text:
    In the Matter of Gordon B. DEMPSEY, Respondent.
    No. 49S00-1101-DI-5.
    Supreme Court of Indiana.
    May 2, 2013.
   PUBLISHED ORDER FINDING MISCONDUCT AND IMPOSING DISCIPLINE

Upon review of the report of the hearing officer, the Honorable Justin H. Hunter, who was appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s “Verified Complaint for Disciplinary Action,” and the briefs of the parties, the Court finds that Respondent engaged in professional' misconduct and imposes discipline on Respondent.

Facts: In 1999, Respondent entered into a land contract with a husband and wife (“Sellers”) to purchase multi-unit residential property for $500,000. In 2001, Sellers filed suit seeking foreclosure or forfeiture, alleging default by Respondent. On March 22, 2002, the trial court entered a decree of foreclosure and assessed damages against Respondent. Ten days before the scheduled foreclosure sale, Respondent filed a Chapter 13 bankruptcy petition, automatically staying the sale. The bankruptcy court later lifted the stay, and the property was sold at a foreclosure sale in November 2004, resulting in a deficiency judgment of about $164,000. Also in November 2004, the bankruptcy court denied confirmation of the last of Respondent’s eight proposed Chapter 13 plans and dismissed his Chapter 13 because of unreasonable delay. Respondent and Sellers settled all issues between them in early 2008.

In the course of these proceedings, Respondent initiated three appeals in the foreclosure action and a consolidated appeal in the bankruptcy case. The appellate courts at various points found that Respondent attempted to relitigate issues that were res judicata (even after being warned not to do so), that he committed egregious violations of the Appellate Rules, that he misstated facts and ignored court rulings, that he had become obstreperous, indicating a lack of good faith, and that he made baseless, inflammatory accusations against Seller husband and his non-party daughter (alleging mental disabilities), against Sellers’ attorneys, and against the courts.

In 2009, Respondent handed out flyers entitled “Stop the Plunder in Bankruptcy Court” in downtown Indianapolis. The flyer, which was based upon Respondent’s Chapter 13 bankruptcy case, called Sellers (without naming them) “slumlords,” called their attorneys (naming the firm) “bloodsucking shylocks” who were part of a “heavily Jewish (sic) ... reorganization cartel,” and made free-ranging disparaging remarks about Jews generally, from the fall of Jericho, through 1925 Berlin, to their alleged involvement in the 9/11 attacks.

Aggravating and mitigating facts. The hearing officer found as a fact in aggravation that Respondent continued his offensive conduct in this disciplinary proceeding by, for example, seeking discovery to establish that Sellers were mentally impaired, serving interrogatories upon the Commission seeking confirmation of Respondent’s anti-Semitic statements, attempting to use discovery to ask for the names of Commission members and others with Jewish affiliations, and attacking the merits of rulings in the bankruptcy and foreclosure proceedings that were long ago final.

The hearing officer found in mitigation that Respondent has no prior discipline. We note, however, that although Respondent has not been formally disciplined by this Court, he has been admonished and sanctioned in other proceedings for misstating facts, ignoring court rulings, committing egregious rule violations, and asserting meritless claims. See Dempsey v. Belanger, 959 N.E.2d 861, 869 (Ind.Ct.App.2011), trans. denied, Dempsey v. Carter, No. 49A05-0510-CV-603, 2007 WL 114086 (Ind.Ct.App. Jan. 18, 2007), trans. denied, Matter of Dempsey, No. 1:04-cv-1308-JDT-TAB (S.D.Ind. Nov. 16, 2004) (discussed in Dempsey v. Carter, at *5).

Violations: The Court finds that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

3.1: Asserting a position for which there is no non-frivolous basis in law or fact.
4.4: Using means that have no substantial purpose other than to embarrass, delay, or burden a third person.
8.4(g): Engaging in conduct that was not legitimate advocacy, in a professional capacity, manifesting bias or-prejudice based upon race, religion, and disability (mental condition).

We emphasize that none of these violations are based on any communication that falls within Respondent’s broad constitutional right to freedom of speech and expression. We conclude that Respondent’s conduct far exceeded zealous advocacy and included repeated abuse of the tools of the legal system itself, including discovery, to direct scurrilous and repugnant attacks against his opponents and others.

Discipline: Respondent’s history of unethical litigation practices, his continued attacks on those involved in the bankruptcy and foreclosure actions and in this disciplinary proceeding, the virulent bigotry he has manifested in these proceedings, and his lack of any insight into his misconduct suggest that disbarment may be justified. Nevertheless, a majority of this Court has decided not to close the door permanently on the possibility of Respondent’s professional rehabilitation. The Court will therefore impose a substantial suspension, after which Respondent may choose to undergo a rigorous reinstatement process to prove his understanding of his ethical duties and remorse before resuming practice.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than three years, without automatic reinstatement, beginning June 12, 2013. 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). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’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 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, except DAVID, J., who votes to disbar Respondent.


source: Caselaw Access Project

author: KIRSCH, Judge.

license: Public Domain

text:
    Loren H. FRY, Appellant-Defendant, v. Terry L. SCHRODER and Robert C. Schroder, Individually and as beneficiaries and personal representatives of the Estate of David H. Schroder, Appellees-Plaintiffs.
    No. 09A02-1206-CT-474.
    Court of Appeals of Indiana.
    Feb. 28, 2013.
    Ordered Published April 16, 2013.

      Jim Brugh, Logansport, IN, Attorney for Appellant.
    Andrew B. Miller, Starr Austen & Miller, LLP, Logansport, IN, Attorney for Appellees.
   OPINION

KIRSCH, Judge.

Loren H. Fry (“Fry”) interlocutorily appeals the trial court’s order denying his motion to stay the civil proceeding brought against him by Terry L. Schroder and Robert C. Schroder (collectively “the Schroders”), individually and as beneficiaries and personal representatives of the Estate of David H. Schroder. Fry raises the following restated issue for our review: whether the trial court abused its discretion when it denied his motion to stay the civil proceeding pending resolution of the criminal action against him.

We affirm.

FACTS AND PROCEDURAL HISTORY

Fry is a resident of Cass County, Indiana and owns real property in Cass County. On September 28, 2011, the State of Indiana filed its information for murder against Fry and alleged that Fry killed his neighbor, David H. Schroder (“David”), on September 20, 2011. On September 27, 2011, the Schroders filed a civil complaint against Fry, alleging that Fry intentionally inflicted emotional distress on David, intentionally caused harm to David by shooting him, and caused the wrongful death of David. Appellant’s App. at 7-12. The Schroders also moved for an injunction to prevent Fry from transferring or encumbering his real property to preserve the property for availability to be used to pay damages to the Schroders and filed a lis pendens notice against Fry’s land, which was later ordered stricken from the clerk’s records.

On October 7, 2011, the Schroders served a request for admissions and interrogatories upon Fry at the Cass County Jail. Fry filed an objection to the request for admission and a motion to stay discovery in the civil proceeding until “the threat of the criminal prosecution of [Fry] passed.” Id. at 21. After the Schroders filed a response, the trial court issued an order, on March 21, 2012, temporarily staying the discovery related to Counts I, II, and III of the Schroders’ complaint, which were the intentional infliction of emotional distress, intentional battery, and wrongful death claims. On May 1, 2012, the trial court issued an order denying Fry’s motion to stay the civil proceeding pending the resolution of his criminal case. In denying Fry’s motion, the trial court concluded that the Schroders’ interest in an expeditious resolution of the civil case outweighed the burden on Fry to choose between responding to the civil allegations or his right against self-incrimination. Id. at 91-92. In its order, the trial court also determined that there was no legal basis at that time to enter a preliminary injunction with respect to Fry’s real property and dismissed Count IV of the Schroders’ complaint. Id. at 4, 90. The trial court noted, in its order, that “should any of the factors which form the basis for this stay change the court will consider reversing this position.” Id. at 92. Fry now files this interlocutory appeal.

DISCUSSION AND DECISION

We review a trial court’s denial of a motion to stay under an abuse of discretion standard. In re Stephen L. Chapman Irrevocable Trust Agreement, 953 N.E.2d 573, 577 (Ind.Ct.App.2011) (citing Hilliard v. Jacobs, 927 N.E.2d 393, 403 (Ind.Ct.App.2010), trans. denied), trans. denied. An abuse of discretion is found only when the trial court’s action is clearly erroneous, against the logic and effect of the facts before it and the inferences which may be drawn from it. In re A.K., 755 N.E.2d 1090, 1098 (Ind.Ct.App.2001). In reviewing discretionary motions, we will affirm the trial court’s ruling if any evidence supports the trial court’s decision or if there is any rational basis for the trial court’s action. Baker Mach., Inc. v. Superior Canopy Corp., 883 N.E.2d 818, 821 (Ind.Ct.App.2008) (emphasis added), trans. denied; Drexel Burnham Lambert, Inc. v. Merchs. Inv. Counseling, Inc., 451 N.E.2d 346, 349 (Ind.Ct.App.1983).

Fry argues that the trial court abused its discretion when it denied his motion to stay the civil proceeding against him pending the resolution in his criminal case. He contends that, although the United States Constitution does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings, when proceedings arising from the same transactions or conduct are pending simultaneously, a trial court must consider several factors to determine on a case-by-case basis whether a stay is warranted. Fry asserts that, in the present case, a review of these factors show that the trial court did not properly consider and fully apply the factors because the stay was necessary to protect his Fifth Amendment privilege against self-incrimination.

While a trial court has the inherent power to stay its proceedings, the United States Constitution does not require a stay of civil proceedings pending the outcome of criminal proceedings. Jones v. City of Indianapolis, 216 F.R.D. 440, 450 (S.D.Ind.2003). However, a trial court may use its discretion to determine whether to stay civil proceedings when the “interests of justice” require such action. Id. at 450-51. “The ultimate question, therefore, is ‘whether the court should exercise its discretion in order to avoid placing the defendants in the position of having to choose between risking a loss in their civil cases by invoking their Fifth Amendment rights, or risking conviction in their criminal cases by waiving their Fifth Amendment rights and testifying in the civil proceedings.’” Id. at 451 (internal quotation marks and citation omitted).

In deciding whether to stay civil proceedings where a similar criminal action is brought before the completion of the civil proceedings, a court may consider a variety of factors. Id. They include: (1) the interest of the plaintiff in proceeding expeditiously with the litigation or any particular aspect of it, and the potential prejudice to the plaintiff of a delay; (2) the burden which any particular aspect of the proceedings may impose on the defendant; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interests of persons not parties to the civil litigation; and (5) the interest of the public in pending civil and criminal litigation. Id.

In the present case, the trial court considered these same five factors in making its decision to deny Fry’s motion to stay the civil proceeding. In its order denying the motion, the trial court found that “[t]he public’s interest lies with the argument that there should be swift administration of justice and that a stay will interfere with that interest.” Appellant’s App. at 90. It also found that the Schro-ders have a “significant interest in the expeditious resolution of the civil proceedings” and that if a stay was imposed, the Schroders had a legitimate concern that Fry’s assets may be depleted before the civil case could be completed. Id. The trial court found that the Schroders had no control over whether Fry would ever be brought to trial on the criminal charge and, if the stay was granted, they would have to “succumb to the schedule dictated by the State’s prosecution of [Fry].” Id. at 91. It also found that, because both actions “arise out of essentially the same set of facts, absent the stay, [Fry] will likely be faced with the decision to either invoke his Fifth Amendment right against incrimination in the civil case or risk the use of any statement against him in the criminal prosecution.” Id. It did note, however, that trial courts may use their discretion to issue protective orders, when interests of justice require, in order to alleviate the inevitable consequences imposed upon a defendant without a stay in place. Id. The trial court further found that “it is not unconstitutional to force a litigant to choose between invoking the Fifth Amendment in a civil case and risk the negative inference permitted in that situation, or answering questions in the civil context and risking the potential negative effects on the criminal prosecution.” Id. In denying Fry’s motion, the trial court concluded that the Schroders’ interest in an expeditious resolution of the civil case outweighed the burden on Fry to choose between responding to the civil allegations or his right against self-incrimination. Id. at 91-92.

The evidence presented showed that, as to Fry’s criminal proceeding, he had not invoked his right to a speedy trial, and a trial date had not yet been set at the time of the hearing on his motion to stay the civil proceeding. The criminal proceeding, at the time of the hearing, was subject to an interlocutory appeal in the Indiana Supreme Court concerning the setting of bail, which was still pending with no decision. Regarding the depletion of Fry’s assets, the Schroders had taken several different actions to prevent Fry from depleting his assets, all of which Fry vigorously opposed. Because Fry is not willing to agree to any restrictions upon his real property, a stay would increase the likelihood or at least allow more opportunity to dissipate assets, which would deprive the Schroders of the means to satisfy any potential civil judgment. In his motion to stay the proceeding, Fry requested a stay of all discovery in the civil proceeding until the criminal action is concluded. Prior to the hearing, Fry had prevented the Schro-ders from conducting any substantive discovery, and an indefinite stay would increase the danger that critical evidence may be lost due to -witnesses not being able to recall facts, becoming unavailable, or dying and of records or document disappearing.

Based on our standard of review, and after reviewing the evidence presented and the trial court’s consideration of the factors, we conclude that the trial court did not abuse its discretion when it denied Fry’s motion to stay the civil proceeding pending the resolution of his criminal proceeding. We find this especially true considering the statement by the trial court that “should any of the factors which form the basis for this stay change the court will consider reversing the position.” Appellant's App. at 92. We reiterate this and note that nothing in our determination in this case prevents the trial court from revisiting its order or either party from seeking further action regarding the lis pendens action or the stay pending future developments.

Affirmed.

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


author: SULLIVAN, Senior Judge.

text:
    David S. HEALEY, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 33A04-1202-MI-107.
    Court of Appeals of Indiana.
    March 4, 2013.
    Ordered Published April 17, 2013.
    David S. Healey, New Castle, IN, Appellant pro se.
    Gregory F. Zoeller, Attorney General of Indiana, Kathy Bradley, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION ON PETITION FOR REHEARING

SULLIVAN, Senior Judge.

David S. Healey petitions for rehearing of our memorandum decision in Healey v. State (Healey II), No. 33A04-1202-MI-107, 2012 WL 5954628 (Ind.Ct.App. Nov. 29, 2012). We grant his petition, reverse the judgment of the trial court, and remand.

As noted in our original memorandum decision, Healey seeks review of the trial court’s denial of his Verified Petition to Remove Designation as an Offender, claiming that the State’s requirement that he register as a sex offender for ten years constitutes an ex post facto punishment in violation of the Indiana Constitution. In Healey II, we noted that Healey’s ex post facto claim was identical to his ex post facto claim from a prior appeal, Healey v. State (Healey I), 969 N.E.2d 607 (Ind.Ct.App.2012), trans. denied. Consequently, this Court followed the ex post facto analysis set forth in Healey I and concluded that the trial court did not err by denying Healey’s Verified Petition.

In his Petition for Rehearing, Healey argues that this Court should have considered that the requirement for him to register as a sex offender for ten years was imposed upon him by law without an opportunity to seek judicial review as to his future dangerousness or complete rehabilitation. Healey asserts that when this lack of judicial review is considered in the context of the “intent-effects” test set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), his ten-year registration requirement is an ex post facto punishment.

We turn for guidance to our Supreme Court’s recent opinion in Gonzalez v. State, 980 N.E.2d 312 (Ind.2013). In that case, Gonzalez pleaded guilty to child solicitation in 1997. Upon discharge from probation, Gonzalez was required to register as a sex offender for ten years pursuant to the Indiana Sex Offender Registration Act (“SORA”). Subsequently, during the ten-year registration period, the General Assembly amended SORA to require convicted sex offenders such as Gonzalez to register for life.

Gonzalez filed a request to end his obligation to register for life as a sex offender. The trial court denied the petition, and a panel of this Court reversed. Our Supreme Court granted transfer of the case. The Court noted that under the “intent-effects” analysis, a court must first “determine what type of scheme the legislature intended to establish.” Id. at 316. If the legislature intended to impose punishment, then an ex post facto violation must be found. If, however, the legislature intended to serve a regulatory or civil goal, then the court must “determine whether the effects of the statute are so punitive as to transform the regulatory scheme into a criminal penalty regardless of legislative intent. Id.

Our Supreme Court determined that the amendments to SORA were presumptively constitutional, and Gonzalez had failed to put forth evidence of a punitive intent by the General Assembly. Consequently, the Court moved to the second part of the analysis, the effects of the extended registration period upon Gonzalez. The Court considered the seven factors set forth in Mendoza-Martinez: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment — retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. Boss v. State, 944 N.E.2d 16, 23 (Ind.Ct.App.2011) (quoting Mendoza-Martinez, 372 U.S. at 168-69, 83 S.Ct. 554).

In Gonzalez’s case, the Court determined: (1) increasing Gonzalez’s registration period from ten years to life was an affirmative disability or restraint; (2) extending the duration of Gonzalez’s registration period is a sanction historically regarded as punishment; (3) the registration requirement only comes into play after a finding of scienter, specifically the mens rea to commit one of the crimes that causes a defendant to be subjected to SORA; (4) Gonzalez’s extended registration period did not serve aims of retribution and deterrence; (5) Gonzalez’s offense, child solicitation, was already a criminal offense when his registration period was extended; (6) an alternative purpose — public protection from repeat sex crime offenders — may rationally be connected to the extended registration period; and (7) Gonzalez had no statutory right to seek review of the extension of his registration period, which resulted in the Court concluding that the extension was excessive in relation to the purpose of protecting the public from repeat sex crime offenders. Weighing the factors, the Court concluded that the extension of Gonzalez’s reporting requirement was so punitive as to amount to a criminal penalty, and thus the lifetime reporting requirement violated Indiana’s ex post facto clause.

Turning to Healey’s circumstances, in Healey I this Court determined that the General Assembly did not act with punitive intent when it amended SORA, which resulted in extending Healey’s sex offender registration requirements for ten years. 969 N.E.2d at 613. We agree with that conclusion here, as we did in Healey II.

Next, we turn to the seven factors set forth in Mendoza-Martinez. In Healey I, the Court determined: (1) the extension of Healey’s registration period to ten years was not an affirmative disability or restraint; (2) the registration requirement is a sanction historically regarded as punishment; (3) the registration requirement only comes into play after a finding of scienter; (4) the extended registration requirement did not serve aims of retribution and deterrence; (5) Healey’s offense, child molestation, was already a criminal offense; (6) an alternative purpose — protecting society from repeat sex crime offenders — is rationally connected to Hea-ley’s extended registration period; and (7) the extension of Healey’s registration period was not excessive in relation to the purpose of protecting the public. Consequently, the Healey I court, relying heavily on Jensen v. State, 905 N.E.2d 384 (Ind.2009), determined that the effects of the SORA amendment were not punitive as applied to Healey. 969 N.E.2d at 615-16.

As noted in Healey II, the author of this opinion favors the dissenting opinion in Jensen, 905 N.E.2d at 396-97 (Boehm, J., dissenting, joined by then-Justice Dickson). Setting that issue aside, we conclude that our Supreme Court’s holding in Gonzalez requires us to reach a different result than in Healey I. In Gonzalez, the Court distinguished Gonzalez’s situation from the appellant in Jensen, noting that Jensen had been adjudicated a sexually violent predator and had a statutory right to request review of that status. Gonzalez, 980 N.E.2d at 319. By contrast, Gonzalez had no right to judicial review of the extension of his reporting period to life, which weighed in favor of determining that the extension was excessive in relation to the purpose of public protection. Similarly, in the current case Healey was not permitted to seek review of the extension of his reporting requirement to ten years. Therefore, as in Gonzalez, the extension appears excessive in relation to the purpose of public protection.

We are mindful that our task in applying the Mendoza-Martinez factors is not simply to count the factors on each side, but to weigh them. Gonzalez, 980 N.E.2d at 317. Furthermore, our Supreme Court has “accorded special weight” to the seventh factor of whether a sanction appears excessive in relation to the alternative purpose assigned to it. Flanders v. State, 955 N.E.2d 732, 751 (Ind.Ct.App.2011), trans. denied. Consequently, we conclude that the extension of Healey’s reporting requirement for ten years is punitive in effect and is thus an ex post facto punishment. See id. (determining that application of SVP reporting requirements to Flanders was an ex post facto punishment because, among other reasons, Flanders was not provided with an opportunity to contest application of the requirements).

For the reasons stated above, we grant Healey’s Petition for Rehearing, reverse the judgment of the trial court, and remand for further proceedings consistent with this opinion.

Reversed and remanded.

FRIEDLANDER, J., and BARNES, J., concur.


author: NAJAM, Judge.

text:
    Christopher GROCE and Tracey Groce, Husband and Wife, Appellants-Plaintiffs, v. AMERICAN FAMILY INSURANCE COMPANY and Michael A. Meek, Appellees-Defendants.
    No. 48A02-1208-CT-703.
    Court of Appeals of Indiana.
    March 6, 2013.
    Ordered Published April 10, 2013.
    David P. Murphy, David P. Murphy & Associates, P.C., Greenfield, IN, Attorney for Appellants.
    Robert S. O’Dell, O’Dell & Associates, P.C., Carmel, IN, Attorney for Appellees.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Christopher Groce and Tracey Groce filed a complaint for damages against American Family Mutual Insurance Company (“American Family”) and Michael Meek alleging negligence and breach of contract. American Family and Meek moved for summary judgment, which the trial court granted following a hearing. The Groces appeal and present a single dispositive issue, namely, whether their claims are barred by the applicable statute of limitations.

We affirm.

FACTS AND PROCEDURAL HISTORY

In 1997, the Groces purchased a residence in Henry County for $47,500. The Groces procured homeowner’s insurance with a policy limit of $50,000 from Kevin Michaels, an insurance agent with American Family. In August 2003, Meek replaced Michaels as the Groces’ insurance agent with American Family. Also in August 2003, Tracey advised Meek of the amount of the Groces’ mortgage on the residence; and Meek obtained a new American Family homeowner’s policy for the Groces with policy limits of $121,900.

In November 2003, the Groces advised Meek that they had added a “24 x 32 story frame addition” to the house, and Meek provided them with a quote to increase the dwelling coverage to $140,000. Appellants’ App. at 7. In July or August 2005, in conjunction with a refinance of their mortgage, the Groces’ mortgage company asked Meek to increase the policy limits on the Groces’ policy to $176,000. Thereafter, the policy limits were ultimately increased to $200,900 pursuant to “inflation protection coverage” under the policy. Appellants’ App. at 328.

On October 21, 2007, a fire destroyed the Groces’ residence. Marc Patterson, a claims adjustor for American Family, determined that “the amount to replace or repair the residence would be $231,231.78” and that the “actual cash value of the damage to the residence as provided by the terms of the policy of insurance was $156,527.82 after subtracting the depreciation of $74,703.91.” Id. at 330. Thereafter, All Star Building Corporation (“All Star”) provided an estimate to rebuild the house for $185,999.75. But on January 3, 2008, All Star amended its estimate to account for extra costs associated with bringing older parts of the house up to code and repairing a footer that had “eroded over the years.” Id. at 332. The revised estimate to rebuild the Groces’ house was increased by $39,246.15, for a total of $225,245.90.

The Groces had requested, and Meek had promised, “replacement cost” coverage for their dwelling. The American Family policy defined “replacement cost” in relevant part as follows:

Buildings which have a permanent foundation and roof will be settled at replacement cost without deduction for depreciation, subject to the following:
* * *
(2) Replacement Cost.
(a) If at the time of loss, the amount of insurance in this policy on the damaged building is 80% or more of the full replacement cost of the building immediately prior to the loss, and the building is repaired or replaced, we will pay the full cost to repair or replace the damaged building without deducting depreciation, but not exceeding the smallest of:
i. the limit in this policy for the building, including any additional amount of insurance as provided by the Inflation Protection Coverage;
ii. the cost to replace the damaged building with like construction for similar use on the same premises; or
iii. the amount actually and necessarily spent for repair or replacement of the damaged building.

Id. at 71 (emphases added). Accordingly, American Family paid only up to the policy limit of $200,900 (plus the cost of debris removal) towards rebuilding the Groces’ house. The Groces were left to pay the difference out-of-pocket.

On June 27, 2009, the Groces filed a complaint against American Family and Meek alleging negligence for failure to obtain replacement cost coverage for their dwelling and breach of contract for failure to pay the entire cost of the damage. American Family and Meek filed a joint motion for summary judgment, which the trial court granted following a hearing. This appeal ensued.

DISCUSSION AND DECISION

The Groces contend that the trial court erred when it granted American Family and Meek’s joint summary judgment motion. Our standard of review for summary judgment appeals is well established:

When reviewing a grant of summary judgment, our standard of review is the same as that of the trial court. Considering only those facts that the parties designated to the trial court, we must determine whether there is a “genuine issue as to any material fact” and whether “the moving party is entitled to a judgment as a matter of law.” In answering these questions, the reviewing court construes all factual inferences in the non-moving- party’s favor and resolves all doubts as to the existence of a material issue against the moving party. The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law; and once the movant satisfies the burden, the burden then shifts to the non-moving party to designate and produce evidence of facts showing the existence of a genuine issue of material fact.

Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind.2009) (citations omitted). The party appealing a summary judgment decision has. the burden of persuading this court that the grant or denial of summary judgment was erroneous. Knoebel v. Clark County Superior Court No. 1, 901 N.E.2d 529, 531-32 (Ind.Ct.App.2009). Where the facts are undisputed and the issue presented is a pure question of law, we review the matter de novo. Crum v. City of Terre Haute ex rel. Dep’t of Redev., 812 N.E.2d 164, 166 (Ind.Ct.App.2004). While we are not bound by the trial court’s findings and conclusions and give them no deference, they aid our review by providing the reasons for the trial court’s decision. See GDC Envtl. Servs. Inc. v. Ransbottom Landfill, 740 N.E.2d 1254, 1257 (Ind.Ct.App.2000).

Here, in its memorandum in opposition to summary judgment, the Groces clarified their negligence claims as follows:

Plaintiffs contend this is a negligence case because!,] regardless of any limit of coverage, on August 18, 2003, Meek stated “I’m assuming you want replacement cost coverage ... if anything ever happens — fire, tornado, wind [the residence] will be replaced 100%.” When [Tracey] said “yes” and he replied, “I’ll get this written up,” Meek created a nondelega-ble duty on his part to obtain “100% replacement cost coverage” on the- Residence. Plaintiffs reasonably relied on Meek’s statements to determine how much insurance equaled “100% replacement cost coverage” because they were concerned about having enough insurance to rebuild their Residence and Meek was the insurance professional. Plaintiffs further contend that such a policy would have been in effect on the day of the fire but for the negligence of Michael Meek in (1) failing to determine the value of the Residence on August 18, 2003[,] and (2) failing to obtain “100% replacement cost coverage” in the last week in July or the first week in August 2007 when he was notified of the latest refinancing of Plaintiffs mortgage. These allegations in the Complaint focus on Meek’s negligence and the culpability of American Family as Meek’s principal at all times relevant to the case.

Appellants’ App. at 350-51. American Family and Meek argued, and the trial court found, that the Groces’ negligence claims were barred by the applicable two-year statute of limitations. See Ind. Code § 34-11-2-4. As our supreme court explained in Filip v. Block, 879 N.E.2d 1076, 1082-84 (Ind.2008):

In general, “the cause of action of a tort claim accrues and the statute of limitations begins to run when the plaintiff knew or, in the exercise of ordinary diligence, could have discovered that an injury had been sustained as a result of the tortious act of another.” Wehling v. Citizens Nat’l Bank, 586 N.E.2d 840, 843 (Ind.1992). This rule also applies in the insurance context. Foster v. Auto-Owners Ins., Co., 703 N.E.2d 657, 659-60 (Ind.1998) (holding that insurance applicants are not “relieved from the duty of exercising the same ordinary care and prudence that is required in every other business transaction. It is the duty of every man to read what he signs.” (quoting Metro. Life Ins. Co. v. Alterovitz, 214 Ind. 186, 196, 14 N.E.2d 570, 574 (1938))).
A. Claims for Obtaining Inadequate Coverage
The candidates for dates starting the limitations period are the date of coverage, the date of the loss, the date of denial of the claim, and the date the insured learns or should in the exercise of reasonable care have learned of coverage problems.
* * *
The alleged negligence here was in failing to advise the Filips of the availability of some types of insurance, and in failing to secure adequate limits. We agree with the trial court that a claim against an agent for negligent 'procurement of the wrong coverage begins at the start of coverage if the breach was discoverable at that time through ordinary diligence.
The trial court relied on Page v. Hines, 594 N.E.2d 485 (Ind.Ct.App.1992), in determining that in this case the statute of limitations began to run at the time of coverage. The Pages asked Hines, their insurance agent, to procure a three-year policy for them with the same coverage as their last policy. Id. at 486. Although their prior policy contained employer liability coverage, their new policy did not. Id. The Pages sued Hines for negligent procurement of insurance. Id. The court explained, “[t]he question to be resolved is when the Pages discovered, or reasonably should have discovered, Hines’s negligent failure to procure the insurance coverage they desired” frbm the start of coverage. Id. at 487. We agree that this is the correct inquiry to resolve the limitations period for a claim of negligent failure to procure the proper coverage.
The Filips argue that their negligence claim accrued when the fire occurred. The Filips claim that “[i]t is strange logic to believe that the Filips could have filed a lawsuit against Block in the year 2000 or 2001.... Clearly, a cause of action filed prior to a loss is not ripe.” But insurance is about the shifting of risk. The Filips bore the risk of loss from the date the policy was issued, so their injury from the alleged negligence occurred at this point. Although the extent of damages was unknown within the statute of limitations, the full extent of damages need not be known-to give rise to a cause of action. See Shideler v. Dwyer, 275 Ind. 270, 282, 417 N.E.2d 281, 289 (1981) (“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.”)!.] Presumably, no litigation would have been necessary to correct their policy and pay the adjusted premium for the desired coverage before the fire, but if for any reason the coverage was no longer available the Filips could have asserted their negligence claim if they felt that necessary. Further, if we accept the Filips’ argument, then insureds become free riders, paying lower premiums, perhaps for many years, and then retaining the ability to claim the benefit of higher coverage if a loss is incurred.
We do not hold, however, that the date of coverage is necessarily controlling in every case. The question in this case is at what point the Filips, in the exercise of ordinary diligence, could have discovered that they were underin-sured. The Filips claim that their policy lacked coverage of nonbusiness personal property and business interruption, and that the building and business personal property coverage had inadequate limits. All of these alleged problems were ascertainable simply by reading the policy.1 ] As a result, the limitations period in this case began to run on or shortly after the activation of the policy with the exception discussed below for nonbusiness personal property.
The Filips contend that they relied on Block’s representations regarding the adequacy of the policy’s coverage. The Filips are correct that “reasonable reliance upon an agent’s representations can override an insured’s duty to read the policy.” Vill. Furniture, Inc. v. Assoc. Ins. Managers, Inc., 541 N.E.2d 306, 308 (Ind.Ct.App.1989). In general, this exception negates an insured’s duty to read part of the policy if an agent insists that a particular hazard will be covered. Id. (“If the agent insists to the prospective purchaser that the policy will insure against a hazard ... that the prospect is particularly concerned about, and the hazard materializes, the company may be estopped to plead the terms of the policy because the strength of the agent’s oral assurances lulled the prospect into not reading, or reading inattentively, dense and rebarbative policy language.” (quoting Burns v. Rockford Life Ins. Co., 740 F.2d 542, 544 (7th Cir. 1984))).
The question, then, is whether there is any evidence that Block made representations to the Filips, which, if true, would have covered their loss and also tolled the running of the limitations period. The designated evidence reveals that the Filips told Block they wanted the same insurance as Bailey, the former owner of the property, and they received a substantially similar policy. The designated evidence also reveals that the Filips called Block several times between 1999 and 2003 to make changes in the coverage. These changes included increasing the coverage on the building from $250,000 to $350,000, adding Bailey as an additional insured, and changing the spelling of the Filips’ names on the policy. The Filips, then, knew the policy well enough to make changes, but claim not to understand the commercial nature of the policy, the type of value coverage included, or the lack of business interruption coverage. Nothing in the designated evidence raises an issue of material fact, however, as to whether Block made representations regarding the inadequacy of the amount of business personal property coverage, whether the building coverage was replacement value or material value, or the lack of business interruption coverage. These shortcomings in their policy, which the Filips seek to attribute to Block’s negligence, were readily ascertainable from the policy itself. Accordingly, as to these three alleged omissions, the statute of limitations began to run two years after the start of coverage, in 1999, and bars those three parts of the Filips’ complaint, which was filed in 2003.

(Emphases added, footnote omitted).

Here, the crux of the Groces’ argument on appeal is that, in 2003, Meek had stated, “I’m assuming you want replacement cost coverage ... if anything ever happens — fire, tornado, wind[ — the residence] ■will be replaced 100%?” Appellants’ App. at 338. Tracey had replied in the affirmative. The Groces now claim that they “did not know how much insurance coverage was required to provide ’100% replacement cost coverage’ and left that choice up to Meek.” Id. And they allege that Meek had “caused the Plaintiffs to misunderstand the meaning of the term replacement cost coverage!.]” Id. at 35-36. In essence, the Groces contend that, in relying on Meek’s statements, they had no reason to discover that they were underinsured until the fire occurred.

But Meek did include replacement cost coverage in the Groces’ homeowner’s policy as promised, up to the policy limit. To the extent that the Groces claim that Meek misrepresented what replacement cost coverage was under their policy, they do not direct us to any designated evidence in support of that contention. And, just like the plaintiffs in Filip, the Groces made numerous changes to their homeowner’s policy over the years, including requesting increases in the policy limits. In particular, between 2003 and October 2007, the Groces “refinanced the mortgage indebtedness on the Residence several times; [and] on each such occasion the amount of insurance provided by American Family for loss due to fire increased.” Id. at 339. The Groces acknowledge having received numerous copies of “many Declaration pages for insurance policies written by American Family with steadily increasing amounts listed as insurance for loss by fire.” Id. at 338. Thus, the Groces “knew the policy well enough to make changes,” but claim not to have understood the replacement cost provision. See Filip, 879 N.E.2d at 1084.

We hold that the alleged inadequacy of the replacement cost coverage in the Groces’ American Family policy was “readily ascertainable from the policy itself.” See Filip, 879 N.E.2d at 1084. Accordingly, the statute of limitations began to run at the time of coverage, in 2003, and bars the Groces’ negligence claims, which were first asserted in 2009. See id.

Finally, we note that the Groces had asserted a breach of contract claim in their complaint. And American Family and Meek designated evidence and made argument in support of summary judgment on that claim. However, in their memorandum in opposition to summary judgment, the Groces expressly abandoned their breach of contract claim. See Appellants’ App. at 350. And they make no argument on appeal with regard to a breach of contract claim. Accordingly, we need not address whether summary judgment was appropriate with respect to the Groces’ breach of contract claim as alleged in their complaint.

Affirmed.

FRIEDLANDER, J„ and BRADFORD, J., concur.

      1. In Filip, the designated evidence "indicate[d] that both the Filips and [the insurance agent] erroneously believed that the policy covered the Filips' nonbusiness personal property.” 879 N.E.2d at 1085. Here, there is no designated evidence that Meek had any erroneous belief regarding the Groces’ coverage under the replacement cost provision of the policy. Accordingly, the exception described in Filip does not apply here.

      . Replacement cost coverage does not mean, as the Groces suggest, whatever coverage may be necessary to cover a loss when it occurs. It is a defined term under the policy. To the extent the Groces assert that they could not have discovered that they were underinsured until the fire occurred, our supreme court rejected that argument in Filip. As the court observed, if we accept the Groces’ argument, "then insureds become free riders, paying lower premiums, perhaps for many years, and then retaining the ability to claim the benefit of higher coverage if a loss is incurred.” Filip, 879 N.E.2d at 1083-84.


author: MAY, Judge.

text:
    Maria UPHAM, as Surviving Spouse and Personal Representative of the Estate of Wilbur A. Upham, Deceased, Appellant-Plaintiff, v. MORGAN COUNTY HOSPITAL, Richard J. Eisenhut, M.D., Unity Physicians, Kendrick Family Practice and Donald Baird, D.O., Appellees-Defendants.
    No. 55A01-1202-CT-53.
    Court of Appeals of Indiana.
    March 25, 2013.

      Karen A. Neiswinger, Indianapolis, IN, Attorney for Appellant.
    Edna M. Koch, Joseph D. McPike, II, Jennifer A. Padgett, Indianapolis, IN, Attorneys for Richard J. Eisenhut, M.D. and Unity Physicians.
    Robert G. Zeigler, Indianapolis, IN, Attorney for Morgan County Hospital.
    Peter H. Pogue, David G. Field, Brandon M. Kimura, Indianapolis, IN, Attorneys for Kendrick Family Practice and Donald Baird, D.O.
   OPINION

MAY, Judge.

Maria Upham brought an action against Morgan County Hospital and certain physicians (collectively, “the Hospital”) for the wrongful death of her husband, Wilbur Upham. A jury found for the Hospital. On appeal, Upham argues the trial court should have granted a mistrial because of remarks a prospective juror made during voir dire, should not have given the jury two instructions, and should not have denied certain discovery requests. We affirm.

FACTS AND PROCEDURAL HISTORY

Wilbur Upham went to the Morgan County Hospital emergency room early in the morning of April 16, 1997, complaining of vomiting, abdominal pain, diarrhea and chills. He was seen by Dr. Richard Eisen-hut and was discharged with a diagnosis of acute gastroenteritis. Later that day Wilbur went to Kendrick Family Physicians, indicating his back hurt and he had stomach pains. He provided a listing of his blood pressure readings. Dr. Donald Baird noted Wilbur’s abdominal pain and right hip pain, but did not indicate a diagnosis. He provided osteopathic manipulation and gave Wilbur two prescriptions. At about 10:00 that evening, Wilbur was found dead in a chair. The cause of death was ruptured abdominal aortic aneurism. Upham brought a wrongful death action after a medical review panel rendered an opinion that the evidence supported a conclusion the Hospital met the applicable standard of care.

Via interrogatories during discovery, Upham asked Dr. Eisenhut whether he had been treated or counseled for substance abuse, whether he had emotional, personal, psychiatric or family problems, or whether he had a criminal record. The Doctor objected on various grounds and Upham brought a motion to compel. The Doctor provided the trial court an exhibit for in camera review. After review, the trial court denied the motion to compel in May 2003. Upham brought subsequent motions to compel, which were also denied. In 2006, the Doctor filed a pretrial motion in limine, which the trial court granted.

Before a jury was empaneled, the trial court asked the venire whether anyone was familiar with any of the parties or witnesses. One venireperson, Juror 35, responded he was a friend of Dr. Eisenhut. He had been an attorney and was retired from Eli Lilly. In a lengthy exchange with Upham’s counsel in the presence of the venire, Juror 35 expressed his belief that “medical malpractice suits are what’s driven than [sic] the cost of healthcare up in our society,” (App. at 273), that malpractice suits are “the goose that laid the golden egg for trial attorneys and specifically plaintiff attorneys,” (id.), and different standards have been established for “people who are trying to save lives on a daily basis.” (Id.) Upham’s counsel asked Juror 35 whether he had “facts about malpractice suits driving the cost of healthcare,” (id. at 274), and he opined that plaintiffs find attorneys who think they can “make a few bucks off this deal ... and hire people like [Upham’s counsel] to go to court, take up everybody’s time and ... make some money.” (Id.) Upham’s counsel continued to engage Juror 35, asking whether he believed she was “taking this case just because I want an attorney’s figure that I apparently don’t believe in the justice of that.” (Id. at 274-75.) Juror 35 replied “I suspect you’re getting one-third of any ... any judgment, so yes.” (Id. at 275.) Counsel then turned her attention to other prospective jurors. Upham’s counsel did not ask for an admonition and the trial court did not admonish the prospective jurors regarding Juror 35’s statements.

Two jury instructions were given over Upham’s objection. One instructed the jury about a physician’s discretion to select from a variety of accepted treatment methods. Upham objected on the ground the instruction did not apply to the facts of the case because the case was about failure to diagnose and did not involve a choice of treatment modalities. The other instructed the jury that filing a lawsuit did not, by itself, entitle Upham to recover anything and that Wilbur’s death during his treatment “carries with it no presumption of negligence” by the defendants. (Id. at 66.) Upham objected on the ground the in-struetion was argumentative, unnecessary, and covered by other instructions.

After a jury trial in October 2011, a verdict was returned for the Hospital. Upham’s motion to correct error was denied. She then brought a motion before this court to release the sealed transcript from the 2003 discovery hearing and any exhibits considered during the trial court’s in camera review. After our own review, we denied the motion.

DISCUSSION AND DECISION

1. Juror Misconduct

As noted above, during voir dire Juror 35 expressed his belief that medical malpractice suits have increased the cost of healthcare, that they are “the goose that laid the golden egg for ... plaintiff attorneys,” (id. at 273), and that different standards have been established for “people who are trying to save lives on a daily basis.” (Id.)

Upham’s counsel asked Juror 35 whether he had facts to support his beliefs and he opined that plaintiffs find attorneys who think they can “make a few bucks off this deal ... and hire people like [Upham’s counsel] to go to court ... and ... make some money.” (Id. at 274) Upham’s counsel continued to engage Juror 35, asking whether he believed she was taking this case just to make money and didn’t believe in the justice of her client’s position. Juror 35 replied, “I suspect you’re getting one-third of any ... any judgment, so yes.” (Id. at 275.) Only then did Counsel turn her attention to other prospective jurors. Upham’s counsel did not ask the trial court to admonish the prospective jurors regarding the statements. After Upham’s counsel spoke with some other prospective jurors, Juror 35 was excused and Upham moved for a mistrial based on his statements. The trial court denied the motion, saying Upham’s “counsel invited much of that.” (Id. at 280.)

Assuming arguendo that a motion for mistrial may be brought even though no trial has commenced, and that juror misconduct may be committed by someone who is not yet a juror, we hold Upham has waived her allegation of error for appeal because she did not ask the trial court to admonish the venire. See Miller v. Ryan, 706 N.E.2d 244, 253 (Ind.Ct.App.1999) (error waived when counsel does not ask court to admonish the jury after denial of a motion for mistrial), trans. denied. And see Bardonner v. State, 587 N.E.2d 1353, 1357 (Ind.Ct.App.1992) (following denial of the mistrial, defense counsel did not ask the court to admonish jury, which is a waiver of any claim of error resulting from the failure to admonish the jury), trans. denied.

2. Jury Instruction on Treatment Modalities

Instructing the jury is a matter assigned to the sound discretion of the trial court, and we review such decisions only for abuse of discretion. Hubbard v. State, 742 N.E.2d 919, 921 (Ind.2001), cert. denied 534 U.S. 869, 122 S.Ct. 160, 151 L.Ed.2d 109 (2001). An improper instruction will merit reversal only if it so affects the entire charge that the jury is misled as to the law in the case. Id. In reviewing a challenge to a jury instruction, we consider whether the instruction correctly states the law, whether there was evidence in the record to .support giving the instruction, and whether the substance of the tendered instruction is covered by other instructions. Id.

Upham argues the trial court’s instruction as to a health care provider’s choice of treatment methods should not have been given because it was not supported by the evidence; the issue, she argues, was not whether the doctors properly treated Wilbur, but whether their failure to diagnose his condition was below the standard of care.

The trial court gave pattern jury instruction 1525, “Choice of Treatment Modalities”:

Health care providers are allowed broad discretion in selecting treatment methods, and are not limited to those most generally used.
When more than one accepted method of treatment is available, the health care provider must use sound judgment in choosing which method to use.
If a health care provider uses sound judgment in selecting from a variety of accepted treatments, and uses reasonable care and skill in treating a patient, then the health care provider is not responsible if the treatment does not succeed.
The fact that other methods existed or that another health care provider would have used a different treatment does not establish medical negligence.

(App. at 548.)

We cannot find an abuse of discretion, as there was some evidence in the record that addressed treatment. The quantum of evidence necessary for the giving of an instruction is deliberately set at a relatively low level in order to assure the right of parties to have the trier of fact determine factual disputes and to preserve the constitutional right to trial by jury. Aldana v. Sch. City of E. Chicago, 769 N.E.2d 1201, 1206 (Ind.Ct.App.2002), trans. denied. Upham appears correct that there was never an accurate diagnosis of Wilbur’s condition, but there was evidence before the jury about treatment of Wilbur’s symptoms. The Hospital’s evidence concerning treatment was minimal, but it satisfied that standard and permitted an instruction about alternative treatment modalities.

One doctor testified he would not have treated Wilbur’s elevated blood pressure with medication, but instead would have followed a “stepped care approach to the management of hypertension in individuals like this.” (App. at 508.) That doctor testified scheduling a follow-up visit for Wilbur’s back pain was appropriate because his history of back problems and his “doing quite a bit of work that required going up and down ladders,” {id. at 511), might have accounted for his back pain on his first visit. Wilbur reported his back pain had improved after the first visit due to osteopathic manipulation therapy, so it was reasonable for Dr. Baird to repeat that therapy on a follow-up visit. The witness opined Dr. Baird “adequately addressed Mr. Upham’s abdominal symptoms” by palpating Wilbur’s abdomen, asking questions, and reviewing Wilbur’s past history. (Id. at 513.) Finally, there was testimony the numbness Wilbur reported was “so nonspecific that no further follow up would be indicated unless over a much longer period of time this continued to be a problem.” (Id. at 538.)

We cannot say the instruction on alternative treatment modalities was unsupported by the evidence, and the trial court was within its discretion to give the instruction.

3. Jury Instruction on Presumptions

The trial court instructed Upham’s jury that Upham had claimed the defendants did not meet the applicable standard of care when treating Wilbur, but:

The fact that [Upham] has sued the defendants, however, does not entitle [Upham] to recover anything. Anyone may commence an action in court, and one who is sued may defend. You cannot presume that any party is to prevail over any other. The fact that [Upham] has asked for damages may not be taken by you as evidence that she is entitled to any damages at all, and the fact that the Court summarizes [Upham’s] Complaint for you or reads instructions in reference to the amount of damages claimed by [Upham] must not be taken by you as a suggestion from the Court that [Up-ham] is entitled to recover anything.

(App. at 545-46.) The instruction also noted no presumption of negligence arises from the fact Wilbur died following his treatment.

We addressed a similar instruction in Lewis v. Davis, 410 N.E.2d 1363 (Ind.Ct.App.1980). The trial court instructed the jury:

In this case there are two issues — that of liability and damages. The fact that the Court has instructed you on the measure of damages in this case does not mean that the Court believes that the Plaintiff is entitled to recover from the Defendant herein. These instructions on the measure of damages are given to assist you only in the event you should find liability on the part of Dr. Davis to the Plaintiff, James Lewis. These instructions on the issue of damages should only be considered by you if you determine under the instructions of the Court by a fair preponderance of the evidence, that the Plaintiff is entitled to recover against the Defendant, Dr. Davis.

Id. at 1369.

Lewis argued the instruction was slanted and biased because it indicated the court believed the verdict should be for the defendant. We found the instruction “neutral in tone and the court did not commit error by giving it to the jury.” Id. The same is true of the instruction in the case before us. We decline to characterize as “argumentative,” (Upham Br. at 32), an instruction that notes “[a]nyone may commence an action in court, and one who is sued may defend,” and tells the jurors they “cannot presume that any party is to prevail over any other” (App. at 546). It was not an abuse of discretion to so instruct the jury.

4. Discovery Limitation

A trial court has broad discretion to rule on issues of discovery, and we will interfere only when the appealing party can show an abuse of that discretion. Allstate Ins. Co. v. Scroghan, 851 N.E.2d 317, 321-22 (Ind.Ct.App.2006), reh’g denied. A ruling will be reversed only when the trial court reached a conclusion against the logic and natural inferences to be drawn from the facts and circumstances before the court. Id. On review, we determine whether the evidence serves as a rational basis for the trial court’s decision but may not reweigh the evidence or assess the credibility of witnesses. Id. Because the scope of discovery is highly dependent on the facts of each case, the fact-sensitive nature of discovery issues requires a high degree of deference to the decision of the trial court. Andreatta v. Hunley, 714 N.E.2d 1154, 1159 (Ind.Ct.App.1999), trans. denied.

Upham asked Dr. Eisenhut in interrogatories whether he had been treated or counseled for substance abuse, whether he had emotional, personal, psychiatric or family problems, or whether he had a criminal record. The Doctor objected on various grounds and Upham brought a motion to compel. The Doctor provided the trial court an exhibit for in camera review. After review, the trial court denied the motion to compel in May 2003. Upham brought subsequent motions to compel, which were also denied.

In 2006, Dr. Eisenhut filed a pretrial motion in limine, which the trial court granted. After a jury trial in October 2011, a verdict was returned for the defendants. Upham’s motion to correct error was denied. She then brought a motion before this court to release the sealed transcript from the 2003 discovery hearing and any exhibits considered during the trial court’s in camera review. After our own review, we denied the motion.

As the information Dr. Eisenhut provided has been thoroughly reviewed by the trial court and this court, we decline to revisit our decision that release of the information could compromise the Appel-lees’ legitimate interests in non-disclosure of privileged or confidential information and that the information would be unlikely to support the issues Upham asserted in her motion to release the information. {See App. at 48-49).

CONCLUSION

Upham’s allegation of juror misconduct is not available to her on appeal, the trial court did not abuse its discretion in instructing the jury, and the trial court’s discovery rulings were not an abuse of discretion. We accordingly affirm.

Affirmed.

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

      . The venireperson is referred to in the record as "Juror 35,” but a jury had not been selected, and he was dismissed for cause after voir dire.

      . In Bardonner v. State, 587 N.E.2d 1353, 1357 n. 4 (Ind.Ct.App.1992), trans. denied, we observed defense counsel's "motion for a mistrial at the beginning of trial was not the proper motion. Voir dire is not a part of the trial; the trial does not begin until the jury is impaneled and the cause is submitted.” The motion should have been a motion to strike or discharge the jury panel or challenge the array. Id.

      . As we hold the argument was waived for appeal, we need not address whether Upham invited any trial court error by her continued questioning.

      . In its brief, the Hospital asserts Upham presented expert testimony by Dr. David Gregory that "had [the Hospital] taken a more aggressive treatment approach,” it would have complied with the standard of care. (Joint Br. of Appellees, Morgan County Hospital, Richard J. Eisenhut, M.D., Unity Physicians, Kendrick Family Practice and Donald Baird, D.O. (hereinafter Hospital Br.) at 20) (emphasis added). That statement mis-characterizes the testimony. There is no reference to "treatment” on the pages of the record to which the Hospital directs us. The witness testified that in light of Wilbur’s symptoms, the Hospital should have pursued certain tests. He concluded "I think a delay in diagnosis prevented him from successful surgery," (App. at 319), which surgery would have an "eighty percent survival rate.” (Id.)

      . We acknowledge Upham’s understandable frustration that this process has left her without "the facts to intelligently argue why the trial court’s orders denying discovery are erroneous,” (Upham Br. at 34), and that she "cannot determine whether the information provided [at the ex parte hearing] was complete nor sufficient” for the trial court and this court to rule that the evidence would be unlikely to support or be relevant to the issues Upham asserted in her motion to release the information.
      As Upham was denied access to that evidence, we decline the Appellees’ invitation to hold she has waived this allegation of error because she "made no attempt to make an offer of proof on this issue at the trial.” (Hospital Br. at 33.) The purpose of an offer to prove is to preserve for appeal the trial court’s allegedly erroneous exclusion of evidence. Duso v. State, 866 N.E.2d 321, 324 (Ind.Ct.App.2007). An offer of proof consists of three parts: (1) the substance of the evidence, (2) an explanation of its relevance, and (3) the proposed grounds for its admissibility. Id. As a result of the Appellees' successful efforts, Upham was unable to learn the "substance of the evidence." We therefore will not require her to make an offer to prove in order to preserve that issue for appeal.


text:
    Gary HAMMERSTONE, Susan Hammerstone, Palmor Products, Inc., Northhampton Farm Bureau Cooperative Association, and Canns-Bilco Distributors, Inc., Appellants-Defendants/Counterclaimants, v. INDIANA INSURANCE COMPANY, Appellee-Plaintiff/Counterclaim Defendant.

    No. 06A04-1211-PL-595.
    Court of Appeals of Indiana.
    April 8, 2013.
    Kevin C. Tyra, Jerry M. Padgett, The Tyra Law Firm, P.C., Indianapolis, IN, Attorneys for Appellants.

      Ginny L. Peterson, Kightlinger & Gray, LLP, Indianapolis, IN, Attorney For Ap-pellee.

      . We note that Mayberstein-Burnell Co., Inc., d/b/a MBAH Insurance ("MBAH”) was a third-party defendant below and filed an answer to the third-party complaint filed by Palmor Products, Inc., but there is no further record of their participation in the case below. MBAH was not listed in the summary judgment order issued by the trial court and did not file an appellate brief with this court. However, pursuant to Indiana Appellate Rule 17(A), a party of record in the trial court shall be a party on appeal.

   OPINION

KIRSCH, Judge.

Gary Hammerstone (“Gary”), Susan Hammerstone (collectively “the Hammer-stones”), together with Palmor Products, Inc. (“Palmor”), Northhampton Farm Bureau Cooperative Association (“North-hampton”), and Canns-Bilco Distribution, Inc. (“CBD”) (collectively “the Appellants”) appeal the trial court’s order granting summary judgment in favor of Indiana Insurance Company (“Indiana Insurance”) and denying summary judgment in the favor of the Appellants. The Appellants raise the following dispositive issue for our review: whether the trial court erred in granting summary judgment in favor of Indiana Insurance because the umbrella policy was ambiguous due to the fact that the declarations page stated that there was product liability coverage and the policy denied coverage through a structural ambiguity in the language of the policy.

We reverse and remand.

FACTS AND PROCEDURAL HISTORY

Palmor is engaged in the business of designing and manufacturing a machine called a Trac-Vac, which was sold to the general public for the purpose of vacuuming mulched leaves, grass, sticks, and other yard debris, storing the mulched debris, and removing the debris. CBD and Northhampton are engaged in the business of sales and service of lawn and garden equipment. CBD is a distributor for Pal-mor, and Northhampton is a customer of CBD. Northhampton purchased products, including the Trac-Vac, manufactured by Palmor and distributed through CBD. There were no written contracts or agreements between Palmor, CBD, and North-hampton.

In 2004, Gary purchased a Model 580 Trac-Vac lawn and leaf vacuum, manufactured by Palmor from Northhampton in Pennsylvania. On November 2, 2009, Gary was using the Trac-Vac to clear and mulch leaves in his yard when he noticed that the Trac-Vac was no longer suctioning the leaves into the trailer. Gary thought there was a clog in the system and attempted to remove the inlet hose of the outtake/intake end while the Trac-Vac was still running in order to determine where the clog was located. As he was doing this, Gary severely injured his right hand and arm.

On December 10, 2009, the Hammer-stones filed a complaint in Pennsylvania against Palmor and Northhampton (“the Hammerstone Claim”); CBD was later joined as a defendant in the complaint. In their complaint, the Hammerstones alleged that Palmor, Northhampton, and CBD were each negligent when they designed, manufactured, marketed, distributed, supplied, advertised, maintained, serviced, repaired, and sold the Trac-Vac and that they failed to properly and adequately warn Gary of the hazards of the Trac-Vac, failed to properly instruct Gary on the safe use of the Trac-Vac, failed to adequately inspect the Trac-Vac for defective conditions, and failed to repair known defective conditions with the Trac-Vac. The complaint also alleged that Palmor, North-hampton, and CBD were negligent, careless, and engaged in gross negligence, recklessness, malice, and conscious disregard or indifference to the high degree of risk imposed by the Trac-Vac which constituted outrageous wanton and willful misconduct entitling Gary to recover punitive damages in addition to compensatory damages. The complaint also contained an allegation that Palmor, Northhampton, and CBD were strictly liable because the Trac-Vac was inherently dangerous.

Consolidated Insurance Company (“Consolidated”) issued a general liability policy to Palmor under policy number CBP9307708 effective April 1, 2009 to April 1, 2010. Indiana Insurance issued an umbrella insurance policy to Palmor under policy number CU8131861 effective April 1, 2009 to April 1, 2010 (“the Umbrella Policy”). Northhampton and CBD were not named as additional insureds under the Umbrella Policy. The Umbrella Policy contains the following pertinent language:

COMMERCIAL UMBRELLA LIABILITY COVERAGE FORM
SECTION I — -COVERAGE
1. Insuring Agreement
a. We will pay on behalf of the insured those sums in excess of the “retained limit” that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” or “personal and advertising injury5’ to which this insurance applies. The amount we will pay is limited as described in SECTION III — LIMITS OF INSURANCE. No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under paragraph 2. Defense and Expense of Claims and Suits under SECTION 1 — COVERAGE.
2. Defense And Expenses Of Claims And Suits
a. Defense, Investigation, And Settlement
(1)We shall have the right and duty to defend the insured against any claim or “suit” seeking damages to which this insurance applies when:
(a) Such damages are not covered by “scheduled underlying insurance” or “other underlying insurance”; or
(b) The applicable limits of liability of the “scheduled underlying insurance” or “other underlying insurance” have been exhausted by payment of judgments or settlements. However, we will have no duty to defend the insured against any “suit” seeking damages to which this insurance does not apply.
(2) When insurance is available to the insured under any “scheduled underlying insurance” or “other underlying insurance,” we will have the right and opportunity, although not the obligation, to associate with the “underlying insurers” in the defense and control of any claim or “suit” which, in our opinion, may create liability under this Coverage Part.
(3) At our discretion, we may:
(a) Investigate any “occurrence,” “offense,” or claim; and
(b) Settle any claim or “suit” of which we assume charge of the settlement of defense.
SECTION V — DEFINITIONS
20. “Products-completed operations hazard”:
a. Includes all “bodily injury” and “property damage” occurring away from premises you own or rent and arising out of “your product” or “your work” except:
(1) Products that are still in your physical possession; or
(2) Work that has not yet been completed or abandoned. However, “your work” will be deemed completed at the earliest of the following times:
(a) When all of the work called for in your contract has been completed.
(b) When all of the work to be done at the job site has been completed if your contract calls for work at more than one job site.
(c) When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project.
Work that may need service, maintenance, correction, repair, or replacement, but which is otherwise complete, will be treated as completed.

28. ‘Your product”:

a. Means:
(l )Any goods or products, other than real property, manufactured, sold, handled, distributed, or disposed of by:
(a) You;
(2) Containers (other than vehicles), material, parts, or equipment furnished in connection with such goods or products.
b. Includes:
(1) Warranties or representations made at any time with respect to the fitness, quality, durability, performance, or use of “your product”; and
(2) The providing of or failure to provide warnings or instructions.
PRODUCTS-COMPLETED OPERATIONS EXCLUSION
This endorsement modifies insurance provided under the following:
COMMERCIAL UMBRELLA LIABILITY COVERAGE PART
The following is added to paragraph 3. Exclusions under SECTION — COVERAGE:
This insurance does not apply to: “Bodily injury” or “property damage” included within the “products-completed operations hazard.”

Appellants’ App. at 29-30, 50-53. The declarations page of the Umbrella Policy identified the coverages provided by Indiana Insurance under the Umbrella Policy, specifically stating that there was an occurrence limit of $2,000,000 for any one occurrence or offense subject to the general aggregate and products-completed operations aggregate limits. Id. at 17. It also stated that there were aggregate limits of $2,000,000 each for the general aggregate limit and for products-completed operations aggregate limit. Id. Additionally, the declarations page listed the forms and endorsements that were made a part of the policy, which included form number “14-95-0204 EXCLUSION-PRODUCTS-COMPLETED OPERATIONS HAZARD.” Id.

Palmor notified Indiana Insurance and Consolidated of the Hammerstone Claim. Consolidated, as the primary insurer, accepted the defense of Palmor, but Indiana Insurance issued a notification reserving its right to deny coverage under the Umbrella Policy due to the products-completed operations hazard that it stated was excluded under the Umbrella Policy language. On December 17, 2009, North-hampton sent correspondence to Palmor requesting that Palmor accept indemnity and defend against the Hammerstone Claim on behalf of Northhampton. There was no evidence that CBD formally requested a defense and indemnity from Pal-mor.

On May 3, 2010, Indiana Insurance and Consolidated filed a complaint in Boone County, Indiana requesting declaratory judgment as to Palmor, Northhampton, and the Hammerstones. On September 24, 2010, Indiana Insurance and Consolidated filed a motion for leave to file an amended complaint to add CBD as a defendant. On March 12, 2012, Indiana Insurance filed a motion for summary judgment against Palmor, Northhampton, and CBD. On June 13, 2012, it filed a motion for summary judgment as to the Hammer-stones. All of the parties filed cross-motions for summary judgment against Indiana Insurance. On October 22, 2012, the trial court granted Indiana Insurance’s motion for summary judgment as to the Hammerstones, and on December 3, 2012, the trial court granted Indiana Insurance’s motion for summary judgment as to Pal-mor, Northhampton, and CBD; the trial court also denied the Appellants’ cross-motions for summary judgment. The Appellants now appeal.

DISCUSSION AND DECISION

On appeal from a grant of summary judgment, our standard of review is the same as that of the trial court. Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of Ind., Inc., 832 N.E.2d 559, 562 (Ind.Ct.App.2005). We stand in the shoes of the trial court and apply a de novo standard of review. Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind.Ct.App.2006). Our review of a summary judgment motion is limited to those materials designated to the trial court. Ind. Trial Rule 56(H); Robson v. Tex. E. Corp., 833 N.E.2d 461, 466 (Ind.Ct.App.2005), trans. denied. Summary judgment is appropriate only where the designated evidence shows there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. T.R. 56(C). For summary judgment purposes, a fact is “material” if it bears on the ultimate resolution of relevant issues. Wilcox Mfg., 832 N.E.2d at 562. We view the pleadings and designated materials in the light most favorable to the non-moving party. Id. Additionally, all facts and reasonable inferences from those facts are construed in favor of the nonmoving party. Troxel Equip. Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind.Ct.App.2005), trans. denied.

A trial court’s grant of summary judgment is clothed with a presumption of validity, and the party who lost in the trial court has the burden of demonstrating that the grant of summary judgment was erroneous. Cox, 848 N.E.2d at 695-96. Where a trial court enters specific findings and conclusions, they offer insight into the rationale for the trial court’s judgment and facilitate appellate review, but are not binding upon this court. Id. We will affirm upon any theory or basis supported by the designated materials. Id. When a trial court grants summary judgment, we carefully scrutinize that determination to ensure that a party was not improperly prevented from having his or her day in court. Id.

In this case, the parties filed cross-motions for summary judgment. However, the fact that cross-motions for summary judgment were made does not alter our standard of review. Mahan v. Am. Standard Ins. Co., 862 N.E.2d 669, 676 (Ind.Ct.App.2007), trans. denied. “Instead, the reviewing court must consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law.” Id.

The Appellants argue that the trial court erred when it granted summary judgment in favor of Indiana Insurance and denied their cross-motions for summary judgment. They contend that it was error to find that the Umbrella Policy unambiguously denied coverage because the Umbrella Policy was actually ambiguous as to the coverage sought here. The Appellants allege this ambiguity existed because the declarations page clearly stated that the Umbrella Policy included coverage for products-completed' operations hazard, but that later the Umbrella Policy language stated that the insurance did not apply to injuries and damages included within the products-completed operations hazard. Because there is an ambiguity in the Umbrella Policy, the Appellants assert that it should be construed against the insurer, Indiana Insurance, and that coverage should be found to exist.

The interpretation of an insurance policy is primarily a question of law and, therefore, is a question particularly suited for summary judgment. Id. (citing Lake States Ins. Co. v. Tech Tools, Inc., 748 N.E.2d 314, 318 (Ind.Ct.App.2001)). “Where there is an ambiguity, policies are to be construed strictly against the insurer.” Lake States Ins., 743 N.E.2d at 318. “An insurance contract is ambiguous when it is susceptible to more than one interpretation and reasonably intelligent persons would honestly differ as to its meaning.” Allstate Ins. Co. v. Bradtmueller, 715 N.E.2d 993, 997 (Ind.Ct.App.1999), trails, denied. An ambiguity does not exist, however, merely because the parties favor a different interpretation. Mahan, 862 N.E.2d at 676. Where terms are unambiguous, they should be given their plain and ordinary meaning. Id. (citing Farmers Ins. Exch. v. Smith, 757 N.E.2d 145, 149 (Ind.Ct.App.2001), trans. denied). A court should construe the language of a contract so as not to render any words, phrases, or terms ineffective or meaningless. Id.

Here, the declarations page of the Umbrella Policy, under the “Limits of Insurance” section, stated that the aggregate limit for “Products-Completed Operations” was $2,000,000. Appellants’ App. at 17. The Umbrella Policy’s language defines “Products-Completed Operations Hazard” as “bodily injury” and “property damage” occurring away from the insured’s premises and arising out of “your product” or “your work” subject to several limited exceptions that do not apply in the present case. Id. at 50-51. Included in the Umbrella Policy is an endorsement which changes the Umbrella Policy, entitled the “Products-Completed Operations Exclusion.” Id. at 53. This endorsement modifies the insurance coverage in the Umbrella Policy by stating, “This insurance does not apply to: ‘Bodily injury’ or ‘property’ damage included within the ‘products-completed operations hazard.’ ” Id. Thus, the Umbrella Policy states that it both provides $2,000,000 of coverage for products-completed operations and that the insurance does not apply to products-completed operations hazard injuries. As a result, the Umbrella Policy is inherently ambiguous.

Indiana Insurance argues that the declarations page actually clearly and unambiguously states that the products-completed operations hazard is excluded from coverage and that, therefore, the Appellants’ argument fails. However, we disagree. We believe that this language stating that there is an exclusion for products-completed operations hazard actually further demonstrates the inherent ambiguity in the Umbrella Policy. When taking this language into consideration, the information found on the declarations page both provides $2,000,000 of coverage for products-completed operations and then states that such coverage is excluded. We find this to make the Umbrella Policy inherently ambiguous.

Finding an ambiguity in the Umbrella Policy, we must construe the Umbrella Policy strictly against the insurer. Lake States Ins., 743 N.E.2d at 318. Construing the Umbrella Policy against Indiana Insurance, we conclude that there is coverage for Palmor as to products-completed operations claims as a matter of law. Therefore, the trial court erred in granting summary judgment in favor of Indiana Insurance and in denying the Appellants’ motion for summary judgment. We reverse the trial court’s order and remand for proceedings consistent with this opinion, including findings by the trial court as to whether Northhampton and CBD qualify as indemnitees of Palmor under the Umbrella Policy and whether Northhamp-ton, CBD, and the Hammerstones have assignee rights as part of the Hammer-stone Claim.

Reversed and remanded.

VAIDIK, J., and PYLE, J., concur.


text:
    STATE of Indiana, Appellant-Plaintiff, v. Darrell KECK, Appellee-Defendant.
    No. 67A01-1208-CR-362.
    Court of Appeals of Indiana.
    April 24, 2013.

      Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
    Joel C. Wieneke, Wieneke Law Office, LLC, Plainfield, IN, Attorney for Appel-lee.
   OPINION

MAY, Judge.

Darrell Keck was stopped after police saw him driving on the left side of a county road. He was charged with operating a vehicle while intoxicated and operating a vehicle with a blood alcohol level of .08 or more, both Class C misdemeanors. Keck moved to suppress evidence arising out of the stop, arguing police should not have stopped him because road conditions were so bad he could not safely drive on the right side of the road. In granting Keck’s motion to suppress, the trial court determined “driving left-of-center has become a necessity” because of poor road conditions in the county, and police therefore did not have reasonable suspicion to stop Keck. (App. at 17.) The State appeals, arguing the police had reasonable suspicion to stop Keek because he was driving left of center. We affirm.

FACTS AND PROCEDURAL HISTORY

On February 12, 2012, Keck was driving westbound on Highway 36. A sheriffs deputy was driving behind Keck and followed him as he turned left onto County Road 100 East. The deputy saw no violations as Keck was driving on the highway or as he turned onto the county road, but he stopped Keck after Keck drove in the center portion of the county road for one-quarter to three-quarters of a mile. There was no traffic approaching from the other direction. Keek was not driving erratically, but he was driving slower than the speed limit.

County Road 100 is a two-lane road, but it is not as wide as most. It does not have a center line. The surface is “chip-and-seal” in parts and gravel in others. The officer who stopped Keck testified the outside portion of the road was covered in gravel, and operating with one tire on gravel and the other on pavement was a potential driving hazard. The officer recalled at least two chuckholes in the road. However, the officer testified he was in his “driving portion of the roadway” while he followed Keck. (Tr. at 15.)

Keck’s passenger testified the road was “terrible,” (id. at 22), and “you have to” drive left of center because “you can’t without hitting every hole in the road, you have to go left.” (Id.) He testified Keck was driving “a little slower ... because of the road condition.” (Id. at 28.) The passenger asked the officer why he pulled Keck over, and the officer told him it was because Keck was driving under the speed limit and left of center.

Keck moved to suppress the evidence the officer obtained from the stop on the ground there was no reasonable suspicion to stop him. In granting the motion, the trial court took judicial notice that the condition of the county roads makes it

wholly unreasonable to expect motorists in Putnam County to take a perfectly straight course, on the far right side of the roadway riddled with potholes in the absence of oncoming traffic_ [D]riving left of center has become a necessity with the current conditions of our county roads.

(App. at 17.)

DISCUSSION AND DECISION

The State has the burden to show the measures it used to seize evidence were constitutional. State v. Sitts, 926 N.E.2d 1118, 1120 (Ind.Ct.App.2010). In reviewing a motion to suppress, we do not reweigh the evidence, but determine if there is substantial evidence of probative value to support the trial court’s ruling. State v. Aynes, 715 N.E.2d 945, 949 (Ind.Ct.App.1999), reh’g denied. We look to the totality of the circumstances and consider all uncontroverted evidence together with conflicting evidence that supports the trial court’s decision. Id. The trial court observes the witnesses and is the sole judge of their credibility and of the weight to be given their evidence, Robinson v. Priest, 146 Ind.App. 442, 445, 256 N.E.2d 582, 584 (1970), and we are required to accept the trial court’s assessment of their credibility. Frasier v. State, 794 N.E.2d 449, 461 (Ind.Ct.App.2003), reh’g denied, trans. denied.

The Fourth Amendment to the United States Constitution and Article 1, Section 11, of the Indiana Constitution protect citizens from unreasonable searches and seizures. Combs v. State, 878 N.E.2d 1285, 1288 (Ind.Ct.App.2008). A police officer may stop a vehicle when he observes a minor traffic violation. Id. Such a stop does not run afoul of either constitutional provision. Id. Whether an officer has an objectively justifiable reason for a traffic stop is determined on a case-by-case basis by engaging in a fact-sensitive analysis of the totality of the circumstances. Sitts, 926 N.E.2d at 1120. An officer’s good faith belief a person has committed a traffic violation will justify a traffic stop. Combs, 878 N.E.2d at 1289. But an officer’s “mistaken belief about what constitutes a violation does not amount to good faith. Such discretion is not constitutionally permissible.” Ransom v. State, 741 N.E.2d 419, 422 (Ind.Ct.App.2000), trans. denied.

Ind.Code § 9-21-8-2(a) provides that on “all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway.” But subsection (b) provides: “a vehicle proceeding at less than the normal speed of traffic at the time and place under the conditions then existing shall be driven: (1) in the right-hand lane then available for traffic; or (2) as close as practicable to the right-hand curb or edge of the roadway.” Ind.Code § 9-21-8-2(b) (footnote added).

The State argues subsection (a) controls and permitted the police to stop Keck when he drove on the left side of the road. Keck argues subsection (b) controls, and the stop was unreasonable because, in light of the road conditions, he was driving as close as practicable to the right edge of the roadway. There was evidence before the trial court to support a conclusion subsection (b) applies and Keck was not in violation.

The officer who stopped Keck testified the outside portion of. the road was covered in gravel and operating with one tire on gravel and the- other on pavement was a potential driving hazard. The officer recalled at least two chuckholes in the road. Keck’s passenger testified the road was “terrible,” (Tr. at 22), and “you have to” drive left of center because to avoid “hitting every hole in the road, you have to go left.” (Id.) He testified Keck was driving “a little slower ... because of the road condition.” (Id. at 23.) That evidence permitted the trial court to conclude the stop was improper.

In Combs, a police officer stopped Combs’ car after he saw it traveling left of center on a street in Vincennes. Combs admitted she was driving on the wrong side of the street but testified it was necessary because vehicles were parked on the side of the street and she would have hit them if she had not done so. We found the stop was lawful but a subsequent search was not. Id. at 1290. The stop was lawful because there was evidence the officer “conducted a lawful traffic stop based on a good faith belief’ there had been a violation. Id. at 1289. In the case before us, there was evidence to support the trial court’s conclusion the traffic stop was not lawful because there was no violation.

In Ransom, the evidence reflected the officer’s “mistaken belief about what constitutes a violation,” which, we held, is not good faith. 741 N.E.2d at 422. The officer stopped Ransom for driving in reverse, an activity that is not necessarily unlawful. We noted there was not, as the State argued, any apparent violation of the reckless driving statute, or the obstruction of traffic statute. Thus, the officer did not have an objectively justifiable reason for stopping Ransom, and the trial court erred in finding that the stop was lawful. Id. Here, as in Ransom, there was evidence the officer had a “mistaken belief about what constitutes a violation,” which does not amount to a good faith belief there has been a violation as in Combs.

Nor can we find the trial court erred to the extent it determined Keck could not have complied with Ind.Code § 9-21-8-2(a) and instead had to drive in the center of the road. In State v. Rhodes, 950 N.E.2d 1261 (Ind.Ct.App.2011), a traffic stop was premised on Rhodes’ violation of Ind.Code § 9-21-8-25, which provides a turn ■ signal must be given continuously during not less than the last two hundred feet traveled by a vehicle before turning or changing lanes. Rhodes argued, among other things, the State did not show that it was possible for him to comply with the statute. The police officer who stopped Rhodes estimated Rhodes turned his signal on about 150 feet before turning, but the record did not reflect whether there was at least 200 feet between the place where he turned onto Market Street and the place where he turned into a nearby alley. We agreed “the State failed to show that compliance with the statute was possible under the circumstances.... Thus, we cannot say that the trial court erred by concluding that Rhodes was not properly stopped for a traffic violation.” Id. at 1265. Similarly, in the case before us, the trial court heard evidence that could support a conclusion Keck’s compliance with Ind.Code § 9-21-8-2(a) was not possible under the circumstances.

As the trial court heard sufficient evidence to support its conclusion Keck was in compliance with Ind.Code § 9-21-8-2(b) and could not have complied with subsection (a), we cannot say the trial court erred to the extent it found the stop improper. We therefore affirm.

Affirmed.

ROBB, C.J., and RILEY, J., concur.

      . Ind.Code § 9-30-5-2.

      . Ind.Code§ 9-30-5-1.

      . We heard oral argument March 19, 2013, at Paoli High School at the invitation of Orange Circuit Court Judge Larry R. Blanton. We thank Judge Blanton and the School for their hospitality and commend counsel on the quality of their oral advocacy.

      . The Ohio Department of Transportation explains:
      "Chip Sealing” is a common pavement maintenance practice that extends pavement life and provides a good driving surface. ... Hot mix asphalt pavement is produced by heating liquid asphalt and mixing it with aggregate, with the mix then spread and compacted to form a durable road structure and riding surface.
      http://www.dot.state.oh.us/districts/D03/ Pages/ChipSealFactSheet.aspx (last visited February 21, 2013).

      . In its brief, the State argues this subsection does not apply because "there was no traffic present at that time ... [therefore, Defendant could not be ‘proceeding at less than the normal speed of traffic at that time.’ ” (Br. of Appellant at 9.) On the next page of its brief, the State notes testimony Keck was driving at a reasonable rate of speed for the road conditions. It then asserts he was "driving at the same rate of speed as all other drivers, {id. at 10) (emphasis added), and therefore could not be proceeding at less than the normal speed of traffic. The State does not explain how Keck could be driving at the same speed as all other drivers when "there was no traffic present.” Its allegation Ind.Code § 9-21-8-2(b) does not apply because Keck could not have been "proceeding at less than the normal speed of traffic at that time” also appears inconsistent with its own Statement of Facts, where the State notes Keck drew the police officer's attention because he was traveling twelve miles per hour slower than the speed limit. Finally, in its reply brief, the State says Keck was driving at the normal speed of traffic because the normal speed on a road in poor condition is less than the normal speed of a well-maintained road. We decline the State’s invitation to hold subsection (b) does not apply on the ground Keck could not have been proceeding at less than the normal speed of traffic at that time.

      . Combs testified she had to’ drive on the wrong side of the street because vehicles were parked on the side of the street and she would have hit them if she had not done so. But the trial court also heard the police officer’s testimony that he did not know whether cars were parked on the street there that night, and it noted by the time of the hearing, it had been more than two years since the stop. Combs testified the officer ticketed her for driving left of center, but there was no evidence she had brought the sufficiency of the roadway’s width to the officer’s attention.
      The State asserts in its brief that we "rejected Combs’s necessity argument as an excuse” for driving left of center. (Br. of Appellant at 7.) We did not. There was evidence to permit the trial court in Combs to find the officer had a "good faith belief” there had been a violation. Combs, 878 N.E.2d at 1289. We did not decide that issue by "rejectfing] Combs’s necessity argument.”

      . The trial court said "[D]riving left of center has become a necessity with the current conditions of our county roads,” and it is "wholly unreasonable to expect motorists in Putnam County to take a perfectly straight course, on the far right side of the roadway riddled with potholes in the absence of oncoming traffic.” (App. at 17.) We recently noted in Killebrew v. State, 976 N.E.2d 775, 780 (Ind.Ct.App.2012), that "[i]f we were to hold that an action equally common among unimpaired drivers could justify a traffic stop, that ruling would be ripe for abuse and would not strike a reasonable balance between the government’s legitimate interest in traffic safety and an individual’s reasonable expectation of privacy.”

      . The State also argues the trial court erred when it took judicial notice of Putnam County road conditions. We need not decide whether that was a proper subject for judicial notice; as explained above, there was sufficient evidence before the trial court to permit it to grant Keck’s motion to suppress.
      We reject the State’s argument the trial court “based its order solely on the fact of which it took judicial notice” and "did not consider the testimony of the witnesses” who testified about the condition of the road. (Reply Br. of Appellant at 3.) It is true the trial court did not explicitly say it was considering that testimony in addition to its judicial notice, but ”[i]n all cases we presume the trial court considers all the evidence.” Benda v. Benda, 553 N.E.2d 159, 163 (Ind.Ct.App.1990), trans. denied. The State has offered nothing to rebut the presumption the trial court considered all the evidence before it. The trial court could have found not credible the officer's testimony that Keck was violating Ind.Code § 9-21-8-2(a). As we may not reweigh the evidence or judge the credibility of the witnesses, we decline to disagree.