author: BRADFORD, Judge. BAKER, Judge,

text:
    GRANITE STATE INSURANCE COMPANY, Appellant, v. Robert LODHOLTZ and Pulliam Enterprises, Inc., Appellees.
    No. 71A04-1111-CT-635.
    Court of Appeals of Indiana.
    Dec. 14, 2012.

      Karl L. Mulvaney, Barry C. Cope, Briana L. Kovac, Bingham Greenbaum Doll LLP, Indianapolis, IN, Barbara I. Michae-lides, Agelo L. Reppas, Bates Carey Nico-laides LLP, Chicago, IL, Attorneys for Appellant.
    Charles P. Rice, Patrick D. Murphy, Boveri Murphy Rice, LLP, South Bend, IN, Attorneys for Appellee-Plaintiff Robert Lodholtz.
   OPINION

BRADFORD, Judge.

CASE SUMMARY

Robert Lodholtz was seriously injured while working in a facility operated by Pulliam Enterprises, whose commercial general liability carrier was Granite State Insurance Company. On June 24, 2011, Lodholtz sued Pulliam, who contacted York Rick Services, Granite State’s claims administrator, ten days later. York requested and received an extension of time to respond to Lodholtz’s claim, but did not. As a result, default judgment on the question of liability was entered in favor of Lodholtz on August 28, 2011, and the issue of damages was set for trial. On August 24, York sent a letter to Pulliam’s private counsel urging Pulliam to “take immediate action to vacate the default judgment and defend itself in the matter.”

Taking matters into its own hands as York had suggested, Pulliam decided to settle with Lodholtz instead of moving to vacate the default judgment. Among other things, Lodholtz agreed that he would not proceed against Pulliam to collect his damages but would instead seek to collect from Granite State and York. About a week after the settlement, Granite State offered to represent Pulliam while reserving the right to deny coverage, an offer Pulliam refused. About two weeks after that, Granite State moved to intervene. The trial court denied Granite State leave to intervene and awarded Lodholtz approximately $3.9 million in damages. In a case that brings to mind the admonition, “Be careful what you wish for, you may receive it[,]” we conclude that the trial court did not abuse its discretion in denying Granite State leave to intervene.

FACTS AND PROCEDURAL HISTORY

In March of 2011, Lodholtz was seriously injured while working in Pulliam’s facility; Pulliam’s commercial general liability carrier at the time was Granite State. On June 24, 2011, Lodholtz sued Pulliam, who, ten days later, contacted Granite State’s claims administrator, York Risk Services. In a letter dated July 7, 2011, York notified Pulliam that it had set up a file regarding the lawsuit and provided contact information for Dana Laurick, the individual assigned to it. On or about July 8, 2011, York contacted Lodholtz’s counsel and requested and received an extension of time in which to answer the complaint on or before August 19, 2011. On or about July 14, 2011, York reassigned the file to John D’Errico, who advised Pulliam the next day that there were some coverage issues to review and that he would follow up once coverage was confirmed. On or about August 17, 2011, D’Errico was promoted and the file was reassigned again, this time to Richard Glaser. At no time before August 19, 2011, did York or Granite State secure counsel for Pulliam, advise it to retain counsel, or follow up concerning the claim. As it happened, August 19, 2011, passed and no answer was filed to Lodholtz’s complaint.

On August 22, 2011, Lodholtz moved for default judgment, which motion the trial court granted the following day while also setting trial on the issue of damages. Also on August 23, 2011, York, apparently unaware that default judgment had been entered, finally advised Pulliam that the Granite State policy did not appear to cover the loss and that an official coverage position would be forwarded to Pulliam. On August 26, 2011, now aware of the default judgment, York sent a letter to Pulliam’s private counsel, “urgfing] that [Pulliam] take immediate action to vacate the default and defend itself in the matter.” Appellant’s App. p. 36.

On September 7, 2011, Lodholtz, instead of seeking to vacate the judgment, settled with Pulliam, which settlement provided that (1) Pulliam would not move to vacate the default judgment or dispute the amount of damages, (2) Pulliam would assign all of its claims against Granite State and York to Lodholtz, (3) Lodholtz would agree not to execute against Pulliam’s assets, and (4) Lodholtz would agree to proceed against Granite State and York to collect any damages. On September 13, 2011, Granite State offered to defend Pul-liam under a reservation of rights, including the right to deny coverage. On September 14, 2011, Pulliam rejected Granite State’s offer.

On September 28, 2011, Granite State moved to intervene as of right pursuant to Trial Rule 24(A)(2) and to vacate default judgment. In its motion, Granite State denied that it owed Pulliam coverage. On October 28, 2011, the trial court denied Granite State’s motion to intervene and heard evidence on damages. On November 1, 2011, the trial court entered a damages judgment in favor of Lodholtz for $3,866,462. On November 30, 2011, Granite State filed its notice of appeal.

DISCUSSION AND DECISION

Granite State contends that the trial court abused its discretion in denying its motion to intervene. Indiana Trial Rule 24(A) provides in relevant part as follows:

Upon timely motion anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to a property, fund or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect his interest in the property, fund or transaction, unless the applicant’s interest is adequately represented by existing parties.

The grant or denial of a petition to intervene is within the discretion of the trial court and is reviewed for an abuse of that discretion. Herdrich Petroleum, Corp. v. Radford, 773 N.E.2d 319, 324 (Ind.Ct.App.2002), tro,ns. denied. An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court or the reasonable and probable inferences to be drawn therefrom. Id.

Indiana cases interpreting Indiana Trial Rule 24(A)(2) have traditionally adopted the three-part test followed by the Federal courts in their interpretation of its numerical counterpart in the Federal Rules of Civil Procedure. See Westfield Ins. Co. v. Axsom, 684 N.E.2d 241, 242 (Ind.Ct.App.1997). As a matter of law, this test requires that intervenors show (1) an interest in the subject of the action, (2) disposition of the action may as a practical matter impede the protection of that interest, and (3) representation of the interest by existing parties is inadequate. Id. See also Herdrich Petroleum Corp., 773 N.E.2d at 324. In addition, a court must also consider the timeliness of the request in deciding whether or not to grant a motion to intervene. Westfield Ins. Co., 684 N.E.2d at 242. Even though our courts have agreed on the four factors that must be satisfied for intervention of right, our courts disagree on what facts or circumstances are necessary to meet this test. Id. Thus, whether a particular factual situation satisfies this three-part test is within the discretion of the trial court. Herdrich Petroleum Corp., 773 N.E.2d at 324.

Cincinnati Ins. Co. v. Young, 852 N.E.2d 8, 13 (Ind.Ct.App.2006), trans. denied.

Granite State contends that its interest in the tort suit is sufficient to support intervention, that its interest is in danger of being impeded barring intervention, and that its interest is not currently being protected. Lodholtz, citing to Young, contends that Granite State, because it is still reserving the right to deny coverage, has an interest that is, at best, contingent and insufficient to support intervention as of right.

We agree with Lodholtz. “[Wjhen an insurer attempts to intervene in the action between its insured and the injured party but reserves the right to deny coverage, the insurer’s asserted interest is not cognizable but rather contingent upon the acceptance of coverage before it becomes colorable for the purposes of Indiana Trial Rule 24(A)(2).” Id. at 15. Granite State has consistently reserved the right to deny coverage, offering to defend Pulliam only under a reservation of rights and then maintaining the right to deny coverage in its motion to intervene. This case falls squarely within our holding in Young.

Granite State attempts to distinguish Young, pointing out, inter alia, that the insurer in that case explicitly denied coverage whereas Granite State only reserved the right to and that the insurer twice refused offers to assume the defense, while Granite State was never offered the opportunity. Id. at 10-11. We conclude, however, that these factual distinctions are not legally significant; Young’s holding is based solely on the fact that an insurer who reserves the right to deny coverage has failed to establish a direct interest pursuant to Trial Rule 24(A), as is the case here.

Granite State also contends that Young is anomalous and should not be followed. In support of its argument, Granite State points to Allstate Ins. Co. v. Herman, 551 N.E.2d 844 (Ind.1990), Hastings Mut. Ins. Co. v. Webb, 659 N.E.2d 1049 (Ind.Ct.App.1995), disapproved of by United Nat’l Ins. Co. v. DePrizio, 705 N.E.2d 455 (Ind.1999), and State Farm Mut. Auto. Ins. Co. v. Glasgow, 478 N.E.2d 918 (Ind.Ct.App.1985). Again, we must reject Granite State’s argument. Neither Herman nor Webb indicates whether the insurer intervened pursuant to Trial Rule 24(A) (“Intervention of right.”) or 24(B) (“Permissive intervention”). Herman, 551 N.E.2d at 844-45, Webb, 659 N.E.2d at 1051. Moreover, although Glasgow mentions in a footnote that an insurer could have intervened in an action and then argued that there was no coverage, the footnote notes only that the insurer “could have sought permission to intervene in the underlying tort aetion[,]” not that it had the right to intervene. Glasgow, 478 N.E.2d at 921 n. 2 (emphasis added). Additionally, in none of the three cases cited by Granite State was intervention an issue, and there is no indication in Herman or Webb that it was opposed. Granite State’s reliance on Herman, Webb, and Glasgow is unavailing. Granite State has failed to establish that this case does not fall within our holding in Young and so has failed to show that the trial court abused its discretion in denying its motion to intervene.

We affirm the judgment of the trial court.

ROBB, C.J., concurs.

BAKER, J., dissents with opinion.

BAKER, Judge,

dissenting.

I respectfully dissent from the majority’s decision to affirm the trial court’s denial of Granite State’s motion to intervene. In my view, Granite State has demonstrated that its interest in the tort suit is sufficient to support intervention, that its interest is in danger barring intervention, and that its interest is not currently being protected, thus satisfying the requirements of Indiana Trial Rule 24(A)(2).

More particularly, the agreement between Lodholtz and Pulliam purports to make Granite State responsible for satisfying the judgment, thus establishing an interest warranting intervention. Also, Granite State’s request to intervene was timely, in that it sought to intervene fourteen days after it learned that Pulliam would neither move to vacate the default judgment nor take any other action to defend itself.

It is also apparent to me that Granite State’s intervention is the only means available for it to challenge Lodholtz’s claim because the doctrine of collateral estoppel may very well prevent Granite State from challenging the judgment in the pending declaratory judgment action. See State Farm Fire & Cas. Co. v. T.B. ex rel. Bruce, 762 N.E.2d 1227, 1231 (Ind.2002) (holding that collateral estoppel ordinarily binds an insurer to the result of litigation to which its insured is a party). Indeed, the federal court in the pending declaratory judgment action might refuse to entertain any challenge to the judgment because its concern is the entirely unrelated issue as to whether Granite State’s policy covers the judgment.

I am mindful of this court’s opinion in Cincinnati Insurance Co. v. Young, 852 N.E.2d 8 (Ind.Ct.App.2006). Although Young would seemingly control the outcome here, I would note that unlike the circumstances in that case, where the insurer repeatedly denied coverage, refused to defend, and did almost nothing to protect its insured, Granite State did not deny coverage. Instead, Granite State was still investigating the matter when it offered to defend under a reservation of rights, and it actively protected its insured through York. Appellant’s App. p. 6, 12, 17-24. In my view, Granite State’s stance in the matter and the other circumstances here that differ from those in Young are significant.

I would also note that in Young, there was a trial on both liability and damages. Here, neither issue was adjudicated on the merits. And, in my view, absent intervention by Granite State, there will likely never be a full and fair adjudication of either. Indeed, Granite State may be unable to challenge either liability or damages in a separate and subsequent action.

Also, even assuming that the rule announced in Young would control in this instance, permitting Granite State to intervene in these circumstances and participate in this litigation is more efficient and clearly supports our policy preference that matters should be decided on their merits. Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 812 (Ind.2012). Furthermore, I believe that the current rule, inasmuch as it restricts insurers from intervening before a coverage decision has been made, will have the unintended consequences of increased costs that will surely be passed along to their insureds by way of higher premiums.

That said, I part ways with the majority’s view that Granite State sought to intervene simply “because it did not like the results” when Pulliam and Lodholtz settled. Op. at 567, n. 3. In short, I believe that the trial court erred in denying Granite State’s motion for leave to intervene.

      . The warning appears at the beginning of the classic short story "The Monkey’s Paw” and is attributed by the author to “Anonymous.” W.W. Jacobs, The Monkey's Paw, AMERICAN LITERATURE (November 20, 2012, 1:57 p.m.), http://www.americanliterature.com/ Jacobs/SS/TheMonkeysPaw.html.

      . On November 3, 2011, Granite State filed a declaratory judgment action in the United States District Court for the Northern District of Indiana, seeking a judgment that it has no duty to indemnify Pulliam. See Granite State Ins. Co. v. Pulliam, No. 3:ll-cv-432 (N.D. Ind. filed Nov. 3, 2011). On November 4, 2011, Lodholtz filed an action in the United States District Court for the Northern District of Indiana seeking, inter alia, to collect the entire judgment from Granite State as Pul-liam's assignee. See Lodholtz v. Granite State Ins. Co., No. 3:1 l-cv-435 (N.D. Ind. filed Nov. 4, 2011).

      . If anything, the facts as a whole do not motivate us to try very hard to carve out an exception to Young on Granite State's behalf. After all, at least the insurer in Young put the insured on notice that it intended to deny coverage in time for the insured to do something about it, whereas Granite State gave no hint to Pulliam that it might deny coverage until after default judgment had already been entered. Young, 852 N.E.2d at 10-11. Moreover, when Granite State's surrogate, York, told Pulliam to defend itself, Pulliam did precisely that in settling with Lodholtz. In other words, Granite State got exactly what it asked for and now seeks to intervene because it did not like the results.
      Granite State also contends that its failure to take action until after the default judgment was the result of excusable neglect. Given that Granite State still denies coverage, however, Young still governs in any event and the question of excusable negligent is irrelevant. Granite State also does not explain how its failure to act was the result of negligence, as opposed to the result of a decision that coverage did not exist.

      . Because we affirm the trial court's denial of Granite State's motion to intervene, we need not reach its argument that it is entitled to relief from the judgment.


source: Caselaw Access Project

author: PYLE, Judge.

license: Public Domain

text:
    LBM REALTY, LLC, d/b/a Summer Place Apartments, Appellant, v. Hillary MANNIA, Appellee.
    No. 71A03-1205-PL-231.
    Court of Appeals of Indiana.
    Dec. 19, 2012.
    Charles R. Shedlak, South Bend, IN, Attorney for Appellant.
    Tracey S. Wetzstein, Merrillville, IN, Attorney for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

After a fire broke out at an apartment building owned by LBM Realty, LLC d/b/a Summer Place Apartments (“LBM”), LBM’s insurance company, Greater New York Mutual Insurance Company (“Insurer”), paid LBM’s fire loss claim and then filed an insurance subrogation action, in LBM’s name, against LBM’s tenant, Hillary Mannia (“Mannia”), who is alleged to have negligently started the fire on her balcony patio. Mannia filed a Trial Rule 12(B)(6) motion to dismiss LBM’s claims of breach of contract and negligence, and the trial court granted her motion. LBM now appeals from the trial court’s dismissal of its complaint against Mannia.

We reverse and remand.

ISSUE

Whether the trial court erred by granting Mannia’s motion to dismiss LBM’s complaint.

FACTS

LBM owns the Summer Place Apartments (“the Apartments”) in Granger, Indiana. In March 2010, Mannia signed a one-year lease agreement (“the Lease”) and rented an apartment from LBM. Debra Mannia (“Debra”) was also listed as a “Resident” under the Lease, and she signed the Lease along with Mannia. (App. 5, 11, 18). The Lease contained the following relevant provisions:

VII. Insurance. In the event the Leased Premises are totally destroyed by fee, rain, wind, or other cause beyond the control of Owner [LBM], or are condemned and ordered torn down by the properly constituted authorities of the state, county or city, then in either of these events this Lease shall cease and terminate as of the date of such destruction. If the Leased Premises are damaged by fee, rain, wind or other cause, beyond the control of Owner, so as to render the same partially untenantable or partially unfit for the use or purpose for which the same are hereby let, and partially fit for the use or purpose for which the same are hereby let, and are repairable within a reasonable time, then this Lease shall remain in full force and effect; but there shall be an abatement in rent in the portion that the damaged portion of the Leased Premises bears to the whole of said Leased Premises. Owner recommends the Resident obtain renter’s insurance.
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XIII. Rules. Owner has supplied Resident with a written' or printed set of rules, the receipt and reasonableness of which are expressly acknowledged by Resident^] Resident shall be bound by and shall comply with, these rules as if they were included in the text of this Lease. Resident further agrees to the adoption by Owner of reasonable amended rules during the Term of this Lease, which amended rules delivered [sic] to Resident in the manner described above for notices and which amended rules shall be binding upon Resident upon delivery. Owner shall have no liability, whatsoever, to Resident, any member of Resident’s family, or guest of Resident for any violation of rules by any other resident or guest thereof. Resident receives no rights from these rules.
XIV. Save Harmless Clause. Resident shall indemnify and save harmless Owner from and against any and all claims or actions for damages to persons or property, or for loss of life, and against any and all losses, costs, damages, charges, penalties and expenses, arising out of or in connection with any accident or other occurrence due directly or indirectly to the use and occupancy of the Leased Premises, or any common or related area, by the Resident. This indemnity extends to any and all claims in which it is asserted that Owner itself has been negligent or otherwise at fault.
XV. Waste. The occurrence of any of the following constitutes the commission of waste by Resident:
A. The occurrence or threat of physical damage to the Premises, common areas, or other property of Owner;
B. The occurrence or threat of physical injury to, or damage to the property of, other persons lawfully in the Leased Premises, common areas, other living units, or other property of Owner including Owner’s employees and agents;
E. Other acts or omissions which are or may be likely to cause damage or injury to Owner, Owner’s property, Owner’s reputation, or other persons.
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XVIII. Exterior of Building, Adjacent Areas and Storage. “Premises” shall mean only that portion of Owner’s property contained within the interior walls of the dwelling unit described herein, and shall not be construed to include any storage shed or closet, balcony, patio, garden, exterior wall or grounds adjacent thereto. During the Term of this Lease, Resident shall have an addendum for use of any balcony or patio (whether fenced or open) directly accessible from the Leased Premises and any storage shed or closed located thereon, subject to the restrictions set out in this Lease. Resident shall keep such areas in a clear, and orderly condition at all times. Resident shall have the risk of loss to any property stored or placed in any storage shed or closet available for use, the use of which shall be strictly limited to storage only. Resident shall not store any flammable, noxious or hazardous materials in any storage shed or closet at any time, shall keep the storage shed or closet clean and shall remove all items from there upon vacation of the Premises.
XIX. Miscellaneous Provisions. Resident, for themselves, their heirs, legal representatives, hereby covenant and agree that:
******
E. Resident has examined the Leased Premises, is satisfied with the physical condition, and Resident’s [sic] taking possession is conclusive evidence of receipt of them in good order and repair, except as otherwise specified. Resident hereby acknowledges that no representation as to condition or repair has been made except as in contained in this Lease and Resident acknowledges that no warranty of condition or promise to decorate, alter, repair, or improve the Leased Premises has been made except such as expressly contained in this Lease. At the end of the term, Resident shall return the Leased Premises to Owner in the same good condition, reasonable wear and tear excepted. Resident is and shall be responsible and liable for any injury or damage done to the Leased Premises, common areas or any property of Owner caused by resident, any occupant, or any other person whom Resident permits to be in or about the Leased Premises. Resident shall pay the expense of replacing all glass broken and shall replace all keys lost or broken, and maintain the premises in such condition, order and repair as the same are in commencement of the Lease Term or may be put in during the Lease Term, reasonable wear and tear excepted.
Resident shall permit no waste of the Leased Premises nor allow the same to be done, but Resident shall take good care of the same....
XX. Entire Agreement. The terms and conditions contained in this Lease, together with Addendum to Lease attached her[e]to, the Rules and Regulations, the Application For Lease, the Move-In Inspection form and any other agreements which by reference herein are made a part of this Lease, will be conclusively deemed the agreement between the Resident and the Owner, and no modification, waiver, or amendment of the Lease or any of its terms, conditions, or covenants, shall be binding upon the parties unless made in writing and signed by the parties sought to be bound. If there is more than one Resident, their liability and obligation shall be joint and several.

(App. 7, 8-11) (italicized emphasis added; bolded emphasis in original).

On July 3, 2010, a fire occurred at the Apartments, resulting in damages totaling $743,402.86. On May 6, 2011, LBM filed a complaint against Mannia, alleging claims of breach of contract and negligence. Specifically, in regard to the breach of contract claim, LBM alleged that Mannia had breached her contract with LBM when she:

a. Carelessly and improperly disposed of smoking materials by placing same in a plastic bottle and in close proximity to the vinyl siding on the balcony patio wall of the leased premises; and/or
b. Carelessly and improperly allowed guests to dispose of smoking materials by placing same in a plastic bottle and in close proximity to the vinyl siding on the balcony patio wall of the leased premises!;] and/or
c. Otherwise failed to comply with her obligation to return the premises in the same condition as when she moved in, reasonable wear and tear excepted.

(App. 2). In regard to its negligence claim, LBM alleged that Mannia had:

a. Carelessly and improperly disposed of smoking materials by placing same in a plastic bottle and in close proximity to the vinyl siding on the balcony patio wall of the leased premises; and/or
b. Carelessly and improperly allowed guests to dispose of smoking materials by placing same in a plastic bottle and in close proximity to the vinyl siding on the balcony patio wall of the leased premises; and/or
c. Otherwise acted carelessly and negligently.

(App. 3). LBM, in compliance with Trial Rule 9.2, attached a copy of the Lease to its complaint.

On December 15, 2011, Mannia filed a Trial Rule 12(B)(6) motion to dismiss LBM’s claims in “this subrogation action against [her] to recoup the money it paid for the property dam[a]ge.” (App. 20). In Mannia’s brief in support of her motion to dismiss, she discussed the three approaches used by trial courts in the country to resolve the question of whether a landlord’s insurer can file a subrogation action against a negligent tenant. These approaches include: (1) the no-subrogation (or implied co-insured) approach, in which, absent an express agreement to the contrary, a landlord’s insurer is precluded from filing a subrogation claim against a negligent tenant because the tenant is presumed to be a co-insured under the landlord’s insurance policy; (2) the pro-sub-rogation approach, in which a landlord’s insurer is allowed to bring a subrogation claim against a negligent tenant absent an express term to the contrary; and (3) the case-by-ease approach, in which courts determine the availability of subrogation based on the reasonable expectations of the parties under the facts of each case. In her motion to dismiss, Mannia alleged that she — as a tenant of LBM — was “an implied co-insured” under LBM’s policy with Insurer. (App. 20). Mannia requested the trial court to (1) adopt the no-subrogation approach; (2) “rule that insurers cannot subrogate against an insured’s tenant after a fire loss[;]” and (3) “dismiss [LBM’s] claim under Ind. T.R. 12(B)(6) as a result because [LBM] ha[d] not stated a claim on which relief [could] be granted.” (App. 20-21).

The certified chronological case summary attached to the Notice of Completion of Clerk’s Record reveals that the trial court granted Mannia’s motion to dismiss the same day she filed it. However, after LBM filed a motion to vacate the dismissal order, the trial court held a hearing on the motion, granted the motion to vacate the dismissal order, and gave LBM an opportunity to respond to Mannia’s motion to dismiss.

On February 22, 2012, LBM filed a response to Mannia’s motion to dismiss. In its response, LBM stated that Mannia was “insured for this loss by her parents’ homeowners’ liability insurance policy[.]” (App. 29). LBM argued that the trial court was required to follow the case-by-case approach because that approach had already been adopted by the Indiana Court of Appeals in United Farm Bureau Mut. Insur. Co. v. Owen, 660 N.E.2d 616 (Ind.Ct.App.1996). LBM also contended that the terms of the lease contained no language that Mannia was a co-insured or that would preclude subrogation. LBM asserted that, instead, the lease contained language suggesting that Mannia bore the risk of loss for her negligence and would be responsible for damage to the leased premises and building.

On March 29, 2012, the trial court held a hearing on Mannia’s motion to dismiss. During the hearing, Mannia’s counsel indicated that Mannia had renter’s insurance and was also covered by her parents’ homeowner’s policy. The parties also addressed the applicability of the Owen case. LBM acknowledged that the Owen case did not specifically discuss the three approaches to subrogation but stated that the case had been cited in various treatises as having adopted the case-by-case approach.

Thereafter, on April 27, 2012, the trial court issued an order granting Mannia’s motion to dismiss pursuant to Trial Rule 12(B)(6). In its order, the trial court concluded that it was not required to apply a case-by-case approach to the question of whether this subrogation claim could be brought against Mannia. The trial court then reviewed and construed the terms of the Lease and concluded that they were ambiguous regarding Mannia’s insurance obligations and her obligation to pay for any fire loss caused by her negligence. Thereafter, the trial court engaged in a public policy analysis regarding allowing subrogation claims against tenants and ultimately adopted the no-subrogation approach, thereby finding that Mannia was a co-insured under LBM’s insurance policy. Specifically, the trial court’s order provides, in relevant part:

2. The issue is the interpretation of the insurance contract between the plaintiffs [LBM’s] insured, Summer Place Apartments, and the defendant, tenant, Hillary Mannia. There is no Indiana case law directly on point. The parties dispute the interpretation of the case of United Farm Bureau Mutual Insurance Company v. Owen[,1 660 N.E.2d 616 (Ind.Ct.App.1996).
8. The legal issue can be stated as follows: if a fire loss occurs in a building owned by the landlord, which fire loss is caused by simple negligence of a tenant, may the insurer, after it has paid for the loss, stand in the shoes of the landlord and bring a subrogation action against the tenant? A Matthew Bender & Company Inc., publication “Insuring Real Property”, Section 1.04, has analyzed this issue. The author of that treaties [sic] has interpreted the United Farm Bureau Mutual Insurance Company v. Owen, (Owen case) an Indiana Court of Appeals case referred to above, as falling into the category of those cases where subrogation against a tenant is allowed depending upon the intent of the parties as expressed in the lease contract.
# ⅜: ⅝ ⅜ ⅜ ⅝
9. This court does not believe that Indiana law is clearly established by the Owen case on the issue of a subrogation claim against a tenant by the insurance carrier for the landlord based upon purely negligent damage to the premises. The majority of states that have decided this question have found that a tenant, who pays rent, which includes money used to pay the insurance premiums by the landlord for fire damage insurance, should be considered an additional insured under the policy thereby prohibiting subrogation. 49 Am. Jur. 2d and Tenant § 482, 43 A Am.Jur.2d Insurance § 1781.
⅜? ⅜ ⅜ ⅜ ⅜ ⅝
11. The public policy analysis requires the court to not only consider this case, but also future cases in the allocation of resources between different parts of our society. The assignment of property rights clearly made by a legal system either through courts or legislature is helpful to parties in allocating resources. If the insurance company for plaintiff (landlord) prevails and successfully asserts a subrogation right based on an obligation of every tenant to insure not only their personal property and personal liability for slips and falls of guests who enter their apartment or condominium unit, but also to insure the overall safety of the building from casualty such as fire or water loss, this will not result in clear shifting of liability to all tenants. The landlord most likely would continue to have coverage to some extent on the building, and there would be an allocation of resources by both the tenants and the landlord for insurance coverage. This is an insufficient use of resources. Assigning the property rights such that the landlord has an obligation to overcome a presumption that the tenant is a co-insured of the landlord would clearly put the burden on the landlord to obtain the insurance for the building as it relates to fire or water damage claims. This would reflect the reality of the market today where most tenants assume that they are only liable for their personal property and should obtain renter’s insurance as is suggested strongly in this lease.
12. The lease in this case implies that the landlord will have such general fire insurance paid by the landlord. Said premiums are paid with the rent supplied by the tenants. Before the obligation is placed on the tenants to obtain general fire insurance, the court should consider future transaction costs, which would include enforcing contracts for lease of premises, such as this lawsuit. The courts are currently involved in many immediate possession hearings and hearings regarding damages for rent or waste to the premises by tenants. However, an additional cost to enforce casualty subrogation rights would be borne by landlords, insurance companies and tenants if the presumption of risk of loss by negligently caused fire or water damage is placed on tenants. Determination of cause is expensive litigation. This is certainly not a cost-free transaction. In balance, public policy would be served by having Indiana join the majority of states that have clearly asserted that there is a presumption of the tenant as a co-insured of the landlord and therefore not subject to subrogation by the insurance company providing fire and water loss coverage. This lease did not put a burden on the tenant specifically addressing loss to premises by fire damage and therefore the tenant should be considered an additional insured.
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14. For the reason stated above, this court finds the tenant [Mannia] is an additional insured under the plaintiffs [LBM’s] fire loss policy and [Mannia’s] Motion to Dismiss for failure to state a claim upon which relief can be granted should be Granted.

(App. 50-51, 5-58). LBM now appeals.

DECISION

LBM argues that the trial court erred by granting Mannia’s motion to dismiss LBM’s complaint. Specifically, LBM contends that the trial court erroneously adopted the no-subrogation approach and concluded that Mannia was a co-insured under LBM’s insurance policy.

Our review of a trial court’s grant of a motion to dismiss under Trial Rule 12(B)(6) is de novo and requires no deference to the trial court’s decision. Sims v. Beamer, 757 N.E.2d 1021, 1024 (Ind.Ct.App.2001). “A motion to dismiss under [Indiana Trial] Rule 12(B)(6) tests the legal sufficiency of a complaint: that is, whether the allegations in the complaint establish any set of circumstances under which a plaintiff would be entitled to relief.” Trail v. Boys and Girls Clubs of Northwest Ind., 845 N.E.2d 180, 134 (Ind.2006) (emphasis added). “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.” Id. When reviewing a Trial Rule 12(B)(6) motion to dismiss, we accept the facts alleged in the complaint as true and view the pleadings in a light most favorable to the nonmoving party and with every reasonable inference in the nonmoving party’s favor. Id.

We view motions to dismiss under Trial Rule 12(B)(6) “with disfavor because such motions undermine the policy of deciding causes of action on their merits.” McQueen v. Fayette County Sch. Corp., 711 N.E.2d 62, 65 (Ind.Ct.App.1999), trans. denied. A “plaintiff need not set out in precise detail the facts upon which the claim is based” but “must still plead the operative facts necessary to set forth an actionable claim.” Trail, 845 N.E.2d at 135. Indeed, under the notice pleading requirements, a plaintiffs complaint needs only contain “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief ” Id. (quoting Indiana Trial Rule 8(A)). “Under notice pleading, we review the granting of a motion to dismiss for failure to state a claim under a stringent standard,” and we will not affirm a dismissal under Trial Rule 12(B)(6) unless it is “ ‘apparent that the facts alleged in the challenged pleading are incapable of supporting relief under any set of circumstances.’ ” Id. (quoting McQueen, 711 N.E.2d at 65) (emphasis added).

When filing her motion to dismiss, Mannia did not argue that LBM’s claims for negligence or breach of contract were somehow lacking in sufficiency or that the allegations in the complaint did not establish any set of circumstances under which LBM — as landlord — would be entitled to relief. Instead, her motion to dismiss for failure to state a claim was premised on the argument that LBM’s complaint — as a subrogation action — would fail to state a claim upon which relief could be granted if the trial court first adopted the no-subro-gation approach. Indeed, by asking the trial court to adopt no-subrogation approach, Mannia recognized that the law in Indiana did not preclude subrogation by a landlord’s insurer against a tenant.

To be sure, “[sjubrogation is a doctrine of equity long recognized in Indiana.” Erie Ins. Co. v. George, 681 N.E.2d 188, 186 (Ind.1997). Subrogation is “[t]he principle under which an insurer that has paid a loss under an insurance policy is entitled to all the rights and remedies belonging to the insured against a third party with respect to any loss covered by the policy.” Blaok’s Law Dictionary 1467 (8th ed. 2004). “When the insurer claims a right through subrogation, it stands in the shoes of the insured and takes no rights other than those which the insured had.” United Farm Bureau Mut. Ins. Co. v. Owen, 660 N.E.2d 616, 619 (Ind.Ct.App.1996). “The ultimate purpose of the doctrine [of subrogation], as with other equitable principles such as contribution, is to prevent unjust enrichment.” Erie, 681 N.E.2d at 186 (citing 73 Am.Jur. 2D Subrogation § 4 (1974)).

The trial court also correctly acknowledged that Indiana law did not preclude a subrogation action by a landlord’s insurer against a tenant, and the trial court correctly recognized that our Court did not adopt a case-by-case subrogation approach in Owen. In Owen, we affirmed a trial court’s entry of summary judgment in favor of a tenant and against an insurer who sought subrogation for a claim it paid to its insured (who was the tenant’s landlord) because the specific language of a lease provision at issue released the tenant from property damage liability to the landlord, thereby precluding the insurer — who could only assert a claim available to its insured — from raising a subrogation claim. In that case, we did not discuss or adopt any of the three subrogation approaches, and the question of whether Indiana would adopt a rule regarding subrogation claims by a landlord’s insurer against a negligent tenant was never raised.

Despite the current state of Indiana law that permits insurers to bring a subrogation claim against a tenant, the trial court did not test LBM’s complaint against the backdrop of the law as it existed. Instead, the trial court adopted the no-subrogation approach, thereby precluding LMB’s claims against Mannia. It seems that the trial court put the proverbial cart before the horse by first adopting a rule precluding subrogation claims against tenants and then reviewing LBM’s complaint in light of that newly adopted rule.

Whether the no-subrogation approach, pro-subrogation approach, or case-by-case approach should be adopted in this State is a matter we leave for another day as the facts in this case are limited at this juncture of the proceedings and have not been developed enough to enable a meaningful review of the issue. Because Indiana law does not currently preclude a landlord’s insurer from bringing a subro-gation claim against a tenant and because the allegations in LBM’s complaint establish a set of circumstances under which it would be entitled to relief, LBM’s complaint states claims upon which relief could be granted. Accordingly, we reverse the trial court’s order granting Mannia’s motion to dismiss and remand this case for further proceedings.

Reversed and remanded.

FRIEDLANDER, J., and BROWN, J., concur.

      . Mannia signed the Lease as the "Head of House," and Debra signed as "CoHead of House.” (App. 11).

      . The "Rules and Regulations” sheet attached to the Lease contained the following relevant rule:
      7. Resident must pay repair costs for all damages to Resident's Apartrnent, Apartment Community facilities, and common areas caused by Resident or members of Resident’s household or guests. This shall include but is not limited to damage to appliances, windows, screens, doors, floors, overflowing toilets, sinks[,] bathtubs, basins, or walls.
      (App. 12) (emphasis added). This Rules and Regulations sheet was signed by Mannia as. the "Head of House,” and by Debra as "Co-Head of House.” (App. 13).

      . Mannia did not attach any documents to her motion to dismiss. In Mannia's brief in support of her motion to dismiss, she cited to one of LB M's interrogatory answers, which indicated that LBM had received payment in the amount of $766,716.86 from Insurer for the fire loss.

      . This no-subrogation approach is sometimes referred to as the “Sutton Rule” because the approach was first adopted in Sutton v. Jondahl, 532 P.2d 478 (Okla.Ct.App.1975).

      . Courts can determine the reasonable expectations of the parties by looking to "the lease as a whole along with other relevant and admissible evidence^]” See Rausch v. Allstate Ins. Co., 388 Md. 690, 882 A.2d 801, 816 (2005) (discussing general principles emanating from basic contract and subrogation law that need to be considered when applying a case-by-case approach), reconsideration denied. See also RAM Mutual Ins. Co. v. Rohde, 820 N.W.2d 1, 14-16 (Minn.2012) (explaining the following may aid in determining the reasonable expectations of the parties: (1) the terms of lease between the landlord and tenant; (2) the parties’ insurance policies, including the type of insurance purchased by each party; (3) “the principles of equity and good conscience," including whether the leased premises was part of a large multi-unit structure).

      . For additional explanation of these three approaches, see Robert Vanneman Spake, Jr., Note, The Roof Is On Fire: When, Absent an Agreement Otherwise, May a Landlord’s Insurer Pursue a Subrogation Claim Against a Negligent Tenant?, 63 Wash. & Lee L. Rev. 1743 (2006) (discussing three approaches and indicating states that have adopted the various approaches); and Aleatra P. Williams, Insurers' Rights of Subrogation against Tenants: The Begotten Union Between Equity and Her Beloved, 55 Drake L. Rev. 541 (2007). See also RAM Mutual Ins., 820 N.W.2d at 11-12 n. 7-9 (listing states that have adopted each approach).

      .We note that Appellant did not include a copy of the chronological case summary in its Appellant’s Appendix, and we direct Appellant’s attention to Indiana Appellate Rule 50(A)(2)(a), which provides that an Appellant’s Appendix "shall contain" a copy of the "chronological case summary[.]” Our Clerk’s file has a certified copy of the chronological case summary attached to the Notice of Completion of Clerk's Record, but that does not relieve Appellant from its obligation to comply with Appellate Rule 50. See State v. Black, 947 N.E.2d 503, 504 n. 7 (Ind.Ct.App.2011) (referencing the chronological case summary attached to the Notice of Completion of Clerk’s Record and noting that our Clerk's file is "part of the record before us”).

      . During the motion to dismiss hearing, the trial court stated that granting the motion to dismiss on the same day "was an error.” (Tr. 14).

      . LBM attached a copy of the Lease to its response.

      . Although not raised by the parties, we pause to discuss a procedural matter. In its order, the trial court stated:
      1. Both parties have referred to matters outside the pleadings. This court could construe the motion [to dismiss] as a motion for summary judgment, however, there are no factual disputes and [LBM] has had more than sixty (60) days to respond to the Motion to Dismiss and neither party has filed any affidavits. Therefore this shall be decided as a Motion to Dismiss under T.R. Rule 12(B)(6).
      (App. 50). We disagree with the trial court to the extent it suggests that it could have chosen whether to treat the motion as one for summary judgment or as a motion to dismiss. Indeed, Trial Rule 12(B) provides that ”[i]f, on a motion asserting the defense number (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.” (Emphasis added). However, we agree with the trial court that this matter was to be treated as a motion to dismiss because it appears that the only matter referred to and considered as part of the parties' arguments was the Lease, which — pursuant to Trial Rule 9.2(A) — became part of the complaint and would not be considered an outside matter. See Trial Rule 9.2(A) (providing that "[w]hen any pleading allowed by these rules is founded on a written instrument, the original, or a copy thereof, must be included in or filed with the pleading” and that ”[s]uch instrument, whether copied in the pleadings or not, shall be taken as part of the record”). See also Gregory & Appel, Inc. v. Duck, 459 N.E.2d 46, 50 (Ind.Ct.App.1984) (explaining that exhibits attached to and made part of a complaint under Trial Rule 9.2(A) are integral portions of the pleading and consideration of those attached exhibits do not require treating a Trial Rule 12 motion as a motion for summary judgment).

      . Additionally, that question has not been raised in other cases where an insurer brought a subrogation claim against an insured’s tenant for property damage. See Cincinnati Ins. Co. v. Davis, 860 N.E.2d 915 (Ind.Ct.App.2007); St. Paul Fire & Marine

        Ins. Co. v. Pearson Const. Co., 547 N.E.2d 853 (Ind.Ct.App.1989), trans. denied.


author: BRADFORD, Judge.

text:
    Amir H. SANJARI, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 20A03-1206-CR-273.
    Court of Appeals of Indiana.
    Jan. 15, 2013.

      Nancy A. McCaslin, McCaslin & MeCas-lin, Elkhart, IN, Attorney for Appellant.
    Ian McLean, Deputy Attorney General, Indianapolis, IN, Gregory F. Zoeller, Attorney General of Indiana, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

Amir Sanjari had two children with Alison Gratzol and, when the couple divorced, Sanjari was ordered to pay child support. Sanjari failed to do this on a regular basis, and his arrearage eventually came to be almost $57,000. Sanjari was tried and convicted of two counts of Class C felony nonsupport and sentenced to two consecutive five-year sentences. On appeal, the Indiana Supreme Court reduced one of Sanjari’s convictions to a Class D felony and remanded for resentencing. The trial court sentenced Sanjari to eight years of incarceration for the Class C felony and two for the Class D felony, to be served consecutively. Sanjari again appeals.

Sanjari contends that his sentence violates prohibitions against double jeopardy, violates prohibitions against vindictive sentencing, and is inappropriately harsh. We conclude that Sanjari’s new sentence does not constitute double punishment. We also conclude that Sanjari has failed to show actual vindictiveness by the trial court and that his aggregate sentence does not entitle him a presumption of vindictiveness because it is no longer than the aggregate sentence originally imposed. Finally, in light of the severity of Sanjari’s offenses and his appalling character, we conclude that his ten-year executed sentence in not inappropriate. We affirm.

FACTS AND PROCEDURAL HISTORY

The Indiana Supreme Court summarized the facts underlying this appeal as follows:

[Sanjari] and [Alison Gratzol] married in 1982 and had two children. Their marriage was dissolved in Elkhart County, Indiana, in 2000, and [Sanjari] was eventually ordered to pay $289 per week as child support to apply to both children, plus additional amounts for educational expenses and to reduce an accumulated support arrearage. [Sanjari] failed to regularly pay such “in gross” support payments and eventually ceased making the child support payments. [Sanjari] was initially charged with two counts of class C felony nonsupport of a dependent child, one count for each child, because the total amount of unpaid support exceeded $15,000. The State later added two additional counts of class D felony nonsupport, one for each child. When initially charged, [Sanjari] was more than $17,000 behind in support, but by the time his trial commenced the arrearage exceeded $56,000. A jury found [Sanjari] guilty of all four counts: a class C felony and a class D felony for each child. The trial court entered judgment only as to the two class C felonies, per Indiana Code Section 35-38-1-6, which provides that, notwithstanding guilty verdicts on separate counts charging both an offense and an included offense, a judgment and sentence “may not be entered against the defendant for the included offense.” Ind.Code § 35-38-1-6.

Sanjari v. State, 961 N.E.2d 1005, 1006 (Ind.2012) (“Sanjari II”).

Following Sanjari’s convictions, the trial court imposed two consecutive five-year sentences. See Sanjari v. State, 942 N.E.2d 134, 139 (Ind.Ct.App.2011) trans. denied, trans. granted, and opinion vacated (“Sanjari I”). On appeal, inter alia, we vacated one of Sanjari’s Class C felony nonsupport convictions on double jeopardy grounds and affirmed the trial court in all other respects. See Sanjari II at 1006. The Indiana Supreme Court granted transfer and held that “Indiana Code Section 35-46-1-5 permits a separate class D felony conviction for nonsupport of each dependent child, but only one such offense may be enhanced to a class C felony where the unpaid support for one or more of such children is $15,000 or more.” Id. The San-jari II Court summarily affirmed our disposition in all other respects but remanded with instructions to enter judgments of conviction for one count of Class C felony nonsupport and one count of Class D felony nonsupport and for resentencing. Id. at 1009.

On May 16, 2012, the trial court held a sentencing hearing, following which it sentenced Sanjari to eight years of incarceration for Class C felony nonsupport and two years for Class D felony nonsupport. No additional evidence was presented by either party. The trial court found, as aggravating circumstances, that the harm done was far more than necessary to satisfy the elements of the crimes, Sanjari’s refusal to maintain gainful employment, the high likelihood that Sanjari would continue to refuse to support his children, the substantial time and effort spent by Grat-zol in attempting to collect child support, Sanjari’s harassment of Gratzol, the high likelihood that Sanjari would abscond if placed in a community-based program, and his veiled threat of violence directed at Gratzol. The trial court found Sanjari’s lack of a prior criminal record to be mitigating. The trial court found that the aggravating circumstances “overwhelmed” the lone mitigating circumstance. Appellant’s App. p. 59.

DISCUSSION AND DECISION

I. Whether Sanjari’s Sentence Violates Prohibitions Against Double Jeopardy

As previously mentioned, the trial court originally imposed two consecutive five-year sentences. Sanjari notes that one of those five-year sentences would now be discharged. Sanjari seems to argue that because the original sentence has allegedly been discharged, resentencing him now on the same charge would represent a double punishment. The original sentence, however, has not been discharged— it has been vacated. Sanjari cites to no authority for the proposition that a new sentence may not be ordered when the original sentence has been “discharged,” and we are aware of none. Sanjari is not being punished twice for the same offense because the original sentence has simply been superseded by the new one. San-jari’s sentence does not violate prohibitions against double jeopardy.

II. Whether Sanjari’s Sentence Violates Due Process

“While sentencing discretion permits consideration of a wide range of information relevant to the assessment of punishment, ... it must not be exercised with the purpose of punishing a successful appeal.” Alabama v. Smith, 490 U.S. 794, 798,109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) (citing North Carolina v. Pearce, 395 U.S. 711, 723-25, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); additional citation omitted). “ ‘Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.’” Smith, 490 U.S. at 798, 109 S.Ct. 2201 (quoting Pearce, 395 U.S. at 725, 89 S.Ct. 2072). Whenever a judge imposes a more severe sentence upon a defendant, the reasons for doing so must be clear, or the presumption arises that there has been a vindictive purpose. See id. “Once this presumption blossoms, the prosecution must proffer evidence to overcome it; elsewise, vindictiveness is deemed established, and the due process clause requires invalidation of the challenged action.” U.S. v. Pimientar-Redondo, 874 F.2d 9,13 (1st Cir.1989).

A. Actual Vindictiveness

Sanjari contends that the record establishes that the trial court vindictively sentenced him. Although Sanjari acknowledges that “[t]he trial court’s statements at resentencing do not show an indication of retaliatory motive[,]” Appellant’s Br. p. 19, he argues that there is nonetheless other evidence that establishes vindictiveness. Sanjari, however, points to only the numerous filings he made, including a ha-beas corpus petition and numerous motions for change of venue, and material from his website, some of which was highly critical of the trial court and the prosecutors and attorneys of Elkhart County. There is simply no evidence, however, that the trial court took any of Sanjari’s criticisms into account at resentencing. Were we to accept Sanjari’s argument, it would open the door for future defendants to establish actual vindictiveness claims simply by being vexatious, a result we obviously cannot endorse.

B. Presumed Vindictiveness

Sanjari also argues that the imposition of an eight-year sentence for his Class C felony conviction on remand gives rise to an unrebutted presumption of vindictiveness because the original sentence for that conviction was five years. The State counters that no such presumption arises because Sanjari’s ten-year aggregate sentence is the same as originally imposed. Today, we join with that vast majority of courts who have addressed the question and have concluded that it is the aggregate sentence that is the key in such cases. Pursuant to this approach, Sanjari’s ten-year aggregate sentence on remand does not give rise to a presumption of vindictive sentencing.

“[Ujnder a due process analysis, where the aggregate period of incarceration on resentencing is no greater than the original aggregate sentence, there is no presumption of vindictiveness.” People v. Woellhaf, 199 P.3d 27, 31 (Colo.Ct.App.2007) (citing U.S. v. Evans, 314 F.3d 329 at 333-34 (8th Cir.2002); Pimienta-Redondo, 874 F.2d at 13-14; State v. Larson, 56 Wash.App. 323, 783 P.2d 1093, 1095 (1989)). The core rationale for this rule, one that we accept, is the recognition that the sentences in a multi-conviction proceeding are interdependent:

When a defendant is convicted of more than one count of a multicount indictment, the district court is likely to fashion a sentencing package in which sentences on individual counts are interdependent. When, on appeal, one or more counts of a multicount conviction are reversed and one or more counts are affirmed, the result is an “unbundled” sentencing package. See, e.g., United States v. Thomas, 788 F.2d 1250, 1260 (7th Cir.), cert, denied, 479 U.S. 853, 107 S.Ct. 187, 93 L.Ed.2d 121 (1986). Because the sentences are interdependent, the reversal of convictions underlying some, but not all, of the sentences renders the sentencing package ineffective in carrying out the district court’s sentencing intent as to any one of the sentences on the affirmed convictions.

U.S. v. Shue, 825 F.2d 1111, 1114 (7th Cir.1987).

The Pimienta-Redondo court expanded upon this concept:

[W]hen a defendant is found guilty on a multicount indictment, there is a strong likelihood that the district court will craft a disposition in which the sentences on the various counts form part of an overall plan. When the conviction on one or more of the component counts is vacated, common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan, and to reconstruct the sentencing architecture upon remand, within applicable constitutional and statutory limits, if that appears necessary in order to ensure that the punishment still fits both crime and criminal.

Pimientar-Redondo, 874 F.2d at 14.

We acknowledge that a trial court is likely to view individual sentences in a multi-count proceeding as part of an overall plan, a plan that can be overthrown if one or more of the convictions is reversed or reduced in degree. We join with those courts who allow the trial court flexibility upon remand, including the ability to increase sentences for individual convictions without giving rise to a presumption of vindictive sentencing, so long as the aggregate sentence is no longer than originally imposed. Consequently, the trial court’s imposition of a ten-year aggregate sentence does not give rise to a presumption of vindictiveness because it was no longer than the aggregate sentence initially imposed.

III. Whether Sanjari’s Sentence is Inappropriate

We “may revise a sentence authorized by statute if, after due eonsider-ation of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B). “Although appellate review of sentences must give due consideration to the trial court’s sentence because of the special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when certain broad conditions are satisfied.” Shouse v. State, 849 N.E.2d 650, 660 (Ind.Ct.App.2006), trans. denied (citations and quotation marks omitted). “[W]hether we regard a sentence as appropriate at the end of the day turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.2008). In addition to the “due consideration” we are required to give to the trial court’s sentencing decision, “we understand and recognize the unique perspective a trial court brings to its sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind.Ct.App.2007). As previously mentioned, the trial court sentenced Sanjari to an aggregate ten years of incarceration.

The nature of Sanjari’s crimes justifies an enhanced sentence. Sanjari’s arrear-age, approximately $57,000 as of October 31, 2009, goes far beyond that required to support his convictions for Class C felony and Class D felony nonsupport. Nonsupport of a dependent becomes a Class C felony at an arrearage of $15,000, see Ind. Code § 35-46-l-5(a), and Sanjari’s was almost four times that three years ago. Moreover, as a result of Sanjari’s refusal to pay child support, Gratzol was forced to work multiple jobs, and her new husband cashed in his pension.

Sanjari’s character also fully justifies his enhanced sentence, to say the least. San-jari has engaged in an “onslaught of legal proceedings [against his former wife] which caused great harm to [her] family[,]” which, of course, includes Sanjari’s daughters. April 1, 2010, Tr. p. 31. According to Gratzol, Sanjari’s legal campaign against her, which consisted of filings “from Federal Court and from Chicago to the east coast to multiple filings with the local courts” nearly bankrupted her and cost her approximately $100,000 in legal fees alone. April 1, 2010, Tr. p. 31.

Sanjari has a history of malingering, presumably in an effort to avoid paying his child support obligations. From March of 2006 through May of 2009, Sanjari paid no child support whatsoever. Sanjari has a history of voluntary unemployment despite holding a doctorate in nuclear physics; an undisputed ability to earn between $60,000 and $80,000 a year; and a work history that includes positions at the State University of New York, the University of Notre Dame, Wayne State University, and Gosh-en Hospital as a medical physicist. The trial court found, and Sanjari does not dispute, that Sanjari was deliberately not seeking employment and avoiding a body attachment that he knew had been issued.

Sanjari has shown a contempt for the law and an unwillingness to conform his behavior to social norms. Sanjari avoided a 2006 civil body attachment and a 2006 arrest warrant until apprehended by Federal Marshals in California. As the trial court noted, Sanjari has never indicated a willingness to satisfy his child support obligations and has consistently contended that it has no jurisdiction over him. San-jari has also consistently contended that the divorce court has no jurisdiction over him and that anything it does is void; accused the divorce judge, five subsequent special judges, the judges of the Court of Appeals, and the Justices of the Supreme Court of fraud; and has made unfounded allegations of psychological abuse of his children by Gratzol. As the trial court observed, Sanjari uses all of these accusations as excuses not to satisfy his support obligations. Sanjari’s character is illustrated thorough his defiance, his abuse of the legal system in order to punish Grat-zol, and his utter refusal to satisfy his legal obligations to his children. In light of the nature of Sanjari’s offenses and his character, a ten-year executed sentence is fully justified.

We affirm the judgment of the trial court.

NAJAM, J., and FMEDLANDER, J., concur.

      . As the Supreme Court of Georgia has noted: The vast majority of federal and state appellate courts that have addressed this issue have adopted the aggregate approach, which requires a court to "compare the total original sentence to the total sentence after resentencing. If the new sentence is greater than the original sentence, the new sentence is considered more severe.” United States v. Campbell, 106 F.3d 64, 68(I)(B) (5th Cir.1997). See also United States v. Pimienta-Redondo, 874 F.2d 9, 15 — 16(II)(B) (1st Cir. 1989); Kelly v. Neubert, 898 F.2d 15, 18 (3rd Cir.1990); United States v. Gray, 852 F.2d 136, 138(1) (4th Cir.1988); United States v. Sullivan, 967 F.2d 370, 374(II)(B)(1) (10th Cir.1992); United States v. Mancan, 914 F.2d 1014, 1022(111) (7th Cir.1990); United States v. Bay, 820 F.2d 1511, 1514(11) (9th Cir.1987); Tice v. State, 475 So.2d 589, 590 (Ala.Crim.App.1984); People v. Hill, 185 Cal.App.3d 831, 230 Cal.Rptr. 109, 111 (1986); White v. State, 576 A.2d 1322, 1329(IV) (Del.1990); State v. Keefe, 573 A.2d 20, 22 (Me.1990); State v. King, 275 Neb. 899, 750 N.W.2d 674, 678 (2008); State v. Martin, 185 Vt. 286, 973 A.2d 56, 60(11) (2009). Two federal courts of appeal have adopted a "remainder aggregate” approach that compares "the district court's aggregate sentence on the nonrev-ersed counts after appeal with the original sentence imposed on those same counts before appeal.” United States v. Campbell, supra. See also United States v. Monaco, 702 F.2d 860, 884-885(V)(B) (11th Cir.1983); United States v. Markus, 603 F.2d 409, 413 (2d Cir.1979). Only a handful of our sister state courts have adopted the pure count-by-count approach, which requires a court to compare the sentences on each count of an indictment separately. Wilson v. State, 123 Nev. 587, 170 P.3d 975, 981 (2007). See also People v. Sanders, 356 Ill.App.3d 998, 292 Ill.Dec. 870, 827 N.E.2d 17, 22(1) (2005).

        Adams v. State, 287 Ga. 513, 696 S.E.2d 676, 679 (2010) (in case adopting majority aggregate approach).

      2. This rationale applies with equal force where, as here, one of the original convictions was decreased in degree rather than vacated.

      . The following example illustrates why this is the only reasonable approach to such questions. Starting with the facts of this case, let us now assume that, instead of ordering both five-year sentences to be executed, the trial court suspended all of count II's sentence to probation. On appeal, however, let us further assume that count I is vacated without possibility of retrial. Were we to accept Sanjari's suggested approach, the trial court would not be able to order any executed sentence on remand for count II without violating Pearce. If (as seems likely) the trial court’s general plan was that the defendant deserved to serve two and one-half years in prison for each conviction, that plan has now been thwarted and the defendant has received a windfall. This result strikes us as unfair, especially in a case where, as here, there is no hint of actual vindictiveness.