text:
    Geoffrey ODLE, Personal Representative of the Estate of Floyd L. Odle, Deceased, Appellant, v. INDIANA DEPARTMENT OF STATE REVENUE, Appellee.
    No. 49T10-1210-TA-61.
    Tax Court of Indiana.
    June 28, 2013.

      Stephen W. Cook, Cook & Cook, Nobles-ville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, John D. Snethen, Jessica E. Reagan, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
   FISHER, Senior Judge.

The Estate of Floyd L. Odie through its personal representative, Geoffrey Odie, appeals the Hamilton Superior Court No. l’s (probate court) determination that the beneficiaries under Floyd’s will were properly classified as Class B and C transferees for Indiana inheritance tax purposes. In challenging the probate court’s determination, the Estate contends that the classification of beneficiaries for purposes of Indiana’s inheritance tax scheme violates Indiana’s Constitution Article 1, Sections 1, 12, 23, and 35 and Article 4, Section 22. The Court affirms.

FACTS AND PROCEDURAL HISTORY

On February 12, 2009, Floyd L. Odie died testate. Because Floyd’s wife preceded him in death and the couple never had children of their own, Floyd left his entire estate to several collateral relatives, including nephews, great nieces, and great nephews.

On November 10, 2009, the Estate filed its Indiana inheritance tax return classifying each of Floyd’s beneficiaries as either Class B or Class C transferees. The Estate remitted its inheritance tax payment to the Hamilton County Treasurer on the same day. The probate court issued an order accepting the Estate’s inheritance tax return as filed on November 19, 2009.

On March 15, 2010, the Estate filed a refund claim with the Department, contending that all of Floyd’s beneficiaries should have been classified as Class A transferees, not Class B or Class C transferees. The Department denied the refund claim on the same day.

The Estate subsequently appealed the Department’s denial of its refund claim to the probate court. On May 7, 2012, after holding a hearing, the probate court issued an order determining that Floyd’s beneficiaries had been properly classified as Class B and Class C transferees.

The Estate appealed to this Court on June 4, 2012. The Court heard oral argument on January 11, 2013. Additional facts will be supplied as necessary.

STANDARD OF REVIEW

The Indiana Tax Court acts as a true appellate tribunal when reviewing an appeal of a probate court’s determination concerning the amount of Indiana inheritance tax due. Ind.Code § 6-4.1-7-7 (2013); In re Estate of Young, 851 N.E.2d 393, 395 (Ind. Tax Ct.2006) (citation omitted). Accordingly, while the Court will afford the probate court great deference in its role as the finder of fact, it will review the probate court’s legal conclusions de novo. In re Young, 851 N.E.2d at 395. (citations and footnote omitted).

LAW

“Indiana’s inheritance tax statutes impose, at the time of [a] decedent’s death, a tax on the privilege of succeeding to certain property rights of deceased persons.” Indiana Dep’t. of State Revenue v. Estate of Parker, 924 N.E.2d 230, 236 (Ind. Tax Ct.2010) (citations omitted). Consequently, the tax is imposed on a transferee’s right to succeed to a decedent’s property rather than the property itself. See Indiana Dep’t. of State Revenue v. Smith, 473 N.E.2d 611, 613 (Ind.1985) (citations omitted).

The amount of inheritance tax due on each of the decedent’s transfers is based on the fair market value (usually as of the decedent’s death) of the property interests transferred and the relationship between the decedent and the transferee. Indiana Dep’t. of State Revenue v. Estate of Brandewiede, 873 N.E.2d 209, 212 (Ind. Tax Ct.2007) (citations omitted); see also In re Grotrian’s Estate, 405 N.E.2d 69, 80 (Ind.Ct.App.1980) (explaining that the “closer” the relation between the decedent and transferee, as defined by the Legislature, the more favorable the tax treatment). With respect to this latter factor, the Legislature has grouped these relationships into three “classes”: Class A, Class B, and Class C. See Ind.Code § 6-4.1-1-3 (2009) (amended 2011).

Class A transferees, who include, among others, the decedent’s lineal ancestors and descendants (e.g., children or grandchildren), the decedent’s stepchildren, and their lineal descendants (regardless of whether the stepchild or the stepchild’s lineal descendant were adopted), pay taxes on amounts exceeding $100,000 at rates ranging from 1 to 10 percent. See I.C. § 6^.1-l-3(a); Ind.Code § 6-4.1-3-10 (2009) (amended 2012); Ind.Code § 6-4.1-5-l(b) (2009). Class B transferees, the decedent’s siblings, a descendant of a brother or sister of the decedent (e.g., a niece or nephew), and a spouse, widow, or widower of a child of the decedent, pay taxes on amounts exceeding $500 at rates ranging from 7 to 15 percent. See I.C. § 6 — 4.1—1—3(b); Ind.Code § 6-4.1-3-11 (2009); I.C. § 6-4.1-5-l(c). Class C transferees include all other transferees (except a surviving spouse) who are neither Class A nor Class B transferees; they pay taxes on amounts exceeding $100 at rates ranging from 10 to 20 percent. See I.C. § 6-4.1 — 1—3(c); Ind.Code § 6-4.1-3-12 (2009); I.C. § 6-4.1-5-l(d).

DISCUSSION

The Estate contends the creation of “classes” for the determination and collection of inheritance tax that base both the amount of exemption and tax rate on the relationship between a decedent and a transferee violates Indiana’s Constitution Article 1, Sections 1, 12, 23, and Article 4, Section 22. (See Appellant’s Br. at 6.) The Department, however, claims that the Indiana Supreme Court found the inheritance tax classification scheme constitutional over ninety years ago in Crittenberger v. State Savings & Trust Company, 189 Ind. 411, 127 N.E. 552 (1920). (See Appellee’s Br. at 1, 5-7.)

Courts should not pass upon constitutional questions and declare statutes invalid unless a decision upon that very point becomes necessary to the resolution of a cause. See Indiana Wholesale Wine & Liquor Co. v. State ex rel. Indiana Alcoholic Beverage Comm’n., 695 N.E.2d 99, 107 (Ind.1998) (citation omitted). Thus, even if the quality of litigation is sufficient to support a constitutional determination, a court should avoid constitutional issues when it can sustain a judgment on non-constitutional grounds. See id. As such, the Court must first determine whether Crittenberger resolves any of the claims in this case.

In Crittenberger, the Indiana Supreme Court determined that a statute, which exempted certain educational and charitable bequests and devises from inheritance tax, comported with Article 1, Section 10 (the uniformity and equality of assessment and taxation clause) of our Constitution. Crittenberger, 127 N.E. at 555-56. In reaching that conclusion, the Indiana Supreme Court explained that the right to take property by descent or devise is a right owing its existence to the authority of legislative enactment and is not a natural right; thus, the right is subject to legislative abrogation and regulation. Id. at 556 (footnote added). In other words,

the Legislature may make [the inheritance tax] applicable to one class of persons or corporations and inapplicable to another class, provided the tax is uniform as to the class upon which it operates. The state [ ] may tax the right or privilege of taking property by descent or devise, discriminate between relatives, and between these and strangers, and grant exemptions, and [is] not precluded from this power by the provisions of the [] state Constitution [] requiring uniformity and equality of taxation.

Id. (emphasis added) (citations omitted).

Crittenberger, therefore, clearly provides that inheritance tax classification schemes that distinguish between lineal relatives, collateral relatives, and strangers are both equitable and reasonable when the classifications and statutory schemes operate on the classes uniformly. See id. at 555-56 (citations omitted). Consequently, the Supreme Court’s holding in Crittenberger resolves the Estate’s Article 1, Section 1 and Article 1, Section 23 claims in favor of the Department. Accordingly, the Court turns to the Estate’s remaining constitutional claims.

Article 1, Section 12

Article 1, Section 12 of the Indiana Constitution provides: “All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have a remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.” Ind. Const. art. 1, § 12. The Estate claims Indiana’s inheritance tax classification scheme violates this constitutional provision by producing inequitable administration costs and remedies through its imposition of varying inheritance tax liabilities based on arbitrary familial distinctions. (See Appellant’s Br. at 6-9, 11 (arguing that Floyd’s beneficiaries, as Class B and Class C transferees, paid 458% more in tax than they would have as Class A transferees).)

The remedies clause of Article 1, Section 12 prescribes procedural fairness, guaranteeing a “ ‘remedy by due course of law’ for injuries to ‘person, property, or reputation.’ ” McIntosh v. Melroe Co., a Div. of Clark Equipment Co., Inc., 729 N.E.2d 972, 975 (Ind.2000) (citation omitted). This constitutional assurance of a remedy for injury, however, does not create any new substantive right to recover for a particular harm. Id. at 977 (citation omitted). “ ‘Rather, the clause promises that, for injuries recognized elsewhere in law, the courts will be open for meaningful redress.’ ” Id. (citation omitted).

The Legislature has provided the Estate with four alternative remedies by which to challenge the determination and collection of inheritance tax. See Sibbitt v. Indiana Dep’t. of State Revenue, 568 N.E.2d 146, 147-48 (Ind.Ct.App.1990), trans. denied. The Estate has taken advantage of one of those remedies, the claim for refund process. See supra pp. 633-34 (noting that the Estate has, and currently is using, the claim for refund process to challenge its purportedly improper inheritance tax liability); Ind.Code § 6-4.1-10-1 et seq. (2009). In so doing, the Estate has been able to present to both the probate court and this Court its claims via written motions, written briefs, and oral argument. Consequently, the Estate has not demonstrated that the inheritance tax classification scheme violates Section 12 by imposing inequitable administration costs and remedies.

Article 4, Section 22

Article 4, Section 22 prohibits the enactment of “local” or “special” laws regarding, among other things, “the assessment and collection of taxes for State, county, township, or road purposes.” Ind. Const. art. 4, § 22. The Estate contends that the inheritance tax classifications constitute prohibited special laws because they are not based on consanguinity or any other “uniquely meaningful” or inherently distinguishable characteristic. (See Oral Argument Tr. at 19-20; Appellant’s Br. at 7,10-11.) The Court disagrees.

“The determination of whether a law is special or general is a threshold question in determining its constitutionality under” Article 4, Section 22. Alpha Psi Ch. of Pi Kappa Phi Fraternity, Inc. v. Auditor of Monroe Cnty., 849 N.E.2d 1131, 1136 (Ind.2006) (citation omitted). “A statute is ‘special’ if it ‘pertains to and affects a particular case, person, place, or thing, as opposed to the general public.’ ” Municipal City of South Bend v. Kimsey, 781 N.E.2d 683, 689 (Ind.2003) (citation omitted). “A statute is ‘general’ if it applies ‘to all persons or places of a specified class throughout the state.’ ” Id. (citation omitted). Contrary to the Estate’s contention, therefore, the statutes classifying beneficiaries for the determination and collection of inheritance tax are not special laws; rather, they are general laws because they apply to beneficiaries throughout the entire state in the same manner. Accordingly, the Estate has not shown that Indiana’s inheritance tax classification statutes are special laws in violation of Section 22.

CONCLUSION

For the above-stated reasons, the Court AFFIRMS the probate court’s determination that Floyd’s beneficiaries were properly classified as Class B and C transferees for Indiana inheritance tax purposes.

      . Article 1, Section 35 of Indiana’s Constitution provides that “[t]he General Assembly shall not grant any title of nobility, nor confer hereditary distinctions.” Ind. Const, art. 1, § 35. The Estate claims that the inheritance tax classification scheme grants benefits to individuals based on birth alone in violation of Article 1, Section 35. (See Oral Argument Tr. at 15-16, 18-19; Appellant’s Reply Br. at 2; Appellant’s Br. at 7-8.) The Court, however, declines to address this claim because it was not adequately developed. See Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind. 1996) (explaining that interpreting a particular provision of the constitution involves an " 'examin[ation of] the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of our constitution, and case law interpreting the specific provision]]]’ ”) (citations omitted); Bunker v. Nat’l. Gypsum Co., 441 N.E.2d 8, 15 (Ind.1982) (explaining that a court may decline to reach a constitutional issue when a litigant fails to present a sufficient legal argument) (Hunter, J., dissenting).

      . See also, e.g., In re Booth’s Ex’r. v. Commonwealth Jefferson Cnty. Att’y., 130 Ky. 88, 113 S.W. 61, 63-64 (1908) State v. Hamlin, 86 Me. 495, 30 A. 76, 80 (1894) (explaining that the right to take by devise or descent is a creature of legislative enactment, not a natural right).

      . Article 1, Section 1, provides in part: "That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness[.]” Ind. Const, art. 1, § 1. The Estate claimed the inheritance tax classification scheme, by basing exemptions and tax rates on the dece-denVtransferee relationship, contravenes the "principal of equality” in Section 1 because it requires that all "classes” be treated the same (i.e., receive the same exemption and tax rate). (See Appellant's Br. at 6, 9-10.)

      . Article 1, Section 23, the Privileges and Immunities Clause, states: "The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.” Ind. Const, art. 1, § 23. The Estate claimed the scheme violates Section 23 because the "classes” are based on "arbitrary ” familial relationships that are not inherently different. (See Oral Argument Tr. at 8-10; Appellant’s Br. at 7-8, 10 (arguing that there is no distinction between a stepchild (i.e., a Class A transferee), on the one hand, and a niece or nephew (i.e., a Class B transferee), on the other).)

      .The Estate also argued that the inheritance tax classification scheme impermissibly interferes with Floyd’s “right” to transfer his estate to his great nieces and great nephews without penalty and restriction, and that the General Assembly has no "legitimate interest in determining who a decedent's transferees should be.” (See Oral Argument Tr. at 10, 12-13; Appellant’s Reply Br. at 3.) The Court, however, finds the arguments unpersuasive because it is a generally recognized rule of law that inheritance tax statutes are not intended to take away the right of a person to make an absolute gift and transfer of his property. In re Conway’s Estate v. State, 72 Ind.App. 303, 120 N.E. 717, 720 (1918). Instead, the statutes are intended to impose a tax on transfers of property by will, by the laws of inheritance, and by other comparable transfers. Id.

      . Indiana Code § 6-4.1-10-1 allows a person to file a claim for the refund of inheritance tax that has been erroneously or illegally collected within three years after the tax is paid or one year after the tax is finally determined, which is later. Ind.Code § 6-4.1-10-1 (a) (2009).

      . Furthermore, to the extent the Estate’s Section 22 claim involves the propriety of the inheritance tax classifications themselves, Crittenberger has already resolved that claim. See Crittenberger v. State Sav. & Trust Co., 189 Ind. 411, 127 N.E. 552, 555-56 (1920). Indeed, one of the cases upon which the Supreme Court relied upon in Crittenberger states:

        To make a distinction between collateral kindred or strangers in blood and kindred in the direct line in reference to the assessment of [an inheritance] tax, either by exempting the kindred in the direct line or by imposing on collaterals and strangers a higher rate of taxation, has the sanction of nearly all states which have levied taxes of this kind. It has a sanction in reason, for the moral claim of collaterals and strangers is less than that of kindred in the direct line, and the privilege is therefore greater. The tax imposed by this statute is uniformly imposed upon all estates and all persons within the description contained in it, and the tax is not plainly and grossly oppressive in amount.

        Minot v. Winthrop, 162 Mass. 113, 38 N.E. 512, 516 (1894) (emphasis added); see also Crittenberger, 127 N.E. at 556.


source: Caselaw Access Project

author: RILEY, Judge.

license: Public Domain

text:
    Gerry SCHEUB, in his official capacity as a Member of the Lake County Drainage Board and the Lake County Drainage Board, Appellants-Defendants, v. VAN KALKER FAMILY LIMITED PARTNERSHIP, Lake County Trust Company as Trustee of Trust No. 5240 and Singleton Stone, LLC, Appellees-Plaintiffs.
    No. 37A03-1210-PL-453.
    Court of Appeals of Indiana.
    June 25, 2013.

      Mark A. Bates, Schererville, IN, Attorney for Appellants.
    Jan M. Carroll, Edward M. Smid, Barnes & Thornburg, LLP, Indianapolis, IN, Attorneys for Appellees.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellants-Defendants, Gerry Scheub, in his official capacity as a Member of the Lake County Drainage Board (Scheub), and the Lake County Drainage Board (Drainage Board) (collectively, the Appellants), appeal the trial court’s declaratory judgment in favor of Appellees-Plaintiffs, Van Kalker Family Limited Partnership, Lake County Trust Company as Trustee of Trust No. 5240, and Singleton Stone, LLC (collectively, Singleton).

We affirm.

ISSUE

The Appellants raise one issue on appeal, which we restate as follows: Whether the trial properly denied the Appellants’ motion to dismiss for lack of subject matter jurisdiction.

FACTS AND PROCEDURAL HISTORY

In January 2010, Singleton filed an Application for zone change with the Lake County Plan Commission (Plan Commission) to rezone 600 acres in an unincorporated area of Lake County to construct and operate a stone quarry. Scheub, who was the chairman of the Drainage Board as well as a member of the Plan Commission, was a vocal opponent of Singleton’s petition. As a member of the Plan Commission, Scheub organized the opposition to the petition and was successful in persuading the Plan Commission to issue an unfavorable recommendation to Singleton’s project. Scheub also organized the remon-strators opposed to the zoning change and spoke as their representative during the public hearing before the Lake County Council. However, the Lake County Council approved Singleton’s request for a zoning change. Despite the Lake County Council’s approval, Singleton still required a permit from the Drainage Board, on which Scheub sat as chairman of the three-member board. While the rezoning proceedings were pending, Singleton applied for the drainage permit.

Because of Scheub’s public advocacy against the petition for rezoning, Singleton contacted the legal counsel for the Lake County Board of Commissioners and the Drainage Board, requesting Scheub’s recu-sal on the drainage permit. Legal counsel advised that Scheub declined. On February 9, 2011, Singleton filed a complaint, seeking a declaratory judgment that Seheub’s participation in or attempts to influence the Drainage Board’s consideration of Singleton’s permit . application would deprive Singleton of due process and should be enjoined. On March 14, 2011, Appellants replied. Thereafter, on May 5, 2011, the action was venued to Jasper County on Appellants’ motion. .

On July 20, 2011, Singleton filed a motion to compel discovery. The trial court issued an order granting the motion. On December 1, 2011, when Appellants failed to comply with the trial court’s order compelling discovery, Singleton filed a motion for sanctions requesting the entry of a default judgment against Appellants as well as an award of attorney fees. On February 7, 2012, while Singleton’s motion was pending in the Jasper Circuit Court, Appellants filed Scheub’s recusal from the Drainage Board with the Lake Circuit Court. Two days later, on February 9, 2012, the Jasper Circuit Court conducted a status conference during which the trial court decided to keep the issue of Scheub’s recusal under advisement until the parties advised the trial court of a resolution or until transfer to Jasper County could be obtained. On February 13, 2012, Appellants filed a rescission of Scheub’s recusal in the Lake Circuit Court.

On February 20, 2012, Appellants filed a motion to dismiss alleging that the action was not justiciable for lack of subject matter jurisdiction. On March 14, 2012, the parties appeared for a scheduled hearing on Appellants’ motion to dismiss. Instead of arguing the motion, the parties entered into a settlement conference in the' trial court’s chambers. At that time, Appellants offered that Scheub would recuse himself from the Drainage Board when considering the permit for Singleton’s quarry project as long as the stipulation of judgment would be filed after the May 8, 2012 primary election in which Scheub was seeking a re-nomination as Lake County Commissioner. Singleton accepted those terms and the parties subsequently agreed that Scheub would be replaced on the Drainage Board by Richard McDevitt (McDevitt). On May 14, 2012, a week after Scheub was successful in the primary election, Scheub’s counsel announced that there was “no deal” because Scheub had “changed his mind.” (Appellee’s App. p. 125).

On May 29, 2012, Singleton filed a motion to enforce the settlement agreement. On September 25, 2012, the trial court conducted a hearing on Appellants’ motion to dismiss and Singleton’s motion to enforce the agreement. Thereafter, on October 1, 2012, the trial court entered its Order, denying Appellants’ motion to dismiss and agreeing that the parties had entered into an enforceable settlement which applied to Scheub in his official capacity only. The trial court appointed McDevitt as Scheub’s replacement on the Drainage Board as to all matters related to the Singleton quarry project. The trial court did not enter any findings with respect to its denial of the motion to dismiss.

The Appellants now appeal. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

The Appellants contend that the trial court lacked subject matter jurisdiction to decide Singleton’s cause of action and therefore the trial court erred when it denied their motion to dismiss. The applicable standard of review for Trial Rule 12(B)(1) motions to dismiss for lack of subject matter jurisdiction is a function of what occurred in the trial court. GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001). That is, the standard of review is dependent upon: (i). whether the trial court resolved disputed facts; and (ii) if the trial court resolved disputed facts, whether it conducted an evidentiary hearing or ruled on a paper record. Id. If the facts before the trial court are not in dispute, then the question of subject matter jurisdiction is purely one of law. Id. Under those circumstances no deference is afforded the trial court’s conclusion because appellate courts independently, and without the slightest deference to the trial court determination, evaluate those issues they deem to be questions of law. Id.

If, however, the parties dispute the facts presented to the trial court, then our standard of review focuses on whether the trial court conducted an evidentiary hearing. Id. Under those circumstances, the court engages in its fact-finding function, often evaluating the character and credibility of witnesses. Id. Accordingly, when a trial court conducts an evidentiary hearing, we give deference to its factual findings and judgment, and we will reverse only if the findings and judgment are clearly erroneous. Id.

However, where the facts are in dispute but the trial court rules on a paper record without conducting an evidentiary hearing, then no deference is afforded the trial court’s factual findings or . judgment. Id. And where, as in this case, the facts are in dispute and the trial court conducts a hearing where no evidence was presented with respect to that motion (only arguments by counsel) and the trial court made no findings of fact, the reviewing court is in as good a position as the trial court to determine whether the court has subject matter jurisdiction. Id. We thus review de novo the trial court’s ruling in this case.

In support of their claim that the trial court lacked subject matter jurisdiction, Appellants contend that because Singleton failed to exhaust its administrative remedies before the Drainage Board and instead filed a declaratory action before the trial court, the trial court did not acquire jurisdiction to rule on Singleton’s cause. In response, Singleton raises three allegations. First, Singleton focuses on the enforceability of the settlement agreement— the final motion Singleton filed before the trial court. As such, Singleton maintains that “the trial court unquestionably had subject-matter jurisdiction to enforce the [settlement [ajgreement, regardless of any challenge to its jurisdiction to decide the underlying claims” as this case is governed by contract law. (Appellee’s Br. p. 10). Second, Singleton alleges that because Appellants admitted at least three times that the trial court had subject matter jurisdiction to decide the declaratory judgment complaint, they should now be judicially estopped from asserting a position that is inconsistent with their admissions. And third, Singleton claims that he was not required to exhaust the administrative remedies before the Drainage Board because its complaint did not seek judicial review of any order or determination of the Drainage Board. Because the trial court’s order is silent as to its reason for denying Appellants’ motion to dismiss, we will address each assertion in turn.

I. Settlement Agreement

It is well established that subject matter jurisdiction is the power of a court to hear and decide the general class of actions to which a particular case belongs. Parkview Nosp. Inc. v. Geico General Ins. Co., 977 N.E.2d 369, 371 (Ind.Ct.App. 2012), trans. denied. When a court lacks subject matter jurisdiction, its actions are void ab initio and have no effect whatsoever. Id. In characterizing the instant dispute as nothing more than the enforceability of a “garden variety contract,” Singleton now asserts that Indiana courts have subject matter jurisdiction to enforce contracts, even though dispositive motions are pending. (Appellee’s Br. p. 11). Disputing Singleton’s categorization, Appellants assert that this is not a contract dispute but an attempt to have Scheub removed as a member of the Drainage Board.

We agree with Appellants that the origin of this cause is not a contract dispute but rather a request for declaratory judgment instigated by Singleton. In determining whether a court has acquired subject matter jurisdiction, we do not evaluate every single filing within a specific course of action. Regardless of subsequent motions in a case, a trial court cannot proceed unless the complaint was properly before it, otherwise any action taken will be void. In other words, subject matter cannot be conferred by the content of a subsequent motion when no subject matter existed in the first place. As such, Singleton’s focus on the enforceability of the settlement agreement as a vehicle to convey subject matter jurisdiction is misplaced. Rather, because it is clear that the settlement agreement derived as a result of Singleton’s request for a declaratory judgment and was filed in the same proceeding, we need to analyze whether Singleton’s initial request for a declaratory judgment fell within the province of the trial court’s subject matter jurisdiction.

II. Admissions

Next, Singleton claims that “Appellants admitted the trial court had subject matter jurisdiction at least three times.” (Appellee’s Br. p. 29). Because Appellants played fast and loose with the trial court by first conceding that the court had jurisdiction and then turned around and disavowed it, Singleton maintains that Appellants should be estopped from raising the argument now.

An Indiana court obtains subject matter jurisdiction. only through the Constitution or a statute. Parkview Hosp. Inc., 977 N.E.2d at 372. Subject matter jurisdiction cannot be waived or conferred by agreement and can be raised at any time by the parties or the court, including on appeal. Weldon v. Universal Reagents, Inc., 714 N.E.2d 1104, 1107 (Ind.Ct.App. 1999). In Carpenter v. State, 266 Ind. 98, 860 N.E.2d 839, 842 (1977), a case where the parties agreed to a change of venue to a trial court which was lacking jurisdiction in criminal matters, the supreme court held that the appellant could not be es-topped from raising the lack of jurisdiction over the subject matter even if appellant or his counsel were guilty of fraud or bad faith.

Thus, regardless of Appellants’ conduct and admissions, Appellants cannot be es-topped from raising a challenge to the trial court’s subject matter jurisdiction.

III. Exhaustion of Administrative Remedies

Appellants’ main argument focuses on the requirement that parties before an administrative tribunal are required to exhaust their administrative remedies pri- or to requesting judicial intervention by the trial court. Specifically, Appellants allege that because Singleton’s application for a drainage permit is still pending before the Drainage Board, the trial court had no jurisdiction to grant relief. In response, Singleton contends that it was not required to exhaust administrative remedies because it did not seek judicial review of any order of the Drainage Board; rather, its declaratory judgment action existed independently from any decision the Drainage Board could make as it presented a pure question of law. Moreover, Singleton maintains that prior exhaustion of administrative remedies would be futile as the Drainage Board is refusing to grant Singleton the relief it requested, ie., Seheub’s recusal due to bias.

Where a party is required by the Administrative Orders and Procedures Act to exhaust the administrative remedies before an agency prior to obtaining judicial review of the agency action and fails to do so, courts have no subject matter jurisdiction until after the entry of the final determination by the relevant administrative agency. Austin Lakes Joint Venture v. Avon Util. Inc., 648 N.E.2d 641, 644 (Ind. 1995). Even when neither statute nor agency rule specifically mandates exhaustion as a prerequisite to judicial review, the general rule is that a party is not entitled to judicial relief for an alleged or threatened injury until the prescribed administrative remedy has been exhausted. Id. Where an administrative remedy is available, filing a declaratory judgment action is not a suitable alternative. Carter v. Nugent Sand Co., 925 N.E.2d 356, 360 (Ind.2010).

The exhaustion doctrine is supported by strong policy reasons and considerations of judicial economy. Johnson v. Celebration Fireworks, 829 N.E.2d 979, 982 (Ind.2005). Specifically,

[t]he exhaustion doctrine is intended to defer judicial review until controversies have been channeled through the complete administrative process. The exhaustion requirement serves to avoid collateral, dilatory action ... and to ensure the efficient, uninterrupted progression of administrative proceedings and the effective application of judicial review. It provides an agency with an opportunity “to correct its own errors, to afford the parties and the courts the benefit of [the agency’s] experience and expertise, and to compile a [factual] record which is adequate for judicial review.”

Id.

However, the rule requiring exhaustion of administrative remedies is not without exceptions.

A party is excepted from the exhaustion requirement when the remedy is inadequate or would be futile, or when some equitable consideration precludes application of the rule. To prevail upon a claim of futility, one must show that the administrative agency was powerless to effect a remedy or that it would have been impossible or fruitless and of no value under the circumstances. Furthermore, the requirement of exhaustion of administrative remedies will be relaxed when there is grave doubt as to the availability of the administrative remedy.

Johnson v. Patriotic Fireworks, 871 N.E.2d 989, 994 (Ind.App.2007) (citing Higgason v. Lemmon, 818 N.E.2d 500, 503-04 (Ind.Ct.App.2004)).

In support of their argument that Singleton was required to exhaust administrative remedies even when faced with a Board member’s perceived bias, Appellants point to New Trend Beauty School, Inc. v. Indiana State Board of Beauty Culturist Examiners, 518 N.E.2d 1101 (Ind.App.1988). In New Trend, the Beauty School sought to escape the exhaustion requirement by seeking a declaratory action that “[a]n administrative proceeding before the Board is futile because the Board’s bias and prejudice against New Trend has preordained a negative result” and will result in a violation of its due process rights. Id. at 1104. While the administrative proceeding was ongoing, the Beauty school attempted to depose each member of the Board to determine their biases against the Beauty School. Id. at 1102. After the Board prohibited the discovery sought, the Beauty School filed its complaint before the trial court. Id. at 1103. The Beauty School requested the trial court to dismiss New Trend’s complaint for failure to exhaust administrative remedies. Id.

The supreme court noted that

[e]ven though we must take New Trend’s allegations of bias on the part of individuals as true, we may not assume that the Board will act on those biases and prejudices. To the contrary, we must presume the Board will act properly with or without recusal of the allegedly biased members. In the absence of demonstration of actual bias, the courts should not interfere with the administrative process. To do otherwise would severely curtail the principle that judicial review is unavailable if an administrative action is only anticipated.

Id. at 1105 (internal references omitted). Thus, in light of a perceived bias by an administrative agency, the best action is before the Board itself, in the form of appropriate objections and/or motions for disqualifications. Id.

Such procedure will give the Board the opportunity to correct or prevent an error as a result of bias, without judicial interference. It will also provide New Trend the opportunity to preserve error in anticipation of judicial review, upon the issue of whether the Board acted arbitrarily or capriciously. Upon judicial review, outside evidence may be allowable to show bias despite the prohibition of de novo hearings. Thus, if bias is indeed present in the Board’s proceedings, New Trend has an adequate administrative remedy to protect its due process rights and is not entitled to the equitable relief requested here.

Id. at 1105-06.

A similar result was reached in Ripley County Bd. of Zoning Appeals v. Rumpke of Indiana, Inc., 663 N.E.2d 198 (Ind.Ct. App.1996), trans. denied. In Rumpke, after the administrative proceeding was finalized, Rumpke sought judicial review, alleging among other things, bias by one of the board members. Id. at 203. The trial court made specific findings indicating that a board member was biased because of his past dealings with Rumpke’s landfill. Id. at 209. Specifically, it found that the board member owned property near the landfill and had on numerous occasions complained about its operations. Id. Additionally, the trial court found that the board member had led an effort to enforce a 300 foot setback requirement against Rumpke. Id. Finally, the trial court noted several comments the board member allegedly made against Rumpke, including that if he could run Rumpke out of Ripley County he would. Id. On appeal, we affirmed the trial court’s finding of bias and noted that “[w]hen a biased member participates in a decision, the decision will be vacated.” Id. at 210. However, we declined to remand for another administrative hearing without the biased board member because Rumpke had not requested that the board member remove himself from the decision-making process and thus had waived the error. Id. See also Adkins v. City of Tell City, 625 N.E.2d 1298, 1303 (Ind.Ct.App.1993) (Even if bias exists, we must presume the Board will act properly with or without recusal of the allegedly biased members).

On the other hand, in advancing its argument that it was not required to exhaust the administrative remedies the Drainage Board could offer, Singleton relies on Ind. Dep’t of Envtl. Mgmt v. Twin Eagle LEG, 798 N.E.2d 839, 844 (Ind.2003). Twin Eagle was a declaratory judgment action brought by a real estate developer against the Indiana Department of Environmental Management (IDEM), challenging some interim regulations governing wetlands’ development that the agency had promulgated following a decision by the United States Supreme Court stating that the development and use of certain wetlands could not be constitutionally regulated by Congress. Id. at 841-42. The developer in Twin Eagle apparently feared that the agency would apply the interim regulations to its project and sought various declarations of law as to the agency’s authority to regulate in this area and, if it had authority, the validity of interim regulations. Id. at 844. The supreme court found that exhaustion of administrative remedies was unnecessary “[t]o the extent the issue turns on statutory construction, [and] whether an agency possesses jurisdiction over a matter [as that] is a question of law for the courts.” Id. It was in this context that the court concluded that the exhaustion of administrative remedies “may not be appropriate if an agency’s action is challenged as being ultra vires and void,” or otherwise beyond the scope of the agency’s authority. Id.

This case differs from Twin Eagle in material respect. Unlike Twin Eagle, where the court was presented with a clear legal question, the issue whether Singleton can have a fair proceeding due to Scheub’s alleged bias, is a mixed question of law and fact, and, quite likely, a pure question of fact.

Turning to Singleton’s claim that Scheub was biased, we note that the record is replete with instances where Scheub interfered with Singleton’s rezoning procedure. As a member of the Plan Commission that reviewed Singleton’s petition for re-zoning, Scheub was a vocal opponent of Singleton’s request. The record reflects that Scheub and the County engineer collaborated to “make the project so expensive [Singleton goes] away.” (Appellee’s App. p. 6). Ultimately, the Plan Commission gave an unfavorable recommendation of the project to the Lake County Council. During the public hearing before the Lake County Council, Scheub spoke as the remon-strators’ representative and actively advocated against the rezoning petition. Despite Scheub’s interference, the Lake County Council approved the rezoning.

Although the rezoning request had been granted, Singleton still required a permit from the Drainage Board, on which Scheub sat as chairman. Because of Scheub’s earlier interactions and vocal opposition to the quarry project, Singleton contacted the legal counsel for the Lake County Board of Commissioners and the Drainage Board, requesting Scheub’s recu-sal on the drainage permit. Legal counsel advised that Scheub declined. Thereafter, on February 9, 2011, Singleton filed a Complaint seeking a declaratory judgment that Scheub’s participation in or attempts to influence the Drainage Board’s consideration of Singleton’s permit application would deprive Singleton of due process and should be enjoined.

Here, as in Rumpke, it is clear that Scheub’s actions in the quarry project amounted to an actual bias against Singleton. In order to give the Drainage Board an opportunity to prevent an error as a result of bias, Singleton requested Scheub’s disqualification. See New Trend, 518 N.E.2d at 1105. Upon the Drainage Board’s refusal to disqualify Scheub, any further action by the Drainage Board became futile and of no value under the circumstances because any decision in which a biased Board Member participates will be vacated. See Patriotic Fireworks, 871 N.E.2d at 994; Couch v. Hamilton County Bd. of Zoning Appeals, 609 N.E.2d 39, 42 (Ind.Ct.App.1993). Therefore, as the exhaustion of administrative remedies was excused, the trial court acquired subject matter jurisdiction over the cause and properly denied Appellants’ motion to dismiss.

CONCLUSION

Based on the foregoing, we conclude that the trial court properly denied Appellants’ motion to dismiss for lack of subject matter jurisdiction.

Affirmed.

BRADFORD, J. and BROWN, J. concur.

      . That same day, February 7, 2012, the Lake Circuit Court accepted Scheub’s recusal- and appointed his replacement pursuant to Ind. Code § 36-9-27-6(b).

      . Appellants only challenge the trial court’s denial of their motion to dismiss; they do not challenge the trial court's enforcement of the settlement agreement, disqualifying Scheub and replacing him with McDevilt.


author: MAY, Judge.

text:
    Shannon ROBINSON and Bryan Robinson, Appellants-Plaintiffs, v. ERIE INSURANCE EXCHANGE, Appellee-Defendant.
    No. 49A02-1211-PL-908.
    Court of Appeals of Indiana.
    June 28, 2013.

      George M. Plews, Sean M. Hirsehten, Plews Shadley Racher & Braun, LLP, Indianapolis, IN, Attorneys for Appellants.
    Freedom D. Villa, Smith Fisher Maas & Howard, P.C., Indianapolis, IN, Attorney for Appellee.
   OPINION

MAY, Judge.

Shannon and Bryan Robinson (collectively, “Robinson”) appeal summary judgment for Erie Insurance Exchange, which denied Robinson’s claim for uninsured motorist coverage after a hit-and-run accident. As the car that hit Robinson was uninsured as a matter of law, we reverse.

FACTS AND PROCEDURAL HISTORY

On March 11, 2011, Bryan Robinson was westbound when a southbound Jeep ran a red light and hit his car. The Jeep hit a second car, then left the scene. Bryan was not injured but the car was totaled. The car was insured under an Erie policy that was sold to Shannon, Bryan’s mother, and that listed Bryan as a driver. The policy obliged Erie to “pay damages for bodily injury and property damage that the law entitles ‘anyone we protect’ ... to recover from the owner or operator of an ‘uninsured motor vehicle[.]’ ” (App. at 21.) Erie denied coverage on the sole ground the policy did not include collision coverage. Its denial letter did not mention uninsured motorist coverage.

The Robinson policy had three definitions of “uninsured motor vehicle”:

“Uninsured motor vehicle” means:

1. A “motor vehicle” for which there is no liability bond or insurance at the time of the accident in the amounts required by the financial responsibility law where the “auto we insure” is principally garaged;
2. A “motor vehicle” for which the insuring company denies coverage or is or becomes insolvent;
3. A hit-and-run “motor vehicle.” The vehicle must cause bodily injury to “you” by hitting “you,” an “auto we insure” or a vehicle “you” are “occupying.” The identity of the driver and owner of the hit-and-run vehicle must be unknown. The accident must be reported to the police or other proper governmental authority within 24 hours or as soon as possible. “You” must notify “us” as soon as possible.

(Id. at 20.) The policy excluded uninsured motorist coverage for “property damage, if the owner or operator of the other “motor vehicle” cannot be identified.” (Id. at 21.)

Robinson and Erie both moved for summary judgment. Robinson argued there was coverage under the first definition of “uninsured motor vehicle” because “no liability bond or insurance at the time of the accident” was available, (id. at 20), and no exclusion applied because Erie did not show the other driver could not be identified. Erie argued a hit-and-run vehicle cannot be identified, and no coverage was available for this hit-and-run vehicle under the third definition because Bryan was not injured. The trial court granted Erie’s motion.

DISCUSSION AND DECISION

When reviewing a summary judgment, we use the same standard as the trial court: summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. State Auto. Mut. Ins. Co. v. Flexdar, Inc., 964 N.E.2d 845, 848 (Ind. 2012), reh’g denied. All facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party. Id.

Interpretation of an insurance policy presents a question of law that is particularly suitable for summary judgment. Id. Where there is ambiguity, insurance policies are construed strictly against the insurer and the policy language is viewed from the standpoint of the insured. Id. This is especially true where the language in question purports to exclude coverage. Id. Insurers are free to limit the coverage of their policies, but such limitations must be clearly expressed to be enforceable. Id. Where provisions limiting coverage are not clearly and plainly expressed, the policy will be construed most favorably to the insured, to further the policy’s basic purpose of indemnity. Id. Where ambiguity exists not because of extrinsic facts but by reason of the language used, the ambiguous terms will be construed in favor of the insured for purposes of summary judgment. Id. More specifically, uninsured motorist provisions should be liberally construed in favor of the insured. Indiana Farmers Mut. Ins. Co. v. Speer, 407 N.E.2d 255, 259 (Ind.Ct. App.1980).

Robinson argues the Jeep that hit Bryan’s car was an uninsured vehicle pursuant to the first definition in the policy— that there was “no liability bond or insurance at the time of the accident[,]” (App. at 20), and the policy exclusion concerning “property damage, if the owner or operator of the other “motor vehicle” cannot be identified,” (id. at 21), does not apply.

In Gillespie v. GEICO Gen. Ins. Co., 850 N.E.2d 913, 915 (Ind.Ct.App.2006), the policy defined “uninsured auto” in language similar to that used in Robinson’s policy, as:

a motor vehicle which has no bodily injury liability bond or insurance policy applicable with liability limits complying with the financial responsibility law of the state in which the insured auto is principally garaged at the time of the accident. This term also includes an auto whose insurer is or becomes insolvent or denies coverage.

It went on to provide “The term ‘uninsured auto’ does not include: ... a vehicle whose owner or operator cannot be identified.” Id.

Our focus in Gillespie was whether the vehicle that caused an accident and then left the scene was “identified” when it was described as a “white Honda driven by a Caucasian female.” Id. at 916. We determined it was, and then said “[b]ecause the Caucasian female driver of the white Honda left the scene of the accident that she caused, there was ‘no bodily injury liability bond or insurance policy applicable with liability limits complying with [Indiana’s] financial responsibility law available.” Id. at 918 (quoting the policy definition of “uninsured auto”). Thus, the white Honda was “uninsured” under the policy, and there should have been coverage. Id.

Gillespie controls. As the driver who hit Bryan fled the scene, there was ‘no bodily injury liability bond or insurance policy applicable with liability limits complying with [Indiana’s] financial responsibility law’ available.” Id. That brings Robinson within the first of the three “uninsured motor vehicle” definitions in the Erie policy,

In Dowell v. Safe Auto Ins. Co., 208 S.W.3d 872, 876 (Ky.2006), Dowell’s policy defined an uninsured vehicle as one “to which no bodily injury liability bond or policy applies at the time of the accident.” Safe Auto argued it was unknowable whether the tortfeasor had liability insurance because he absconded; therefore Do-well could not show the tortfeasor was an uninsured motorist. The Court said:

the use of the word “applies” in the policy makes it clear that since the tort-feasor cannot be located, his actual insurance status is not controlling. In any event “applies” should be given the meaning that most favors “[Dowell]. As a matter of law, since the hit and run driver cannot be located, no insurance policy “applied” at the time of this accident.

Id. at 878 (footnote omitted).

Similarly, as the driver who hit Bryan could not be located, “his actual insurance status is not controlling.” Id. He or she is to be considered uninsured. And see 7A Am.Jur.2d Automobile Insurance § 342 (noting authority that when “uninsured vehicle” is defined to include a motor vehicle “to which no bodily injury liability bond or policy applies” at the time of the accident, no insurance policy “applies” to a hit-and-run vehicle at the time of an accident).

As the car that hit Bryan must be considered an uninsured motor vehicle, Erie’s summary judgment motion should have been denied and Robinson’s should have been granted. We accordingly reverse.

Reversed.

BAKER, J., and MATHIAS, J, concur.

      . Erie argues at length in its brief that the vehicle was not uninsured under the third definition because Bryan was not injured. But it also concedes "a vehicle can be considered an uninsured vehicle under Erie’s policy if it is a vehicle without liability insurance OR if it is a hit-and-run vehicle which [sic] causes bodily injury.” (Appellee’s Br. at 8.) We agree, and we will therefore address only the first definition.

      . Erie “concedes that none of the exclusions apply,” (Appellee’s Br. at 19), and argues only "there is no grant of coverage in the first place.” (Id.) We accordingly will not address the effect of that exclusion.

      . Erie asserts Robinson is not covered pursuant to "the decision in Allis wherein the Court held that a miss-and-run vehicle that left the scene of the accident could not be described as a vehicle without liability insurance." (Ap-pellee's Br. at 8.) That statement is presumably a reference to Indiana Ins. Co. v. Allis, 628 N.E.2d 1251 (Ind.Ct.App.1994), trans. denied, which is cited elsewhere in Erie’s brief. Erie does not offer a citation to the page in Allis where such a broad holding might be found, and we will not, on appeal, search the authorities cited by a party in order to find legal support for its position. Young v. Butts, 685 N.E.2d 147, 151 (Ind.Ct.App.1997).
      Regardless, Allis is not helpful to the resolution of the case before us. The Allis panel addressed only the definition of "uninsured motor vehicle" in the Uninsured Motorist Act, Ind.Code § 27-7-5-2, and it explicitly noted the Act did not require an insurer to provide hit and run coverage. 628 N.E.2d at 1255. "[Additional or greater coverage is a matter of contract-which contemplates coverage in exchange for a premium.” Id. at 1253. In the case before us the policy language, and not the statute, governs. Finally, the Allis panel addressed the physical impact requirement in the policy language. Nothing in Allis precludes coverage for Robinson.

      . Erie asserts there is a "crucial distinction,” (Appellee’s Br. at 14), between the language in the Robinson policy and that in the Gillespie policy: "the Erie policy does not require that there be no insurance applicable, but that there be NO insurance, period." {Id.) Erie offers no legal authority to support its contention that distinction is "crucial,” or even meaningful, and that argument is therefore waived on appeal. See, e.g., Parmeter v. Cass Cnty. Dep’t of Child Servs., 878 N.E.2d 444, 452 (Ind.Ct.App.2007) (argument waived when litigant cited no authority in support of her contention), reh’g denied. Notwithstanding the waiver, we agree with the Dowell Court that when the driver who hits an insured cannot be located, his actual insurance status is not controlling.


author: BRADFORD, Judge. BROWN, Judge,

text:
    PIER 1 IMPORTS (U.S.), INC., Appellant-Defendant, v. ACADIA MERRILLVILLE REALTY, L.P. and Boyd Construction Company, Inc., Appellees-Defendants.
    No. 45A03-1207-CT-318.
    Court of Appeals of Indiana.
    July 3, 2013.

      Susan Mehringer, Cantrell Strenski & Mehringer, LLP, Indianapolis, IN, Attorney for Appellant.
    James M. Portelli, Ami T. Anderson, Spangler, Jennings & Dougherty, P.C., Merrillville, IN, Attorneys for Appellee, Acadia Merrillville Realty, L.P.
    Jerry E. Huelat, Jaime M. Oss, Huelat Mack & Kreppein P.C., Michigan City, IN, Attorneys for Appellee, Boyd Construction Company, Inc.
   OPINION

BRADFORD, Judge.

Plaintiff Carolyn Harris slipped and fell on an ice-covered sidewalk in front of a retail store operated by Appellant-Defendant Pier 1 Imports, Inc. (“Pier 1”). Pier 1 leases its retail space from Appellee-Defendant Acadia Merrillville Realty, L.P. (“Acadia”), and their lease agreement requires that Acadia keep the sidewalk free from snow and ice. At the time of the incident, Acadia maintained a contract with Appellee-Defendant Boyd Construction Company, Inc. (“Boyd”), providing that Boyd would keep the sidewalk clear of snow and ice. Mrs. Harris brought a negligence claim against Pier 1, Acadia, and Boyd for injuries she suffered as a result of her slip-and-fall. All three defendants filed motions for summary judgment. The trial court found that Acadia and Boyd did not breach their respective duties of care and granted summary judgment in their favor, while denying Pier l’s motion for the same. As the sole remaining defendant, Pier 1 filed a motion to correct error, arguing that summary judgment in favor of Acadia and Boyd was inappropriate and asserting prejudice from the fact that Pier 1 can no longer allocate fault to Acadia and Boyd as nonparties.

Pier 1 appeals from the trial court’s denial of its motion to correct error, again challenging the grant of summary judgment in favor of Acadia and Boyd. Acadia and Boyd claim that Pier 1 lacks standing to challenge the trial court’s summary judgment awards because Pier 1 failed to preserve the issue of prejudice by opposing Acadia’s and Boyd’s motions or advising the trial court of an intent to allocate fault to Acadia and Boyd as nonparties. Because Pier 1 did not have an opportunity to object to Acadia’s and Boyd’s dismissal prior to the court’s ruling on their motions for summary judgment, we conclude that Pier 1 has standing to appeal. On the merits, we conclude that summary judgment in favor of Acadia and Boyd was inappropriate: Whether Acadia discharged its duty of care merely by contracting with Boyd is a question for the jury to decide, and, because there is evidence that additional salting was necessary after Boyd salted the sidewalk, a jury could reasonably infer that Boyd failed to exercise reasonable care in performing its snow and ice removal services. The judgment of the trial court is reversed and remanded for further proceedings.

FACTS AND PROCEDURAL HISTORY

On February 4, 2009, at a shopping center in Merrillville, Mrs. Harris slipped and fell on an ice-covered sidewalk in front of a retail store operated by Pier 1. Pier 1 leases its retail space from Acadia, who owns the shopping center and the sidewalk at issue. Their lease agreement requires that Acadia keep the sidewalk free from snow and ice. At the time of the incident, Acadia maintained a snow removal contract with Boyd, providing that Boyd would keep the shopping center’s sidewalks clear of snow and ice.

Mrs. Harris and her husband, Jimmie Harris, filed suit against Acadia and Pier 1 on March 30, 2009, and later amended their complaint to add Boyd as a defendant. Mrs. Harris claims the three defendants were negligent in their maintenance of the sidewalk, causing her to suffer serious injury from her slip-and-fall. As a result of his wife’s alleged injury, Mr. Harris asserts a derivative loss of consortium claim against the defendants. Acadia, Boyd, and Pier 1 filed separate motions for summary judgment, on which the trial court heard oral argument on January 12, 2012. At this hearing, the defendants commonly argued that, because the undisputed facts show that Mrs. Harris was aware that the sidewalk was icy and traversed it anyway, the defendants did not breach any duty of care and are entitled to judgment as a matter of law. Each co-defendant also indicated that summary judgment was appropriate for the other two.

On April 23, 2012, the trial court granted summary judgment in favor of Acadia and Boyd and denied Pier l’s motion for the same. In its order, the court issued the following findings and conclusions thereon:

[T]he undisputed evidence establishes that Acadia, the landowner, contracted with Boyd to remove snow and ice from the business premises. Moreover, the designated evidence establishes that on the day before the incident Boyd spent 25 ⅜ man-hours providing snow and ice removal services and on the day of the incident, Boyd’s employees returned to the premises at 4:30 in the morning and provided an additional 19 ½ man-hours of snow and ice removal services, including salting. Accordingly, this Court finds that there is no evidence from which it can be reasonably inferred that either Acadia or Boyd failed to use reasonable care in discharging its duty to Harris. Their respective motions for summary judgment should be granted.

Appellant’s App p. 25.

With regard to Pier 1 Imports, however, the evidence establishes that there was an employee in front of the store continuing to salt the sidewalk. A reasonable inference to be drawn from this evidence is that the employee of Pier 1 determined that additional salting of the sidewalk in front of the Pier 1 store was necessary. While she was salting, Harris approached and slipped and fell in front of the store. Pier 1 owed Harris, its business invitee[,3 a duty to use reasonable care for her safety and a reasonable inference to be made from the evidence is that Pier 1 breached that duty.
Moreover, the Pier 1 employee provided no warning to Harris and, in fact, appears to have had her back to Harris as Harris approached. With the knowledge that the sidewalk in front of the store was, in fact, ice-covered[,] requiring additional salting, it is reasonable to infer that the actions of the Pier 1 employee in failing to provide a warning to Harris of the slippery conditions in front of the store was a breach of the duty of care owed by Pier 1 to its business invitee, Harris. Pier l’s motion for summary judgment should be denied.

Appellant’s App. pp. 25-26.

On May 22, 2012, Pier 1 filed a motion to correct error, arguing that summary judgment in favor of Acadia and Boyd was inappropriate and asserting that their dismissal as co-defendants precludes Pier 1 from allocating fault to them as nonparties. The trial court denied Pier l’s motion to correct error on June 19, 2012.

DISCUSSION AND DECISION

Pier 1 argues that the trial court erred in granting summary judgment in favor of Acadia and Boyd. Although the final order entered by the trial court was its denial of Pier l’s motion to correct error, that motion was based on the trial court’s grant of Acadia’s and Boyd’s summary judgment motions; therefore, we review this appeal using the standard applicable to summary judgment rulings. See Hair v. Schellenberger, 966 N.E.2d 693, 697 n. 3 (Ind.Ct. App.2012), trans. denied. We note for clarity that Pier 1 does not challenge the trial court’s denial of its own summary judgment motion, nor has it sought to name Acadia and Boyd as nonparty defendants. We also note that the Harrises are not participating in this appeal.

I. Standing

As a threshold issue, Acadia and Boyd claim that Pier 1 lacks standing to challenge the trial court’s grant of summary judgment in their favor.

The issue of standing focuses on whether the complaining party is the proper person to invoke the court’s power. Shourek v. Stirling, 621 N.E.2d 1107, 1109 (Ind.1993). To have standing, a party must demonstrate a personal stake in the outcome of the lawsuit and must show, at a minimum, it was in immediate danger of sustaining some direct injury as a result of the conduct at issue. Id. One defendant does not have standing to appeal a judgment rendered in favor of a co-defendant unless the defendant suffers some prejudice as a result of the entry of judgment in favor of the co-defendant. State Highway Commission v. Clark, 175 Ind.App. 358, 361, 371 N.E.2d 1323, 1326 (1978).

Shand Mining, Inc. v. Clay Cnty. Bd. of Comm’rs, 671 N.E.2d 477, 479 (Ind.Ct. App.1996).

In U-Haul International, Inc. v. Nulls Machine & Manufacturing Shop, this court acknowledged that, under Indiana’s Comparative Fault Act, “the dismissal of a co-defendant from a case subjects remaining defendants to greater potential liability,” and we held this to be “sufficient prejudice to confer standing upon a co-defendant to appeal such a ruling.” 736 N.E.2d 271, 280 (Ind.Ct.App. 2000); see Bowles v. Tatom, 546 N.E.2d 1188, 1190 (Ind.1989) (holding that a dismissed party may not be named as a non-party). We further held that “a defendant must articulate to the trial court any claim it would later assert on appeal concerning the prejudicial effect of the dismissal of one of its co-defendants. The failure to do so waives the claim for purposes of appeal.” Id. (citing Rausch v. Reinhold, 716 N.E.2d 993, 1001 (Ind.Ct.App.1999)). To preserve this claim of prejudice, a party-defendant is not required to “explicitly state an intention to name a dismissed party-defendant as a nonparty.” Nationwide Ins. Co. v. Parmer, 958 N.E.2d 802, 807 (Ind.Ct.App.2011) (discussing Bloemker v. Detroit Diesel Corp., 687 N.E.2d 358, 360 (Ind.1997); Bowles, 546 N.E.2d at 1190). Rather, “a party-defendant need only object to a dismissal or claim that a party-defendant should remain for purposes of allocation of fault....” Id. at 808.

Acadia and Boyd contend that, because Pier 1 did not oppose their motions for summary judgment or advise the trial court of an intent to allocate fault to Acadia and Boyd as nonparties, Pier 1 has failed to preserve the issue of prejudice for purposes of appeal. The instant matter, however, is distinct from U-Haul and its progeny. In U-Haul, all but one co-defendant moved for summary judgment, which immediately exposed the non-movant as the “remaining defendant.” 736 N.E.2d at 280; accord Bloemker, 687 N.E.2d at 360; Bowles, 546 N.E.2d at 1190; Parmer, 958 N.E.2d at 804-05; Rausch, 716 N.E.2d at 1001. Here, all three co-defendants sought summary judgment, asserting a common legal theory in support thereof, and each co-defendant indicated that summary judgment was appropriate for the other two. Unlike in U-Haul, the dismissal of some but not all co-defendants was never truly at issue. In this regard, Pier 1 was not exposed as the “remaining defendant” until the trial court ruled on the motions three months after oral argument, at which time Pier 1 timely filed a motion to correct error. Under these circumstances, we conclude that Pier 1 did not have a practical opportunity to object to Acadia’s and Boyd’s motions prior to the parties’ dismissal. “[I]f a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.” Ind. Trial Rule 46. We therefore conclude that Pier 1 has standing to appeal the grant of summary judgment in favor of Acadia and Boyd.

Similar to the issue of standing, Acadia argues that Pier 1 waived its appellate challenge by not opposing Acadia’s and Boyd’s motions for summary judgment pri- or to trial court’s ruling thereon. Having concluded above that Pier 1 did not have an opportunity to object, we do not find that it has waived its claims for appellate review. T.R. 46.

II. Summary Judgment

Pier 1 claims that summary judgment in favor of Acadia and Boyd was inappropriate because there remain genuine issues of material fact as to whether Acadia and Boyd breached their respective duties of care. Our standard for reviewing a trial court’s grant of summary judgment is well settled:

Summary judgment is appropriate if the “designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Ind. Trial Rule 56(C). The moving party bears the burden of specifically designating materials that make a prima facie showing that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Interstate Cold Storage, Inc. v. General Motors Corp., 720 N.E.2d 727 (Ind.Ct.App.1999). If these two requirements are met, the burden shifts to the nonmovant to set forth designated facts showing the existence of a genuine issue for trial. Id. “A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue.” Id. at 729. Even if the facts are not in dispute, summary judgment is inappropriate where the record reveals that the law was not correctly applied. General Accident Ins. Co. of America v. Hughes, 706 N.E.2d 208 (Ind.Ct.App.1999), trans. denied.

U-Haul, 736 N.E.2d at 274-75.

“Summary judgment is rarely appropriate in negligence actions[.]” Holt v. Quality Motor Sales, Inc., 776 N.E.2d 361, 365 (Ind.Ct.App.2002). “In order to prevail on a claim of negligence the plaintiff must show: (1) duty owed to plaintiff by defendant; (2) breach of duty by allowing conduct to fall below the applicable standard of care; and (3) compensable injury proximately caused by defendant’s breach of duty.” King v. Northeast Sec., Inc., 790 N.E.2d 474, 484 (Ind.2003) (citing Ashcraft v. Northeast Sullivan Cnty. Sch. Corp., 706 N.E.2d 1101, 1103 (Ind.Ct.App. 1999)). Here, the trial court granted summary judgment in favor of Acadia and Boyd because it found no evidence from which a jury could reasonably infer that either party breached its duty of care. “[A] breach of duty is usually a matter left to the trier of fact. Only where the facts are undisputed and lead to but a single inference or conclusion may the court as a matter of law determine whether a breach of duty has occurred.” King, 790 N.E.2d at 484.

We conclude that whether Acadia discharged its duty of care merely by contracting with Boyd is a matter for the jury to decide and is not appropriate for summary disposition. See King, 790 N.E.2d at 485 (finding that a jury should decide whether a school district satisfied the duty of care owed to its students merely by contracting with a company to provide security services). There also exists evidence from which a jury could infer that Boyd failed to exercise reasonable care in performing its snow and ice removal services. It is undisputed that Mrs. Harris slipped and fell on a portion of the sidewalk that Boyd had salted less than one hour earlier. And the trial court found that a Pier 1 employee seemingly “determined that additional salting of the sidewalk ... was necessary[,]” Appellant’s App. p. 25, and had “knowledge that the sidewalk ... requir[ed] additional salting.” Appellant’s App. p. 26. Because there remain genuine issues of material fact on the issue of Acadia’s and Boyd’s breach of duty, the trial court erred in granting summary judgment in their favor.

The judgment of the trial court is reversed and remanded for further proceedings.

RILEY, J., concurs.

BROWN, J., dissents with opinion.

BROWN, Judge,

dissenting.

I respectfully dissent from the majority’s conclusion that Pier 1 did not have a practical opportunity to object to the motions for summary judgment by co-defendants Acadia and Boyd prior to those parties’ dismissal.

As the majority notes, in U-Haul Intern., Inc. v. Nulls Machine and Mfg. Shop, this court held that, under Indiana’s Comparative Fault Act, “the dismissal of a co-defendant from a case subjects remaining defendants to greater potential liability” and that “this is sufficient prejudice to confer standing upon a co-defendant to appeal such a ruling.” 736 N.E.2d 271, 280 (Ind.Ct.App.2000), reh’g denied, trans. denied. The court in U-Haul held that, “[a]s is the case with other kinds of errors, however, we conclude that the remaining co-defendant must do something at the trial court level to preserve the error,” that “a defendant must articulate to the trial court any claim it would later assert upon appeal concerning the prejudicial effect of the dismissal of one of its co-defendants,” and that “[t]he failure to do so waives the claim for purposes of appeal.” Id. (citing Rausch v. Reinhold, 716 N.E.2d 993, 1001 (Ind.Ct.App.1999) (noting that “[a]n appellant may not raise an issue on appeal that was not first presented to the trial court”), trans. denied). In U-Haul, the appellant opposed the summary judgment motions filed by its co-defendants and, in doing so, preserved the issue for purposes of appeal. Id.

Further, in Nationwide Ins. Co. v. Parmer, in the context of a request by a party defendant, Sida, to name previously-dismissed party defendants as nonparty defendants, this court recently held that a defendant “need only object to a dismissal or claim that a party-defendant should remain for purposes of allocation of fault in order to preserve a nonparty defense” and that “a party-defendant may preserve a defense that a dismissed party-defendant is a nonparty for fault allocation provided that the party-defendant gives sufficient notice by objecting to the trial court’s dismissal.” 958 N.E.2d 802, 807-808 (Ind.Ct. App.2011) (discussing Bowles v. Tatom, 546 N.E.2d 1188, 1190 (Ind.1989) (stating that the defendant “did not object to the dismissals or otherwise assert any claim that [the other parties] should remain for purposes of allocation of fault” and that “failure to timely present such an objection waives the defense as to the dismissed parties”), and Bloemker v. Detroit Diesel Corp., 687 N.E.2d 358, 360 (Ind.1997) (noting that the reasoning in Bowles is analogous to a situation where the dismissal of a co-defendant occurred at the summary judgment stage)). In Nationwide, we noted that Sida responded to the motions for summary judgment of both previously-dismissed defendants, “‘opposing] and objecting] to any portion’ calling for the defendants to be dismissed without also dismissing Sida.” Id. We determined that Sida acted appropriately to preserve her claim that the previously-dismissed defendants were nonparty defendants for fault allocation, that she appropriately objected to the court’s dismissal, and that she preserved her right to add the previously-dismissed defendants as nonparty defendants. Id.

In this case, Acadia, Boyd, and Pier 1 filed separate motions for summary judgment. Unlike in U-Haul and Nationwide, Pier 1 did not, either verbally or in writing, oppose or otherwise object to the summary judgment motions filed by co-defendants Acadia and Boyd or claim that they should remain parties to the lawsuit for purposes of allocation of fault. Moreover, the trial court heard oral argument on January 12, 2012, at which each co-defendant indicated that summary judgment was appropriate for the other two co-defendants and Pier 1 presented argument in support of its motion for summary judgment.

Pier 1 had a practical opportunity to oppose or object to the summary judgment motions of Acadia and Boyd, to object to the dismissal of Acadia and Boyd from the lawsuit on the grounds that Pier 1 would be the sole remaining defendant (or to object to the dismissal unless Pier 1 was also dismissed), and to argue that Acadia and Boyd should remain for purposes of allocation of fault. Pier 1 had this opportunity prior to the court’s summary judgment rulings in favor of Acadia and Boyd and prior to the parties’ dismissal.

Accordingly, based upon the holdings and language in U-Haul and Nationwide and the Indiana Supreme Court opinions upon which they rely, I would find that Pier 1 failed to preserve and thus waived its claim for appeal, and I would affirm the judgment of the trial court.