author: BROWN, Judge.

text:
    Lisa SVENSTRUP, Appellant, v. Thomas SVENSTRUP, Appellee.
    No. 29A02-1206-DR-452.
    Court of Appeals of Indiana.
    Dec. 31, 2012.

      Jaimie L. Cairns, Ruppert & Schaefer, P.C., Indianapolis, IN, Attorney for Appellant.
   OPINION

BROWN, Judge.

Lisa Svenstrup (“Mother”) appeals the trial court’s order denying her petition for allocation of college expenses. Mother raises one issue which we revise and restate as whether the trial court erred in denying Mother’s petition for allocation of college expenses. We affirm.

The relevant facts follow. Mother and Thomas Svenstrup (“Father”) were married on August 13, 1983. Mother and Father had L.S., born on May 7, 1984, K.S. and C.S. born on March 4, 1987, and T.S., born on December 22,1992.

On February 17, 2005, Father filed a petition for dissolution of marriage. On May 12, 2006, the court approved the parties’ final settlement agreement and entered a decree of dissolution. The settlement agreement provided that Father would pay child support in the amount of $284.93 per week or $1,234.70 per month, and that the parties would equally divide the extracurricular expenses for T.S., “such as camps, school or sports related endeavors, so long as they discuss in good faith and agree on the activity prior to enrolling [T.S.].” Appellant’s Appendix at 43. Father agreed that he would “maintain a life insurance policy with death benefits of at least $300,000 for the purpose of providing security for his college and support obligations in the event of his death prior to the termination of the support and education obligations under this Agreement.” Id. The agreement indicated that Father could reduce the death benefit to $150,000 when K.S. and C.S. graduated from college or turned twenty-one years old. The agreement also discussed Father’s obligations for college expenses with respect to L.S., K.S., and C.S.

On June 23, 2011, Father filed a petition to modify child support. On October 12, 2011, the court entered an order which stated that Father’s gross weekly earnings from Ameriprise were $1,318 and that his gross weekly income from all sources was $1,748. The court found that Mother was injured in an automobile accident in November 2010 and had not been steadily employed since that time, but was recovering and anticipated being released soon by her doctors. The court attributed to Mother the potential income of minimum wage employment for a forty-hour work week in the amount of $290. The court found that the evidence established-a “substantial and continuing change in circumstance in that as of August 29, 2011, [T.S.], the minor child of the parties, was enrolled in and attending Indiana University at Bloomington and has been living on campus since that date.” Id. at 68. The court concluded that it was not necessary to consider specific college expenses in order to rule on Father’s petition to modify child support, granted Father’s petition, and modified his weekly support obligation to $96.77.

On October 19, 2011, Mother filed a verified petition for allocation of college expenses and request for hearing and request for attorney fees. On December 21, 2011, and March 14, 2012, the court held hearings on Mother’s petition. At the time of the hearings, T.S. was attending college at Indiana University as a freshman. Evidence at the hearing revealed that the financial aid, including scholarships and loans, received by T.S. for the 2011 fall semester exceeded T.S.’s costs. Mother introduced an exhibit listing additional costs including SAT fees, ACT fees, application fees, moving expenses, books and cell phone costs, and fees related to being a member of a fraternity house. The exhibit indicated that Mother and T.S. paid these expenses. Father testified that he paid a $100 enrollment deposit for T.S., $100 for tires for T.S., and minor expenses including some of T.S.’s testing and meals. Father further testified that he went to Bloomington to visit T.S. and paid to bring T.S. back to Bloomington at the end of vacation. Father also testified that he told T.S. that he needed to very carefully weigh the financial responsibility of joining a fraternity and that T.S. would need to pay any expenses related to the fraternity. Mother testified that it was her position that she and Father be responsible for any student loans.

On March 26, 2012, the court denied Mother’s petition in an order that stated in part:

The Court first notes that while there is statutory authority for a court to order either or both parents to pay sums toward their child’s college education, “there is no absolute duty on the part of parents to provide a college education for their children.” Bales [v. Bales ], 801 N.E.2d 196 (Ind.App.2004) [, trans. denied]. It should also be noted that nothing in Indiana law requires that all children of divorced parents be treated equally in regards to the payment of the college expenses. Nor does the precedent set in a decree of dissolution with older children bind what is required of the parents for a younger sibling, particularly when no provision was set out for the younger child.
The marriage of the parties in this case was dissolved in 2006. Provisions in their decree for the education of their older children were made based upon the parties’ finances at that time. In a perfect world, the financial condition of both parties would have improved in the subsequent years or at least stayed the same so that the benefits they gave to their older children in terms of educational support could be given to their youngest child. Unfortunately, that is simply not the situation that the parties now find themselves to be in. Mother acknowledges that her financial condition has taken a heavy turn for the worst, both with cireum-stances within and beyond her control. Mother, however, refuses to accept that Father’s financial condition could have been affected in the same way in the years subsequent to their divorce. Mother has contended and believes that Father must have hidden stores of cash, assets, or resources that he refuses to disclose but has presented no evidence to support this contention. Further, the Court has put extreme pressure on Father over the last several years to meet his financial obligations under the original decree and no money has magically appeared despite the threat of, and actual incarceration for, failure to meet his obligations.
Indiana Code § 31-16-6-2 sets forth those factors that the Court must take into account in setting an order for education support. Those include the child’s aptitude and ability, and the child’s reasonable ability to contribute to educational expenses through work, loans, and obtaining other financial aid. Finally, the Court must consider the ability of each parent to meet expenses.
There is no question that the parties’ youngest child, [T.S.], has the aptitude and ability to succeed in college. It is also true that he has some resources in the form of accounts set aside for him by his mother and grandmother, although Mother would prefer that these be used for other future expenses. [T.S.] also has shown the ability to obtain and maintain financial aid in the form of grants and scholarships and has been able to obtain loans to meet shortfalls. [T.S.] also works during the summer, and as he adapts to the academic demands, may be able to work during the school year.
The parties agreed that the Court would take judicial notice of the evidence of the parties’ finances that led to the Court’s order modifying child support entered on October 12, 2011. That evidence establishes that neither parent is in a position to take on any additional court-mandated financial burdens at this time, and the Court does not see that changing anytime soon.
For the above reasons, the Court declines to enter an order for college expenses and denies [Mother’s] Verified Petition for Allocation of College Expenses and the Request for Attorney’s Fees. While the Court has the highest regard and gratitude for Ms. Clar’s representation of the Respondent, the request for attorney’s fees is denied on the basis that Mother has been totally unrealistic in her beliefs and her demands for contribution from Father leading up to this action. "While the Court realizes that its ruling may result in [T.S.] incurring debt to obtain his undergraduate degree, this is, unfortunately, not unusual for many, if not most, current college students. The Court also recognizes that Mother will continue to do whatever she can to assist [T.S.]. Since Father continues to have a good relationship with [T.S.], there is also no reason to believe that Father will not do everything that his finances permit to assist [T.S.].

Id. at 24-26. Mother filed a motion to reconsider and/or motion to correct error, and the court denied Mother’s motion on May 2, 2012.

Before addressing Mother’s arguments, we note that Father did not file an appellee’s brief. When an appellee fails to submit a brief, we do not undertake the burden of developing appellee’s arguments, and we apply a less stringent standard of review, that is, we may reverse if the appellant establishes prima facie error. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind.Ct.App.2006). This rule was established so that we might be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. Wright v. Wright, 782 N.E.2d 363, 366 (Ind.Ct.App.2002). Questions of law are still reviewed de novo, however. McClure v. Cooper, 893 N.E.2d 337, 339 (Ind.Ct.App.2008).

The issue is whether the trial court erred in denying Mother’s petition for allocation of college expenses. Mother argues that a consideration of the factors in Ind. Code § 31-16-6-2 reveals that the trial court abused its discretion. Mother asserts that the court’s order was essentially a modification and that the change in circumstances did not justify the court’s denial of a post-secondary education order. Mother states that “[w]hile the Decree did not specifically include a provision outlying [sic] the percentages the parties were to pay for T.S.’s education, the Decree implicitly included T.S., and Father’s request to change his percentage of T.S.’s educational expenses is a modification and not a new post-secondary education case.” Appellant’s Brief at 9. Mother argues that “while there was evidence that the relative financial position of the parties had changed slightly, that evidence supports the trial court modifying the post-secondary education order, ... not eliminating the post-secondary education order altogether.” Id. at 10. Mother requests that we reverse and remand with instructions to enter a post-secondary education order requiring each party to contribute a proportional share based on their relative income levels.

Mother also maintains that even if the trial court’s order was not a modification, the evidence did not support the trial court’s findings. Specifically, Mother argues that the record does not support the court’s findings that T.S. has shown an ability to obtain and maintain financial aid, that T.S. may be able to work during the school year, that neither parent is in a position to take on any additional court mandated financial burdens, and that T.S. and Father have a good relationship.

We review a trial court’s decision to order the payment of post-secondary educational expenses for an abuse of discretion. Hirsch v. Oliver, 970 N.E.2d 651, 662 (Ind.2012). We affirm the trial court unless the decision is against the logic and effect of the facts and circumstances before the trial court. Id. “We place a ‘strong emphasis on trial court discretion in determining child support obligations’ and regularly acknowledge ‘the principle that child support modifications will not be set aside unless they are clearly erroneous.’ ” Lea v. Lea, 691 N.E.2d 1214, 1217 (Ind.1998) (quoting Stultz v. Stultz, 659 N.E.2d 125, 128 (Ind.1995)). “Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind.1996). A judgment is clearly erroneous if it relies on an incorrect legal standard. Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind.2000), reh’g denied. We give due regard to the trial court’s ability to assess the credibility of witnesses. Id. While we defer substantially to findings of fact, we do not do so to conclusions of law. Id. We do not reweigh the evidence; rather we consider the evidence most favorable to the judgment with all reasonable inferences drawn in favor of the judgment. Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind.1999).

This court has stated:

Under Indiana law, there is no absolute legal duty on the part of parents to provide a college education for their children. However, the statutory authorization for the divorce court to order either or both parents to pay sums toward their child’s college education constitutes a reasonable manner in which to enforce the expectation that most families would encourage their qualified children to pursue a college education consistent with individual family values. In determining whether to order either or both parents to pay sums toward their child’s college education, the court must consider whether and to what extent the parents, if still married, would have contributed to the child’s college expenses.

Hinesley-Petry v. Petty, 894 N.E.2d 277, 280-281 (Ind.Ct.App.2008) (quoting McKay v. McKay, 644 N.E.2d 164, 166 (Ind.Ct.App.1994)), reh’g denied, trans. denied.

Ind.Code § 31-16-6-2 “gives guidance regarding contribution toward post-secondary educational expenses, listing certain factors to take into account, such as ‘the child’s aptitude and ability,’ ‘the child’s reasonable ability to contribute to educational expenses,’ and ‘the ability of each parent to meet these expenses,’ among other things.” Hirsch, 970 N.E.2d at 660. “Child Support Guideline 8(b) lists expenses that may be included within a post-secondary educational expense order, such as tuition, books, lab fees, supplies, student activity fees, room and board under certain circumstances, transportation, car insurance, clothing, entertainment, and incidental expenses.” Id. at 661. “This guideline also explicitly states that ‘[i]t is discretionary with the court to award post-secondary educational expenses and in what amount.’ ” Id. (quoting Child Supp. G. 8(b)). It continues that the court should “weigh the ability of each parent to contribute to payment of the expense, as well as the ability of the student to pay a portion of the expense.” Child Supp. G. 8(b).

Even assuming that the trial court’s order constituted a modification as argued by Mother, we cannot say that the court erred. The modification of a child support order is governed by Ind.Code § 31-16-8-1, which provides:

(a) Provisions of an order with respect to child support or an order for maintenance (ordered under IC 31-16-7-1 or IC 31-1-11.5-9(c) before their repeal) may be modified or revoked.
(b) Except as provided in section 2 of this chapter, modification may be made only:
(1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or
(2) upon a showing that:
(A) a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and
(B) the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed.
(c) Modification under this section is subject to IC Sl-25-4-17(a)(6).

Generally, provisions for the payment of educational expenses are also modifiable because educational expenses are in the nature of child support. See Martin v. Martin, 495 N.E.2d 528, 525 (Ind.1986) (“Because Ind.Code § 31-1-11.5-17 [now Ind.Code § 31-16-8-1] expressly permits modification of ‘an order with respect to child support,’ we hold that educational support orders not only continue following emancipation and age 21, but also are subject to further modification.”).

With respect to T.S.’s aptitude and ability, Mother testified that T.S. wants to be a doctor and is intelligent. Mother also testified that a part of the funding for T.S.’s education included scholarships that required that he maintain a B average and that he “should be able to keep that.” Transcript at 23. The cost of T.S.’s fall semester of 2011 was $8,207.73, and T.S. received aid of $10,018, which resulted in a total credit of $1,910.27. Part of the aid for the fall semester of 2011 constituted $2,737 in federal loans, and the remainder of the $10,018 in aid constituted scholarships and grants that do not need to be reimbursed. An account statement dated September 15, 2011, indicated a refund of $1,914.39. An account statement dated January 19, 2012, indicated financial aid in the amount of $10,193. Mother expected that T.S. would work during the summer of 2012 and have money available to pay college expenses. T.S. also participates in a work study program and receives a financial benefit.

With respect to the parties’ ability to meet T.S.’s college expenses, we observe that Mother admitted at the hearing that she and Father suffered significant financial setbacks since May 2006. According to Father’s testimony, he does not have a retirement account other than an annuity that will be paid to him at age sixty-five. Father has a checking account with approximately $1,200 and does not have a savings account. Father owns his own home and has $117,000 left to pay on the mortgage, which is about the value of the house. Father filed bankruptcy at some point. Father incurs a tax liability of approximately $10,800 a year and receives no actual cash compensation from Ameriprise until his earnings cover that tax payment.

To the extent that Mother argues that the trial court’s finding that T.S. and Father have a good relationship is erroneous, we observe that Father paid a $100 enrollment deposit for T.S. and paid for some of T.S.’s minor expenses including T.S.’s testing and meals. Father went to Blooming-ton to visit T.S. and paid to bring T.S. back to Bloomington at the end of the vacation. Father also attended T.S.’s initiation into the fraternity.

Based upon the record, Ind.Code § 31-16-6-2, and Support Guideline 8, we cannot say that the trial court abused its discretion in denying Mother’s petition for allocation of college expenses. However, we also observe that the trial court’s October 12, 2011 order recognized a substantial and continuing change in circumstance in that T.S. was enrolled in and attending Indiana University and the court’s March 26, 2012 order found that T.S. has the aptitude and ability to succeed in college. Further, the record reveals that Father hopes to receive $100,000 from a lawsuit, and while the record does reveal that Father has a tax liability, the record does not reveal the extent of such a liability.

We also note that Mother makes an alternative request that in the event we affirm the trial court’s decision as to post-secondary education expenses that she be allowed to request a modification of the order based upon a change of circumstances, even if the change occurs after the child is emancipated. Mother states in her brief that:

While modifications of post-secondary education orders are permitted, there is no case law allowing Mother to modify a denial of post-secondary education expenses and allowing her to modify a denial after the child would be emancipated by law. This leaves Mother with no recourse if a change in circumstances occurs, and there are several possible changes in circumstance possible in in this case: (1) T.S.’s financial aid package could change, and according to Mother’s motion to correct error, T.S.’s financial aid package was going to change leaving T.S. with a gap of $15,024; (2) tuition, room and board, and/or fees could increase in cost; and ([3]) Father could receive a law suit settlement of upwards of $100,000.

Appellant’s Brief at 19-20 (internal citation omitted).

In this regard we note that Ind.Code § 31-16-6-6(a) was amended effective July 1, 2012 to provide that:

The duty to support a child under this chapter, which does not include support for educational needs, ceases when the child becomes nineteen (19) years of age unless any of the following conditions occurs:
(1) The child is emancipated before becoming nineteen (19) years of age. In this case the child support, except for the educational needs outlined in section 2(a)(1) of this chapter, terminates at the time of emancipation, although an order for educational needs may continue in effect until further order of the court.

(Emphases added).

Under these circumstances, where Mother petitioned for an educational support order PRIOR to T.S.’s emancipation at age nineteen but which petition was denied by the trial court’s order, we hold that the order is subject to modification. Cf. Claypool v. Claypool, 712 N.E.2d 1104, 1110 n. 9 (Ind.Ct.App.1999) (holding that requiring the children to acquire student loans without placing any limit on either the amount of loans or on the children’s total contribution, considering all forms of aid, is clearly erroneous, and noting that while the children received substantial college scholarships and grants, which had paid tuition, room, board, and some of the other incidental expenses, “should these types of non-reimbursable aid be reduced or discontinued, the children could be required to incur significant debt”), reh’g denied, trans. denied.

For the foregoing reasons, we affirm the trial court’s order denying Mother’s petition for allocation of college expenses, which order may be modified upon the requisite showing of changed circumstances so substantial and continuing as to make the terms of the existing order unreasonable.

Affirmed.

BAILEY, J., and VAIDIK, J., concur.

      .Specifically, the agreement provided:
      4.10 College Expenses for [L.SJ. [L.S.] is currently attending Northern Michigan University. [Father] agrees to pay all of [L.S.’s] college expenses, including room and board, tuition, books, and mandatory fees for spring semester, beginning January 2006. [L.S.] has approximately $5,000.00 in her Merrill Lynch account. [Father] and [Mother] agree that this account will be applied to her college expenses, with [Father] paying amounts that exceed that which is left in the Merrill Lynch account, through and including the fall semester 2006, at which time it is anticipated that [L.S.] will graduate.
      4.11 College Expenses for [K.S.] and [C.S.]. [K.S.] and [C.S.] are currently freshmen attending Indiana University at the Bloom-ington Campus. [Father] shall be responsible for the college expenses of [K.S.] and [C.S.] for fall semester 2005-2006, including tuition, room and board (which may include required sorority fees if [K.S.] and/or [C.S.] is a member of a sorority), required fees (including such things as student activity, student health, technology, bus transportation, and parking fees), books, and required school supplies. [K.S.] and [C.S.] each have a Merrill Lynch account with approximately $5,500 in said account. [Father] and [Mother] agree that 50% of the Merrill Lynch accounts for [K.S.] and [C.S.] shall be applied to their college expenses for second semester, beginning January 2006 and the other 50% applied towards their college expenses for fall semester beginning August 2006. After payment of these amounts towards their college expenses, the balance of the college expenses, as defined above, for the semester beginning January 2006 and the semester beginning August 2006, shall be paid by [Father]. Effective with the spring semester (January 2007) of the 2006-2007 school year, [Father] shall pay 95% and [Mother] shall pay 5% of the college expenses of [K.S.] and [C.S.], as defined above, at Indiana University (or any other accredited institution to which either may later transfer, provided that the financial obligations of [Father] and [Mother] shall not be greater than if [K.S.] and [C.S.] remained at Indiana University as an Indiana resident. [Father] and [Mother] further agree that their financial obligations with regard to the college expenses of [K.S.] and [C.S.] shall be limited to four years, beginning with their initial enrollment at Indiana University in August 2005. Effective the spring semester, January 2008, [Father] shall pay 90% and [Mother] 10% of all college for [K.S.] and [C.S.] as defined above.
      Appellant’s Appendix at 44-45.

      . The record does not contain a copy of Father’s petition.

      . The court’s October 12, 2011 order indicated that the court’s last order setting child support was entered on February 7, 2011. The record does not contain a copy of the court's February 7, 2011 order.

      . The record does not contain a copy of Mother's petition.

      . Ind.Code § 31-16-6-2 provides:
      (a) The child support order or an educational support order may also include, where appropriate:
      (l)amounts for the child’s education in elementary and secondary schools and at postsecondary educational institutions, taking into account:
      (A) the child's aptitude and ability:
      (B) the child’s reasonable ability to contribute to educational expenses through:
      (i) work;
      (ii) obtaining loans; and
      (iii) obtaining other sources of financial aid reasonably available to the child and each parent; and
      (C) the ability of each parent to meet these expenses;
      (2) special medical, hospital, or dental expenses necessary to serve the best interests of the child; and
      (3) fees mandated under Title IV-D of the federal Social Security Act (42 U.S.C. 651 through 669).
      (b) If the court orders support for a child’s educational expenses at a postsecondary educational institution under subsection (a), the court shall reduce other child support for that child that:
      (1) is duplicated by the educational support order; and
      (2) would otherwise be paid to the custodial parent.


source: Caselaw Access Project

author: BAILEY, Judge.

license: Public Domain

text:
    Jeffrey A. HANAUER, Appellant, v. Colleen T. HANAUER, Appellee.
    No. 79A04-1205-PO-271.
    Court of Appeals of Indiana.
    Jan. 9, 2013.
    Cynthia Phillips Smith, Law Office of Cynthia P. Smith, Lafayette, IN, Attorney for Appellant.
    Daniel J. Moore, Laszynski & Moore, Lafayette, IN, Attorney for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Jeffrey Hanauer (“Husband”) appeals the trial court’s issuance of a protective order against him. He raises for our review the single issue of whether there was sufficient evidence to support the trial court’s issuance of a protective order.

We affirm.

Facts and Procedural History

Husband and Colleen Hanauer (“Wife”) married in 2007. As of the date of the protective order hearing they had two minor children, and Wife was pregnant.

Husband had a severe anxiety disorder and insomnia, for which he had been prescribed Xanax, Paxil, and Klonopin. In addition, for his anxiety and insomnia he had “self-medicated” with marijuana on a daily basis for fourteen years.

Beginning in January of 2012, marital problems escalated. Over four days, Husband screamed at Wife, telling her to get out and get a job. On February 14, 2012, as Wife sat on the couch, Husband stood over her with clenched fists and yelled that she needed to get out and get a job, and that she could not take the children with her if she traveled to New Hampshire. While Wife was asleep in the spare bedroom, Husband repeatedly entered the room throughout the night and stood over her bed, turned the lights on and off, banged on the computer, and slammed the door and baby gate. Husband later threatened to kill himself if they divorced, and stayed up after dark to build a chicken coop. Wife awoke one morning to discover that her car tires had been slashed. By March 14, 2012, Wife had sought refuge at a women’s shelter.

On March 15, 2012, Wife filed a pro se Petition for an Order for Protection, which the trial court granted on March 16, 2012 (“the Protective Order”). Wife filed a Petition for Dissolution of Marriage on March 26, 2012, which matter was still pending as of the date of this appeal. After a hearing on April 25, 2012, the dissolution court entered an Order on April 26, 2012, upholding the Protective Order, but amending it to exclude the minor children, and creating an exception allowing Husband to discuss parenting time arrangements with Wife. This appeal ensued.

Discussion and Decision

Husband contends there was insufficient evidence to support the trial court’s issuance of the Protective Order against him.

Protective orders are in the nature of injunctions. See Ind.Code § 34-26-5-9(b) (authorizing the trial court to enjoin or prohibit action on the part of the respondent); see also Black’s Law Dictionary 788 (7th ed. 1999) (defining “injunction” as “[a] court order commanding or preventing an action[ ]”); Black’s 1239 (referring to “restraining order” for the definition of “protection order”); Black’s 1315 (defining “restraining order” as “[a] court order prohibiting or restricting a person from harassing, threatening, and sometimes even contacting or approaching another specified person[ ]”). Therefore, in granting a protective order the trial court must sua sponte make special findings of fact and conclusions thereon. See Indiana Trial Rule 52(A); I.C. § 34-26-5-9(a), (f); Tisdial v. Young, 925 N.E.2d 783, 785 (Ind.Ct.App.2010) (stating that the trial court may issue or modify an order for protection only upon a finding that domestic or family violence has occurred).

Where, as here, the trial court entered findings of fact and conclusions thereon pursuant to Trial Rule 52(A), we apply a two-tiered standard of review. Mysliwy v. Mysliwy, 953 N.E.2d 1072, 1076 (Ind.Ct.App.2011), tram, denied.

[F]irst, we determine whether the evidence supports the findings, and second, whether the findings support the [order]. In deference to the trial court’s proximity to the issues, we disturb the [order] only where there is no evidence supporting the findings or the findings fail to support the [order]. We do not reweigh the evidence, but consider only the evidence favorable to the ... [order], Those appealing the ... [order] must establish that the findings are clearly erroneous. Findings are clearly erroneous when a review of the record leaves us firmly convinced that a mistake has been made. We do not defer to conclusions of law, however, and evaluate them de novo.

Id. (internal citations omitted).

A person who is or who has been a victim of domestic or family violence may file a petition for a protective order against a:

(1) family or household member who commits an act of domestic or family violence; or
(2) person who has committed stalking under IC 35-45-10-5[.]

I.C. § 34-26-5-2(a). “A finding that domestic or family violence has occurred sufficient to justify the issuance of [a protective order] ... means that a respondent represents a credible threat to the safety of a petitioner or a member of a petitioner’s household.” I.C. § 34—26—5—9(f). “Domestic or family violence” is defined in relevant part as “the occurrence of at least one (1) of the following acts committed by a family or household member: (1) Attempting to cause, threatening to cause, or causing physical harm to another family or household member[; or] (2) Placing a family or household member in fear of physical harm.” I.C. § 34-6-2-34.5.

Here, the evidence discloses that over four days, Husband screamed at Wife, telling her to get out and get a job. (Tr. at 68.) On February 14, 2012, as Wife sat on the couch, Husband stood over her with clenched fists and yelled that she needed to get out and get a job, and that she could not take the children with her if she traveled to New Hampshire. (Tr. at 68-69.) While Wife was asleep in the spare bedroom, Husband repeatedly entered the room throughout the night and stood over her bed, turned the lights on and off, banged on the computer, and slammed the door and baby gate. (Tr. at 69.) Husband later threatened to kill himself if they divorced, and stayed up after dark to build a chicken coop. (Tr. at 73, 76.) Wife awoke one morning to discover that her car tires had been slashed. (Tr. at 76-77.) In addition, Husband had a severe anxiety disorder and insomnia, and consumed marijuana and prescription drugs.

Based upon this evidence, the trial court found that “domestic or family violence, [or] stalking[ ] ... occurred sufficient to justify the issuance of [the Protective Order].” (App. at 9.) The court further found that Husband “represents a credible threat to the safety of [Wife] ... or a member of ... [Wife’s] household.” (App. at 9.) And, with these findings, the court concluded that Wife was a victim of domestic violence and entitled to the issuance of a protective order. Our review of the record supports these findings and conclusions. Therefore, we find no error in the issuance of a protective order.

Conclusion

Husband has failed to establish that the findings are clearly erroneous. Furthermore, these findings support the trial court’s conclusion that Wife was a victim of domestic violence. Therefore, the issuance of a protective order was not in error.

Affirmed.

VAIDIK, J., and BROWN, J., concur.

      . We note that the Protective Order was transferred to the dissolution court on March 29, 2012. See Ind.Code § 34-26-5-6(4) (requiring that where one petitions for an ex parte order for protection and also has a pending dissolution case involving the respondent, the protective order court shall immediately consider the ex parte petition and then transfer that matter to the dissolution court).

      . In her Appellee’s Brief, Wife argues there also was sufficient evidence to support the Protective Order on the alternative grounds of stalking. See I.C. § 34-26-5-2(a)(2). However, because Indiana Code section 34-26-5-2(a) is disjunctive and we have concluded that there was sufficient evidence to support the Protective Order under section 34-26-5-2(a)(1), we do not address this argument.


author: PYLE, Judge.

text:
    Jermaine HINES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 48A02-1206-CR-442.
    Court of Appeals of Indiana.
    Jan. 18, 2013.

      Hilary Bowe Ricks, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

Jermaine Hines (“Hines”) appeals his conviction for unlawful possession of a firearm by a serious violent felon as a class B felony. We affirm.

ISSUE

Whether the trial court erroneously admitted the firearm into evidence.

FACTS

On March 21, 2011, an unknown suspect fired several gunshots at another person at a gas station known as Rick’s Mart in Anderson, Indiana. Detective Norman Rayford (“Det. Rayford”) of the Anderson Police Department was assigned to investigate the shooting. Initial tips pointed Det. Rayford’s investigation to Hines as a possible suspect. Several days after the shooting, Hines voluntarily came to the police station and spoke with Det. Rayford; Hines denied any involvement in the shooting. After providing Det. Rayford with his address and telephone numbers, Hines was released.

A few days later, Hines saw Det. Ray-ford near Rick’s Mart and inquired about the status of the investigation. Det. Ray-ford stated that he would contact Hines if he needed additional information. Over the next couple of months, Det. Rayford interviewed several witnesses, including Abdul Hood (“Hood”). Hood identified Hines from a photo lineup as being present at the scene of the shooting. Additional witnesses either identified Hines as being present or being the actual shooter. Based upon this information, Det. Rayford informed patrol officers during their roll call meetings that he wanted Hines to be brought in for additional questioning. Det. Rayford specifically informed Officers Chris Frazier (“Officer Frazier”) and Steve Denny (“Officer Denny”) that Hines was considered a person of interest in his investigation. Officers Frazier and Denny indicated they were familiar with Hines and would search for him.

On May 24, 2011, at approximately 1:00 p.m., Officer Chad Boynton (“Officer Boynton”) was parked in an unmarked police vehicle watching a residence on Sherman Street. Officer Boynton had received information that the house was a base for drug trafficking, and that Hines would frequently visit this location. Officers Frazier and Denny, who were in uniform, were parked in another location in a marked police car. At some point, Officer Boynton observed someone whom he believed to be Hines exit the house and ride away on a moped. He radioed his observations to Officers Frazier and Denny; they immediately began to search the area for the person on the moped.

Shortly thereafter, Officers Frazier and Denny observed the person described by Officer Boynton at Rick’s Mart. As they pulled into the parking lot, they recognized that person as Hines. As Hines exited Rick’s Mart, he observed the officers, paused, and started to step back inside. Officers Frazier and Denny called out, “Hey, Jermaine, come here [we] want to talk to you.” (Tr. 131, 148). Hines immediately hopped onto the moped and sped off. The officers pursued Hines in their police caí-, out of the parking lot, behind Rick’s Mart, and across an empty lot. Hines then crashed his moped, stood up, and continued fleeing from the officers on foot. After driving around another house seeking to cut off Hines’ escape, Officers Frazier and Denny exited their police car and ran after Hines. At some point, Officer Frazier observed Hines reach towards his waistband, making a throwing motion, and heard something strike the side of the house at 2809 Hendricks Street. Officer Frazier subsequently caught and arrested Hines; he also radioed to Officer Boynton that Hines threw something down during the chase. At 2309 Hendricks Street, Officer Boynton recovered a .45 caliber handgun.

On June 8, 2011, the State charged Hines with Count I, resisting law enforcement as a class D felony, and Count II, unlawful possession of a firearm by a serious violent felon as a class B felony. On February 28, 2012, Hines filed a Motion to Suppress Evidence. In that motion, Hines asserted that his arrest and the subsequent seizure of the firearm were in violation of his rights protected by both the Federal and Indiana Constitutions.

The trial court heard evidence regarding Hines’ suppression motion on March 26 and April 10, 2012. After hearing evidence, the court took the matter under advisement. On April 16, 2012, Hines filed an amended Motion to Suppress with a supporting legal memorandum. On April 17, 2012, the State filed its response, and the trial court denied Hines’ motion. Hines filed a motion seeking certification the trial court’s denial of his motion for interlocutory appeal, but the trial court also denied that request.

A jury trial was conducted on April 18-19, 2012. Prior to the submission of evidence, the State dismissed Count I, the resisting law enforcement charge. After hearing evidence, the jury found Hines guilty of being a serious violent offender in possession of a firearm. On May 14, 2012, Hines was sentenced to eighteen (18) years executed at the Department of Correction. Hines now appeals

DISCUSSION

Hines asserts that the trial court erred in admitting the firearm because it was unlawfully seized by law enforcement officers. Specifically, Hines argues that law enforcement officers did not have legal cause to detain him, and, as a result, he was free to decline to speak with the officers. Additionally, Hines concedes that the firearm was abandoned, but he argues that it was abandoned only after law enforcement officers attempted to illegally seize him. As a result, the trial court should have denied the State’s request to admit the firearm into evidence.

We first note that trial courts have broad discretion when ruling on the admissibility of evidence. Brooks v. State, 934 N.E.2d 1234, 1240 (Ind.Ct.App.2010) trans. denied. A trial court’s ruling on the admissibility of evidence is therefore reviewed for an abuse of discretion. Id. An abuse of discretion occurs when the trial court’s determination is clearly against the logic and effect of the facts and circumstances before the court. Id. “In reviewing a ruling on the admissibility of evidence, as is the situation here, we do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court’s ruling, although we must also consider any uncontested evidence favorable to the defendant.” Id. If law enforcement officers violate either the Federal or Indiana Constitutions when seizing evidence, the appropriate remedy is to prevent the State from using illegally seized evidence at trial. Trotter v. State, 933 N.E.2d 572, 581 (Ind.Ct.App.2010).

The Fourth Amendment of the United States Constitution 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.

The fundamental purpose of the Fourth Amendment “is to protect the legitimate expectations of privacy that citizens possess in their persons, their homes, and their belongings.” Trotter, 933 N.E.2d at 579. “In general, the Fourth Amendment requires a warrant, based upon probable cause, in order for the police to search or seize an individual; however, there are some well-delineated exceptions to the warrant requirement.” Brooks, 934 N.E.2d at 1240.

One well known exception is the Terry stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Under a Terry stop, a police officer, without probable cause, is permitted to stop and briefly detain an individual for investigative purposes, but only if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot. A Terry stop permits the officer to temporarily freeze the situation for inquiry but does not afford an officer the authority attendant to an arrest. A trial court’s determination that the officer had reasonable suspicion for the stop is reviewed de novo, but due weight is given to inferences drawn from the facts by the trial court. Moreover, when making our determination regarding reasonable suspicion, we consider the totality of the circumstances of the case in order to determine whether the officer had a particularized and objective basis for suspecting wrongdoing by the person being stopped. Reasonable suspicion is an abstract concept that is not readily reduced to a neat set of rules; however, the reasonable suspicion requirement is satisfied where the facts known to the officer, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe criminal activity has occurred or is about to occur.

Brooks, 984 N.E.2d at 1241 (citations and quotations omitted).

In this case, we conclude that law enforcement officers had reasonable suspicion of criminal activity to detain Hines. The evidence revealed that Det. Rayford had developed information from witnesses indicating that Hines was either present or the actual shooter at Rick’s Mart on March 21, 2011. The witness accounts contradicted information given to Det. Rayford by Hines. This information was personally communicated to Officers Frazier and Denny by Det. Rayford. Then, on May 24, 2011, Officer Boynton observed Hines leaving a house where drug activity was suspected to have occurred. Further, when officers announced that they wanted to speak with Hines, he fled. See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (unprovoked flight from law enforcement is often suggestive of a person’s involvement in criminal activity). While the information regarding Hines’ departure from a suspected drug house alone would likely be insufficient to support a Terry stop, all of the evidence presented to the trial court justified the law enforcement officer’s attempt to briefly detain Hines to conduct an investigation.

Concerning the subsequent seizure of the firearm, the State argues that it was abandoned by Hines and is not subject to protections provided by the Fourth Amendment. The State is correct. The protections of the Fourth Amendment extend to areas where an individual exhibits “an actual subjective expectation of privacy that society as a whole is prepared to recognize as objectively ‘reasonable.’” Hall v. State, 975 N.E.2d 401, 405 (Ind.Ct.App.2012) (quoting State v. Seidl, 939 N.E.2d 679, 683 (Ind.Ct.App.2010)). As a result, unless it is unlawfully seized, abandoned property does not implicate the Fourth Amendment. Id.; See also Wilson v. State, 966 N.E.2d 1259 (Ind.Ct.App.2012). The question of abandonment is primarily a question of intent. “Intent may be inferred from words, acts, and other objective facts. Abandonment rests upon whether the defendant so relinquished his interest in the property that he no longer retained a reasonable expectation of privacy in it at the time of the search.” Id. at 405 (emphasis in original) (quoting State v. Machlah, 505 N.E.2d 873, 879 (Ind.Ct.App.1987) trans. denied.).

In this case, law enforcement officers lawfully attempted to detain Hines based upon their reasonable suspicion that he had been engaged in criminal activity. While fleeing from law enforcement officers, Hines threw the firearm away. Hines was in such a rush to get away from law enforcement officers that he crashed his moped, got up, and continued to flee on foot. Additionally, Hines was in such a rush to get rid of the firearm that it struck the side of the house at 2309 Hendricks Street when he threw it away. The objective facts in this case show Hines’ clear intention to relinquish any possessory interest in the firearm. See Campbell v. State, 841 N.E.2d 624 (Ind.Ct.App.2006) (defendant who threw firearm under a car after police shined flashlight on him was found to have abandoned firearm). Therefore, we affirm the trial court’s admission of the firearm into evidence.

Affirmed.

ROBB, C.J., and MAY, J., concur.

      . Ind.Code § 35-47-4-5(c).

      . In his brief, Hines asserts that the conduct of law enforcement officers also violated Article I, § 11 of the Indiana Constitution. However, he has failed to develop an independent argument concerning his state constitutional rights; therefore, any such argument is waived. See Taylor v. State, 717 N.E.2d 90, 93 n. 4 (Ind. 1999) (arguments under the Indiana Constitution are waived where the defendant has failed to provide independent argument of state constitutional claims).


author: BRADFORD, Judge.

text:
    Fred C. FEITLER, Mary Anna Feitler, and The Feitler Family Trust, Appellants/Defendants/Counterclaim Defendants/Cross-Claim Defendants, v. SPRINGFIELD ENTERPRISES, INC., Appellee/Plaintiff/Counterclaim Defendant/Cross-Claim Defendant, J. Laurie Commercial Floors, LLC, d/b/a Jack Lauries Floor Designs, Appellee/Counterclaim Plaintiff/Cross-Claim Plaintiff/Third-Party Plaintiff/Cross-Claim Defendant, and JM Woodworking Company, Appellee/Third-Party Defendant/Cross-Claim Plaintiff.
    No. 17A04-1206-PL-297.
    Court of Appeals of Indiana.
    Jan. 23, 2013.
    James 0. Waanders, Indianapolis, IN, Donald J. Stuckey, Auburn, IN, Attorneys for Appellants.
    Stephen J. Harants, Miller & Harants, New Haven, IN, Attorney for Appellee, Springfield Enterprises, Inc.
    Jeremy J. Grogg, Burt, Blee, Dixon, Sutton & Bloom, LLP, Edmund P. Kos, Fort Wayne, IN, Attorneys for Appellee, J. Laurie Commercial Floors, LLC.
    W. Erik Weber, Mefford, Weber and Blythe, PC, Auburn, IN, Attorney for Ap-pellee, JM Woodworking Company.
   OPINION ON REHEARING

BRADFORD, Judge.

In our original opinion in this case, we concluded, inter alia, that the trial court erred in concluding that Appellee JM Woodworking could hold a mechanic’s lien against the property of Appellants. JM failed to issue a pre-lien notice, which we concluded it was required to do if it wished to hold a mechanic’s lien. JM now seeks rehearing, and we grant for the limited purpose of revising our previous disposition of this question. JM contends, and Appellants concede, that a pre-lien notice is required only if work is provided to someone “other than the owner or the owner’s legal representatives!)]” Indiana Code § 32-28-3-1®. Having already concluded that the undisputed designated evidence established that JM entered into a separate agreement with the Feitlers and that the Feitlers are “owners” within the meaning of the mechanic’s lien statute, we now conclude that JM was not required to issue a pre-lien notice in order to hold a mechanic’s lien, and therefore now affirm the trial court on this point. That said, we also deny Appellee J. Laurie’s rehearing petition in full and reaffirm our original opinion in all other respects.

ROBB, C.J., and BAKER, J., concur.


text:
    OHIO FARMERS INSURANCE COMPANY, et al., Appellants, v. INDIANA DRYWALL & ACOUSTICS, INC., Appellee.
    No. 49S02-1210-CC-599.
    Supreme Court of Indiana.
    Jan. 28, 2013.
   PUBLISHED ORDER

By order dated October 19, 2012, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, including considering the points presented by counsel at oral argument and discussion among the Justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion reported as Ohio Farmers Ins. Co. v. Indiana Drywall & Acoustics, Inc., 970 N.E.2d 674 (Ind.Ct.App.2012), should be reinstated as Court of Appeals precedent. Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end.

The Court DIRECTS the Clerk to certify this appeal as final and to send copies of this order to the Hon. Margret G. Robb, Chief Judge of the Court of Appeals; the Hon. David J. Dreyer, Marion Superior Court; Steve Lancaster, Court of Appeals Administrator; and all counsel of record.

The Court further DIRECTS the Clerk to send a copy of this Order to LexisNexis and to Thomson/Reuters for publication on-line and in the bound volumes of this Court’s decisions.

All Justices concur except RUSH, J., who votes to grant transfer.


text:
    In the Matter of Kathryn R. JANEWAY, Respondent.
    No. 32S00-1207-DI-421.
    Supreme Court of Indiana.
    Jan. 28, 2013.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: Based on an incident on February 8, 2012, Respondent pled guilty to operating a vehicle while intoxicated (“OWI”), a class A misdemeanor. At the time of her arrest, she was a deputy prosecutor for Hendricks County. She has since been terminated from that position.

The parties cite no facts in aggravation. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent self-reported her arrest and conviction to the Commission; (3) Respondent contacted R7 Health at

Methodist Hospital after her arrest and is in full compliance with its recommended treatment program; and (4) Respondent had no prior OWI arrests or convictions.

Violation: The parties agree that Respondent violated Indiana Professional Conduct Rule 8.4(d), which prohibits engaging in conduct prejudicial to the administration of justice.

Discipline: The parties propose the appropriate discipline is a public reprimand. The Court, having considered the submissions of the parties, now approves the agreed discipline and imposes a public reprimand for Respondent’s misconduct.

The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.

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

All Justices concur.


text:
    In the Matter of John W. NELSON, Respondent.
    No. 29S00-1203-DI-197.
    Supreme Court of Indiana.
    Jan. 28, 2013.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: Count 1. Based on an incident on August 31, 2002, Respondent pled guilty to operating a vehicle while intoxicated (“OWI”), a class C misdemean- or. He did not report the finding of guilt to the Commission.

Count £ Based on an incident on August 26, 2006, Respondent pled guilty to Domestic Battery, a class A misdemeanor. He did not report the finding of guilt to the Commission.

Count S. Based on an incident on August 13, 2010, Respondent was tried and found guilty of OWI and operating a vehicle with an “ACE” of between .08% and .15%, both class C misdemeanors. He did not report the findings of guilt to the Commission, even though ordered to do so in the sentencing order.

Aggravating and mitigating facts. The parties cite no facts in aggravation. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; and (2) Respondent has executed a monitoring agreement with the Indiana Judges and Lawyers Assistance Program (“JLAP”), has completed an intensive outpatient program approved by JLAP, continues to receive outpatient therapy, has submitted to random drug screens, which have all been negative, and continues to attend Alcoholics Anonymous meetings.

Violations: The parties agree that Respondent violated these rules which prohibit the following conduct:

Ind. Professional Conduct Rule 8.4(b): Committing a criminal act that reflects adversely on the lawyer’s trustworthiness or fitness as a lawyer.
Ind. Admission and Discipline Rule 23(ll.l)(a)(2): Failure to notify the Commission of a guilty finding, and failure to transmit a certified copy of a guilty finding to the Commission within ten days of the finding.

Discipline: The Court, having considered the submission of the parties, now approves the following agreed discipline.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 180 days, beginning March 8, 2013, with 30 days actively served and the remainder stayed subject to completion of at least 36 months of probation. The Court incorporates by reference the terms and conditions of probation set forth in the parties’ Conditional Agreement, which include:

(1) Respondent shall meet all requirements of his monitoring agreement with JLAP and shall have no violations of the law or the Rules of Professional Conduct during his probation.
(2) If Respondent violates his probation, the Commission will petition to revoke his probation and to require that the stayed suspension be actively served without automatic reinstatement, so that Respondent may be reinstated only through the procedures of Admission and Discipline Rule 23(4) and (18).

Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). Notwithstanding the expiration of the minimum term of probation set forth above, Respondent’s probation shall remain in effect until it is terminated pursuant to a petition to terminate probation filed under Admission and Discipline Rule 23(17.1).

The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.

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

All Justices concur.


text:
    In the Matter of David F. REES, Respondent.
    No. 49S00-1301-DI-75.
    Supreme Court of Indiana.
    Jan. 28, 2013.
   PUBLISHED ORDER ACCEPTING RESIGNATION AND CONCLUDING PROCEEDING

Respondent has tendered to this Court a resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17).

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately. The Clerk of this Court is directed to record Respondent’s resignation on the Roll of Attorneys. Respondent shall fulfill all the applicable duties under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED that all attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent’s resignation from the bar of this State, subject to consideration of pending allegations in the event there is a petition for reinstatement.

Respondent shall be ineligible to petition for reinstatement to the practice of law for five years from the date of this order. See Admis. Disc. R. 23(4)(a). Approval of a petition for reinstatement is discretionary and requires clear and convincing evidence of the petitioner’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The costs of this proceeding are assessed against Respondent.

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

All Justices concur.


author: NAJAM, Judge.

text:
    James T. MITCHELL, Appellant, v. 10TH AND THE BYPASS, LLC, and Elway, Inc., Appellees.
    No. 53A01-1112-PL-593.
    Court of Appeals of Indiana.
    Dec. 4, 2012.

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

NAJAM, Judge.

James T. Mitchell has filed a petition for rehearing asking that we reconsider our holding that the trial court did not abuse its discretion when it vacated its interlocutory partial summary judgment for Mitchell under Indiana Trial Rule 54(B). We grant Mitchell’s petition to address his contention that our opinion misunderstands and mischaracterizes his argument. We think not. After careful consideration, we conclude that on rehearing Mitchell attempts to adjust and supplement his original argument, which he cannot do. Having reviewed the original briefing, we conclude that we correctly decided the question presented in the first instance on appeal, and, therefore, we affirm our opinion in all material respects.

Among his numerous contentions on rehearing, Mitchell alleges that we allowed the abuse of discretion standard of review to dictate the outcome and to create “bad law.” Pet. for Reh’g at 7. Mitchell also criticizes our opinion for its reliance on the plain meaning of Trial Rule 54(B). He further criticizes our opinion for having not taken the “proactive step” of setting forth a list of specific factors that trial judges should consider when exercising their discretion to accept or reject new evidence tendered with a Rule 54(B) motion to vacate an interlocutory order. Id. at 5. And Mitchell chides us for not adopting federal practice on how a trial court should handle new evidence when reconsidering a partial summary judgment under federal Rule 54(b).

In his Appellant’s Brief, Mitchell acknowledged that abuse of discretion is the correct standard of review in this case, that this court will reverse the judgment only if it goes against the logic and effect of the facts or the trial court has misinterpreted the law, that we will not reweigh the evidence, and that we will give the trial court’s order substantial deference. Appellant’s Br. at 6. But Mitchell incorrectly tied the standard of review to “a motion for relief from judgment under Trial Rule 60(B).” Id. We applied the standard of review to the trial court’s decision to revise its interlocutory partial summary judgment under Trial Rule 54(B), which was the question presented on appeal.

Mitchell argued in the first instance and again on rehearing that the “subject to revision” provision in Trial Rule 54(B) is trumped by the “hard and fast” time limits on the designation of evidence under Trial Rule 56, see id. at 7, and he further maintains on rehearing that we should incorporate the due diligence and newly discovered evidence provisions of Trial Rule 60(B) into Trial Rule 54(B). We concluded that where, as here, a ruling is non-final and remains in fieri, a trial court has inherent power to reconsider a previous ruling and to consider a repetitive motion for summary judgment, including an interlocutory partial summary judgment order, when presented with newly discovered evidence. We also concluded that a motion to revise an interlocutory order under Trial Rule 54(B) is not equivalent to a motion for relief from judgment under Trial Rule 60(B). We harmonized Rule 54(B) with Rule 56(C) and Rule 60(B), concluding that these rules address different circumstances and serve different purposes. In sum, we understood Mitchell’s argument, addressed the argument, and rejected the argument.

In our opinion we noted that the federal courts have consistently permitted the reconsideration of interlocutory partial summary judgments under federal Rule 54(b). Mitchell now complains that we did not go far enough, that federal courts have read the due diligence requirement into the federal rule, and that we failed to “interpret[ ] the actual standard that federal courts follow when faced with new evidence submitted with [federal] Rule 54(b) motions.” Pet. for Reh’g at 3. But Mitchell cited no federal case law in either his Appellant’s Brief or his Reply Brief. Having missed the opportunity to present that argument on appeal, it is well-settled that Mitchell may not do so for the first time in his petition for rehearing. See Clark County Drainage Bd. v. Isgrigg, 966 N.E.2d 678, 680 (Ind.Ct.App.2012); Van Prooyen Builders, Inc. v. Lambert, 911 N.E.2d 619, 621 (Ind.Ct.App.2009), trans. denied. Mitchell has waived any reliance on federal case law for interpretation of how to consider newly discovered evidence under Rule 54(B). In any event, we stand by the plain meaning of Trial Rule 54(B) and decline Mitchell’s insistence that we rewrite Rule 54(B) and incorporate provisions from other rules into Rule 54(B).

Finally, Mitchell complains that we failed to explain adequately what standards a trial court should consider when it relies on newly discovered evidence as grounds to revise an interlocutory partial summary judgment under Trial Rule 54(B). Rule 54(B) does not enumerate the factors a trial court should consider in deciding whether to revise an interlocutory order, and this court declines Mitchell’s invitation to fabricate and incorporate a list of factors into the Rule. Rather, Rule 54(B) codifies the well-established common law rule that a trial court has inherent power to reconsider, vacate, or modify any previous order so long as the case has not proceeded to final judgment. See Wabash Grain, Inc. v. Bank One, 713 N.E.2d 323, 325 (Ind.Ct.App.1999). This means that motions to vacate interlocutory partial summary judgment orders are considered by our trial courts on a case-by-case basis and are subject to an abuse of discretion standard of review on appeal.

In sum, we understood and decided this appeal based on the facts and argument originally presented by the parties. Our opinion applying Trial Rule 54(B) recognizes the inherent distinction between an interlocutory order and a final judgment and underscores that a party who wants to avoid the risk that an interlocutory order will be revised “at any time” under Rule 54(B) should ask the court to enter the order as a final judgment. Without reweighing the evidence, we are satisfied that the factors the trial court identified in its decision to set aside the previous interlocutory order are more than sufficient to demonstrate that the court did not abuse its discretion. As such, we affirm our opinion.

Affirmed.

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

      . In his Appellant’s Brief, Mitchell repeatedly asserted that the "trial court erred when it relied on Trial Rule 54(B),” Appellant's Br. at 6; that "[n]othing in Trial Rule 54(B) allows the trial court to consider evidence that [the LLC originally] failed to designate,” id. at 6-7; that "Trial Rule 54(B) ... does not allow the trial court to consider belatedly!]designated evidence,” id. at 8; that the LLC’s reliance on Johnson’s testimony "fell far below the showing of 'due diligence’ that was required for them to designate new evidence under Rule 60(B),” id. at 13; and that, "[w]hen a party asks a trial court to reconsider a judgment based on newly[ designated evidence! ] it must show that the evidence could not have been discovered ‘by the exercise of due diligence,’ ” id. (citing Ind. Trial Rule 60(B)). On rehearing, Mitchell tweaks his original argument to assert, for the first time, that Rule 54(B) contains its own implied provision for the consideration of newly discovered evidence. Pet. for Reh’g at 3-4, 8. We anticipated this argument when we stated that "Mitchell's interpretation [of Rule 60(B)] would, in effect, add a due diligence requirement to the subject-to-revision provision applicable to interlocutory orders under Trial Rule 54(B), a requirement which is simply not there.” Op. at 10. But whether we consider Mitchell’s original argument or its iteration on rehearing, our opinion remains the same: the trial court did not abuse its discretion when it relied on Trial Rule 54(B) to vacate its interlocutory partial summary judgment.

      . Mitchell also urges us to adopt the reasoning from Liggett v. Young, 851 N.E.2d 968 (Ind.Ct.App.2006), an opinion that was vacated by our Supreme Court, see 877 N.E.2d 178 (Ind.2007). Pet. for Reh’g at 9. This argument differs from Mitchell’s argument in his Appellant’s Brief that the "trial court improperly relied on Liggett v. Young." Appellant’s Br. at 10 (emphasis removed). In any event, Mitchell's enthusiasm for the reasoning in Liggett is misplaced. In Liggett, the trial court entered its partial summary judgment as a final judgment. 851 N.E.2d at 973 n. 2. Thus, we correctly rejected Liggett’s argument that the trial court should have considered new evidence under the "subject to revision at any time” provision of Trial Rule 54(B). Here, of course, the partial summary judgment in question was interlocutory. Even if Liggett had not been vacated by our supreme court, it would not be on point.

      . Mitchell also contends on rehearing that the evidence in question — Johnson's testimony— was not, in fact, newly discovered evidence. This argument is, in effect, a restatement of Mitchell’s contention that the LLC did not act with due diligence in obtaining and designating Johnson's testimony during the original partial summary judgment proceedings. For the reasons stated in our original opinion, this argument must fail.

      . In our opinion, we concluded that due diligence was one consideration the trial court properly considered but was not necessarily the controlling factor.


author: VAIDIK, Judge.

text:
    David VANCE, Appellant-Plaintiff, v. Francisco LOZANO, et al., Appellees-Defendants.
    No. 02A03-1203-SC-142.
    Court of Appeals of Indiana.
    Dec. 10, 2012.

      Eric E. Snouffer, Snouffer & Snouffer, Fort Wayne, IN, Attorney for Appellant.
    Thomas D. Smith, Fort Wayne, IN, Attorney for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

David Vance hired Rock Solid Concrete Inc. and Francisco Lozano to do some concrete work at his Fort Wayne home. Over a year later, his driveway had some pitting. The parties disagreed over what caused the pitting and brought in a third party, who concluded that the pitting was caused by road salt — not bad concrete. Nevertheless, negotiations continued and Rock Solid agreed to replace the driveway at no cost to Vance. When Rock Solid did not timely follow through with its promise, Vance sued in small-claims court. The small-claims court found that Rock Solid made a good-will gesture that was not an enforceable contract, and Vance now appeals. Concluding that the settlement of a doubtful claim is sufficient consideration for a compromise if the claim is made fairly and in good faith, even if it is possibly meritless, we reverse.

Facts and Procedural History

In May 2009, Vance and Rock Solid entered into an agreement whereby Rock Solid would remove and replace Vance’s driveway, sidewalks, and drive approach at his Fort Wayne home. Rock Solid performed the work in July 2009 and warned Vance about the standard of care for newly poured concrete, including the danger of road salt.

Approximately a year and a half later, in December 2010, Vance reported to Rock Solid that his driveway had some pitting and scaling. Thereafter, Vance and Rock Solid, through Lozano, engaged in discussions about the possible causes of the pitting and scaling. In March 2011, the parties arranged for a third party, Erie Haven, to inspect Vance’s driveway, test the concrete, and determine the cause of the pitting and scaling. Erie Haven offered its non-binding conclusion on March 21 that the concrete was structurally sound and that the pitting and scaling was due to indirect salt application, that is, “snow melting from cars onto the driveway.” Appellant’s App. p. 23. Erie Haven recommended power washing Vance’s driveway and applying a quality sealer. Id.

After reviewing Erie Haven’s findings and recommendations, Rock Solid wrote a letter to Vance offering to power wash and re-seal Vance’s driveway as a “one time” “Customer Accommodation.” Id. at 25. Rock Solid “apologize[d] for the difficulties” that Vance had experienced with the pitting and scaling but felt “that this problem [was] related [to] salt damage, not the concrete, nor the workmanship.” Id.

Vance was unhappy with this proposal, and on June 7, 2011, Rock Solid offered to replace Vance’s driveway at no charge to him. Rock Solid said that it would try to replace the driveway by the end of August 2011. Vance sent Rock Solid and Lozano several letters, emails, and text messages requesting tentative dates, but Rock Solid and Lozano never responded. Frustrated by the lack of responses, on September 12, 2011, Vance filed a notice of claim against Rock Solid and Lozano in the small-claims division of Allen Superior Court alleging breach of contract. A trial was held in November 2011. Although not required to make findings, Bowman v. Kitchel, 644 N.E.2d 878, 879 (Ind.1995), the small-claims court made the following findings:

4. The evidence indicated that said pitting most likely occurred from the road salt coming into contact with the concrete.
5. The evidence also showed that Defendant instructed Plaintiff that care had to be used with newly installed concrete to avoid such from happening and that the same is standard for all new concrete.
6. The evidence also showed that from the Defendant and third party witnesses, that the Defendant used the appropriate standard of care, the appropriate concrete mixture, and the appropriate installation methods for said concrete for the Plaintiff.
7. The Plaintiff failed to prove that Defendant breached its’ [sic] contract or failed to complete the job in a workmanlike manner.
8. The Defendant later agreed voluntarily as a goodwill gesture to replace a portion of the concrete at his own expense.
9. The evidence indicated that Defendant would attempt to replace the concrete by the end of August 2011.
10. That shortly after the time initially indicated as a potential time for replacement of the concrete by the Defendant, the same had not been completed and Plaintiff filed his lawsuit in this matter.
11. The Court finds that Plaintiff did not carry his burden of proof that the Defendants’ work was defective in any way, and therefore the Court finds the Defendants are not liable to the Plaintiff for breach of the contract of the parties.
12. The Court also finds that the Defendant did state he would repair the concrete. The Court also finds that while the Defendant may and should carry out his goodwill gesture of replacing the concrete, the Defendant did not breach any contractual agreement with the Plaintiff to do the same as there was no defect in the work of Defendants, and that there was no contract requiring Defendants to do the same.
13. Finally the court finds there are no monetary damages owing from Defendants to Plaintiff.

Appellant’s App. p. 6-7.

Vance now appeals.

Discussion and Decision

Vance contends that the small-claims court erred in entering judgment in favor of Rock Solid and Lozano on his breach-of-contract claim. Our standard of review in small-claims cases is well settled. Small-claims court judgments are “subject to review as prescribed by relevant Indiana rules and statutes.” Ind. Small Claims Rule 11(A). Under Indiana Trial Rule 52(A), the clearly erroneous standard applies to appellate review of facts determined in a bench trial with due regard given to the opportunity of the trial court to assess witness credibility. This deferential standard of review is particularly important in small-claims actions, where trials are designed to speedily dispense justice by applying substantive law between the parties in an informal setting. Berryhill v. Parkview Hosp., 962 N.E.2d 685, 689 (Ind.Ct.App.2012). But this deferential standard does not apply to the substantive rules of law, which are reviewed de novo just as they are in appeals from a court of general jurisdiction. Id.

The parties in small-claims court bear the same burdens of proof as they would in a regular civil action on the same issues. Ind. Small Claims Rule 4(A). It is incumbent upon the party who bears the burden of proof to demonstrate that it is entitled to the recovery sought. Berryhill, 962 N.E.2d at 689. We consider evidence in the light most favorable to the judgment, together with all reasonable inferences to be drawn therefrom. Id. We will reverse a judgment only if the evidence leads to but one conclusion and the trial court reached the opposite conclusion. Id.

Vance argues that the trial court erred as a matter of law in concluding that Rock Solid’s agreement to replace the driveway “was simply a goodwill gesture and not an enforceable agreement.” Appellant’s Br. p. 7. We agree with Vance that the parties entered into an enforceable settlement agreement.

Indiana strongly favors settlement agreements. Georgos v. Jackson, 790 N.E.2d 448, 453 (Ind.2003). Settlement agreements are governed by the same general principles of contract law as any other agreement. Id. A “compromise” or “settlement” is a contract between two or more people to amicably settle or adjust their differences on such terms as they can agree. 15B Am.Jur.2d Compromise & Settlement § 1 (2011). More specifically, a “compromise” has been defined as an agreement whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship. Id. A “settlement agreement” constitutes a “compromise”; the underlying purpose is to end a claim or dispute and avoid, forestall, or terminate litigation. Id.

A compromise, like any other contractual agreement, must be supported by consideration on both sides. Id. at § 19. Notably, a claim need not be valid or well-founded to support a compromise; rather, the settlement of a doubtful claim is sufficient consideration for a compromise if the claim is made fairly and in good faith, even if it is possibly meritless. Id. at § 21. “No investigation into the character of the relative values of the different claims involved will be entered into, it being enough if the parties to the agreement thought that there was an actual controversy between them, without regard to what may afterwards turn out to have been an inequality of consideration.” Id.

Here, the evidence shows that Vance complained to Rock Solid about pitting and scaling of his driveway. In March 2011, after three months of discussions, third-party Erie Haven inspected Vance’s driveway and offered its non-binding conclusion that the pitting and scaling was due to road salt and recommended that Vance’s driveway be power washed and re-sealed. In April 2011, Rock Solid offered to power wash and re-seal Vance’s driveway as a one-time customer courtesy. Vance was unhappy with this solution, and on June 7, 2011, Rock Solid offered to replace Vance’s driveway at no charge to him around the end of August 2011. When Vance sent Rock Solid and Lozano several letters, emails, and text messages requesting tentative dates, Rock Solid and Lozano never responded. Discouraged by the lack of communication, in September 2011, Vance filed a notice of claim in small-claims court alleging breach of contract.

We find there to be an enforceable settlement agreement between the parties that settled their dispute as to the cause of the pitting and scaling of Vance’s driveway and that its purpose was to avoid litigation on the subject. Even though Rock Solid and Lozano argue that no good-faith dispute existed because Erie Haven concluded in March 2011 — which, notably, was three months before Rock Solid made its offer to replace Vance’s driveway at no cost to him — that the pitting and scaling was from road salt, the settlement of a doubtful claim is sufficient consideration for a compromise if the claim is made fairly and in good faith, even if it is possibly meritless. There is no evidence in the record that Vance has not acted fairly or in good faith. Accordingly, we reverse the trial court’s judgment in favor of Rock Solid and Lozano.

Reversed.

BAILEY, J., and BROWN, J., concur.

      . There is no indication in the record of Loza-no's official relationship to Rock Solid.


author: BARNES, Judge.

text:
    Byram E. DICKES, Ruth E. Logar, Christopher S. Spiritoso, Gregory Spiritoso, Lindsey E. Dickes, Dickes Development Co., LLC, and, Dickes Real Estate, LLC, Appellants-Plaintiffs, v. Ronald D. FELGER, and Shambaugh, Kast, Beck & Williams, LLP, Appellees-Defendants.
    No. 02A03-1206-PL-302.
    Court of Appeals of Indiana.
    Dec. 13, 2012.

      Timothy Logan, Benson Pantello Morris James & Logan, LLP, Fort Wayne, IN, Attorney for Appellants.
    Benjamin D. Ice, William A. Ramsey, Murphy Ice & Koeneman, LLP, Fort Wayne, IN, Attorneys for Appellees.
   OPINION

BARNES, Judge.

Case Summary

Byram Dickes, Ruth Logar, Christopher Spiritoso, Gregory Spiritoso, Lindsey Dickes, Dickes Development Co., LLC, and Dickes Real Estate, LLC, (collectively, “Plaintiffs”) appeal the trial court’s grant of summary judgment to Ronald Felger and Shambaugh, Kast, Beck & Williams, LLP (collectively, “Attorneys”). We affirm.

Issue

Plaintiffs raise three issues, which we consolidate and restate as whether the trial court properly determined that their attorney malpractice claim was barred by the statute of limitations.

Facts

Felger was an attorney for Fred Dickes for a number of years. An abandoned railroad right-of-way and an interurban right-of-way crossed Fred’s property in Allen County. Fred and his wife already owned the interurban right-of-way. In 1995, Felger represented Fred in his efforts to obtain fee simple ownership of the abandoned railroad right-of-way property through a reverter clause in the original right-of-way grant to the railroad. Felger negotiated with the railroad, and a 1995 quitclaim deed pur-ported to transfer ownership of the railroad right-of-way property to Fred. However, the legal description in the deed was apparently the legal description of the interurban right-of-way. Fred died in 2000, and at some point, Fred’s properties passed to Plaintiffs.

At some point, Plaintiffs determined that they did not own the abandoned railroad right-of-way, and on March 5, 2009, they filed a complaint against Attorneys for attorney malpractice. Plaintiffs alleged that Attorneys failed to obtain clear and marketable title to real estate as requested by Fred and that Plaintiffs had suffered damage as a result. On August 17, 2010, a pre-trial conference was held, and the trial court issued the following order:

Court is informed that [Attorneys] intend to file a Motion for Summary Judgment within the next few days. Parties agree that Plaintiffs may have sixty (60) days to respond to Motion for Summary Judgment and during that sixty (60) day period, Ronald D. Felger shall submit to deposition without limitation as to subject matter.

App. p. 12.

On September 10, 2010, Attorneys filed a motion for summary judgment and argued that Plaintiffs’ claims were barred by the statute of limitations. Attorneys designated, in part, Felger’s affidavit. In response, on November 8, 2010, Plaintiffs filed a motion to strike Felger’s affidavit and a motion to compel certain discovery. Plaintiffs also filed a “Verified Trial Rule 5 Filing,” which contained certain discovery responses. Id. at 68. Finally, Plaintiffs also filed a designation of evidence in response to Attorneys’ motion for summary judgment, which included affidavits from Byram Dickes, Terry Cornelius, James Federoff, and Robert Wartebe and various discovery responses. The “designation” included several hundred pages of documents. Plaintiffs did not file a memorandum in response to Attorneys’ motion for summary judgment.

On May 31, 2011, Attorneys filed a reply memorandum in support of their motion for summary judgment. The next day, they also filed a response to the motion to compel, response to the motion to strike, and an amended reply. Attorneys argued, in part, that Plaintiffs’ November 2010 response was improper because Plaintiffs failed to properly designate a material issue of fact and failed to submit a memorandum. Attorneys also asked that the trial court strike Plaintiffs’ designation. On June 15, 2011, Plaintiffs filed a lengthy memorandum in response to Attorneys’ motion for summary judgment. Attorneys responded by filing another motion to strike on June 20, 2011. Attorneys argued that Plaintiffs’ memorandum was untimely.

The trial court held a hearing on June 20, 2011, and denied Attorneys’ June 20, 2011 motion to strike. The trial court took the other motions to strike and the motion for summary judgment under advisement. On June 1, 2012, the trial court entered an order addressing the outstanding motions. The trial court granted in part and denied in part Plaintiffs’ November 2010 motion to strike certain paragraphs of Felger’s affidavit. The trial court also granted in part and denied in part Attorneys’ June 2011 motion to strike portions of Plaintiffs’ designated affidavits. As for the motion for summary judgment, the trial court noted that the statute of limitations was two years and held that Plaintiffs “certainly knew there was both an act of negligence and resulting damage not later than June 30, 2006.” Id. at 23. Thus, the March 2009 complaint was barred by the statute of limitations, and the trial court granted summary judgment to Attorneys. Plaintiffs now appeal.

Analysis

The issue is whether the trial court properly determined that Plaintiffs’ complaint was barred by the statute of limitations. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56. We liberally construe all designated evidentiary material in a light most favorable to the non-moving party to determine whether there is a genuine issue of material fact. Bradshaw v. Chandler, 916 N.E.2d 163,166 (Ind.2009). The party that lost in the trial court has the burden of persuading the appellate court that the trial court erred. Id. Our review of a summary judgment motion is limited to those materials designated to the trial court. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind.2001).

We first address Plaintiffs’ argument that the trial court abused its discretion by striking portions of the Terry Cornelius and the Byram Dickes affidavits. The trial court struck paragraphs 24 and 27 of Cornelius’s affidavit and all of paragraphs 8, 9, 10, 25, and 27 and portions of paragraphs 19, 26, 29, 33, 34, 37, 42, and 43 of Byram Dickes’s affidavit. Plaintiffs do not identify which paragraphs were wrongly stricken, explain why the paragraphs were admissible, or explain how they were prejudiced. A party waives an issue where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record. York v. Fredrick, 947 N.E.2d 969, 979 (Ind.Ct.App.2011), trans. denied. Consequently, Plaintiffs have waived this issue due to their failure to make a cogent argument.

Additionally, Attorneys argue that the trial court abused its discretion by denying their motions to strike. According to Attorneys, Plaintiffs’ November 2010 filings were improper because they failed to specifically designate issues of material fact, and Plaintiffs’ June 2011 filings were improper because they were untimely. However, we need not address Attorneys’ arguments because, even if we consider Plaintiffs’ filings, we conclude that the trial court properly granted summary judgment to Attorneys.

The statute of limitations for a claim of legal malpractice is two years. Ind.Code § 34-11-2-4. “Further, legal malpractice actions are subject to the 'discovery rule,’ which provides that the statute of limitations does not begin to run until such time as the plaintiff knows, or in the exercise of ordinary diligence could have discovered, that he had sustained an injury as the result of the tortious act of another.” Biomet Inc. v. Barnes & Thornburg, 791 N.E.2d 760, 765 (Ind.Ct.App.2003), trans. denied. “For a wrongful act to give rise to a cause of action and thus to commence the running of the statute of limitations, it is not necessary that the extent of the damage be known or ascertainable but only that damage has occurred.” Shideler v. Dwyer, 275 Ind. 270, 282, 417 N.E.2d 281, 289 (1981). Plaintiffs filed their complaint against Attorneys on March 5, 2009. Thus, if Plaintiffs’ action accrued before March 5, 2007, the statute of limitations would bar their claim. Attorneys contend that Plaintiffs knew or should have known that they had been injured no later than June 2006.

The designated evidence demonstrates that, in 1995, Felger prepared a deed, which purportedly transferred the abandoned railroad right-of-way to Fred Dickes. However, by 1999, property tax issues regarding the property began appearing. After Fred’s death in 2000, Plaintiffs were notified of a class action lawsuit concerning the abandoned railroad right-of-way, issues reappeared concerning the property taxes, and problems with various deeds appeared. According to Fel-ger, he learned of the error in the deed in 2006 and notified Plaintiffs by letter on February 17, 2006. The letter, although confusingly worded, informed Plaintiffs that the 1995 deed concerned the interurban right-of-way, and that the railroad was determined to be the owner of the abandoned railroad right-of-way in the class action litigation.

In February 2006, Plaintiffs hired attorney Terry Cornelius to investigate or “reconfirm” that the family owned the abandoned railroad right-of-way. App. p. 391. In May 2006, Cornelius wrote to Plaintiffs that he did “not have a favorable resolution to report” and that Felger was not cooperating with him. Id. at 393. Cornelius advised Plaintiffs regarding the prior class action lawsuit regarding the abandoned railroad property, Indiana statutes providing that rights of reversion expire thirty years after the grant, and possible resolutions to the problem, which included negotiating with the “current owner of the land,” which was a bicycle trail organization. Id. at 395.

On June 30, 2006, Cornelius informed Plaintiffs that he had ordered a title search, which did not reveal any deed transferring the abandoned railroad right-of-way to Fred Dickes. Cornelius’s letter suggested either an expensive declaratory judgment action to determine ownership of the abandoned railroad right-of-way or negotiation with the current owner. On July 12, 2006, Cornelius again wrote to Plaintiffs. He noted that he had not heard from them and that he assumed they did not wish to pursue the litigation. A year later, on July 17, 2007, Byram Dickes wrote to Cornelius. He noted they were still attempting to develop the property and explained his discovery of the 1995 deed from the railroad to Fred Dickes that contained the wrong legal description.

The trial court concluded that Plaintiffs “certainly knew there was both an act of negligence and resulting damage not later than June 30, 2006.” Id. at 23. We agree that Plaintiffs here were aware of or could have discovered Attorneys’ alleged malpractice by the summer of 2006. Plaintiffs were aware that, despite the 1995 negotiations with the railroad and the deed, they in fact did not own the abandoned railroad right-of-way. Further, they were clearly aware that they had been damaged, as the right-of-way was interfering with their proposed development of the property. Although Plaintiffs were not able to definitively point to the wrong legal description on the deed as Attorneys’ exact error until the summer of 2007, they were aware of the issues with Attorneys’ work long before that time.

Plaintiffs also argue that the statute of limitations does not bar their claim because of Attorneys’ fraudulent concealment. “When the plaintiff obtains information that would lead to the discovery of the cause of action through ordinary diligence, the statute of limitations begins to run, regardless of any fraudulent concealment perpetrated by defendant.” Doe v. United Methodist Church, 673 N.E.2d 839, 844 (Ind.Ct.App.1996), irons, denied. Even if Attorneys’ fraudulently concealed their error, Plaintiffs were still aware of the issues by the summer of 2006, and their March 2009 complaint was untimely. Consequently, we conclude that Plaintiffs’ claim was barred by the statute of limitations.

Conclusion

The trial court properly granted summary judgment to Attorneys because Plaintiffs’ attorney malpractice claim was barred by the statute of limitations. We affirm.

Affirmed.

BAKER, J„ and RILEY, J., concur.