available. It took a few minutes to open the operating room set.
CLEVELAND’S COUNSEL: That’s what I was going to ask you. You had said that you had not received a call from the operating room but decided to go ahead anyway. My question is: Was their operating room available and ready for you when you arrived?
DR. CHOI: We went into the operating room, yes. I can’t remember all the circumstances. We did not wait for any patient to leave that room, but as I recall, they were finishing mopping the floor, getting blood from the last case out, as we were rolling in.
CLEVELAND’S COUNSEL: So did you have to wait for them to finish their mopping?
DR. CHOI: We did not.
CLEVELAND’S COUNSEL: Were they still mopping as you were bringing him in?
DR. CHOI: Perhaps, but I don’t remember.

Id. at 10-13 (emphases added).

On April 16, 2008, a Medical Review Panel convened and unanimously found that no medical malpractice had occurred. Cleveland filed suit in the Marion Superior Court on July 15, 2008, naming the same defendants as in the proposed medical malpractice complaint. Eventually, all of the defendants were dismissed except for Ciarían.

Almost seven years after Dr. Choi’s deposition testimony, in July of 2011, Cleveland and Ciarían went to trial. In her opening statement to the jury, Cleveland stated as follows:

the trauma team decided that Rob needed to go to the operating room by 10:15, that is when they had the results from the 10:09 x-ray.... Those x-ray results, along with all the other information they knew about Rob’s condition, made it clear that the operating room was the only place that they could stop the bleeding. They had the right plan, they did not execute it. The team makes the right plan, we know that because Dr. Jennifer Choi is the only person who has a very clear recollection of when the decision was made. Dr. Choi was running the trauma, rendering medical treatment to Rob, and very good at her job according to the chief resident. Dr. Choi will tell you that the trauma team did decide that Rob needed to go to the operating room for surgery when they received the results from that 10:09 x-ray. She does not know the precise time or minute that[] that happened, but she knows it’s when they learned the 10:09 x-ray results. Dr. Choi will tell you that the decision was a group decision, the decision of the trauma team.... She said once we realized we needed to go to the operating room for sure we make a phone call, we’ve discussed the need to go to surgery then one of us goes and makes the call. And there was no confusion about the timing of it. I asked her very specifically, “what you’re saying is that when you had the results from that chest x-ray at 10:09, whenever, you had those results that’s when you knew you needed to go to surgery[.]” Answer: ‘Yes.” “Okay, what was your treatment plan once you received the information from the reading of the 10:09 chest [x]-ray.[” “]We planned to go to the operating room.” Despite that decision being made at approximately 10:14, 10:15 Rob Cleveland was kept in the emergency department another 80 minutes until 10:45.

Transcript at 10-11 (emphases added). Cleveland also informed the jurors that they would hear the testimony of Dr. Rod-man, “the only other person who has any recollection about this decision,” and that Dr. Rodman would “support[] what Dr. Choi said.” Id. at 11.

Cleveland’s counsel then called Dr. Choi as her first witness. But almost as soon as Cleveland’s counsel called Dr. Choi, he began to impeach her. Specifically, while Dr. Choi was discussing her professional background, Cleveland’s counsel began asking her questions from her nearly seven-year-old deposition. See id. at 50-51. The impeachment of Dr. Choi continued into her testimony about the timing of the decision to take Robin to surgery:

CLEVELAND’S COUNSEL: Okay. Doctor, when the trauma team had the results of the chest x-ray taken at 10:09 whenever you had those results that’s when it was known that Mr. Cleveland needed to go to surgery, correct?
DR. CHOI: I don’t believe so.
CLEVELAND’S COUNSEL: All right, [ljet’s look at page 36 of your deposition, Doctor, line ten. Question: What you’re saying is that when you had the results from that chest x-ray at 10:09 whenever you had those results that’s when you knew he needed to go to surgery? Answer: Yes. That was your sworn testimony at that time was is [sic] not, Doctor, on November the 10th, 2004? Yes?
DR. CHOI: Yes.
CLEVELAND’S COUNSEL: Isn’t that true, Doctor, that[ ] that was your treatment plan once you received the information from the reading of the 10:09 x-ray that the trauma team planned to go to the operating room?
DR. CHOI: That was my answer in the deposition, yes.
CLEVELAND’S COUNSEL: All right, and you were giving the truthful answers, were you not?
DR. CHOI: According to my knowledge at that time, yes.
CLEVELAND’S COUNSEL: You were under oath at that time?
DR. CHOI: Yes.
CLEVELAND’S COUNSEL: And you had opportunity to review the chart and look things over?
DR. CHOI: I don’t know that I reviewed the chart with great detail.
CLEVELAND’S COUNSEL: Are you saying to the Jury you would have come to the deposition on a[sic] important matter like that and would not have looked at the chart?
DR. CHOI: I would have looked at the chart, but I don’t know that I would have known how specifically to look at the chart.
CLEVELAND’S COUNSEL: You don’t know the exact time or the minute that[ ] that decision was made to go the [sic] operating room, do you?
DR. CHOI: I don’t.
CLEVELAND’S COUNSEL: But, as we’ve talked about in your testimony, you do know that it was when you had the results of the 10:09 x-ray, don’t you? That was your testimony wasn’t it?
DR. CHOI: That was my testimony, yes.

Id. at 85-87.

Dr. Choi further testified at trial on the availability of an operating room as follows:

CLEVELAND’S COUNSEL: Right. Now, once the call was made the team was informed that a patient was leaving the room and they would have a room available soon, but it would take a few minutes to set-up, isn’t that true?
DR. CHOI: That was my testimony at the time, yes.
CLEVELAND’S COUNSEL: And that was true at the time, wasn’t it?
DR. CHOI: Urn.
CLEVELAND’S COUNSEL: You gave truthful testimony didn’t you?
DR. CHOI: I gave truthful testimony to the best of my knowledge.
CLEVELAND’S COUNSEL: Isn’t it also true, Doctor, that the operating room never called back to say they were ready for you?
DR. CHOI: I don’t recall that.
CLEVELAND’S COUNSEL: Well, look at page 42 of your deposition line 22, are you there?
DR. CHOI: Yes.
CLEVELAND’S COUNSEL: Question: Did the operating room call and say they are ready for you now, is that what happened? Answer: They did not. Question: How did that work? Answer: We decided we’d waited on them long enough. Is that right, is that your answer?
Dr. CHOI: That was my testimony at the time.
CLEVELAND’S COUNSEL: When the trauma team got the patient upstairs the room was not ready, was it?
Dr. CHOI: When we got the patient upstairs, um, things were being done to prepare the room.
CLEVELAND’S COUNSEL: I’m sorry?
DR. CHOI: Things were being done to prepare the room.
CLEVELAND’S COUNSEL: All right. So, well it wasn’t ready, correct?
DR. CHOI: It’s not uncommon for a room to not be completely—
CLEVELAND’S COUNSEL: —well that’s not—
DR. CHOI: —ready whenever a patient arrives in a room.
CLEVELAND’S COUNSEL: I’m sorry to interrupt you, but that’s not my question. My question is when you got up there it wasn’t ready, was it.
DR. CHOI: It depends what you mean by ready.
CLEVELAND’S COUNSEL: Okay, so let’s look then on page 46 of your deposition starting at line 11. As I recall given our haste in bringing the patient the room was not completely setup with all equipment out and available. It took a few minutes to open the operating room set. Is that your testimony?
DR. CHOI: It is.
CLEVELAND’S COUNSEL: In fact, they were finishing mopping up the floor from the previous, getting the blood out from the last case as you were rolling in, isn’t that correct?
DR. CHOI: Since my deposition I’ve had an opportunity to review the operative log and the operative records and that is not the case, my recollection at the time was incorrect.
CLEVELAND’S COUNSEL: So you’re changing your testimony?
DR. CHOI: Yes, sir.
CLEVELAND’S COUNSEL: Now, you said you got together and looked at the surgery schedule and that changed your mind, but looking at paper is not the same thing as wheeling a patient up and seeing blood in the operating room, is it? I mean those are two different things aren’t they?
DR. CHOI: You know, there were a — it was a very eventful day, and I think my recollection was incorrect at the time of my deposition.
CLEVELAND’S COUNSEL: Because now you’ve looked at papers to tell you that your memory about seeing blood being cleaned up in a operating room that you’re trying to take a critical patient to that, initially dies in front of your very eyes, now looking at paper that clears it up, you’re saying five years later that clears it up, or seven years later?
DR. CHOI: I think that the paper documentation definitely tells if somebody was in this room before we were.

Id. at 96-98, 141-142 (emphases added).

On July 21, 2011, the jury returned a verdict for Ciarían. On August 22, 2011, Cleveland filed a motion to correct error and for relief from judgment. The trial court held a hearing on Cleveland’s motion, after which it denied the motion. This appeal ensued.

DISCUSSION AND DECISION

Standard of Review

Cleveland appeals from the trial court’s denial of her motion to correct error and for relief from judgment. We review the grant or denial of Trial Rule 59 motions to correct error and Trial Rule 60(B) motions for relief from judgment under an abuse of discretion standard. Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind.2008); Outback Steakhouse of Florida v. Markley, 856 N.E.2d 65, 72 (Ind.2006). On appeal, we will not find an abuse of discretion unless the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it or is contrary to law. Miller v. Moore, 696 N.E.2d 888, 889 (Ind.Ct.App.1998).

Here, Cleveland contends that Dr. Choi’s change in testimony during trial was such a surprise that it materially prejudiced Cleveland’s right to a fair trial. Cleveland further asserts that Ciarían knew or should have known that Dr. Choi would change her trial testimony from her deposition testimony and, as such, Ciarían should have supplemented Dr. Choi’s deposition testimony before trial pursuant to Indiana Trial Rule 26. Clarian’s failure to supplement the changed testimony, Cleveland continues, constituted misconduct under Trial Rule 60, which, in turn, entitles Cleveland to a new trial. In addition to responding to each of those arguments, Ciarían asserts on appeal that Cleveland waived these arguments by not making a timely objection or a motion for a mistrial during the trial. We will briefly address Clarian’s waiver argument before turning to the merits of Cleveland’s appeal.

Issue One: Waiver

Ciarían contends that Cleveland has not preserved its arguments for appeal. In Outback, our Supreme Court considered whether a fact witness’s change in testimony between her deposition and the trial was a surprise that materially prejudiced the appellant’s case. Although the appellant in Outback had not objected to the witness’s testimony and did not move for a mistrial, our Supreme Court held that the appellant did not waive appellate review of the claim of surprise and proceeded to consider the merits of the appellant’s arguments. 856 N.E.2d at 79. Specifically, the court stated that an argument of surprise, if properly founded, undermines the litigant’s opportunity “to evaluate whether to seek a continuance, move for a mistrial, or redepose” the witness. Id. Following Outback, and considering the record in this case, we conclude that Cleveland has not waived her claims on appeal.

Issue Two: Duty to Supplement Deposition Testimony Under Trial Rule 26(E)(2)

Cleveland contends that Ciarían had a duty to supplement Dr. Choi’s deposition testimony under Trial Rule 26(E)(2). That Rule provides:

A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:
(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which
(a) he knows that the response was incorrect when made, or
(b) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

Ind. Trial Rule 26(E) (emphases added).

The question presented is whether, and, if so, under what circumstances, a party has the duty to amend the prior deposition testimony of its nonparty employee. Cleveland dismissed Dr. Choi as a party before trial and, therefore, she was not a party at the time she purportedly changed her testimony at trial. Nonetheless, Ciarí-an was always a party, and Dr. Choi was always Clarian’s employee. As such, Cleveland asserts that Ciarían is accountable and charged with responsibility to seasonably amend Dr. Choi’s deposition testimony.

Cleveland relies on our Supreme Court’s opinion in Outback. But in Outback, which is discussed in more detail in Issue Three, neither Trial Rule 26 nor a prior deposition were involved. Rather, the court in Outback considered whether plaintiffs attorney committed misconduct under Trial Rule 60 when he failed to amend the prior interrogatory response of his client, who was a party.

We need not decide whether, as Cleveland contends, Rule 26(E)(2) imposes a duty on a party to seasonably amend the prior deposition testimony of its nonparty employee. Assuming for the sake of argument that Rule 26(E)(2) does require an employer party to seasonably amend the prior deposition testimony of an employee, nonparty witness, for the reasons explained below in Issue Three, Cleveland has not demonstrated on this record that Ciarían would have violated any such duty here and we conclude, therefore, that Cia-rían did not engage in the alleged misconduct.

Issue Three: Misconduct under Trial Rule 60(B)(3)

We now turn to the ultimate question in this appeal: Cleveland’s assertion that Ciarían committed misconduct under Trial Rule 60(B)(3) by not supplementing Dr. Choi’s deposition testimony under Trial Rule 26(E)(2). Trial Rule 60(B) provides in relevant part:

[T]he court may relieve a party ... from a judgment ... for the following reasons: ...
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party ... A movant filing a motion for reason[] ... (3) ... must allege a meritorious claim or defense.

To obtain relief under Trial Rule 60(B)(3), Cleveland must show each of the following: (1) Clarian’s failure to supplement Dr. Choi’s deposition testimony amounted to misconduct; (2) the misconduct prevented Cleveland from fully and fairly presenting her case at trial; and (3) Cleveland has made a prima facie showing of a meritorious claim. Outback, 856 N.E.2d at 74. We hold that Cleveland cannot satisfy the first requirement. As such, we need not address whether Cleveland suffered prejudice or can make a prima facie showing of a meritorious claim.

Cleveland’s misconduct argument is centered on our supreme court’s decision in Outback, a dram shop case. In that case, witness Roysdon told the plaintiff’s attorney that she had served one of Outback’s customers while the customer was visibly intoxicated. The plaintiff’s attorney never made Outback’s counsel aware of this statement and failed to include Roysdon’s name in an answer to an interrogatory that asked for the names of individuals with knowledge that Outback had served alcohol to a visibly intoxicated person. The plaintiff’s attorney also failed to supplement this specific interrogatory later in the discovery process. Roysdon then later testified at her deposition, attended by Outback’s counsel, that the customer had not been visibly intoxicated when she had served him.

On the Sunday before the trial continued, Roysdon met the plaintiff’s attorney at his office. Roysdon told the plaintiffs attorney that she had lied during her deposition and that she planned to testify at trial that the customer had been visibly intoxicated when she served him. Plaintiffs attorney never disclosed to Outback’s attorneys that Roysdon had recanted her testimony.

At trial, the plaintiffs attorney called Roysdon to testify. Outback’s counsel did not object, although plaintiffs attorney had not listed Roysdon as a witness. Roysdon testified, in direct contradiction to her deposition testimony, that the customer had been visibly intoxicated when she served him. Outback’s counsel impeached Roysdon with her deposition testimony. Roysdon stuck with her trial version of the events, maintaining that the customer had been visibly intoxicated when served. Following the jury’s verdict for the plaintiff, Outback’s counsel conducted a post-trial deposition of Roysdon, in which they discovered that Roysdon had recanted her prior deposition testimony to plaintiffs attorney prior to trial.

The facts in Outback stand in significant contrast to the facts in this case. In Outback, there was both an initial omission when the plaintiffs failed to identify Roys-don as a person with knowledge of the relevant facts and a subsequent failure to supplement Roysdon’s deposition when she outright recanted that testimony. The witness’s deposition and trial testimony in Outback were unambiguous and polar opposites. Roysdon first testified that the customer was not visibly intoxicated and later testified that he was visibly intoxicated. That is not the case with Dr. Choi’s testimony. Rather, while at times in her deposition testimony Dr. Choi claimed to have clear knowledge of the timeline of events, at other times she openly acknowledged that she could not clearly recall the timeline of events.

For example, when asked, “at 10:09 ... that’s when you knew he needed to go to surgery?”, Dr. Choi responded, “Yes.” Table of Exhibits, Vol. 2, at 10. But almost immediately after responding to that question, Dr. Choi stated, “I can’t tell you exactly when I decided that I thought the patient needed to go to the operating room.” Id. .at 11. Later in the deposition, when asked if she had “a specific recollection as to the exact time a decision was made to take this patient to surgery?”, Dr. Choi said “No.” Id. at 20.

At trial, Dr. Choi ended up testifying that she could not recall the specific time-line of events. Specifically, when asked if she “kn[e]w the exact time or the minute that[] that decision was made to go the [sic] operating room,” Dr. Choi stated, “I don’t.” Transcript at 87. Her trial testimony on the timeline of events does not directly contradict her deposition testimony any more than her own deposition testimony was already internally inconsistent.

Neither does Dr. Choi’s testimony regarding the availability of an operating room in itself demonstrate that Ciarían committed misconduct by not amending the deposition testimony before trial. At her deposition, Dr. Choi explained that she was testifying from memory and that she had not reviewed the operating room schedule or logs. Her deposition testimony on this question was, like her testimony regarding the timeline of events, inconsistent. For example, Dr. Choi stated that she “remember[ed]” being told that an operating room was available when she first called at 10:20, Table of Exhibits, Vol. 2, at 11, but then almost immediately acknowledged that she could not recall when she was told the operating room was available, id. at 12.

Before trial, nearly seven years after her deposition and almost a decade after the events in question, Dr. Choi reviewed the operating room schedule and logs and concluded that any delay could not have been due to a lack of an available operating room. See Transcript at 96-98, 141-142. Again, given the ambiguous nature of her original deposition testimony, we cannot say that her subsequent trial testimony was directly contradictory, as in Outback. And there is nothing unusual about a witness using a contemporaneous record to refresh her recollection, especially when the events in question occurred almost a decade before her trial testimony.

Further, in Outback the witness who recanted her testimony was unquestionably the critical material witness. Here, Dr. Choi was one of several witnesses involved in the underlying incident. Specifically, she was a second-year resident at the time of the events and a junior member of the trauma team. Dr. Rodman headed the trauma team and was the one responsible for evaluating the medical evidence and making the decisions. And Dr. Rodman testified that the earliest a decision to take Robin to the operating room could have been made was 10:45. Transcript at 500.

When Dr. Choi’s deposition testimony is considered in its entirety, there is an insufficient factual basis in the record to conclude that there was a clear, substantial, and material change in her testimony that, if Trial Rule 26(E)(2) applied, would have triggered any duty on Clarian’s attorneys to amend that testimony prior to trial. As the trial court stated during its hearing on Cleveland’s motion to correct error and for relief from judgment:

I’ll suggest this[:] I heard the witness testify[.] I thought she was a goofy] I thoughfy] my God[,] this woman is a doctor.... [S]he[ ] shouldn’t be a doctor at a trauma center for crying out loud.... [T]hat was my impression[.]

Id. at 598.

Outback is distinguishable for another significant reason. In Outback the relevant witness informed Outback’s counsel during her post-trial deposition of her meetings with the plaintiffs attorney. There is no such evidence in this case. At oral argument Cleveland asserted that Ciarían “woodshedded” Dr. Choi and, in effect, that Ciarían had coached its employee to change her deposition testimony at trial. This is one plausible explanation for the variance between Dr. Choi’s deposition and trial testimony. But Cleveland did not conduct post-trial discovery, and she does not specify where in the record it is demonstrated that Ciarían recognized that Dr. Choi had changed or would change her testimony. Indeed, given the fact that Dr. Choi’s deposition testimony was inconsistent, we are not convinced that Ciarían knew what her trial testimony would be.

In any event, Cleveland embarked on a trial strategy that sought to make Dr. Choi her featured witness and the linchpin of her case. Thus, Cleveland contends that, just as in Outback, the trial would have unfolded differently if Clarian’s attorneys had discharged their discovery obligations. See Outback, 856 N.E.2d at 76. In her opening argument, Cleveland told the jury that Dr. Choi was the only witness who had a “very clear recollection” of the events in the emergency room and that there was “no confusion about the time” of the decision to take Robin to the operating room. See Transcript at 10-11. But that claim mischaracterized Dr. Choi’s inconsistent deposition testimony. Further, Dr. Choi was not Clarian’s witness, and she did not appear on Clarian’s final witness list. The reason for this was plainly stated by the trial court during its hearing on Cleveland’s motion to correct error and for relief from judgment:

[Ciarían] may or may not have called her as a witness[. M]y guess is [Clari-an] was never going to call her as a witness! ] because she was such a crappy witness ... and an unaccountable witness ... and someone [Ciarían] couldn’t control ... and [she] came across as a dingbat in front of this jury.

Id. at 604-05.

Internal inconsistencies aside, Dr. Choi’s deposition testimony was nearly seven years old, and Cleveland did not seek a second, updated deposition or propound interrogatories or requests for admissions. Neither did she request to voir dire Dr. Choi outside the presence of the jury, otherwise attempt to explore the circumstances of the purported change in testimony, or move for a mistrial. And Cleveland moved so quickly to impeach Dr. Choi with her deposition testimony— first interrupting her while she was describing her professional background— that it appears that Cleveland was aware of the potential inconsistencies in Dr. Choi’s deposition testimony and that Cleveland would need to emphasize only those parts of her testimony that would bolster Cleveland’s case. As the trial court noted: “[Cleveland’s counsel] had everything marked in his deposition!. I]t was almost as if he knew she was going to change her testimony!] because it took some doing to have that deposition indexed] the way his was.” Id. at 600.

Even if Cleveland could demonstrate that Dr. Choi’s trial testimony suggests misconduct by Ciarían, on these facts our abuse of discretion standard of review requires that we affirm the trial court’s denial of Cleveland’s motion to correct error and for relief from judgment. Cleveland has presented no clear evidence, as was done in Outback, that would permit the trial court or this court to impute a charge of misconduct to Clarian. Considering the absence of a factual basis demonstrating that Clarian knew or should have known that Dr. Choi’s trial testimony would render her prior responses incorrect, we cannot say that Clarian either had a duty to supplement Dr. Choi’s deposition testimony or committed misconduct by failing to amend that testimony. See T.R. 60(B); T.R. 26(E)(2); Outback, 856 N.E.2d at 74.

Conclusion

In sum, we hold that Cleveland may argue surprise in a witness’s purported change in testimony for the first time on appeal. But, on these facts, we hold that the trial court did not abuse its discretion when it denied Cleveland’s motion to correct error and for relief from judgment. We cannot say on this record that Dr. Choi’s trial testimony was so different from her deposition testimony that it invoked, as alleged, any duty on the part of Clarian to amend under Trial Rule 26(E)(2) or that Clarian committed misconduct under Trial Rule 60(B)(3). Thus, we affirm the trial court’s denial of Cleveland’s motion to correct error and for relief from judgment.

Affirmed.

RILEY, J., and KIRSCH, J., concur.

      . We held oral argument on August 8, 2012.

      . In her brief, Cleveland states that she attempted to speak to Dr. Choi twice "0]ust prior to trial" but that Ciarían refused on the basis that Dr. Choi was Clarian's employee. Appellant's Br. at 14. Although Ciarían de-dined to make Dr. Choi available voluntarily, Cleveland could still have propounded interrogatories, submitted requests for admissions, or subpoenaed Dr. Choi for another deposition.


source: Caselaw Access Project

author: BAILEY, Judge.

license: Public Domain

text:
    HEARTLAND CROSSING FOUNDATION, INC., Appellant-Plaintiff, v. Chris M. DOTLICH, Appellee-Defendant.
    No. 55A01-1203-SC-119.
    Court of Appeals of Indiana.
    Oct. 5, 2012.

      Cott A. Tanner, Donald W. Mclnnis, Tanner Law Group, Indianapolis, IN, Attorneys for Appellant.
   OPINION

BAILEY, Judge.

Case Summary

Appellant-Plaintiff Heartland Crossing Foundation, Inc. (“Heartland”) appeals the small claims court’s judgment in favor of pro-se Appellee-Defendant Chris Dotlich (“Dotlich”) on Heartland’s breach of contract claim. Heartland presents one issue for our review: whether the small claims court’s judgment for Dotlich was clearly erroneous.

We affirm.

Facts and Procedural History

On April 9, 2003, Dotlich took title to his property at 13227 North Becks Grove Court, Camby, Indiana (“the Property”). The Property is part of the Commons at Heartland Crossing subdivision in Morgan County, Indiana (“Heartland Crossing”), and is subject to the Master Declaration of Covenants, Conditions, Easements and Restrictions of Heartland Crossing (“the Declaration”). (App. at 13.) Heartland is a homeowner’s association that administers Heartland Crossing, and enforces the Declaration. Under the terms of the Declaration, Dotlich assented to pay homeowner’s association dues (“dues”), “late charges from the date first due and payable, all costs of collection, reasonable attorney’s fees and paraprofessional fees actually incurred, and any other amounts provided or permitted by law[.]” (App. at 18.) Dotlich owed dues of $182.50 semiannually, payable to Heartland on January 1 and May 1 of each year. (Tr. at 5; App. at 37.)

When Dotlich paid his dues late on several occasions, Heartland on several occasions charged him late fees equal to almost 33% of each dues payment, a flat-rate attorneys’ fee equal to almost 50% of each dues payment, and a $50 “administrative fee.” (App. at 36-37.) Dotlich fell further behind on his payments, and the late fees, attorneys’ fees, and administrative fees accumulated. Id.

On October 4, 2011, Heartland filed a complaint against Dotlich in the Morgan Superior Court alleging breach of contract, and seeking payment of the $50 administrative fee, additional attorneys’ fees of $795.10, and court costs. The trial court conducted a bench trial on March 7, 2012, and on March 14, 2012, it entered a judgment for Dotlich on Heartland’s contract claim. Heartland filed this appeal on March 20, 2012.

Discussion and Decision

Standard of Review

Initially, we observe that Dotlich did not file an appellee’s brief. Under such a circumstance, we do not undertake to develop an argument on his behalf, and we may reverse upon Heartland’s prima facie showing of reversible error. Carter v. Grace Whitney Props., 939 N.E.2d 630, 633 (Ind.Ct.App.2010) (internal quotations and citations omitted). In this context, prima facie error means “at first sight, on first appearance, or on the face [of] it.” Id. at 633-34 (internal quotations and citations omitted).

The claim was tried before the bench in small claims court, and the trial court issued findings of fact and conclusions of law pursuant to Indiana Trial Rule 52. Our standard of review in small claims cases is particularly deferential in order to preserve the speedy and informal process for small claims. City of Dunkirk Water & Sewage Dep’t v. Hall, 657 N.E.2d 115, 116 (Ind.1995). In reviewing a bench trial, we will not set aside the findings or judgment unless clearly erroneous. Indiana Trial Rule 52(A); Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind.2006). The small claims court is the sole judge of the evidence and the credibility of witnesses, and on appeal we neither reweigh the evidence nor assess the credibility of the witnesses. City of Dunkirk Water & Sewage Dep’t, 657 N.E.2d at 116. If the court rules against the party with the burden of proof, as here, it enters a negative judgment that we may not reverse for insufficient evidence unless “the evidence is without conflict and leads to but one conclusion, but the court reached a different conclusion.” Eppl v. DiGiacomo, 946 N.E.2d 646, 649 (Ind.Ct.App.2011).

Analysis

Here, the small claims court denied Heartland’s recovery of the $50 administrative fee after finding it was not a cost actually incurred by Heartland, was without basis, and was “nothing more than an abusive junk fee.” (App. at 4.) Additionally, the trial court denied Heartland’s recovery of additional attorneys’ fees of $795.10 and court costs after finding the attorneys’ fees and court costs were based solely on the $50 administrative fee, to which Heartland was not entitled.

The evidence most favorable to the judgment discloses that Heartland had a history of assessing repetitive and cumulative fees during each effort to collect late dues, including late fees equal to almost 33% of each dues payment, a flat-rate attorneys’ fee equal to almost 50% of each dues payment, and a $50 administrative fee. (App. at 36-37.) While Section 10.6 of the Declaration allows for assessment of dues, “late charges from the date first due and payable, all costs of collection, reasonable attorney’s fees and paraprofessional fees actually incurred, and any other amounts provided or permitted by law[,]” the text of the Declaration contains no provision explicitly allowing assessment of an “administrative fee.” (App. at 18.) Because this is a contract, and we construe contracts strictly against Heartland, the drafter, we, like the small claims court, decline to read into the Declaration an “administrative fee” provision.

Furthermore, as of the time of the trial, the only fee Dotlich had yet to pay was the $50 administrative fee. (Tr. at 9.) The evidence most favorable to the judgment discloses that Heartland, by recovering late fees and attorneys’ fees from Dotlich, already recovered the “costs of collection” and “reasonable attorney’s fees and paraprofessional fees actually incurred])]” (App. at 18.) Therefore, under the terms of the Declaration, nothing remains for Heartland to recover. Because Heartland’s request for attorneys’ fees of $795.10 and court costs hinges solely on the baseless $50 administrative fee, Heartland can recover neither additional attorneys’ fees nor court costs. To the extent Heartland argues that sufficient evidence exists to support a finding in its favor, it asks us to reweigh the evidence, which we cannot do. City of Dunkirk Water & Sewage Dep’t, 657 N.E.2d at 116.

Conclusion

The evidence most favorable to the judgment supports the trial court’s conclusion that Dotlich does not owe Heartland the $50 “administrative fee,” costs, or $795.10 in attorneys’ fees. Therefore, the trial court’s judgment for Dotlich is not clearly erroneous.

Affirmed.

RILEY, J., and CRONE, J., concur.

      . Judgments in small claims actions are " 'subject to review as prescribed by relevant Indiana rules and statutes.’ ” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1067 (Ind.2006) (quoting Ind. Small Claims Rule 11(A)).

      . A restrictive covenant is an express contract between grantor and grantee that restrains the grantee’s use of his land. Villas W. II of Willowridge Homeowners Ass’n, Inc. v. McGlothin, 885 N.E.2d 1274, 1278 (Ind.2008), cert. denied.

      . Any ambiguity in a contract is construed against its drafter. Smith Barney v. StoneMor Operating LLC. 953 N.E.2d 554, 558 (Ind.Ct.App.2011), aff'd on rehearing, 959 N.E.2d 309 (Ind.Ct.App.2011), trans. denied.


author: BRADFORD, Judge.

text:
    THOMSON, INC. n/k/a Technicolor USA, Inc., Technicolor Inc., and Technicolor Limited, Appellants/Plaintiffs, v. CONTINENTAL CASUALTY CO.; Travelers Casualty & Surety Co. & Travelers Property Casualty Co. of Am.; Ace Am. Ins. Co. & Century Indemnity Co., Indemnity Ins. Co. of N. Am., Ins. Co. of N. Am., & Cigna Ins. Co.; XL Ins. Am., Inc.; and Northern Assurance Co. of Am.; Appellees/Defendants.
    No. 49A02-1202-PL-80.
    Court of Appeals of Indiana.
    Oct. 9, 2012.

      George M. Plews, Karen B. Scheidler, Sean M. Hirschten, Plews Shadley Racher & Braun LLP, Indianapolis, IN, Attorneys for Appellants.
    Stephen J. Peters, David I. Rubin, Harrison & Moberly, LLP, Indianapolis, IN, Attorneys for Appellee XL Insurance f/k/a Winterthur International America Insurance Company.
   OPINION

BRADFORD, Judge.

CASE SUMMARY[]

Appellants/Plaintiffs Thomson Inc. n/k/a Technicolor USA, Inc., Technicolor, Inc., and Technicolor, Ltd. (collectively, “Thomson”) appeal from the trial court’s judgment in favor or Appellee/Defendant XL Insurance of America, Inc. As restated, Thomson contends that (I) full faith and credit does not require that Indiana courts respect a California trial court’s decision that California law applies to certain insurance policies XL sold to Thomson (“the California decision”), (II) comity does not favor deference to the California decision, and (III) Indiana’s choice-of-law rules require the application of Indiana law to the policies at issue. Concluding that the trial court did not abuse its discretion in applying the principles of comity, we affirm on that basis, and do not reach Thomson’s other arguments.

FACTS AND PROCEDURAL HISTORY

XL sold a total of twelve insurance policies (“the Policies”) to Thomson that are of interest in this case, policies which were in effect from January 1, 2000, to January 1, 2006. On July 11, 2008, Thomson sued several of its past and present insurers in this action, including XL, for coverage of an environmental cleanup in Taiwan. Eventually, by amendment of pleadings, additional sites in Fort Wayne, Indiana; Mocksville, North Carolina; Circleville, Ohio; and two sites in Marion, Indiana, were added to the action. In April of 2009, Thomson mailed a request for coverage to certain insurers for environmental cleanups of sites in Hollywood and North Hollywood, California, and West Drayton, United Kingdom, (“the Technicolor Sites”) sites that were acquired when Thomson acquired Technicolor, Inc., and Technicol- or, Ltd.

On May 14, 2009, American Motorists Insurance Company (“AMICO”), one of the insurers from whom Thomson had requested coverage for the Technicolor Sites, sued Thomson and twenty “John Doe” insurers in California court, seeking a declaration that its policies do not cover the Technicolor Sites. On June 12, 2009, AM-ICO named XL as one of the John Doe insurers, adding it to the California action. On August 18, 2009, Thomson added the Technicolor Sites to the Indiana action.

On May 24, 2010, the California trial court issued a summary judgment concluding that California law applied to the interpretation of XL’s policies as to the Technicolor Sites. Thomson appealed the California decision, which was affirmed by the Court of Appeal of the State of California on August 29, 2011. Thomson’s petition for review by the California Supreme Court was denied on December 22, 2011. Pursuant to United States Supreme Court Rule 13, Thomson had until March 21, 2012, or ninety days following the California Supreme Court’s denial of review, to petition for a writ of certiorari, but did not do so.

Meanwhile, on March 30, 2011, Thomson filed for partial summary judgment as to choice of law in the Indiana action, seeking to have Indiana law applied to the interpretation of insurance policies sold to it by XL and the other defendants. On October 6, 2011, the trial court granted Thomson’s motion for partial summary in part but concluded that full faith and credit and principles of comity required it to refrain from departing from the May 24, 2010, California ruling regarding XL’s policies and the Technicolor Sites. On October 31, 2011, Thomson filed a motion to correct error. On January 13, 2012, the trial court denied Thomson’s motion to correct error in an order that provided, in part, as follows:

4. The California trial court’s May 24, 2010 Judgment in favor of XL and against Thomson and the affirmance of that judgment by the California Court of Appeals on August 29, 2011, are entitled to res judicata effect under the full faith and credit and comity principles.
8. The California appellate process is concluded and the judgment in favor of XL and against Thomson affirmed; therefore, the Full Faith and Credit principles set forth in the United States Constitution, Article IV, § 1 and Ind. Code § 34-1-18-7 apply and must be given preclusive effect. Therefore, Thomson’s Motion to Correct Errors is denied as to XL.

Appellant’s App. pp. 82, 84.

DISCUSSION AND DECISION

Whether Comity Favors Deference to the California Court’s Decision

Thomson argues that the trial court abused its discretion in relying upon the principles of comity to defer to the California decision.

“Under principles of comity, Indiana courts may respect final decisions of sister courts as well as proceedings pending in those courts.” Am. Econ. Ins. Co. v. Felts, 759 N.E.2d 649, 660 (Ind.Ct.App.2001) (citing George S. May Int’l Co. v. King, 629 N.E.2d 257, 260 (Ind.Ct.App.1994), trans. denied). Comity is not a constitutional requirement, but a rule of convenience and courtesy. Id. (citing County of Ventura v. Neice, 434 N.E.2d 907, 910 (Ind.Ct.App.1982)). Moreover, comity has been described as representing “ ‘a willingness to grant a privilege, not as a matter of right, but out of deference and good will. Its primary value is to promote uniformity of decision by discouraging repeated litigation of the same question.’ ” Id. (citations omitted).

In re Arbitration Between Am. Gen. Fin. Services, Inc. & Miller, 820 N.E.2d 722, 725 (Ind.Ct.App.2005). “It is within the trial court’s discretion to dismiss an action out of comity.” Brightpoint, Inc. v. Pedersen, 930 N.E.2d 34, 39 (Ind.Ct.App.2010), trans. denied. “Again, an abuse of discretion occurs only when the trial court’s judgment is against the logic and effects of the facts and circumstances before it, and we will not reweigh the evidence most favorable to that judgment.” Id.

Courts in other jurisdictions likewise have concluded that where an action concerning the same parties and the same subject matter has been commenced in another jurisdiction capable of granting prompt and complete justice, comity ordinarily should require staying or dismissal of a subsequent action filed in a different jurisdiction, in the absence of special circumstances. See McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng’g Co., 263 A.2d 281, 283 (Del.1970); American Home Products Corp. v. Adriatic Ins. Co., 286 N.J.Super. 24, 668 A.2d 67, 72 (N.J.Super.Ct.App.Div.1995).
Factors this court has considered in addressing comity questions include whether the first filed suit has been proceeding normally, without delay, and whether there is a danger the parties may be subjected to multiple or inconsistent judgments. See Hexter v. Hexter, 179 Ind.App. 638, 640, 386 N.E.2d 1006, 1008 (1979). We also believe it appropriate to look for guidance from cases interpreting Indiana Trial Rule 12(B)(8), which expressly permits dismissal of a lawsuit where another action already is pending in another Indiana state court. Under that rule, a second action “should be dismissed where the parties, subject matter, and remedies are precisely or even substantially the same in both suits.” Vannatta v. Chandler, 810 N.E.2d 1108, 1110-11 (Ind.Ct.App.2004).

Id. at 39-40 (quoting Jallali v. Nat'l Bd. of Osteopathic Med. Examiners, Inc., 902 N.E.2d 902, 904 (2009), vacated on other grounds on reh’g, 908 N.E.2d 1168 (Ind.Ct.App.2009), trans. denied).

We conclude that the trial court did not abuse its discretion. First and foremost, the specific issue here, which state’s law governed XL’s policies with regard to the Technicolor Sites, was litigated first in California. Although the Indiana suit was filed on July 11, 2008, the Technicolor Sites were not made a part of it until August 19, 2009. The California suit, which was concerned solely with the Technicolor Sites, two of the three of which are located in California, was filed on May 19, 2009, and XL was added on June 12, 2009. Additionally, Thomson did not file for summary judgment on the choice-of-law question in the Indiana action until approximately ten months after the California trial court had already ruled against it on the same question, and there is no indication that the California suit was not proceeding normally in the California court system. Although both the California and Indiana suits involve many more parties and issues, the issue, parties, and remedies in this appeal were precisely the same in both actions and the only things affected by the trial court’s invocation of comity. We believe it is also worth noting that the effect of giving deference to the California decision has the effect of applying California law to those sites contaminated by Technicolor, apparently a California-based company before Thomson’s acquisition, and applying Indiana law to those sites contaminated by Thomson, an Indiana-based company, including three sites in Indiana. In short, there do not seem to be any special circumstances in this case that would warrant departure from the general rule that comity favors deference to the California courts. The trial court did not abuse its discretion in deferring to the California decision.

The judgment of the trial court is affirmed.

VAIDIK, J., and CRONE, J., concur.

      . We heard oral argument in this case on September 25, 2012, at the Indiana Court of Appeals courtroom in Indianapolis. We wish to commend counsel for the high quality of their oral advocacy.


author: SHEPARD, Senior Judge.

text:
    William A. BOYD and Janice Ann Boyd, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.
    No. 28A01-1203-PL-108.
    Court of Appeals of Indiana.
    Oct. 11, 2012.

      Rudolph W. Savich, Bloomington, IN, Attorney for Appellants.
    Gregory F. Zoeller, Attorney General of Indiana, Kathy Bradley, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

SHEPARD, Senior Judge.

William and Janice Boyd challenge the State’s acquisition of their property for use in constructing Interstate 69 through southwest Indiana.

They contend that various federal environmental statutes applicable to federally-assisted projects have not been satisfied. Compliance with these environmental protections is reviewable during both administrative and judicial proceedings at various stages of a project. State and federal agencies and the courts have found 1-69 in compliance at multiple steps along the way.

Because none of the Boyds’ claims are justiciable in eminent domain proceedings, we affirm the taking.

FACTS AND PROCEDURAL HISTORY

In September 2011, the Indiana Department of Transportation (“the State”) filed a complaint to appropriate for construction of 1-69 certain portions of real estate in Greene County owned by the Boyds. The complaint noted that the State had offered the Boyds $51,700 for the land but that the parties had been unable to agree on a price.

The Boyds objected to the taking on grounds that: (1) the State -violated various federal laws; (2) the State’s offer to purchase was deficient; and (3) the State sought to acquire more property than necessary. The State moved to strike the objections, the Boyds opposed the motion, and the State replied.

The trial court struck the objections, condemned the property, and appointed appraisers to determine the amount of just compensation due the Boyds. The Boyds now appeal.

DISCUSSION AND DECISION

A. The Environmental Questions.

The taking of private property for public purposes like roads and schools has historically been treated, constitutionally speaking, as a matter consigned to legislative judgment.

The courts are not to infringe upon the administrative act of determining the necessity or reasonableness of a taking. Indianapolis Power & Light Co. v. Barnard, 175 Ind.App. 308, 371 N.E.2d 408 (1978). Instead, judicial review is limited to whether the condemnation proceedings were legal, whether the condemnor had the authority to condemn the property, and whether the property was to be taken for a public purpose. State ex rel. Ind. Dep’t of Conservation v. Barber, 246 Ind. 30, 200 N.E.2d 638 (1964).

Put another way, courts may inquire into the necessity of a taking only where the landowner produces evidence of bad faith, fraud, capriciousness, or illegality on the condemnor’s part, State v. Collom, 720 N.E.2d 737 (Ind.Ct.App.1999), such as “where an attempt is made to show that the property taken will not be used for a public purpose, or the proceeding is a subterfuge to convey the property to a private use,” Cemetery Co. v. Warren Sch. Twp. of Marion Cnty., 236 Ind. 171, 139 N.E.2d 538, 546 (1957).

The Boyds contend that their objections fall within this limited judicial arena, saying the State acted illegally and in bad faith by taking land for a highway project that does not adequately comply with the National Environmental Policy Act, the Department of Transportation Act, the Clean Air Act, and the Endangered Species Act. To specify but one of their claims, they argue that the State was required to prepare a supplemental environmental impact statement based on new information about the “appearance of White Nose Syn-drom[e,] which poses a significant threat to the endangered Indiana Bat in or near the 1-69 project.” Appellants’ Br. p. 22. Because the State has not acted in accord with these federal statutes, the Boyds’ argument goes, the highway project is illegal and the trial court should not have condemned the property.

The Boyds’ complaint that 1-69 does not comply with federal environmental statutes, however, is not a question that may be litigated in connection with this condemnation proceeding, the purpose of which is solely to determine whether the State may appropriate the Boyds’ property for the project. See J.M. Foster Co. v. N. Ind. Pub. Serv. Co., 164 Ind.App. 72, 326 N.E.2d 584, 589 (1975) (determining that environmental impact report requirement of state law was “foreign to proceedings for condemnation”); see also United States v. 0.95 Acres of Land, 994 F.2d 696, 699 (9th Cir.1993) (“NEPA cannot be used as a defense to the condemnation action.”); United States v. 416.81 Acres of Land, 514 F.2d 627, 631 (7th Cir.1975) (“The only question for judicial review in a condemnation proceeding is whether the purpose for which property was taken is for a Con-gressionally authorized public use.”).

This is hardly to say that such matters are never justiciable. The Congress has affirmed important environmental considerations in enacting statutes like NEPA and Section 4(f) of the DOT Act, which require the Secretary of Transportation to protect the natural and built environment in the course of carrying out the Department’s mission. While the Secretary necessarily delegates these duties to other federal officers and state actors, the Secretary is necessarily responsible for assuring that these obligations have been faithfully executed for projects involving federal funds or some other major federal action. Such determinations have long been subject to challenge at the time they are made, against the appropriate officer, sometimes with very dramatic results. See, e.g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

Indeed, issues of this very sort regarding 1-69 have been contested in federal litigation. See Hoosier Envtl. Council v. U.S. Army Corps of Eng’rs, No. 1:11-cv-0202-LJM-DML, 2012 WL 3028014 (S.D.Ind. July 24, 2012); Citizens for Appropriate Rural Rds., Inc. v. LaHood, No. 1:11-cv-1031-SEB-DML, 2012 WL 442747 (S.D.Ind. Feb. 10, 2012); Hoosier Envtl. Council v. U.S. Dep’t of Transp., No. 1:06-cv-1442-DFH-TAB, 2007 WL 4302642 (S.D.Ind. Dec. 10, 2007).

The Boyds’ present challenge is really to the legality of the project, rather than to the legality of the taking. This state condemnation action is not a vehicle through which such claims may be litigated or relit-igated.

B. The Offer to Purchase.

The Boyds also have a claim relating to the statutory requirement that a public condemnor must offer to purchase the property before it files a complaint for appropriation. Acknowledging that there was such an offer, they argue that the State’s offer to purchase was improperly delivered and did not include all of the real estate interests it later sought to appropriate. We need not address the delivery or scope of the offer because the threshold question is whether the State was actually required to prove that it made an offer.

To be sure, Indiana Code section 32-24-l-5(a) (2006) requires such an offer, but the Code also says that INDOT need not prove in a condemnation action that an offer was made. Ind.Code § 32-24-1-13(a) (2002). Examining these two provisions, the Supreme Court has concluded that they may work harmoniously: while INDOT is required to make an offer, it is not required to prove that it did so. See Burd Mgmt., LLC v. State, 831 N.E.2d 104, 109 (Ind.2005).

The Boyds nonetheless argue that Section 13(a) means only that INDOT’s failure to perform the condition precedent of making an offer to purchase must be raised by the landowner as an affirmative defense, rather than something INDOT must prove in every proceeding. Appellants’ Br. p. 30. They cite no authority on this point, and we think this proposition cannot be inferred from Section 13(a), which states straightforwardly that INDOT “is not required to prove that an offer of purchase was made to the property owner in an action under this article.” We conclude the Supreme Court settled this issue in Burd Management.

C. The Extent of the Taking.

Finally, the Boyds contend that the State condemned more property than necessary for the improvement project. Specifically, they argue that the area to be taken is over 400 feet in width even though the complaint states that “[t]he right of way will be about 200 feet wide, except where additional width will be required for construction.” Appellants’ App. pp. 24, 123. They also question the necessity of taking a 0.6 acre triangle of property that they say is outside the proposed right of way.

Courts may not substitute their judgment for that of the condemning authority regarding what is needed to accomplish its purpose. See Collom, 720 N.E.2d at 742 (reversing denial of appropriation where court second-guessed necessity of taking). The Boyds do not argue that the State fraudulently appropriated the land for a private purpose. Rather, they claim only that the State does not need the amount of land condemned for the 1-69 project. This is not a proper subject for judicial review. See Wampler v. Trs. of Ind. Univ., 241 Ind. 449, 172 N.E.2d 67, 70 (1961) (no defense in eminent domain proceedings that “a quantity of land less than that described in the complaint would suffice”).

In support of their assertion that they are entitled to challenge the extent of the taking, the Boyds cite Country Estates, Inc. v. Northern Indiana Public Service Co., 254 Ind. 108, 258 N.E.2d 54 (1970), in which the Supreme Court determined that fifty feet of the proposed taking was for a remote and speculative use. That case, however, involved condemnations by a public utility, which must have either a present immediate need or a fair and reasonable future need for the real estate it seeks to acquire. See Ellis v. Pub. Serv. Co. of Ind., Inc., 168 Ind.App. 269, 342 N.E.2d 921 (1976). Country Estates is inapplicable here.

CONCLUSION

None of the Boyds’ claims are renewable in eminent domain proceedings. We therefore affirm the trial court.

MATHIAS, J., and CRONE, J., concur.

      . Randall T. Shepard, Land Use Regulation in the Rehnquist Court: The Fifth Amendment and Judicial Intervention, 38 Cath. U. L. Rev. 847, 853-57 (1989).

      . A different panel of this Court recently held the same with respect to other owners of property condemned for the 1-69 project. See Knott v. State, 973 N.E.2d 1259, 1264-65 (Ind.Ct.App.2012).


author: GARRARD, Senior Judge.

text:
    Charles MITCHELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1202-CR-125.
    Court of Appeals of Indiana.
    Oct. 16, 2012.

      Eric K. Koselke, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Seharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

GARRARD, Senior Judge.

STATEMENT OF THE CASE

Charles Mitchell appeals his conviction and sentence for Class D felony theft. Ind.Code § 35-43-4-2(a) (2009). He contends that the evidence is insufficient to sustain his conviction, the trial court relied on improper aggravators when sentencing him, and his sentence is inappropriate. We affirm.

FACTS AND PROCEDURAL HISTORY

Robert Rueta was employed at Spanish Oaks Apartments near 38th Street and Mitthoeffer Road. In October 2010, Rueta saw Mitchell, Virgil Jones, and another man breaking up a water heater that was in the grass on the property. When he asked what they were doing, they responded that a supervisor had told them they could take it.

Rueta called Susan Revak, the assistant manager. Upon arriving, Revak saw Mitchell and the other two men putting the water heater into their pickup truck. Revak ordered them to take it off the truck, but they said that a big Hispanic supervisor told them they could take it. Revak responded that the apartment supervisor was Filipino and short and that no one could give permission to take property unless it came from management or her. She then said that if they returned the water heater, she would not report them, but if they did not, she would call the police. She returned to her office.

Rueta called Revak a few minutes later and said that the three men were leaving with the water heater still in their truck. Revak walked to the exit, stood in the middle of the street to prevent the truck from leaving, and asked a leasing agent to call the police and the courtesy officer. Mitchell edged the truck toward Revak but eventually pulled over and parked. When the police arrived, he claimed that a Mend had given him permission to take the water heater.

The State charged Mitchell with Class D felony theft and Class A misdemeanor criminal mischief. At a bench trial, Rueta, Revak, and a police officer testified for the State, and Mitchell testified in his own defense. The trial court found Mitchell guilty of theft but not guilty of criminal mischief and sentenced him to 545 days in the Department of Correction with all but 60 days suspended to probation. Mitchell now appeals.

DISCUSSION AND DECISION

I. SUFFICIENCY OF THE EVIDENCE

Mitchell first contends that the evidence is insufficient to sustain his conviction. In reviewing a sufficiency of the evidence claim, we do not reweigh the evidence or judge the credibility of the witnesses. Wilson v. State, 966 N.E.2d 1259, 1265 (Ind.Ct.App.2012), trans. denied. We consider only the evidence most favorable to the judgment and the reasonable inferences drawn therefrom and affirm if the evidence and those inferences constitute substantial evidence of probative value to support the judgment. Id.

To convict Mitchell of Class D felony theft as charged here, the State had to prove beyond a reasonable doubt that he knowingly exerted unauthorized control over Spanish Oaks Apartments’ water heater with the intent to deprive the apartments of any part of its value or use. Appellant’s App. p. 21; see Ind.Code § 35-43-4-2(a).

The evidence most favorable to the judgment shows that Mitchell and his cohorts broke apart Spanish Oaks Apartments’ water heater and loaded it into their truck. Although Revak ordered them to take it off the truck and even offered not to report the crime if they did so, they tried to drive away with it.

Despite this clear evidence, Mitchell claims that his cohort Jones asked him to help put the water heater on the truck and that he believed Jones had received permission to take it. Specifically, he points to his own testimony that he saw Jones talking with an apartment employee, that he relied on Jones’ directions because Jones was more experienced at finding scrap, and that the water heater was covered in rust and looked like it had been there for a while. However, even crediting this testimony, any belief that they had permission to take the water heater became unreasonable when Revak unequivocally told them that no one other than her or management could give such permission and ordered them to remove the water heater from the truck.

Mitchell also claims that Revak did not talk to him during the first encounter; rather, he saw her speaking to another person but did not know what they talked about. According to Mitchell’s version of events, Revak did not speak to him until she blocked the exit, and thus he did not know until then that he could not take the water heater. This is merely a request to reweigh the evidence, which we will not do.

We therefore conclude that the evidence is sufficient to sustain Mitchell’s conviction.

II. ABUSE OF DISCRETION

Mitchell next contends that the trial court relied on improper aggravators when sentencing him. Subject to the review and revision power discussed below, sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), clarified on reh’g, 875 N.E.2d 218 (2007). One way a trial court abuses its discretion is when it enters a sentencing statement that includes reasons that are improper as a matter of law. Id. at 490-91.

Mitchell argues that the trial court improperly considered the elements of the offense and the fact that he maintained his innocence as aggravating factors. However, he points to statements the court made only after it had already pronounced his sentence:

[T]he reason why you are serving time in jail is because I think ... you haven’t really figured it out yet or maybe you have. This whole idea about somebody else told me to do it. I was just following orders and things like that. I don’t find you to be that kind of a man. I think you control your own business. And the next time you go scrapping and you go into someone’s private property and take their property and after they ask you to put it back you drive away ... maybe this 30 days that you will serve will ... remind you that there are consequences. And one of the reasons why [you are] serving 60 days is because I believe that you and your friends were pushing your way around. You should have done what the lady asked you to do and back up and dumped that property off and go on about your business.

Tr. pp. 84-85. Our review of the record shows that the court did not identify any aggravating factors during sentencing. Instead, it imposed the advisory sentence of one and a half years, ordered sixty of those days to be executed, and then explained, as quoted above, why it ordered sixty days executed. This was not an abuse of discretion.

III. INAPPROPRIATE SENTENCE

Mitchell finally contends that his sentence is inappropriate. Although a trial court may have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and revision of sentences through Indiana Appellate Rule 7(B), which provides that a court “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind.2007) (citing Anglemyer, 868 N.E.2d at 491). The defendant has the burden of persuading us that his sentence is inappropriate. Id. (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006)). In assessing whether a sentence is inappropriate, appellate courts may take into account whether a portion of the sentence is ordered suspended or otherwise crafted using any of the variety of sentencing tools available to the trial judge. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.2010).

We first look to the statutory range established for the class of the offense. Mitchell was convicted of a Class D felony. The statutory range for a Class D felony is between six months and three years, with the advisory sentence being one and a half years. Ind.Code § 35-50-2-7(a) (2005). Mitchell received the advisory sentence, and only sixty days were ordered executed.

We next look to the nature of the offense and Mitchell’s character. As to the nature of the offense, Mitchell and his cohorts took a water heater from an apartment complex in open defiance of the apartment manager, who indicated that they did not have permission to do so and ordered them to remove it from their truck.

As to his character, Mitchell argues that he was fifty-eight years old at the time of the offense, has no other criminal history, and is being treated for a mental illness. We acknowledge that Mitchell’s character is not likely that of a hardened criminal.

Nonetheless, we also note that Mitchell was not given an enhanced sentence. Instead, the trial court imposed the advisory sentence with all but sixty days suspended to probation. Mitchell has failed to persuade us that this sentence is inappropriate.

CONCLUSION

For the reasons stated, we affirm Mitchell’s conviction and sentence.

Affirmed.

NAJAM, J., and KIRSCH, J., concur.


author: RILEY, Judge.

text:
    Rodney KILLEBREW, II, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 34A02-1204-CR-303.
    Court of Appeals of Indiana.
    Oct. 19, 2012.

      Donald E.C. Leicht, Kokomo, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Rodney D. Kille-brew, II (Killebrew), appeals his conviction for possession of marijuana, a Class A misdemeanor, Ind.Code § 35-48-4-11.

We reverse.

ISSUE

Killebrew raises one issue on appeal, which we restate as follows: Whether the trial court abused its discretion when it admitted evidence discovered following a traffic stop of his vehicle.

FACTS AND PROCEDURAL HISTORY

On March 3, 2011, Police Officer Chad VanCamp (Officer VanCamp) of the Koko-mo Police Department was traveling northbound on Apperson Way in Kokomo, Indiana, when he observed a white Cadillac traveling southbound. The Cadillac had its turn signal activated but continued through an intersection without turning. Officer VanCamp thought that the driver might be impaired, so he initiated a traffic stop.

When Officer VanCamp exited his squad car, he immediately detected “an overwhelming amount of air fresheners, more than what the normal person would usually use” and suspected that the air fresheners might be masking agents used to hide the smell of illegal drugs. (Transcript p. 6). He approached the driver’s side of the vehicle and spoke to Killebrew, who was the driver. When Officer VanCamp asked Killebrew about the turn signal, Killebrew told him that the signal sometimes stuck. Killebrew also admitted that he had initially thought the Officer was pulling him over for a seatbelt violation because he had a malfunctioning seatbelt. Up until that point, though, Officer VanCamp had not noticed that Killebrew was not wearing a seatbelt.

Officer VanCamp then asked Killebrew to exit his vehicle and spoke to him about the overwhelming amount of air fresheners in the Cadillac. Killebrew’s explanation was that he had just cleaned out his vehicle and that he thought he needed that many air fresheners. Officer VanCamp brought his canine over to the Cadillac to sniff its exterior for drugs. The canine alerted to the passenger door and the open window. As a result, Officer VanCamp searched the interior of the Cadillac and found two clear plastic bags containing plant material in the vehicle’s middle console. The plant material later tested positive for marijuana.

On March 4, 2011, the State filed an Information charging Killebrew with possession of marijuana, a Class A misdemeanor, I.C. § 35 — 48^—11(1). On February 9, 2012, a bench trial was held. During the State’s direct examination of Officer VanCamp, Killebrew made a motion to suppress the evidence of the marijuana on the grounds that it was obtained pursuant to an illegal traffic stop. The trial court denied the motion and ultimately found Killebrew guilty as charged. On March 15, 2012, the trial court held a sentencing hearing and sentenced Killebrew to one year suspended, except for time served.

Killebrew now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard, of Review

Killebrew requests that we reverse his conviction for possession of marijuana on the ground that the trial court abused its discretion in admitting evidence of the marijuana found in his Cadillac. Our review of rulings on the admissibility of evidence is essentially the same whether the challenge is made by a pre-trial motion to suppress or by trial objection. Graham v. State, 971 N.E.2d 713, 716 (Ind.Ct.App.2012). We do not reweigh the evidence, and we consider conflicting evidence in the light most favorable to the trial court’s ruling. Id. However, we must also consider the uncontested evidence favorable to the defendant. Id.

II. Waiver

As a threshold issue, the State argues that Killebrew did not preserve his claim because he failed to properly object to the evidence at trial. It is well-established that a motion to suppress is insufficient to preserve an error for appeal. Jackson v. State, 890 N.E.2d 11, 15 (Ind.Ct.App.2008). A defendant must instead reassert his objection at trial contemporaneously with the introduction of the evidence to preserve the error. Id. Here, we cannot agree with the State that Killebrew failed to preserve his claim. Instead, it is clear that Killebrew’s objection occurred after the bench trial had commenced and was contemporaneous with Officer Van-Camp’s testimony regarding his search of Killebrew’s vehicle and his discovery of the marijuana. Although Killebrew characterized his objection as a motion, it was an objection, and it occurred at the proper point during the trial to preserve his claim. See id. We also reject the State’s assertion that Killebrew did not preserve his claim for appeal because he stipulated to the admission of the marijuana. Killebrew did not stipulate to the admission of the marijuana. He merely stipulated that the “green plant material” was marijuana so that the chemist would not have to testify. (Tr. p. 18). Thus, the stipulation was an agreement concerning the testimony an absent witness would give if he were present, not its admissibility.

III. Fourth Amendment

Because we find that Killebrew has preserved his claim, we now turn to the merits of his argument. We note that he has not specified whether he appeals the trial court’s admission of the evidence under the Fourth Amendment of the United States Constitution or Article I, section 11 of the Indiana Constitution and that he has not presented us with any legal authority relating to Article I, section 11. We have previously held that the failure to present any authority or independent analysis supporting a separate standard under the state constitution waives any state constitutional claims. Lockett v. State, 747 N.E.2d 539, 541 (Ind.2001), reh’g denied. Accordingly, we will only analyze Killebrew’s arguments under the standard for Fourth Amendment claims.

The Fourth Amendment to the United States Constitution protects the privacy and possessory interests of individuals by prohibiting unreasonable searches and seizures. Riggle v. State, 967 N.E.2d 522, 524 (Ind.Ct.App.2012). It provides:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const, amend. IV. A traffic stop of a vehicle and temporary detention of its occupants constitutes a “seizure” within the meaning of the Fourth Amendment. Reinhart v. State, 930 N.E.2d 42, 45 (Ind.Ct.App.2010). Thus, we must evaluate whether Officer VanCamp’s seizure of Kil-lebrew and his Cadillac during the traffic stop violated Killebrew’s privacy rights under the Fourth Amendment.

A law enforcement officer must have probable cause to instigate a full-blown arrest or a detention that lasts for more than a short period. Id. However, a traffic stop is valid under the Fourth Amendment if it is based on an observed traffic violation or if the officer has reasonable suspicion that the person detained is involved in criminal activity. State v. Rhodes, 950 N.E.2d 1261, 1265-66 (Ind.Ct.App.2011). A law enforcement officer’s good faith belief that a person has committed a violation will justify a traffic stop, but an officer’s mistaken belief about what constitutes a violation does not amount to good faith. Ransom v. State, 741 N.E.2d 419, 422 (Ind.Ct.App.2000), trans. denied. Such discretion is not constitutionally permissible. Id. The State also argues that if we conclude that Killebrew’s actions did not constitute a traffic violation and that Officer VanCamp did not have a reasonable suspicion that Killebrew was impaired, we should extend the “community caretaking” exception to the Fourth Amendment’s protections to validate Officer VanCamp’s traffic stop. We will address each of these points in turn.

A. Traffic Violation

Indiana courts have never addressed the issue of whether driving through an intersection with an activated turn signal without turning or changing lanes is a traffic violation under Indiana law. Utilizing the rules of statutory construction, though, we conclude that it is not.

In applying a statute, our primary goal is to ascertain and give effect to the Legislature’s intent. Crowel v. Marshall Cnty. Drainage Bd., 971 N.E.2d 638, 645-46 (Ind.2012). If a statute is unambiguous, i.e., susceptible to only one meaning, we must give the statute its clear and plain meaning. In re D.W., 969 N.E.2d 89, 94 (Ind.Ct.App.2012). However, if a statute is susceptible to multiple interpretations, we must try to ascertain the Legislature’s intent and interpret the statute so as to accomplish that intent. Id. In ascertaining the Legislature’s intent, we consider the phraseology, nature, and design of the statute, and the consequences that flow from the reasonable alternative interpretations of the statute. Id. at 95. We presume that our Legislature intended the statutory language to be applied in a logical manner consistent with the underlying goals and policy of the statute. Id.

I.C. § 9-21-8-25 provides that “[a] signal of intention to turn right or left shall be given continuously during not less than the last two hundred (200) feet traveled by a vehicle before turning or changing lanes. [ ]” I.C. § 9-21-8-26 also provides that: “a person may not stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal to a person who drives a vehicle immediately to the rear when there is opportunity to give a signal.” The trial court concluded that these provisions prohibited Killebrew’s use of his turn signal. We disagree. On their face, the provisions address the failure to use a turn signal, not the continued use of a turn signal. In addition, we have not found any other statutory language expressly prohibiting Killebrew’s use of his turn signal, and the State has not provided us with any. Accordingly, we conclude that the Legislature did not intend the use of a turn signal through an intersection to be a traffic violation.

This interpretation is consistent with court decisions in analogous situations in other jurisdictions. In U.S. v. Miller, 146 F.3d 274, 277 (5th Cir.1998), the Fifth Circuit analyzed whether Miller had committed a traffic violation by flashing his turn signal without turning or changing lanes. Law enforcement officers stopped Miller, believing that he had violated a section of the Texas Transportation Code that stated:

A person may not operate a motor vehicle equipped with a red, white, or blue beacon, flashing, or alternating light unless the equipment is: (1) used as specifically authorized by this chapter; or (2) a running lamp, headlamp, taillamp, backup lamp, or turn signal that is used as authorized by law.

Id. (quoting Tex. Transp. Code § 547.305(c)). The State argued that flashing a light without turning or changing lanes violated the code because it was not specifically “authorized by law[.]” Id. On appeal, the Fifth Circuit declined to interpret the phrase “turn signal that is used as authorized by law” as creating a series of violations for all uses not explicitly authorized by law. Id. at 278. Because the law enforcement officers did not have an independent reason for stopping Miller other than his turn signal, the Fifth Circuit held that the stop and subsequent search of Miller’s vehicle violated the Fourth Amendment. Id. The court did not, however, address the issue of “whether any danger that might be associated with having a turn signal on provides any other basis of probable cause for a stop.” Id. at 279.

In U.S. v. McDonald, 453 F.3d 958 (7th Cir.2006), the Seventh Circuit addressed the same under an Illinois statute. The defendant, McDonald was stopped by law enforcement officers because he activated his turn signal but did not turn onto another street. Id. at 959. The officers believed that McDonald’s use of his turn signal was a violation of state law. Id. at 960. The relevant statute provided that a car’s “electric turn signal device ... must be used to indicate an intention to turn, change lanes or start from a parallel parked position” and “must not be flashed on one side only on a parked or disabled vehicle or flashed as a courtesy or ‘do not pass’ signal to operators of other vehicles approaching from the rear.” Id. (quoting 625 Ill. Comp. Stat. 5/ll-804(d) (2005)). The statute did not, however, state that a driver must turn onto a different road once the turn signal is activated. Id. Accordingly, the Seventh Circuit held that McDonald’s actions did not constitute a traffic violation and that, as a result, the stop of his vehicle violated the Fourth Amendment. Id. at 962.

B. Reasonable Suspicion

Although we conclude that Kil-lebrew’s use of his turn signal was not a traffic violation under Indiana law, we recognize that a violation is not a condition precedent to a lawful traffic stop otherwise supported by the facts. Potter v. State, 912 N.E.2d 905, 908 (Ind.Ct.App.2009). As stated above, a traffic stop is also valid if a law enforcement officer has reasonable suspicion that the person detained is involved in criminal activity. See Rhodes, 950 N.E.2d at 1266. The issue of whether the continuous use of a turn signal without turning or switching lanes justifies a reasonable suspicion of impairment to support a traffic stop is an issue of first impression in Indiana. The McDonald court did discuss the issue of reasonable suspicion, but only whether the police officer’s belief that McDonald had committed a traffic violation was reasonable, not whether his use of a turn signal was a reasonable indication of impairment. However, in light of the importance of Fourth Amendment privacy protections, we conclude that Killebrew’s actions, absent other indications of impairment, did not provide a reasonable suspicion of impairment.

In support of this conclusion, we note that it is well-settled that reasonable suspicion must be based on specific and articulable facts, not “an officer’s general ‘hunches' or unpartieularized suspicions” that criminal activity may be afoot. Davis v. State, 858 N.E.2d 168, 172 (Ind.Ct.App.2006). On review, this court considers whether the facts known by the police at the time of the stop were sufficient for a man of reasonable caution to believe that an investigation was appropriate. Id. Reasonable suspicion entails some minimum level of objective evidentiary justification. Id. “It is the requirement of reasonable suspicion that strikes a balance between the government’s legitimate interest in traffic safety and an individual’s reasonable expectation of privacy.” Id.

Here, Officer VanCamp testified that he only observed Killebrew for a “short period of time” — three quarters of a block. (Tr. p. 9). During that short period of time, he did not notice any signs that Killebrew was impaired other than his use of his turn signal. In addition, while Officer VanCamp testified that the improper use of a turn signal could be a sign of impairment, he also testified that it is common for people who are not impaired to go through intersections with their turn signals activated. When Killebrew’s counsel asked, “Common for old people, too, have you seen them?” Officer VanCamp responded, “Absolutely. I’ve stopped them for it, too.” (Tr. p. 9).

Based on the totality of the evidence, we conclude that without any other indication of impairment, Officer VanCamp did not have a reasonable suspicion of lawbreaking to stop Killebrew after only observing him activate his turn signal for three quarters of a block. If we were to hold that an action equally common among unimpaired drivers could justify a traffic stop, that ruling would be ripe for abuse and would not strike a reasonable balance between the government’s legitimate interest in traffic safety and an individual’s reasonable expectation of privacy. Accordingly, we hold that while driving through an intersection with an activated turn signal might be a legitimate factor in creating a reasonable suspicion that a driver is impaired, such use of a turn signal alone is not sufficient.

C. Community Caretaking Function

Finally, the State argues that Officer VanCamp’s seizure of Killebrew’s Cadillac was justified pursuant to the “community caretaking” function of law enforcement. The “community caretak-ing” function is a narrow exception to the privacy protections of the Fourth Amendment that has been recognized in certain circumstances, such as during an inventory search. See Colorado v. Bertine, 479 U.S. 367, 381, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). It is premised on the “fact that extensive, and often noncriminal contact with automobiles will bring local officials in ‘plain view’ of evidence, fruits, or instru-mentalities of a crime, or contraband.” Cady v. Dombrowski, 413 U.S. 433, 442, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). The Supreme Court described the function as follows:

In the interests of public safety and as part of what the Court has called “community caretaking functions,” automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic-control activities. Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.

South Dakota v. Opperman, 428 U.S. 364, 368-69, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

The State acknowledges that Indiana courts have only recognized the community caretaking function within the context of impounding vehicles but now argues that we should extend this exception to Fourth Amendment privacy protections, as Officer VanCamp was attempting to ensure the safety of the public by stopping a potentially impaired driver. We decline to do so. In Colorado, the Supreme Court characterized the community caretaking function as a “narrow” exception to the protections of the Fourth Amendment. See Colorado, 479 U.S. at 381, 107 S.Ct. 738. The Supreme Court also clarified that the validity of a “seareh[ ] solely for the purpose of investigating criminal conduct” is “dependent on the application of the probable-cause and warrant requirements of the Fourth Amendment,” rather than the community caretaking function. Id. at 371, 107 S.Ct. 738.

Here, Officer VanCamp clearly testified that he stopped Killebrew to investigate whether he was an impaired driver. Thus, his subsequent search was an extension of a criminal investigation and was not a product of an administrative caretaking function. As the Supreme Court noted that the application of the probable cause and warrant requirements of the Fourth Amendment are necessary when investigating criminal conduct, we will not extend the community caretaking function to justify a search conducted as a result of a criminal investigation. See id.

Because we find that Officer Van-Camp’s traffic stop of Killebrew was not justified based on a traffic violation, reasonable suspicion of criminal activity, or the community caretaking function, we conclude that the seizure violated the Fourth Amendment and the trial court abused its discretion in admitting the marijuana evidence obtained in the course of the unlawful search. Furthermore, the State was required to prove that Killebrew “knowingly or intentionally possessed] (pure or adulterated) marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid” in order to convict him of possession of marijuana as a Class A misdemeanor. The State did not present any evidence of lawfully obtained marijuana, so we reverse Killebrew’s conviction for possession of marijuana, a Class A misdemeanor. I.C. 35-48-4-11.

CONCLUSION

Based on the foregoing, we conclude that the trial court abused its discretion when it admitted evidence obtained pursuant to an illegal traffic stop. We reverse Killebrew’s conviction for possession of marijuana, a Class A misdemeanor, I.C. § 35-48^1-11.

Reversed.

BAILEY, J. and CRONE, J. concur.