text:
    Mary Elizabeth SANTELLI, as Administrator of the Estate of James F. Santelli, Appellant (Plaintiff below), v. Abu M. RAHMATULLAH, individually and d/b/a Super 8 Motel, Appellee (Defendant below).
    No. 49S04-1212-CT-667.
    Supreme Court of Indiana.
    Aug. 28, 2013.
    Rehearing Denied Nov. 21, 2013.

      James R. Fisher, Debra H. Miller, Miller & Fisher LLC, Indianapolis, IN, Roger L. Pardieck, Karen M. Davis, Susan Boat-right, The Pardieck Law Firm, Seymour, IN, Attorneys for Appellant.
    William E. Winingham, John G. Shubat, Wilson Kehoe Winingham LLC, Indianapolis, IN, Attorneys for Amicus Curiae Indiana Trial Lawyers Association.
    Danford R. Due, Scott E. Andres, Due Doyle Fanning LLP, Indianapolis, IN, Attorneys for Appellee.
    Julia B. Gelinas, Lucy R. Dollens, Frost Brown Todd LLC, Donald B. Kite, Sr., Gonzalez Saggio & Harlan LLP, Indianapolis, IN, Attorneys for Amicus Curiae Defense Trial Counsel of Indiana.
   RUCKER, Justice.

In this negligence case we address the application of Indiana’s Comparative Fault Act to the issue of fault allocation in a specific context: that in which a premises owner has a duty to protect a business invitee from the foreseeable criminal act of a third party.

Facts and Procedural History

On October 16, 2005, plaintiff James Santelli was robbed and murdered inside his room in an Indianapolis-area motel owned by defendant, Abu Rahmatullah. Santelli was a resident of Illinois and had rented a room at the motel while he worked on a local construction project. In criminal proceedings the murderer, Joseph Pryor, pleaded guilty to the murder and Class B felony robbery of Santelli and was sentenced to 85 years in the Department of Correction. See Pi’s Ex. 90; Pryor v. State, No. 49A02-0709-CR-804, slip op. at 2-8, 2008 WL 1758752, at *1 (Ind.Ct.App. April 18, 2008). On April 5, 2007, Santel-li’s estate (“the Estate”) filed a complaint against Rahmatullah in Marion Superior Court alleging Rahmatullah breached his duty to Santelli to maintain the motel in a reasonably safe manner, causing Santelli’s death. Rahmatullah asserted a defense naming Pryor as a liable non-party, and also alleging Santelli was partially responsible for his own death. The case proceeded to a five-day jury trial in July 2010.

The evidence adduced at trial showed that Rahmatullah’s motel was located in a high crime area and had been the scene of four armed robberies in less than four years prior to the murder, two of which occurred within six months of Santelli’s death in 2005. See Tr. at 206-09. Prostitution and drugs were prevalent at the motel to a degree that undercover police considered renting a room there. See Tr. at 414. About a month before the murder, Rahmatullah hired Pryor as a maintenance man and gave him a master keycard to the motel without inquiring into his criminal history. At the time Rahmatullah hired him, Pryor was a convicted felon, was on probation, and was the subject of an outstanding warrant for violating that probation. Pryor walked off the job after two days of work and Rahmatullah neither confiscated nor deactivated Pryor’s working keycard, which remained in Pryor’s possession at the time of the murder. See Tr. at 450, 451, 485-86. Although there were no signs of forced entry to Santelli’s room, there was also no evidence Pryor used the keycard to gain entry. Santelli had stayed at the same motel in prior years while working on other jobs. Police and expert testimony indicated security procedures at the motel were lax. The motel’s only security cameras were in the lobby and the pool area and these were not monitored. Tr. at 803-04. Rahmatullah failed to keep exterior doors consistently closed and locks in working order. Tr. at 457, 484, 499-501, 510.

After the parties rested, the Estate tendered the following final jury instruction, which the trial court denied:

If you find that the Defendant or his employees should have reasonably foreseen the criminal conduct on the premises could result in the death of a guest, then you are to find that the Defendant is at fault for Pryor’s actions as well as for the Defendant’s own negligence....

Tr. at 707. Among other things, the trial court instructed the jury on negligence, incurred risk, proximate cause, non-party fault, reasonable foreseeability, a landowner’s duty to invitees, and apportionment of fault.

On July 16, 2010 the jury returned a verdict finding total damages in the amount of $2,070,000.00 and apportioning the fault for Santelli’s death as follows: 1% to Santelli, 2% to Rahmatullah, and 97% to Pryor, resulting in an award to the Estate of $41,400.00. App. at 184-85. The trial court entered judgment on July 26, 2010. On August 25, 2010 the Estate filed its Motion to Correct Errors and for New Trial, which Rahmatullah opposed. The trial court held a hearing on the motion on September 27, 2010, during which the court directed the parties to submit proposed findings of fact and conclusions of law no later than October 25, 2010. On November 5, 2010, the trial court issued its findings, conclusions, and judgment granting in part and denying in part the Estate’s motion and ordering a new trial limited to the issue of fault allocation.

Both parties filed notices of appeal from the trial court’s order. Rahmatullah asserted the November 5 order was untimely and should be treated as deemed denied under Indiana Trial Rule 53.3 while the Estate appealed the trial court’s partial denial of its motion, and from any deemed denial of the motion for untimeliness. On Rahmatullah’s motion the appeals were consolidated and the parties and their ami-ci briefed the merits. The Court of Appeals presumed the Estate’s motion to correct errors was deemed denied by the trial court and then considered the merits of the parties’ arguments. The Court determined that Indiana had previously employed the “very duty” doctrine, held that a jury instruction on the doctrine would be proper on retrial because the doctrine had survived the adoption of the Indiana Comparative Fault Act, and adopted the Restatement (Third) of Torts § 14 to implement the doctrine in Indiana. See Santelli v. Rahmatullah, 966 N.E.2d 661 (Ind.Ct.App.2012). The Court of Appeals also opined on the admissibility of certain evidence on retrial. We previously granted transfer, thereby vacating the opinion of the Court of Appeals. See Appellate Rule 58(A). We now address the status of the trial court’s November 5 order and the application of Indiana’s Comparative Fault Act to the facts in this case.

Discussion

I.

The Trial Court’s November 5, 2010 Order

The Estate’s motion to correct error alleged the trial court erred by: (1) permitting the jury to allocate fault to Pryor; (2) rejecting the Estate’s tendered instruction which “would have informed the jurors that they could find [Rahmatullah] liable” for Pryor’s criminal act if a death caused by crime was reasonably foreseeable; and (8) excluding certain evidence— namely, of a prior criminal-police shootout at the motel and of the criminal histories of other motel employees. See App. at 190. The Estate also contended more generally that “in light of all of the evidence that was admitted, the jury’s verdict allocating 1 percent of the fault to James Santelli and only 2 percent of the fault to [Rahmatullah] was against the greater weight of the evidence.” Id.

A. Timeliness of the Order

The trial court held a hearing on the Estate’s motion to correct error on September 27, 2010. The trial court entered its findings of fact, conclusions of law, and order forty days later, on November 5, 2010. Trial Rule 58.3 addresses the time limitations for ruling on motions to correct error and provides in pertinent part:

(A) Time limitation for ruling on motion to correct error. In the event a court fails for forty-five (45) days to set a Motion to Correct Error for hearing, or fails to rule on a Motion to Correct Error within thirty (30) days after it was heard or forty-five (45) days after it was filed, if no hearing is required, the pending Motion to Correct Error shall be deemed denied. Any appeal shall be initiated by filing the notice of appeal under Appellate Rule 9(A) within thirty (30) days after the Motion to Correct Error is deemed denied.
(B) Exceptions. The time limitation for ruling on a motion to correct error established under Section (A) of this rule shall not apply where:
* * *
(2) The parties who have appeared or their counsel stipulate or agree on record that the time limitation for ruling set forth under Section (A) shall not apply; or
(3) The time limitation for ruling has been extended by Section (D) of this rule.
⅜ * *
(D) Extension of time for ruling. The Judge before whom a Motion to Correct Error is pending may extend the time limitation for ruling for a period of no more than thirty (30) days by filing an entry in the cause advising all parties of the extension. Such entry must be in writing, must be noted in the Chronological Case Summary before the expiration of the initial time period for ruling set forth under Section (A), and must be served on all parties. Additional extension of time may be granted only upon application to the Supreme Court as set forth in Trial Rule 53.1(D).

Ind. Trial Rule 53.3. Rahmatullah contends that because the trial court failed to rule on the motion by October 27 — within thirty days of the hearing — it was deemed denied pursuant to Rule 53.3(A). The Estate counters that the order was timely pursuant to Rule 53.3(B)(2) based on the schedule agreed to by the court and the parties.

At the close of the hearing, the trial court directed the parties to provide proposed findings of fact and conclusions of law. The trial court expressed the need for findings and conclusions given the complexity of the issues in this case, and the submission schedule was discussed as follows:

[Court]: ... So this is September the 27th. A couple of weeks [to prepare proposed findings and conclusions] do you think? [Rahmatullah’s counsel], I know you have a very busy schedule.
[Rahmatullah’s counsel]: Yeah, that would be alright.
[Court]: Alright.... Let’s make it the 20th of October because I have another jury starting tomorrow. I won’t have time to look at it this week. I mean, even if I got them I wouldn’t be able to do much with it. So that gives you plenty of time and give me some time to review your findings of facts and conclusions once I get them. The 20th is a Wednesday. Is that not a good date for you [Estate’s counsel]?
[Estate’s counsel]: Your Honor, could that be moved out to the following Monday. We have a jury trial starting on the 17th of October.
[Court]: Okay.... The 25th of October?
[Estate’s counsel]: Yes, the 25th. That would be appreciated.
[Court]: That’s fine with me. Alright. Then the findings of facts and conclusions are due on the 25th and then the order will be out just as soon as I can get to it after that.

Hrg. Tr. at 26. On the record, and with the acquiescence of both parties, the trial court set a specific date for the parties’ submissions of twenty-eight days after the hearing and stated its ruling would follow as soon as possible thereafter. This comports with the time limitation exception in Rule 53.3(B)(2) that “[t]he parties who have appeared or their counsel stipulate or agree on record that the time limitation for ruling set forth under Section (A) shall not apply.” We thus find the trial court’s November 5, 2010 order timely and now proceed to appellate review of that order.

B. Standard of Review for the Order

The Estate pursued its motion to correct error on the basis that “[a] modification of the verdict or new trial in this case is warranted under Indiana Trial Rule 59(J)(1), (3), (5) and (7) because the jury’s award of $41,400 against the Defendant was insufficient.” App. at 190. Trial Rule 59(J) is entitled “Relief granted on motion to correct error” and “allows for the court to correct any error it determines to be ‘prejudicial or harmful.’ ” Wisner v. Laney, 984 N.E.2d 1201, 1204 (Ind.2012) (quoting Ind. Trial Rule 59(J)). Among other forms of relief the Rule specifically “authorizes trial courts to grant new trials to correct an error in prior proceedings.” Walker v. Pullen, 943 N.E.2d 349, 352 (Ind.2011).

We generally review a trial court’s ruling on a motion to correct error for an abuse of discretion. See, e.g., Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind.2008); Walker, 943 N.E.2d at 351. In so doing, we afford the trial court’s decision “a strong presumption of correctness.” Walker, 943 N.E.2d at 351 (citing Weida v. Kegarise, 849 N.E.2d 1147, 1154 (Ind.2006)). But where a trial court grants a new trial under Rule 59(J), it must provide findings of fact “sufficient to demonstrate why the jury verdict should be cast aside,” id. at 350, and “[t]he strong presumption of correctness only arises if the court’s decision is supported by the special findings required by Trial Rule 59(J).” Id. at 352 (citing Weida, 849 N.E.2d at 1154). Such findings demonstrate that when acting under Rule 59(J) as a “thirteenth juror” the trial court fulfills its duty to “sift and weigh the evidence and judge witness credibility.” Ho v. Frye, 880 N.E.2d 1192, 1196 (Ind.2008) (quoting Keith v. Mendus, 661 N.E.2d 26, 31 (Ind.Ct.App.1996), trans. denied).

Where a new trial is granted because the jury’s decision is “against the weight of the evidence,” Rule 59(J) requires that the trial court’s findings of fact “relate the supporting and opposing evidence to each issue upon which a new trial is granted.” Keith, 661 N.E.2d at 32 (quoting T.R. 59(J)). Alternatively, “where the trial court grants a new trial on the basis that the decision of the jury is ‘clearly erroneous as contrary to or not supported by the evidence’ then the findings need only ‘show why judgment was not entered upon the evidence.’ ” Id. (quoting T.R. 59(J); Wedmore v. Jordan Motors, Inc., 589 N.E.2d 1180, 1183 (Ind.Ct.App.1992), trans. denied). See also Weida, 849 N.E.2d at 1151-52, 1153 (explaining the difference in the trial court’s obligations under each scenario, the reasons the court must relate supporting and opposing evidence when acting as a “thirteenth juror,” and recognizing this as a sober responsibility because “compliance with the arduous and time-consuming requirements of the Rule ... provides assurance to the parties and the courts that the judge’s evaluation of the evidence is better than the evaluation of the jury”) (quoting Nissen Trampoline Co. v. Terre Haute First Nat’l Bank, 265 Ind. 457, 358 N.E.2d 974, 978 (1976)).

C. Analysis of the Order

The trial court’s order granting a new trial spanned nine pages and included twelve specific points of litigation history, five general findings of fact which within them included twenty specific factual findings based on particular evidence presented at trial, and nine detailed conclusions of law. Among these were:

5. Joseph Pryor confessed to robbing and killing Mr. Santelli and was sentenced to 85 years in prison for these crimes.
13. The evidence presented at trial was sufficient to establish the foreseeability of a criminal assault on a guest in his motel room. That evidence included, but was not limited to, the following: ... [listing four specific facts].
14. There was significant evidence of Defendant’s failure to protect motel guests, including Mr. Santelli, from the foreseeable risk of violent criminal activity, including but not limited to the following: ... [listing eleven specific facts].
15. The evidence was sufficient to support the jury’s conclusion that the negligent acts and omissions of Defendant, Rahmatullah, were a substantial factor in the death of James Santelli, which evidence included, but was not limited to the following: ... [listing five specific facts].
17. The exact mode of entry into the motel room by Mr. Pryor was not conclusively proven by the evidence. Several theories were introduced as to how entry was achieved. The only evidence at trial that supported an allocation of fault to James Santelli was the allegation that Mr. Santelli may have voluntarily opened the door to his room when the murderer entered. Since there were no eyewitnesses, no evidence was presented as to the exact exchange between Mr. Santelli and Mr. Pryor at the moment Pryor entered the motel room. Evidence was presented that the murderer was in possession of a working pass key to the room that had been provided to him by the Defendant, Rah-matullah, which gave him the ability to enter the room even if it had been locked.
22. Defendant Rahmatullah breached his duty of care to Santelli when defendant’s motel hired Pryor, gave him a master key card, allowed him to leave employment with the key card after approximately two days, allowed him to return, failed to take measures to prevent further use of the key card, failed to conduct a criminal background check, failed to monitor the visible security cameras, failed to staff the hotel with trained security personnel, allowed outside doors to frequently remain unlocked or propped open and unmonitored at night despite stated policies that they be kept locked, and failed to maintain the lock system in order to save money resulting in inoperable locks; all despite defendant’s knowledge that the motel was in a high crime area and had been the site of substantial prior criminal activity.
23. Defendant Rahmatullah’s breach of care was a substantial factor in Mr. San-telli’s death, as he afforded the murderer, Pryor, an opportunity to access San-tell[i]’s room, where he killed Santelli. 25. The jury’s allocation of 97% fault to the non-party, Pryor, apparently indicated the jurors’ confusion while weighing Pryor’s conduct, as compared to Rahma-tullah’s conduct, in addition to allocating fault between the parties and at the same interpreting and applying the jury instruction given to them on proximate/responsible cause.

App. at 260-67.

The trial court gave the following reasons for granting the motion to correct error: (1) “[t]he jury’s allocation of fault was against the weight of the evidence”; and (2) “the jury’s verdict was clearly erroneous[,] contrary to[,] and not supported by the evidence.” App. at 265. At the end of its order, the court reiterated:

[T]he Court grants the Motion to Correct Error on the issue of the allocation of fault percentages and finds that the allocation of 97% fault to the criminal, and only 2% fault to the negligent Defendant, is contrary to the weight of the evidence, for all of the reasons set forth above.... The verdict’s fault allocation between the Plaintiff, Defendant and non-party, Pryor, was against the weight of the evidence.

Id. at 267. Although the trial court at one point uses the language “clearly erroneous[,] contrary to[,] and not supported by the evidence” it is clear from its multiple pronouncements about weighing the evidence that the court was acting as a thirteenth juror and determined the jury’s decision to be against the weight of the evidence. The court was thus bound under Trial Rule 59(J) to “relate the supporting and opposing evidence to each issue upon which a new trial is granted.” Here, the court provided extensive findings and conclusions relating in detail the supporting and opposing evidence bearing on the issue of fault allocation. The order demonstrates that the trial court “sift[ed] and weighted] the evidence and judge[d] witness credibility” thus satisfying the provisions of Rule 59(J). Keith, 661 N.E.2d at 31. Its decision to grant a new trial is therefore entitled to a strong presumption of correctness on appeal. See Walker, 943 N.E.2d at 351. We find the trial court was well within its discretion in determining that “a contrary result should have been reached in the minds of reasonable men.” Weida, 849 N.E.2d at 1152 n. 4 (quoting Huffv. Travelers Indem. Co., 266 Ind. 414, 363 N.E.2d 985, 994 (1977)). The trial court’s order granting a new trial is affirmed.

Although the trial court agreed with the Estate’s contention that the jury’s allocation of fault was against the weight of the evidence, it summarily denied the remainder of the Estate’s motion, including the trial court’s alleged errors of (1) permitting the jury to allocate fault to Pryor; (2) rejecting the Estate’s tendered instruction which “would have informed the jurors that they could find [Rahmatullah] liable” for Pryor’s criminal act if a death caused by crime was reasonably foreseeable; and (3) excluding evidence of a prior criminal shootout at the motel. See App. at 190, 259. The Estate maintains this was error. Again we apply an abuse of discretion standard on review, which requires that we reverse the trial court’s judgment only if it was “clearly against the logic and effect of the facts and circumstances before it” or if the trial court “err[ed] on a matter of law.” See Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind.2013).

We affirm the trial court’s order insofar as it found no error in its decision to exclude evidence of the shootout. Appellate courts are reluctant to disturb the trial court’s exercise of discretion, particularly where the question of admissibility of evidence is a close one. See TRW Vehicle Safety Systems. Inc. v. Moore, 936 N.E.2d 201, 218 (Ind.2010) (recognizing the “considerable latitude” given to trial judges in making evidentiary determinations, particularly in the context of “lengthy, complicated, and vigorously contested trial and pre-trial proceedings”). We now address the Estate’s remaining contentions and how our Comparative Fault Act applies to them.

II.

Allocation of Fault for Intentional Acts and the Comparative Fault Act

The Estate’s two remaining contentions are distilled from a more general argument that the law should not allow apportionment of responsibility to an intentional tortfeasor or criminal actor when the negligent defendant’s “very duty” was to exercise reasonable care to protect the plaintiff from the specific risk of an intentional tort or criminal act. See Br. of Appellant at 8-9; Restatement (Third) of Torts: Apportionment of Liability § 14 cmt. b (2000). The Estate, amicus, and at least one commentator have characterized this concept the “very duty doctrine” or the “very duty rule.” See Br. of Appellant at 8; Br. of Amicus Curiae the Indiana Trial Lawyers Association at 2; Ellen M. Bublick, Upside Down? Terrorists, Proprietors, and Civil Responsibility for Crime Prevention in the Post-9/11 Tort^Reform World, 41 Loy. L.A.L. Rev. 1488, 1487 (2008). And the Estate frames the issue on appeal as whether “the Indiana Comparative Fault Act abrogated] the common law ‘very duty doctrine.” Br. of Appellant at 1. Our research reveals no reference to the Estate’s assertion as a “doctrine” or a “rule” outside a very narrow band of scholarship, so we will discuss it more generally as an argument against allocating fault to intentional actors where another, negligent actor owed a duty to the victim such as Rahmatullah owed Santelli.

The view highlighted here is that “comparisons ‘between an actor charged with negligence and an actor charged with intentional misconduct’ ” can be “ ‘impossible in theory.’ ” Bublick, Upside Down, supra at 1530 (quoting Geoffrey C. Hazard, Jr., Foreword to Restatement (Third) of Torts: Apportionment of Liability at xi-xiii (Proposed Final Draft (Revised) 1999)). Indeed, there has been much academic discussion on this very topic, with many commentators advocating against comparing these types of “fault” because they are so different from one another. See generally, e.g., Ellen M. Bublick, The End Game of Tort Reform: Comparative Apportionment and Intentional Torts, 78 Notre Dame L. Rev. 355 (2003); William Westerbeke, The Application of Comparative Responsibility to Intentional Tortfea-sors and Immune Parties, 10 Kan. J.L. & Pub. Pol’y 189 (2000); J. Tayler Fox, Can Apples Be Compared to Oranges? A Policy-Based Approach for Deciding Whether Intentional Torts Should Be Included in Comparative Fault Analysis, 43 Val. U.L. Rev. 261 (2008). For this reason, some courts and legislatures refuse to permit apportionment of fault among negligent and intentional tortfeasors, reasoning that it is unfair to allow “[n]egligent tortfeasors ... to reduce their fault by the intentional fault of another that they had a duty to prevent.” Kan. State Bank & Trust Co. v. Specialized Transp. Servs., Inc., 249 Kan. 348, 819 P.2d 587, 606 (1991). See also, e.g., Merrill Crossings Assocs. v. McDonald, 705 So.2d 560, 562 (Fla.1997) (agreeing that language in Florida’s comparative fault statute “gives effect to a public policy that negligent tortfeasors such as in the instant case should not be permitted to reduce their liability by shifting it to another tortfeasor whose intentional criminal conduct was a foreseeable result of their negligence”) (citations omitted); Ali v. Fisher, 145 S.W.3d 557, 564 (Tenn.2004) (recognizing that a rare departure from the allocation of fault required under the comparative fault system is justified so that “negligent tortfeasors cannot seek to have their fault compared to that of intentional tortfeasors where the intentional conduct is the foreseeable risk created by the negligent tortfeasor”) (internal quotation omitted). And Indiana has recognized that similar reasoning underlies the doctrine of negligence per se. See Rubin v. Johnson, 550 N.E.2d 324, 332-33 (Ind.Ct.App.1990), trans. denied (rejecting defendant gun merchant’s argument that criminal act of gun buyer was intervening cause of plaintiffs death eliminating merchant’s liability, noting that criminal use of the gun sold by merchant to murderer was “the very risk sought to be avoided ... [by the statute restricting gun sales and] ... cannot stand as a bar to recovery”). But as even the proponents of this reasoning have recognized, “an emerging minority of states” permit comparison of negligent acts and intentional acts. Fox, supra, at 274-75. Indiana is one of those states. Id. at 275 n. 78.

Indiana’s Comparative Fault Act was first enacted in 1985 as Indiana Code sections 34-4-33-1 to -12 and is currently codified at Indiana Code sections 34-51-2-1 through -19. See Control Techniques, Inc. v. Johnson, 762 N.E.2d 104, 107 (Ind.2002). Today the Act provides in pertinent part:

The jury shall determine the percentage of fault of the claimant, of the defendants, and of any person who is a non-party. ... In assessing percentage of fault, the jury shall consider the fault of all persons who caused or contributed to cause the alleged injury, death, or damage to property, tangible or intangible, regardless of whether the person was or could have been named as a party....

Ind.Code § 34-51-2-8(b)(l). The definition of “fault” under this section of the Act was amended in 1995 to include:

[A]ny act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others. The term also includes unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages.

I.C. § 34-6-2-45(b) (emphasis added). Thus, the Act now mandates that when determining how to assign percentages of fault, a jury must consider the intentional acts of non-parties like Pryor in addition to the negligent acts of defendants like Rah-matullah. We thus find that the trial court did not err in permitting the jury to allocate fault to Pryor and in refusing the Estate’s tendered instruction that would have permitted the jury to hold Rahmatul-lah liable for Pryor’s intentional act.

In addition to contending generally that fault should not be allocated to intentional actors, the Estate presents a slightly different alternative argument. Specifically, the Estate and amicus curiae the Indiana Trial Lawyers Association assert that Indiana law permits the joint and several liability of intentional and negligent tort-feasors in the circumstances presented here and that Indiana should therefore adopt the following rule:

A person who is liable to another based on a failure to protect the other from the specific risk of an intentional tort is jointly and severally hable for the share of comparative responsibility assigned to the intentional tortfeasor in addition to the share of comparative responsibility assigned to the person.

Br. of Appellant at 25 (quoting Restatement (Third) of Torts: Apportionment of Liability § 14 (2000)).

In support of its argument the Estate asserts “[t]he Comparative Fault Act neither expressly, nor by implication, requires the elimination of joint and several liability in all circumstances.” Appellant’s Br. in Resp. to Trans, at 11 (citing Control Techniques, 762 N.E.2d at 110-112 (Dickson, J., dissenting)). But this Court has recently declared “the [Comparative Fault] Act abrogates the old rule of joint and several liability in suits to which the Act applies.” Ind. Dept. of Ins. v. Everhart, 960 N.E.2d 129, 138 (Ind.2012). We determined that the elimination of joint and several liability was a reasonable trade-off for the benefits plaintiffs receive under the Act, namely: the removal of the contributory negligence bar to recovery. See id. Further, under the Comparative Fault Act, “there is no right of contribution among tortfeasors.” I.C. § 34-51-2-12. It would be incongruous to permit Rahma-tullah to be held jointly liable for damages caused by Pryor but not to permit Rahma-tullah to seek contribution from Pryor. Our view on this issue is consistent with that of other states whose legislatures, like the Indiana Legislature, have included intentional acts in the comparative fault analysis. See, e.g., Pederson v. Barnes, 139 P.3d 552, 559-60 (Alaska 2006) (observing Alaska’s comparative fault act includes intentional torts and requires entry of judgment on the basis of “several” liability only); Rausch v. Pocatello Lumber Co., 135 Idaho 80, 14 P.3d 1074, 1081-82 (Ct.App.2000) (recognizing Idaho legislature’s express limitations on joint and several liability in a comparative fault statute that requires comparison of all “responsibility”, including intentional torts); Hansen v. Scott, 645 N.W.2d 223, 229 (N.D.2002) (observing that under North Dakota’s comparative fault act “a negligent tort-feasor’s conduct is compared with an intentional tortfeasor’s conduct, and absent ‘in concert’ action, liability is several, not joint”). The Indiana legislature has the authority to expressly permit joint and several liability in circumstances such as these, but as of yet it has not done so. Cf. Everhart, 960 N.E.2d at 138 (recognizing “the historical rule of joint and several liability would appear to still apply to medical malpractice suits,” “[b]ecause the Act expressly exempted medical malpractice claims from its ambit”).

This is not to say that in Indiana it would be improper for a jury to allocate a greater percentage of fault to a negligent landowner than to an intentional tortfeasor. Indeed, we have previously upheld such an allocation in circumstances similar to those in the case before us, recognizing that the jury could have determined that “the opportunity for the [crime] would not even have existed had the [landowner] not failed to restrict [the intentional actor] from entering [the premises] or had it taken appropriate action to prevent or stop the attack....” Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1056 (Ind.2003). In allocating fault among multiple actors, a jury may consider ‘“the relative degree of causation attributable among the responsible actors.’ Our statutory scheme thus allows a diverse array of factors to be considered in the allocation of comparative fault.” Green v. Ford Motor Co., 942 N.E.2d 791, 794-95 (Ind.2011) (quoting Paragon, 799 N.E.2d at 1056). The outcome of this consideration may at times be a conclusion that “the causative role” of the landowner exceeded “the relative degree of intentionality” of the intentional tortfeasor. Paragon, 799 N.E.2d at 1056.

Conclusion

We affirm the judgment of the trial court.

DICKSON, C.J., DAVID, MASSA and RUSH, JJ., concur.

      . More specifically, in part the trial court instructed the jury in the following order that: (1) this case is governed by the Indiana law of comparative fault; (2) the type of fault at issue in this case is negligence, which is the failure to use reasonable care; (3) a plaintiff incurs risk of injury where "he or she actually knew of a specific danger, understood the risk involved and voluntarily exposed himself or herself to that danger”; (4) "[a]n act or omission is a proximate cause of a death if the death is a natural and probable consequence of the act or omission”; (5) the defendant must prove his defenses — that Santelli incurred the risk of his death and that Pryor is at fault for Santelli’s death — by a preponderance of the evidence; (6) a determination of negligence depends upon whether the injury could have been reasonably expected to result from a person’s act or omission; (7) "[a] landowner’s duty to business invitees includes a duty to exercise reasonable care and to protect them from the foreseeable dangerous behavior of others on the premises” but a landowner is not required to insure the safety of invitees; (8) Santelli was an invitee on Rahmatullah’s property; (9) a property owner is liable for harm to invitees caused by a condition of the property only if the owner "knows of the condition or by the exercise and [sic] reasonable care should discover the condition and should realize that the condition involves an unreasonable risk”; (10) fault, if any, must be apportioned on a percentage basis between Santelli, Rahmatullah, and Pryor and the apportionment must total 100%. Tr. at 788-90, 794.

      . The Rule provides in pertinent part:
      The court, if it determines that prejudicial or harmful error has been committed, shall take such action as will cure the error, including without limitation the following with respect to all or some of the parties and all or some of the errors:
      (1) Grant a new trial; ...
      (3) Alter, amend, modify or correct judgment; ...
      (5) In the case of excessive or inadequate damages, enter final judgment on the evidence for the amount of the proper damages, grant a new trial, or grant a new trial subject to additur or remittitur; ...
      (7) In reviewing the evidence, the court shall grant a new trial if it determines that the verdict of a non-advisory jury is against the weight of the evidence; and shall enter judgment, subject to the provisions herein, if the court determines that the verdict of a non-advisory jury is clearly erroneous as contrary to or not supported by the evidence, or if the court determines that the findings and judgment upon issues tried without a jury or with an advisory jury are against the weight of the evidence.
      In its order correcting error the court shall direct final judgment to be entered or shall correct the error without a new trial unless such relief is shown to be impracticable or unfair to any of the parties or is otherwise improper; and if a new trial is required it shall be limited only to those parties and issues affected by the error unless such relief is shown to be impracticable or unfair. If corrective relief is granted, the court shall specify the general reasons therefor. When a new trial is granted because the verdict, findings or judgment do not accord with the evidence, the court shall make special findings of fact upon each material issue or element of the claim or defense upon which a new trial is granted. Such finding shall indicate whether the decision is against the weight of the evidence or whether it is clearly erroneous as contrary to or not supported by the evidence; if the decision is found to be against the weight of the evidence, the findings shall relate the supporting and opposing evidence to each issue upon which a new trial is granted; if the decision is found to be clearly erroneous as contrary to or not supported by the evidence, the findings shall show why judgment was not entered upon the evidence.
      T.R. 59(J).

      . Rahmatullah argues only that the trial court’s order was deemed denied. In the extensive briefing, he never contests the content of the order.

      . The Estate does not appeal the trial court’s denial of admission of evidence of employee criminal histories.

      . The Estate relies heavily on Rubin and another case, Sauders v. Cnty. of Steuben, 693 N.E.2d 16 (Ind.1998) in support of its assertion that Indiana has previously "adopted” the “very duty doctrine.” We disagree. Rubin merely invoked the reasoning the Estate attempts to invoke here in a different context — that of negligence per se. Also, in Rubin the question arose on summary judgment and involved only whether the criminal act barred a negligent tortfeasor’s liability. Sauders involved a claim under the Indiana Tort Claims Act and there we expressly observed "the Comparative Fault statute does not apply.” Sauders, 693 N.E.2d at 17.

      . Prior to the amendment, the definition of fault included “any act or omission that is negligent, willful, wanton, or reckless toward the person or property of the actor or others, but does not include an intentional act." I.C. § 34-4-33-2(a) (1988) (emphasis added).


source: Caselaw Access Project

license: Public Domain

text:
    Michael Dean OVERSTREET, Petitioner, v. STATE of Indiana, Respondent.
    No. 41S00-1305-SD-397.
    Supreme Court of Indiana.
    Sept. 3, 2013.
   PUBLISHED ORDER

After completing a direct appeal, a post-conviction appeal, and a federal court ha-beas appeal, Michael Dean Overstreet remains sentenced to death for the murder of Kelly Eekart on September 26, 1997. By counsel, Overstreet has filed papers asserting that his mental illness renders him “incompetent to be executed,” and he seeks to litigate this claim at a post-conviction hearing in the state trial court where he was convicted. The State opposes Overstreet’s request and asks that a date for execution of the sentence be set.

We have jurisdiction over the matter because Overstreet is sentenced to death, see Indiana Appellate Rule 4(A)(1)(a), and as explained below, we grant Overstreet permission to file a successive post-conviction petition in the trial court.

As a threshold procedural matter, Over-street, who already has had one post-conviction proceeding, argues that the restrictions applicable to successive post-conviction claims should not be applied here since his claim was not ripe at the time of his first post-conviction proceeding because he was not facing imminent execution. We reject that argument as being contrary to our established rule. Indiana Post-Conviction Rule l(l)(e) expressly provides that a petition seeking to present new evidence challenging the appropriateness of a death sentence brought by a person, who has already completed state post-conviction review proceedings, is considered a successive petition. We have treated other similar claims as successive. See, e.g., Timberlake v. State, 858 N.E.2d 625, 627 (Ind.2006); Baird v. State, 833 N.E.2d 28, 29-30 (Ind.2005). Therefore, we treat Overstreet’s petition as successive.

A state appellate court performs a screening function with respect to successive post-conviction claims; the petitioner needs the appellate court’s permission to present the merits of such claims to a trial court. P-C. R. 1(12); Timberlake, 858 N.E.2d at 627. In deciding whether a person has made the required showing, we consider the applicable law, the petition, materials from prior appeals and post-conviction proceedings including the record, briefs and court decisions, and any other material we deem relevant. See id. Authorization to file a successive petition is not a determination on the merits for any purpose other than whether a successive petition can be filed in the trial court. See P-C.R. l(12)(c).

Overstreet’s claim is that his mental illness and present mental state render him not currently competent to be executed under Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007), and Ford v. Wainwright 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). As we noted in the opinion addressing Overstreet’s first post-conviction proceeding, Overstreet v. State, 877 N.E.2d 144, 172 (Ind.2007), the Supreme Court has made clear that the Eighth Amendment prohibits the State from executing a person who is insane. The Ford standard for “insane”, as articulated by Justice Powell, encompasses persons “who are unaware of the punishment they are about to suffer and why they are to suffer it.” As to Panetti which clarifies that a person is to have a “rational understanding” of the State’s rationale for an execution, we stated in our opinion:

As we read Panetti, a prisoner is not competent to be executed within the meaning of the Eighth Amendment if (1) he or she suffers from a severe, documented mental illness; (2) the mental illness is the source of gross delusions; and (3) those gross delusions place the “link between a crime and its punishment in a context so far removed from reality” that it prevents the prisoner from “comprehending the meaning and purpose of the punishment to which he [or she] has been sentenced.”

Overstreet, 877 N.E.2d at 172 (quoting Panetti, 127 S.Ct. at 2862).

To meet the threshold showing, Over-street points to evidence about his mental illness discussed in the earlier court opinions in his case. In addition, he has tendered a report from forensic psychiatrist Dr. Rahn K. Bailey, prepared after he examined Overstreet on two occasions earlier this year. The twenty-page document discusses the background of the case and Overstreet’s past and current mental condition, and concludes that in Dr. Bailey’s professional opinion, Overstreet does not have, and does not have the ability to produce, a rational understanding of why the State of Indiana plans to execute him. We find this sufficient to permit Over-street to file a successive post-conviction petition asserting the claim that he is not currently competent to be executed.

ACCORDINGLY, the Court directs as follows:

1. The Court authorizes the filing of a successive petition for post-conviction relief in the Johnson Superior Court for the purpose of presenting the claim that Over-street is not currently competent to be executed.

2. Pursuant to Post-Conviction Rule l(12)(c), this matter is referred to the Public Defender of Indiana to represent Over-street in the proceeding.

3. The Clerk is directed to send a copy of Overstreet’s successive petition for post-conviction relief, along with the other papers filed by Overstreet and the State in this matter, to the Johnson Superior Court.

4. Overstreet shall file the successive petition in the Johnson Superior Court no later than September 13, 2013, and the matter shall be heard by the Hon. Cynthia S.Emkes, who heard the original petition, if she is available.

5. After conferring with counsel, the Johnson Superior Court shall, on or before September 27, 2013, submit to this Court for approval a proposed case management schedule. The proposed schedule shall specify that final judgment in the successive post-conviction proceeding be entered no later than March 3, 2014.

6. The Motion To Schedule Case For Oral Argument is DENIED.

The Clerk is directed to send a copy of this order to the Hon. Cynthia S. Emkes; Judge, Johnson Superior Court; to the Public Defender of Indiana; to the Attorney General of Indiana; to the Indiana Public Defender Council; to the Indiana Prosecuting Attorneys Council; to Mark Ahearn, General Counsel to the Governor; and to all counsel of record.

The Clerk is also directed to post a copy of this order on 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.

DICKSON, C.J., and RUCKER, DAVID, MASSA, and RUSH, JJ., concur.

      . The conviction and sentence were affirmed on direct appeal in Overstreet v. State, 783 N.E.2d 1140 (Ind.2003), reh’g denied, cert. denied, 540 U.S. 1150, 124 S.Ct. 1145, 157 L.Ed.2d 1044 (2004). The trial court’s denial of post-conviction relief was affirmed in Overstreet v. State, 877 N.E.2d 144 (Ind.2007), reh'g denied (Ind.2008), cert. denied, 555 U.S. 972, 129 S.Ct. 458, 172 L.Ed.2d 331 (2008). The federal district's court denial of Over-street’s petition for a writ of habeas corpus was affirmed in Overstreet v. Wilson, 686 F.3d 404 (7th Cir.2012), reh’g and reh'g en banc denied (Sept. 21, 2012), cert. denied, — U.S. —, 133 S.Ct. 2735, 186 L.Ed.2d 195 (2013).

      . Overstreet has submitted a Form For Successive Post-Conviction Relief Rule I Petition; a Petition For Post-Conviction Relief; a Memorandum of Law On Competency To Be Executed; a report from Rahn K. Bailey, M.D.; and a Reply To State's Response. He also filed a Motion To Schedule Case For Oral Argument, which we deny. The State has filed a Response To Request For Permission To File A Successive Petition For Post-Conviction Relief.


author: FRIEDLANDER, Judge.

text:
    COUNTRYWIDE HOME LOANS, INC., Appellant, v. Robert HOLLAND, Appellee.
    No. 45A04-1202-PL-53.
    Court of Appeals of Indiana.
    April 30, 2013.
    See also Holland v. Steele, 961 N.E.2d 516.

      Neal F. Bailen, Douglas B. Bates, Stites & Harbison, PLLC, Jeffersonville, IN, Attorneys for Appellant.

      Robert Holland, Gary, Indiana, Appellee pro se.
   OPINION

FRIEDLANDER, Judge.

This is at least the third installment in a series of appellate cases stemming from Robert Holland’s attempts to appropriate vacant residential properties by entering them without invitation and allegedly making improvements. This iteration differs from its predecessors in that Holland had some success on his claims; although the trial court dismissed Holland’s action to foreclose on a purported million-dollar, common-law hen against the property at issue in this appeal, he prevailed on summary judgment with respect to his action to quiet title, and he was ultimately awarded nominal damages in the amount of one dollar. Countrywide Home Loans, Inc. (Countrywide), the property’s mortgagee, appeals and raises the following issue:

1. Did the trial court improperly grant summary judgment in Holland’s favor on his action to quiet title?
Holland cross-appeals and raises the following restated issues:
2. Did the trial court err in dismissing his common-law lien claim?
3.Was the trial court’s damage award inadequate as a matter of law?

We conclude that the trial court erred in granting summary judgment on Holland’s quiet title action, and we reverse and remand with instructions to enter summary judgment in Countrywide’s favor. We affirm the trial court’s dismissal of Holland’s common-law lien claim, and remand with instructions to vacate the award of nominal damages.

Holland, an attorney who identifies himself as “A Concerned Citizen of Gary,” Appellant’s Appendix at 15, has taken to entering vacant residential properties he deems create a nuisance and undertakes efforts to abate the perceived nuisance, all without permission from the property owner. Holland then seeks title to the property as well as compensation for his unsolicited efforts by filing actions to quiet title and to foreclose on purported common-law liens against the subject property.

So it went in this case. The property at issue in this appeal is located on Jefferson Street in Gary, Indiana. Joslyn Washington, the record owner of the property, executed a promissory note and mortgage in Countrywide’s favor in 2006. At some point in late 2009 or early 2010, Washington vacated the home. According to Holland, the vacant home fell into disrepair, was vandalized, and became “an attractive nuisance and ... a haven for unsavory criminals.” Id. at 18. Holland maintains that he notified Countrywide of the condition of the property, but received no response. Holland thereafter entered and “t[ook] possession” of the home, and he claims that he has begun maintaining and repairing the property. Id.

On October 4, 2010, Holland filed a complaint seeking quiet title to the property, as well as the foreclosure on a purported common-law lien “for costs of abating a nuisance property.” Id. at 16. Holland named as defendants Washington, Countrywide, “and all parties of interest and against the world.” Id. at 15. Holland alleged that Washington had abandoned the property in late 2009 after Countrywide foreclosed, but that Countrywide had not conducted a sheriffs sale or taken any action to secure or maintain the property. Based on his alleged possession of the property and efforts to maintain it, Holland sought title to the property, the declaration of a $100,000 lien, damages in the amount of $100,000, and an order requiring that the property be sold at the next sheriffs sale. Holland subsequently filed a common-law hen against the property in the amount of one million dollars.

On November 29, 2010, Washington filed her answer and affirmative defenses, in which she admitted that she had abandoned the property after Countrywide foreclosed, but that no sheriffs sale had occurred. Washington denied all other allegations, and asserted that she had surrendered her interest in the property to Countrywide as part of her Chapter 7 bankruptcy proceedings, and therefore held no legal or equitable interest in the property. She also alleged that the complaint was filed in violation of the order of automatic stay issued as part of her bankruptcy proceedings.

On December 6, 2010 (before Countrywide’s answer became due), Holland filed a motion for judgment on the pleadings with respect to his quiet title claim, in which he disputed Washington’s assertions concerning the bankruptcy proceedings and alleged that he was the owner of the property, but made very little mention of Countrywide or its interest in the property.

On December 17, 2010, Countrywide filed its answer, in which it denied all allegations in the complaint, including the allegation that Countrywide had foreclosed on the property and abandoned it. Instead, Countrywide asserted that it held a valid note and mortgage executed by Washington. Countrywide also counterclaimed for slander of title and damages for injury resulting from the recording of a baseless lien. On the same date, Countrywide filed a response in opposition to Holland’s motion for judgment on the pleadings.

On December 20, 2010, Countrywide filed a motion to dismiss and brief in support, in which it alleged that the “complaint does not contain any lucid allegation that plaintiff holds title to the real estate. Further, no Indiana statute allows a citizen to voluntarily make repairs to a property and then demand compensation from the owner and mortgagee.” Id. at 51. Countrywide also pointed out that Holland had not attached the lien to the complaint as required by Ind. Trial Rule 9.2.

Holland filed his motion for summary judgment on January 4, 2011, in which he alleged that the property had been abandoned, that it had become necessary for him to take possession of it, and that he “became the owner of the abandoned property by possessing the abandoned property, abating the nuisances and taking responsibility for the property.” Id. at 60. He also alleged that he was entitled to recover damages on a theory of unjust enrichment, and that compensatory and punitive damages were appropriate based on his alleged abatement of the nuisance. Holland requested that the trial court schedule a hearing on the motion for February 2, 2011, which had already been scheduled as the hearing date on Holland’s motion for judgment on the pleadings and Countrywide’s motion to dismiss.

On January 13, 2011, Countrywide filed a motion to postpone the February 2 hearing and for an extension of time within which to respond to Holland’s motion for summary judgment. Holland filed an objection to Countrywide’s motion to postpone the hearing and extend the deadline to respond to the motion for summary judgment. The trial court did not rule on Countrywide’s motion for extension of time, and the February 2 hearing was cancelled due to a massive snowstorm. The hearing was reset for February 24, 2011, at which time Countrywide still had not filed a response to Holland’s motion for summary judgment. At the hearing, Countrywide’s pending motion for extension of time was not discussed, and the trial court granted Holland’s motion for summary judgment with respect to the quiet title action because Countrywide had not filed a response to the summary judgment motion. The trial court also granted Countrywide’s motion to dismiss Holland’s common-law lien claim because Holland had not attached a copy of the lien to his complaint. The trial court did not dispose of Countrywide’s counterclaims at that time.

After the hearing, Countrywide filed a notice concerning its January 13 motion for extension of time and asked the court to reconsider its ruling based on Countrywide’s failure to respond to the motion for summary judgment. On March 11, 2011, Countrywide also filed a motion to reconsider, in which it argued that its failure to respond to the motion for summary judgment did not automatically entitle Holland to summary judgment on the quiet title claim and that Holland was not entitled to summary judgment on the merits. On April 12, 2011, Holland filed a motion to reconsider the dismissal of the common-law lien claim. A hearing was held on May 31, 2011, at the conclusion of which the trial court denied both motions and certified its order for interlocutory appeal.

This court denied Countrywide’s motion to accept jurisdiction on August 19, 2011. On December 28, 2011, the trial court held a hearing on Holland’s request for damages and ultimately awarded him nominal damages in the amount of one dollar. On January 18, 2012, the trial court granted Countrywide’s motion to voluntarily dismiss its counterclaims, thereby rendering the judgment final and appealable. This appeal ensued.

1.

Countrywide argues that the trial court erred in granting summary judgment in Holland’s favor. Our standard of review is as follows:

On review of a trial court’s decision to grant or deny summary judgment, we apply the same standard as the trial court: we must decide whether there is a genuine issue of material fact that precludes summary judgment and whether the moving party is entitled to a judgment as a matter of law. Once the moving party has sustained its initial burden of proving the absence of a genuine issue of material fact and the appropriateness of judgment as a matter of law, the party opposing summary judgment must respond by designating specific facts establishing a genuine issue for trial. We may consider only those portions of the pleadings, depositions, and any other matters specifically designated to the trial court by the parties for purposes of the motion for summary judgment. Any doubt as to the existence of an issue of material fact, or an inference to be drawn from the facts, must be resolved in favor of the nonmov-ing party. Although the nonmovant has the burden of demonstrating that the grant of summary judgment was erroneous, we carefully assess the trial court’s decision to ensure that the nonmovant was not improperly denied his or her day in court.

Alexander v. Marion Cnty. Sheriff, 891 N.E.2d 87, 92 (Ind.Ct.App.2008) (quoting City of Mishawaka v. Kvale, 810 N.E.2d 1129, 1132-33 (Ind.Ct.App.2004)), trans. denied. “We may affirm the grant of summary judgment on any basis argued by the parties and supported by the record.” CFS, LLC v. Bank of Am., 962 N.E.2d 151, 153 (Ind.Ct.App.2012).

Countrywide argues that the trial court erred in concluding that Holland was automatically entitled to summary judgment as result of Countrywide’s failure to file a response to Holland’s motion for summary judgment. “[T]he lack of opposition to another’s motion for summary judgment does not result in ‘an automatic summary judgment’ because the ‘moving party still bears the burden of showing the propriety of summary judgment.’ ” Alexander v. Dowell, 669 N.E.2d 436, 439 (Ind.Ct.App.1996) (quoting Carroll v. Lordy, 431 N.E.2d 118, 121 (Ind.Ct.App.1982)).

In this case, the trial court repeatedly stated on the record that summary judgment was granted due to Countrywide’s failure to file a response to Holland’s motion for summary judgment. At the February 24, 2011 hearing on the motion for summary judgment, the trial court stated that the “[m]otion for summary judgment is going to be granted ... because there was no response whatsoever on the part of the defendant Countrywide.... ” Transcript at 52. At the May 31, 2011 hearing on Countrywide’s motion to reconsider, the trial court again indicated that summary judgment had been granted due to Countrywide’s failure to respond. Id. at 85 (“[a]s I look at it, because they didn’t respond, you were granted quiet title”). At the December 28, 2011 hearing on damages, the trial court made the following statements:

The primary reason that summary judgment was granted to you, Mr. Holland, was because there was not a timely response to your motion filed, and we certified it.... Because some of the aspects of this case, notwithstanding what you believe, Mr. Holland, what you may have done, I have some real problems with it as a jurist. I have some problems with it....
My companion courts have ruled, had they responded, you would have — more than likely, you wouldn’t have been given a summary judgment; probably would have been a summary judgment in their favor. Because what you’re saying, and that’s why I’m putting this on the record, so a court above will hear what I’m saying, that notwithstanding a lien, that I can go into a house that I have no control over whatsoever other than I see it’s abandoned, and maybe for some altruistic purpose that I may perceive to be a nuisance to my house and just take it over. Take it over. And you have — you’ve underscored cases, sir. But I have some problems with that as a jurist, because that opens the door for people to go into any house, any home, anywhere, and notwithstanding a lien. I’m going a little far, you may have some basis for going after Countrywide because some of these mortgage companies have done some things that haven’t been too kosher. But the way that I perceive that you did it, was not correct.

Id. at 158-160.

Thus, despite Holland’s arguments to the contrary, it is quite clear that the trial court’s decision to grant summary judgment was based on its incorrect assumption that Countrywide’s failure to file a response automatically entitled Holland to summary judgment. Indeed, the court went so far as to state on the record that Holland would not have been entitled to summary judgment had a response been filed and that, in fact, Countrywide would probably have been entitled to summary judgment in its favor. We therefore conclude that the trial court erred in entering summary judgment solely on the basis of Countrywide’s failure to file a response.

Nevertheless, Holland insists that he was entitled to summary judgment on the merits of his quiet title claim. This court has held that

[a] suit to quiet title brings in issue all claims to the property in question. Hence, a plaintiff may recover only upon the strength of his own title. He must show legal title with a present right of possession paramount to the title of the defendant. It is therefore appropriate under the issues for a defendant to prove the plaintiff and those claiming under him do not have title or interest in the property.

Consolidation Coal Co. v. Mutchman, 565 N.E.2d 1074, 1078 (Ind.Ct.App.1990) (citations omitted).

Countrywide argues that Holland cannot prevail on the merits of his action to quiet title because he has not established a valid legal interest in the property, and certainly not an interest paramount to Countrywide’s. For his part, Holland contends the property was abandoned, and he consequently became the owner of the property when he entered and took possession. In support of this contention, Holland cites cases for the proposition that “[ajbandonment of property divests the owner of his ownership, so as to bar him from further claim to it. Except that he, like anyone else, may appropriate it once it is abandoned if it has not already been appropriated by someone else.” Schuler v. Langdon, 433 N.E.2d 841, 842 n. 1 (Ind.Ct.App.1982); see also Long v. Dilling Mech. Contractors, 705 N.E.2d 1022 (Ind.Ct.App.1999), trans. denied.

What Holland fails to acknowledge, however, is that these cases addressed the legal effect of abandonment of personal property, as opposed to real property. See Schuler v. Langdon, 433 N.E.2d at 842 n. 1 (“[pjersonalty, on being abandoned, ceases to be the property of any person, and thenceforth is no man’s property, unless and until it is reduced to possession with intent to acquire title to, or ownership of, it” (emphasis supplied, quotation omitted)). With respect to real property, it is well-settled that “[tjitle in fee simple is not lost by mere abandonment.” Simkin v. New York Cent. R.R. Co., 138 Ind.App. 668, 670, 214 N.E.2d 661, 662 (1966); see also Hochstetler Living Trust v. Friends of Pumpkinvine Nature Trail, Inc., 947 N.E.2d 928 (Ind.Ct.App.2011). Thus, even assuming that the property was abandoned within the meaning of the law, such abandonment did not divest the fee simple owner, whether it is Washington, Countrywide, or some unknown third party, of legal title such that Holland could acquire it by merely taking possession of the property.

Indeed, Holland’s argument that an individual gains ownership of an abandoned piece of real property immediately upon taking possession is in direct conflict with the existing law of adverse possession. To obtain ownership of land by adverse possession, the possessor must prove, among other things, that he has continuously possessed the land for ten years. Fraley v. Minger, 829 N.E.2d 476 (Ind.2005). By his own admission, Holland has not claimed possession of the real estate anywhere near long enough to support such a claim. A rule allowing an entrant on abandoned real property to immediately obtain legal title simply by taking possession thereof cannot be reconciled with the law of adverse possession.

Holland also cites Pittsburg, C.C. & St. Louis Ry. Co. v. Wilson, 46 Ind.App. 444, 91 N.E. 725 (1910) and Abel v. Love, 81 Ind.App. 328, 143 N.E. 515 (1924) for the proposition that his possession of the property, without more, is sufficient evidence of his legal title to the property. These cases are inapposite, as neither dealt with circumstances remotely analogous to those at issue here. Abel v. Love addressed a claim of title through adverse possession and, as we have explained, Holland clearly cannot establish that he has obtained title to the property in that manner. The statement Holland cites from Pittsburg, C.C. & St. Louis Ry. Co. v. Wilson provides that “possession of land is sufficient evidence to refer the question of title to the jury.” 46 Ind.App. at 444, 91 N.E. at 727. But the court also stated that “[p]roof of occupancy of land is sufficient evidence of title in the occupant as against all persons except those claiming under a superior title.’” Id. (emphasis supplied). Washington, the record owner, and Countrywide, the holder of a mortgage lien, clearly claim superior title to the land than a mere possessor. In sum, these cases simply do not support Holland’s assertion that his entry onto and possession of the property immediately wrested legal title from the fee simple owner and transferred it to him.

Holland also makes a number of arguments addressed to the validity of Washington’s and Countrywide’s legal interests in the property. Most notably, Holland accuses Washington and Countrywide of obtaining their interests in the property through fraud, and he argues that they should be deemed to have admitted not holding an ownership interest in the property because they failed to assert such an interest in their answers. Appel-lee’s Brief at 17. Holland’s arguments miss the mark entirely. “In an action to quiet title or for possession of land the plaintiff must recover, if at all, on the strength of his own title and not on the weakness of his adversary’s title.” Otterman v. Hollingsworth, 140 Ind.App. 281, 285, 214 N.E.2d 189, 192 (1966). Thus, the possibility that there is some defect or weakness in Washington’s and/or Countrywide’s alleged interests in the property does nothing to strengthen Holland’s claim to title of the property.

Holland also seems to argue that he was entitled to quiet title based on a nuisance theory. More specifically, he seems to argue that he had a legal interest in the property by virtue of a common-law lien that arose when he took action to abate the perceived nuisance. In Holland v. Steele, 961 N.E.2d 516 (Ind.Ct.App.2012), trans. denied, Holland raised a nearly identical argument, which this court rejected. Holland’s nuisance claim in this action cannot succeed for the same reasons. As this court explained in Holland v. Steele,

[i]n Indiana, nuisances are defined by statute. Indiana Code Section 32-30-6-6 defines an actionable nuisance as: “Whatever is (1) injurious to health; (2) indecent; (3) offensive to the senses; or (4) an obstruction to the free use of property; so as essentially to interfere with the comfortable enjoyment of life or property[.]” A public nuisance is that which affects an entire neighborhood or community while a private nuisance affects only one individual or a determinate number of people. Wernke v. Halas, 600 N.E.2d 117, 120 (Ind.Ct.App.1992). The essence of a private nuisance is the use of property to the detriment of the use and enjoyment of another’s property. Id. A public nuisance is caused by an unreasonable interference with a common right. Indiana Limestone Co. v. Staggs, 672 N.E.2d 1377, 1384 (Ind.Ct.App.1996), trans. denied.

Id. at 524. The court further explained that while private parties generally have no right of action for a public nuisance, “a party may bring a successful private action to abate a public nuisance if the party demonstrates special and peculiar injury apart from the injury suffered by the general public.” Id. at 525.

Here, like in Holland v. Steele, Holland has alleged facts that would, at most, support a conclusion that the property created a public nuisance. In his complaint, Holland made the following allegations:

The Defendant Countrywide (Bank of America) has never taken possession of the property and has refused to assume responsibility for the care, maintenance and hazards that the abandoned building creates. The abandoned building has invited a criminal element in the neighborhood. Police have been called on at least three occasions by neighbors to stop the looting and destruction of the house. The abandoned building has been used for the purpose of using illegal drugs. Drug paraphernalia was found and obscene pornographic materials are on the floor in several of the rooms. The house has been vandalized and materials stolen from the property. On one occasion the next door neighbor, who lives just 10 feet away, was at his home and actually witnessed criminals trying to steal the air conditioner from the home. The neighbors no longer feel safe. They fear that there [sic] property will be stolen or they will be hurt by the criminals. The property is within approximately 100 yards from a play ground and a church. Also, the property is within less than approximately 1000 yards of an elementary school. Elementary age school children must come in close proximity to the property in order to go to school.
The area near seventh avenue [sic] is newly developed, extremely well taken care of and a source of pride for the entire City of Gary, Indiana. The property has become in disrepair and is an eyesore for the neighborhood. The property sticks out like a sore thumb. It was an extreme embarrassment and posed an extreme danger to the community as both an attractive nuisance and as a haven for criminals. The property sits vacant and can not be sold to an interested party that will care for it. The value of the other homes in the neighborhood go down. Taxes in the area go up. Because taxes are not being paid revenue for public schools and other government facilities go down. Students receive a lower quality education and the citizen’s [sic] of Gary, Indiana suffer from less and less governmental services. Countrywide (Bank of America) has not ever taken possession of the property or done anything to sell, monitor, protect, maintain and/or repair the property.

Appellant’s Appendix at 17-18. Holland made the same allegations in his motion for summary judgment, and his designated materials included an affidavit from a neighbor containing nearly identical assertions.

Thus, Holland has “alleged that an entire neighborhood, community, and ultimately a city were affected.” Holland v. Steele, 961 N.E.2d at 525. In other words, Holland has alleged a public nuisance. See id. Holland has not, however, made any allegation that he suffered any special or peculiar injury apart from the injury suffered by the general public. Accordingly, he has not established a private right to relief premised on public nuisance.

We remind Holland of this court’s statement in Holland v. Steele:

The crux of Holland’s contentions is that he, as a private individual, should have an unfettered citizen’s right to act to abate a nuisance that contributes to urban blight. However, it is not within our purview to opine on policy questions surrounding a legislative or governmental response to urban problems. “It is the province of the public authorities to procure redress for public wrongs.” Adams v. Ohio Falls Car Co., 181 Ind. 375, 31 N.E. 57, 58 (1892).

Id. Holland is not entitled to relief based on a nuisance theory.

For all of these reasons, we conclude that Holland has presented no colorable claim to legal title of the property and, consequently, cannot prevail in his action to quiet title. Accordingly, the trial court erred in granting summary judgment in his favor on that claim. We also note that T.R. 56(B) provides that “[w]hen any party has moved for summary judgment, the court may grant summary judgment for any other party upon the issues raised by the motion although no motion for summary judgment is filed by such party.” Although neither Countrywide nor Washington filed a motion for summary judgment, because Holland has not asserted any plausible claim to legal title of the property, he cannot prevail on his action to quiet title. We therefore remand with instructions to vacate summary judgment in Holland’s favor and enter summary judgment against him on his quiet title claim.

2.

On cross-appeal, Holland argues that the trial court abused its discretion by granting Countrywide’s motion to dismiss his common-law lien claim. In its motion to dismiss, Countrywide argued that Holland’s claims should be dismissed because they failed as a matter of law. In other words, Countrywide argued that Holland had failed to state a claim upon which relief can be granted.

A motion to dismiss for failure to state a claim tests the legal sufficiency of the claim, not the facts supporting it. Thus, our review of a trial court’s grant or denial of a motion based on Trial Rule 12(B)(6) is de novo. When reviewing a motion to dismiss, we view the pleadings in the light most favorable to the non-moving party, with every reasonable inference construed in the nonmovant’s favor. A complaint may not be dismissed for failure to state a claim upon which relief can be granted unless it is clear on the face of the complaint that the complaining party is not entitled to relief. However, a court need not accept as true any “conclusory, non-factual assertions or legal conclusions.” “Thus, while we do not test the sufficiency of the facts alleged with regards to their adequacy to provide recovery, we do test their sufficiency with regards to whether or not they have stated some factual scenario in which a legally actionable injury has occurred.”

Ankeny v. Governor of State of Ind., 916 N.E.2d 678, 680-81 (Ind.Ct.App.2009) (citations and footnote omitted), trans. denied.

“In Indiana, a ‘lien’ is a claim which a person holds on another’s property as a security for an indebtedness or charge. Where there is no debt, however, in the absence of law, a lien cannot exist.” Terpstra v. Farmers & Merchants Bank, 483 N.E.2d 749, 755 (Ind.Ct.App.1985). In his complaint, the only “debt” Holland asserted was the amount he believed he was owed for the work he put into abating the perceived nuisance the house presented. But as we explained above, Holland has alleged only a public nuisance, and he has not alleged any special or peculiar injury beyond that suffered by the public in general as would give rise to a private right of action. Accordingly, the allegations set forth in the complaint do not state a factual scenario supporting any claim of a legally actionable debt based on Holland’s actions to abate the alleged nuisance.

Nevertheless, Holland claims that it was error to dismiss his common-law lien claim because Countrywide and Washington perpetrated some sort of fraud on the trial court. Though the specifics of the alleged fraud are difficult to discern, it appears to have something to do with Washington’s representations concerning her bankruptcy and Countrywide’s knowledge thereof. We are at a loss to understand how these allegations are relevant to the existence or nonexistence of a valid lien against the property based on Holland’s nuisance claim. As a result, Holland’s argument in this regard is waived for failure to make a cogent argument. See Tillotson v. Clay Cnty. Dep’t of Family & Children, 111 N.E.2d 741 (Ind.Ct.App.2002) (finding argument waived for failure to present a cogent argument), trans. denied. For all of these reasons, we cannot conclude that the trial court erred in granting Countrywide’s motion to dismiss Holland’s common-law lien claim.

3.

Finally, Holland argues that the award of one dollar in nominal damages was inadequate as a matter of law. The only basis of liability he asserts, however, is his nuisance claim, which we have already rejected. Thus, there is no basis for even the nominal damages awarded by the trial court. We therefore reverse and remand with instructions to vacate the award of nominal damages.

Judgment reversed and remanded with instructions.

NAJAM, and BRADFORD, JJ., concur.

        .See Holland v. Steele, 961 N.E.2d 516 (Ind.Ct.App.2012) (affirming summary judgment against Holland on his attempt to quiet title to and foreclose a purported common-law lien against vacant property he entered, and allegedly improved, without permission), trans. denied; Holland v. Mfrs. & Traders Trust Co. ex rel. Contimortgage Home Equity Loan Trust 1995-4, No. 45A04-1004-PL-324, slip opinion at *3, 2011 WL 3360639 (Ind.Ct.App. Aug. 4, 2011) (not-for-publication memorandum decision affirming trial court’s dismissal of Holland’s action to quiet title to vacant property on which he had ”squat[ted]” and allegedly improved), trans. denied.

      . Holland’s arguments are confused and disorganized, and we have expended a great deal of time and effort in attempting to understand them. To the extent we have not addressed specific arguments set forth in Holland’s brief, it is because we find those arguments waived for failure to make a cogent argument. See Cole v. Holt, 725 N.E.2d 145 (Ind.Ct.App.2000), trans. denied.

      . Although Washington has not filed an appellate brief or otherwise participated in this appeal, she is a party on appeal because she was a party of record at trial. See Ind. Appellate Rule 17(A) (providing that "[a] party of record in the trial court ... shall be a party on appeal”).

      . We say that he "seems” to make this argument because it is not entirely clear whether he asserts nuisance as the basis for his lien claim only, or as the basis of both the lien claim and the action to quiet title. In either event, as we explain above, his claim must fail.

      . Although Holland raised a claim of unjust enrichment in his complaint, he makes no such claim on appeal, and therefore appears to have abandoned that argument. Nevertheless, we note that a party seeking to recover on a theory of unjust enrichment or quantum meruit must demonstrate that a benefit was rendered to another at the express or implied request of that party. Kelly v. Levandoski, 825 N.E.2d 850 (Ind.Ct.App.2005), trans. denied. Holland has not alleged any facts that would support a conclusion that Countrywide or Washington made any such express or implied request that he take possession of or make improvements to the property.