text:
    Cody DALLAS, Appellant-Defendant, v. Brandon CESSNA, Appellee-Plaintiff.
    No. 80A02-1110-CT-925.
    Court of Appeals of Indiana.
    May 25, 2012.

      Alan D. Wilson, Kokomo, IN, Attorney for Appellant.
    William E. Beck, II, Kokomo, IN, Attorney for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Cody Dallas (Dallas), appeals the trial court’s judgment finding Dallas jointly and severally liable to the Appellee-Plaintiff, Brandon Cessna (Cessna), for damages following intentional acts of battery.

We affirm.

ISSUES

Dallas raises two issues on appeal, which we restate as:

(1) Whether the trial court erred when it imposed joint and several liability for an intentional tort that originated in a crime; and
(2) Whether Dallas’ intentional touching of Cessna was a proximate cause of Cessna’s injuries.

FACTS AND PROCEDURAL HISTORY

In the Fall of 2007, Cessna, a freshman at Indiana University in Bloomington, was dating Kayla Schoultz (Schoultz). Schoultz had previously dated Cody Lew-ellen (Lewellen), a student at IUPUI. In September of 2007, Schoultz was visiting with Cessna when she received a phone call from Lewellen. Cessna took the phone and told Lewellen that Schoultz did not want to talk to him. He also used Facebook to tell Lewellen not to have any more contact with Schoultz. In turn, Lew-ellen posted derogatory language on Cessna’s Facebook Wall. At some point, Cessna called Lewellen telling him that “he wanted [Lewellen] to come to Bloomington so he could fight [him].” (Appellant’s App. p. 61).

Around midnight, on September 28, 2007, Lewellen, together with Dallas and another friend, Kyle Morris (Morris), drove to Bloomington to pick up Dallas’ car which had been left in Bloomington after a sporting event the previous weekend. On the way to Bloomington, Dallas learned for the first time that Lewellen and Cessna planned to fight. Lewellen told Dallas that there was a girl he used to talk to and “Cessna was with her now[.]” He also informed his friends about Cessna’s phone call. Lewellen and Dallas started texting Cessna, telling him that “he was going to get his butt kicked.” (Appellant’s App. p. 69). Cessna responded “Oh, you can think whatever you want. I’m drunk, so that’s the only way you’ll be able to beat me up.” (Appellant’s App. p. 69). Arrangements were made to meet up at the Eigenmann Quad.

Outside the Eigenmann Quad, Morris and Dallas hid out of sight behind an air conditioning unit as Lewellen faced off against Cessna. Cessna and Lewellen had words and began arguing. They pushed and shoved each other. Lewellen threw a left hook and hit Cessna on the right side of the face. Cessna fell straight to the ground. Lewellen “dragged him a little ways, straddled him, and then gave him a bunch of blows to the head and face.” (Transcript p. 173). Cessna never hit Lewellen. As Dallas and Morris emerged from behind the air conditioning unit, Morris noticed that Cessna was on his back, bleeding out of his nose, and appeared to be unconscious. Lewellen turned and started to walk to the car with Morris. When Lewellen looked back, he saw Dallas kicking Cessna right in the face. Immediately after the fight, Lewellen contacted Schoultz and told her that he had just left Cessna “in a puddle of his own blood.” (Appellant’s App. p. 142).

Later that night, Lewellen was contacted by the police and gave a statement. On September 29, 2007, the State filed an Information, charging him with battery re-suiting in serious bodily injury, a Class C felony. After Lewellen was charged, he agreed to contact Dallas to get a tape recorded statement. During this telephone conversation, Dallas admitted that he “only kicked [Cessna] one time. And it was a good kick though, I broke his nose, I’m sure of that.” (Appellant’s App. p. 81). On July 1, 2008, the State charged Dallas with disorderly conduct, a Class B misdemeanor. Both Lewellen and Dallas entered into plea agreements with the State. On January 13, 2009, Lewellen pled guilty to battery resulting in serious bodily injury, a Class C felony, and was sentenced to four years with three years suspended to probation. On February 27, 2009, Dallas pled guilty to disorderly conduct, a Class B misdemeanor, and was ordered to pay court costs and a fíne.

Following the beating, Cessna was taken to the hospital where he remained for twelve hours. He suffered cuts and abrasions to his head, bruising around his eyes and face, a fractured nose, and a subarach-noid bleed in his brain. He was addled and had trouble thinking. Cessna’s family members indicated that he has undergone a personality change because of the assault: he is anxious and has trouble coping with multiple voices.

On May 26, 2009, Cessna filed a Complaint against Lewellen and Dallas alleging that Lewellen and Dallas had intentionally battered him and seeking damages for his personal injuries. On June 29, 2009, a default judgment was entered against Lewellen, which was affirmed by this court on November 29, 2010. See LeWellen & Dallas v. Cessna, No. 80A05-1005-CT-330, 2010 WL 4868143 (Ind.Ct.App. Nov. 29, 2010). On July 26, 2011, a bench trial was conducted. On September 13, 2011, the trial court entered Special Findings of Fact, Conclusions of Law and Judgment, concluding, in pertinent part, that

2. Both [Lewellen and Dallas] committed intentional acts of battery upon Cessna that injured him.
3. Dallas and Lewellen’s intentional acts of battery against Cessna combined for one indivisible injury, namely the physical damages and personal injuries to Cessna.
10. Lewellen was contacted by the IU police and gave a statement. Lewellen agreed to call [Dallas] and tape record the statement. In that telephone call he recalled that Dallas said, “Oh, I ... I only kicked him one time.” And he said, “And, it was a good kick though, I broke his nose. I’m sure of that.”
11. Lewellen, in his deposition and at trial, described a discussion in the car after the attack on Cessna where he saw blood on the shoe Dallas had on. The blood was from the kick to Cessna’s face. There was a discussion about Cessna’s blood on Dallas’ shoe.
12. Dallas denied at trial that he “... kicked Cessna in the face ...” choosing instead to describe a more gentle touching of Cessna with his foot while Cessna was unconscious or nearly unconscious on the ground. That testimony was not credible.
20. [Lewellen] pled guilty to battery resulting in serious bodily injury with respect to the beating of [Cessna] in Monroe Circuit Court ... The [c]ourt finds that the plea of Lewellen was based upon the same evidence as the civil proceeding herein.
21. [Dallas] pled guilty to disorderly conduct in connection with the beating of [Cessna] ... The [c]ourt finds that the plea of Dallas was based upon the same evidence as the civil proceeding herein.
* * *
8. That [Lewellen and Dallas] are jointly and severally liable to [Cessna] for damages for intentional acts of battery inflicted upon [Cessna] on the 29th day of September 2007.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that [Cessna] should be and hereby is awarded a JUDGMENT of damages against [Lew-ellen] and [Dallas], jointly and severally, in the sum of Seventy Five Thousand Dollars ($75,000), plus the costs of this action.

(Appellant’s App. pp. 10-12,15).

Dallas now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

Here, the trial court entered special findings of fact and conclusions of law pursuant to Ind. Trial Rule 52(A). Therefore, our standard of review is two-tiered: we first determine whether the evidence supports the trial court’s findings and second, we determine whether the findings support the judgment. Briles v. Wausau Ins. Companies, 858 N.E.2d 208, 212 (Ind.Ct.App.2006). Findings of fact are clearly erroneous when the record lacks any reasonable inference from the evidence to support them, and the trial court’s judgment is clearly erroneous if it is unsupported by the findings and the conclusions which rely upon those findings. Id. In establishing whether the findings or the judgment are clearly erroneous, we consider only the evidence favorable to the judgment and all reasonable inferences to be drawn therefrom. Id.

While conducting our review, we cannot reweigh the evidence or judge the credibility of any witness, and must affirm the trial court’s decision if the record contains any supporting evidence or inferences. Id. However, while we defer substantially to findings of fact, we do not do so for conclusions of law. Id. We evaluate conclusions of law de novo and owe no deference to a trial court’s determination of such questions. Id.

We note that in this case, the trial court adopted Cessna’s proposed findings and conclusions verbatim. Although wholesale adoption is not prohibited, we do not encourage trial courts to engage in this practice. See Carpenter v. Carpenter, 891 N.E.2d 587, 598 (Ind.Ct.App.2008). We have recognized that “this practice weakens our confidence as an appellate court that the findings are the result of considered judgment by the trial court.” Id. Although we do not apply an altered standard of review when a trial court adopts a party’s findings verbatim, “near verbatim reproductions may appropriately justify cautious appellate scrutiny.” Id.

II. Joint and Several Liability

Dallas contends that the trial court erred when it imposed joint and several liability following the intentional tort he committed on Cessna. Referencing our supreme court’s opinion in Ind. Dept of Ins. v. Everhart, 960 N.E.2d 129 (Ind.2012), Dallas asserts that the enactment of the Comparative Fault Act abrogated the old rule of joint and several liability in suits to which the Act applies. As such, Dallas requests us to reverse the trial court’s judgment against him and to remand for determination of his share of the nominal damages.

Indiana’s Comparative Fault Act governs “any action based on fault that is brought to recover damages for injury or death to a person or harm to property.” Ind.Code § 34-51-2-1. At common law, joint tortfeasors were jointly and severally liable for the indivisible harm they caused a plaintiff. Hoesel v. Cain, 222 Ind. 330, 53 N.E.2d 165 (1944). A plaintiff could sue any of the joint tortfeasors and recover damages in the amount of the entire harm even though another joint tortfeasor had a hand in the injury. Id. at 170-71. The Comparative Fault Act changed this landscape when it abrogated the common law rule by requiring the jury to allocate a percentage of responsibility for the plaintiffs injuries to each defendant and any nonparty who contributed to those injuries and each defendant need only pay his proportional share. I.C. § 34-51-2-7; -8. Although the purpose behind the comparative fault theory is to ameliorate the harsh effects of the common law theory of contributory negligence, the Act applies even in cases of intentional torts. Coffman v. Rohrman, 811 N.E.2d 868, 872 (Ind.Ct.App.2004). “In the case of intentional torts, the Act does not affect a defendant’s liability but operates to decrease the amount of damages a plaintiff recovers if he has not appropriately mitigated his damages. Id. As such, in intentional torts originating in a crime, the Comparative Fault Act explicitly provides that:

In the case of an intentional tort, the plaintiff may recover one hundred percent (100%) of the compensatory damages in a civil action for intentional tort from a defendant who was convicted after a prosecution based on the same evidence.

I.C. § 34-51-2-10.

Here, the trial court used the same evidence to find Dallas civilly liable for Cessna’s damages as the State presented to prosecute and convict Dallas for Cessna’s assault. Dallas pled guilty to disorderly conduct, a Class B misdemean- or. In order to convict Dallas of this misdemeanor, the State was required to prove beyond a reasonable doubt that Dallas intentionally engaged in fighting. See I.C. § 35-45-1-3(a). During the civil proceedings in the instant cause, the detective investigating Cessna’s assault in the criminal case testified that as a result of Dallas beating Cessna on the night of September 28, 2007, a criminal charge was filed against him. Dallas admitted that he was charged with a misdemeanor resulting from the fight with Cessna. He told the court that he did not know until 2009, when he was pulled over for speeding, that he had been charged with a criminal act for “this incident involving [Cessna].” (Tr. p. 63). Even though Dallas pled guilty, the record reflects that the same evidence used in his prosecution and plea agreement was also presented at trial during the civil proceeding. Consequently, Dallas may be held liable for 100% of Cessna’s damages.

Nevertheless, in support of his argument that he only should be held liable for the damages specifically caused by him, Dallas now directs this court’s attention to our supreme court’s recent opinion in Ind. Dept. of Ins. v. Everhart, 960 N.E.2d 129 (Ind.2012). Dallas contends that in Everhart, our supreme court interpreted the Comparative Fault Act as abrogating the old rule of joint and several liability in suits to which the Act applies. While we agree that the Act changed the old common law rule of joint and several liability, this abrogation only relates to liability grounded in negligence.

A leading effect of the Act was to abolish the rules that contributory negligence constituted a complete bar to recovery in most suits for negligence. Instead, the Act requires a jury to allocate a percentage of responsibility for the plaintiffs injures to each defendant and any nonparty who contributed to those injuries, and each defendant need only pay his proportional share. In exchange for giving negligent plaintiffs greater access to the courts, however, the Act abrogates the old rule of joint and several liability in suits to which the Act applies.

Everhart, 960 N.E.2d at 138 (emphasis added). In a related vein, we noted in Becker v. Fisher, 852 N.E.2d 46, 49 (Ind.Ct.App.2006), that a jury instruction by which the jury is instructed to assign percentages of liability, as proclaimed by Everhart, “is irrelevant to intentional tort cases.”

It is well settled that in examining a statutory provision, we look at the statute as a whole and give common and ordinary meaning to the words employed. Palmer v. Comprehensive Neurologic Services, P.C., 864 N.E.2d 1093, 1098 (Ind.Ct.App.2007), trams, denied. Our legislature does not intend by a statute to make any change in the common law beyond what it declares either in express terms or by unmistakable implication. Id. As a statute in derogation of the existing common law, the Act must be strictly construed. Id.

The Act clearly stipulates that Cessna may recover one hundred percent of his damages for the intentional tort from Dallas, as Dallas pled guilty after a prosecution based on the same evidence used in the civil proceedings. See I.C. § 34-51-2-10. Because both Dallas and Lewellen were involved in the battery on Cessna and both were held liable after a criminal prosecution based on the same evidence, the imposition of joint and several liability for Cessna’s damages complies with the statutory requirement of I.C. § 34-51-2-10. Therefore, we affirm the trial court.

III. Proximate Cause

Additionally, Dallas contends that the trial court erred when it found that Dallas’ touching of Cessna proximately caused Cessna’s head and facial injuries. Although the trial court explicitly included in its findings that Dallas’ trial testimony describing “a more gentle touching of Cessna with his foot” was not credible, Dallas now urges us to adopt the incredible dubiosity rule in civil proceedings by pointing out that “Lewellen’s testimony is full of inconsistencies motivated by his own self-interests.” (Appellant’s Br. p. 22).

Within the narrow confines of the incredible dubiosity rule, a court may impinge upon a jury’s function to judge the credibility of a witness. Love v. State, 761 N.E.2d 806, 810 (Ind.2002). If a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant’s conviction may be reversed. Id. Application of this rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it. Id.

The incredible dubiosity rule represents an exception to the general prohibition against reweighing a witness’ testimony in criminal proceedings and its application is extremely limited and sporadic. In this light — and even discounts ing the disparity in burden of proof between criminal and civil proceedings — we decline Dallas’ invitation to extend the applicability of the rule to civil proceedings. Therefore, because Dallas’ argument amounts to a reweighing of witness credibility, we refrain from addressing his argument.

CONCLUSION

Based on the foregoing, we conclude that the trial court properly imposed joint and several liability. We will not address Dallas’ argument on proximate cause as it amounts to a reweighing of a witness’ credibility.

Affirmed.

NAJAM, J., and DARDEN, J., concur.

      . Lewellen did not appeal the trial court's entry against him.

      . Cessna asserts that Dallas waived his argument on joint and several liability because he failed to raise it during trial. We disagree. In his proposed findings of fact and conclusions of law submitted to the trial court, Dallas requested the trial court to assess fault between the parties, with 45% allocated to Cessna, 55% allocated to Lewellen, and 0% allocated to Dallas. Because counsel elected to forego closing argument at trial and instead chose to submit proposed findings and conclusions, we find that Dallas’ argument, contesting the joint and several liability, was properly raised by way of his proposed findings and conclusions, and therefore not waived.


source: Caselaw Access Project

author: NAJAM, Judge. RILEY, Judge,

license: Public Domain

text:
    Jason Tye MYERS, Appellant-Plaintiff, v. Charles R. DEETS III, Deets & Kennedy, and Great American Insurance Group, Appellees-Defendants.
    No. 79A02-1108-CT-771.
    Court of Appeals of Indiana.
    May 29, 2012.

      Jason T. Myers, Pendleton, IN, Appellant pro se.
    Nicholas C. Deets, Hovde Dassow & Deets LLC, Dina M. Cox, Kameelah Sha-heed-Diallo, Lewis Wagner, LLP, Indianapolis, IN, Attorneys for Appellees.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Jason. Tye Myers filed a complaint against Charles R. Deets, III, (“Charles”), Edward L.- Kennedy (“Edward”), Deets & Kennedy (“the law firm”), and Great American Insurance Group (“Great American”). Myers alleged that Charles, who was deceased at the time the complaint was filed, owed Myers money related to Charles’ brief representation of Myers in a criminal matter in 2004. And Myers alleged that Edward was a business partner of Charles’ and was, therefore, liable for the debt. Finally, Myers alleged that Great American insured Charles and the law firm and was, therefore, also liable for the debt. Great American moved for judgment on the pleadings, and Edward and the law firm moved for summary judgment. The trial court granted both of those motions following a hearing. Myers appeals and alleges that the trial court erred when it granted those motions.

We affirm in part, reverse in part, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

From September 1, 2004, until February 28, 2005, Charles represented Myers in a criminal matter. Myers paid Charles a $5000 retainer. After Myers fired Charles, Myers believed that he was owed some portion of the retainer, but Charles did not refund Myers any money.

On January 31, 2011, Myers filed a complaint against Charles, Edward, the law firm, and Great American “for redress of damages resulting from the tort[i]ous conduct of [Charles], amounting to the common law torts of fraud and constructive fraud, and attorney deeeit[.]” Appellee’s App. at 7. Myers sought compensatory damages, treble damages, and punitive damages. In his complaint, Myers set out facts alleging that Charles owed him money, that Charles and Edward were partners, and that Great American insured Charles and the law firm.

Great American moved for judgment on the pleadings, arguing that it did not have a liability policy in effect with Charles or the law firm at any time relevant to the facts set out in the complaint. In addition, Great American argued that Myers was barred from bringing a direct action against an insurer. Edward and the law firm filed a motion for summary judgment alleging, in relevant part, that Myers’ legal malpractice claim was barred by the statute of limitations. In addition, Edward and the law firm alleged that to the extent Myers alleged fraud, there were no genuine questions of material fact precluding summary judgment in favor of Edward and the law firm on that issue. Following a hearing, the trial court granted both motions. This appeal ensued.

DISCUSSION AND DECISION

Judgment on the Pleadings

Myers first contends that the trial court erred when it entered judgment on the pleadings in favor of Great American. We review de novo a trial court’s ruling on a Rule 12(C) motion for judgment on the pleadings. Murray v. City of Lawrenceburg, 925 N.E.2d 728, 731 (Ind.2010). We accept as true the well-pleaded material facts alleged in the complaint, and base our ruling solely on the pleadings. Id. A Rule 12(C) motion for judgment on the pleadings is to be granted only where it is clear from the face of the complaint that under no circumstances could relief be granted. Id. (citation omitted).

In support of its motion for judgment on the pleadings, Great American asserted three arguments: (1) that it did not insure either Charles or the law firm at the time of the alleged misconduct; (2) that its policy specifically excludes the intentional conduct alleged in the complaint; and (3) that Myers is barred from bringing a direct action against Great American.

Accepting as true, as we must, Myers’ allegation in his complaint that Charles and the law firm were covered by professional liability insurance policies “at the time the actions complained of were predicated and consummated,” judgment on the pleadings is not warranted on the assertion in the answer that no such coverage in fact existed at the time of the alleged malpractice. Appellee’s App. at 14. Likewise, judgment is not warranted on the assertion that the policy excluded the alleged conduct. While Great American attached copies of insurance policies to its answer, in moving for judgment on the pleadings Great American admitted for purposes of the motion “the untruth of [its] own allegations^]” Midwest Psychological Center, Inc. v. Indiana Dept. of Admin., 959 N.E.2d 896, 902 (Ind.Ct.App. 2011) (citation omitted); 1A William E. Harvey, Indiana Practice § 12.16 at 329 (1999).

Finally, Great American is correct that the direct action rule bars a plaintiff from pursuing direct claims against an insurer where those claims are based on the actions of an insured. As we reiterated in Wilson v. Continental Casualty Co., 778 N.E.2d 849, 851 (Ind.Ct.App.2002), “an injured third party does not have the right to bring a direct action against a wrongdoer’s liability insurer.” (Quoting Menefee v. Schwrr, 751 N.E.2d 757, 761 (Ind.Ct.App.2001)). Nevertheless, as stated by a panel of this court in Community Action of Greater Indianapolis, Inc. v. Indiana Farmers Mutual Insurance Co., 708 N.E.2d 882, 885 (Ind.Ct.App.1999), trans. denied, “the injured victim of an insured’s tort has a legally protectable interest in the insurance policy before he has reduced his tort claim to judgment. Such an interest will support standing under the [Uniform Declaratory Judgments] Act.”

In our de novo review of the entry of judgment on the pleadings, then, we must consider whether Myers’ complaint is legally sufficient to support relief under any circumstances, including a declaratory judgment action. While Myers’ complaint does not expressly seek a declaratory judgment on the question of insurance coverage, the assertion of a specific theory in a complaint is not required under notice pleading. In ARC Constr. Mgmt., LLC v. Zelenak, 962 N.E.2d 692, 697 (Ind.Ct.App.2012), we explained notice pleading as follows:

Indiana’s notice pleading provision requires only “a short and plain statement of the claim showing that the pleader is entitled to relief’ and “a demand for relief to which the pleader deems entitled.” Ind. Tidal Rule 8(A); Buschman v. ADS Corp., 782 N.E.2d 423, 430 (Ind.Ct.App.2003). Under Indiana’s notice pleading system, a pleading need not adopt a specific legal theory of recovery to be adhered to throughout the case. City of Clinton v. Goldner, 885 N.E.2d 67, 74 (Ind.Ct.App.2008). Indiana’s notice pleading rules do not require the complaint to state all elements of a cause of action. State v. Am. Family Voices, Inc., 898 N.E.2d 293, 296 (Ind.2008). Notice pleading merely requires pleading the operative facts so as to place the defendant on notice as to the evidence to be presented at trial. City of Clinton, 885 N.E.2d at 74. Therefore, under notice pleading the issue of whether a complaint sufficiently pleads a certain claim turns on whether the opposing party has been sufficiently notified concerning the claim so as to be able to prepare to meet it. Id. A complaint’s allegations are sufficient if they put a reasonable person on notice as to why a plaintiff sues. Buschman, 782 N.E.2d at 430.

Here, again, Myers asserted in his complaint that Charles and the law firm were covered by Great American policies. While not expressly seeking a declaratory judgment, Myers sufficiently stated facts that would support a declaratory judgment action. Great American makes no contention that it was not adequately notified concerning Myers’ claim so as to be able to prepare to meet it. See id. Indeed, by its answer, Great American asserted facts refuting any such coverage.

Again, a Rule 12(C) motion for judgment on the pleadings is to be granted only where it is clear from the face of the complaint that under no circumstances could relief be granted. Murray, 925 N.E.2d at 731. We hold that Myers’ complaint is sufficient to seek relief by way of a declaratory judgment. Had Great American moved for summary judgment and designated evidence of the effective dates of coverage, policy exclusions, and the like, the trial court might have found that Great American is entitled to judgment as a matter of law. However, given our standard of review, we- cannot say that judgment on the pleadings was proper here.

Summary Judgment

Next, Myers contends that the trial court erred when it entered summary judgment in favor of Edward and the law firm. We review a summary judgment order de novo. Bules v. Marshall County, 920 N.E.2d 247, 250 (Ind.2010). The purpose of summary judgment is to end litigation about which there can be no factual dispute and which may be determined as a matter of law. Shelter Ins. Co. v. Woolems, 759 N.E.2d 1151, 1153 (Ind.Ct.App.2001), trans. denied. We must determine whether the evidence that the parties designated to the trial court presents a genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Bules, 920 N.E.2d at 250. We construe all factual inferences in the nonmoving party’s favor and resolve all doubts as to the existence of a material issue against the moving party. Bules, 920 N.E.2d at 250.

Here, in support of their joint summary judgment motion, Edward and the law firm first asserted that Myers’ claims are barred by the statute of limitations for legal malpractice claims, which is two years. See Ind.Code § 34-11-2-3. In his memorandum in opposition to summary judgment, Myers argued that while a claim for legal malpractice was barred by the statute of limitations, he was making a claim for fraud, which has a six-year statute of limitations. See Ind.Code § 34-11-2-7. Myers filed his complaint on January 31, 2011, which is within six years of the date Myers terminated Charles’ representation. Accordingly, any claim for fraud would not be time-barred.

However, Myers’ fraud claims against Edward and the law firm are based on Myers’ allegation that Charles and Edward were partners at all relevant times. And in support of their summary judgment motion, Edward and the law firm designated an affidavit whereby Edward stated that he was not in a partnership with Charles at the time of the alleged representation of Myers. Edward also averred that while he and Charles shared office space after the partnership dissolved in September 2002, Edward left that office and moved to a different location in February 2004, before Myers hired Charles.

In an attempt to contradict that evidence, Myers submitted his own affidavit whereby he stated that: he “noticed another man whom [Charles] referred to as ‘Ed’ ” in Charles’ office; he witnessed that man leave Charles’ office during one visit, and Charles told Myers that he and the man “were having a dispute over partnership matters”; and Charles told Myers that if he were to become too ill to continue representing Myers, “his partner would take care of it,” and Charles “motion[ed] to the office at the opposite end of the suite, occupied by the man referred to as Ed[.]” Appellant’s App. at 94.

If the trial court’s entry of summary judgment can be sustained on any theory or basis in the record, we must affirm. Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind.Ct.App.2008), trans. denied. Hearsay is a statement, other than one made by the declarant while testifying at trial or a hearing, offered in evidence to prove the truth of the matter asserted. Ind. Evidence Rule 801(c). Because the court may consider only admissible evidence when ruling on a motion for summary judgment, inadmissible hearsay statements cannot create a genuine issue of material fact. Hays v. Harmon, 809 N.E.2d 460, 465-66 (Ind.Ct.App.2004), trans. denied. Here, the only evidence Myers designated in opposition to summary judgment is hearsay. We hold that Myers has not established a genuine issue of material fact whether Edward and Charles were partners at any time relevant to his complaint.

In sum, Myers does not direct us to any designated evidence sufficient to establish a genuine issue of material fact whether Edward and Charles were partners at any time relevant to his complaint. Accordingly, Myers cannot show that either Edward or the law firm is liable for Charles’ alleged fraudulent conduct. We hold that the trial court did not err when it entered summary judgment in favor of Edward and the law firm.

Affirmed in part, reversed in part, and remanded for further proceedings.

DARDEN, J., concurs.

RILEY, J., concurs in part and dissents in part with separate opinion.

RILEY, Judge,

concurring in part and dissenting in part.

While I agree with the majority’s decision on the trial court’s summary judgment in favor of the law firm, I respectfully part ways with its interpretation of Great American’s motion for judgment on the pleadings.

It is well established that an injured third party does not have the right to bring a direct action against a wrongdoer’s liability insurer. Wilson v. Continental Casualty Co., 778 N.E.2d 849, 851 (Ind.Ct.App.2002). However, where the third party is not suing the insurance company to establish that its insured committed a tort against the third party, but is rather suing to establish whether the insurer can deny coverage or whether the insurance policy remained in effect, such suit is not considered a direct action suit against an insurer. Community Action of Greater Indianapolis, Inc. v. Indiana Farmers Mutual Ins. Co., 708 N.E.2d 882, 885 (Ind.Ct.App.1999), trans. denied (citing Bankers Trust Co. v. Old Republic Ins. Co., 959 F.2d 677, 682 (7th Cir.1992)).

We are here faced with the interesting situation that although the underlying tort claim against the law firm is barred by the statute of limitations, the suit against the insurance company might proceed because it is governed by the ten-year statute of limitations. See I.C. § 34-11-2-11; Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 683, 688 (Ind.Ct.App.2006). According to the majority then, Myers’ is entitled to bring his claim against Great American because, while not expressly seeking a declaratory judgment on the question of insurance coverage, “Myers sufficiently stated facts that would support a declaratory judgment action.” Op. p. 303. I disagree with the majority’s interpretation of Myers’ complaint.

It is clear that Myers’ complaint contemplates a direct action against the law firm, not a declaratory judgment. In his complaint, Myers only focuses on the redress of damages resulting from the law firm’s perceived tortious conduct, seeking compensatory, treble, and punitive damages. At no point in his complaint does Myers allude to seeking a declaration that the insurance policy is in effect; rather, he is seeking the reimbursement of his retainer from either the law firm or directly from Great American. Therefore, as I do not find any circumstances which could grant Myers relief, the trial court’s grant for judgment on the pleadings was proper.

      . The evidence is conflicting whether Myers paid the full amount of the retainer.

      . Had the parties introduced into evidence for the trial court's consideration matters outside the pleadings, the motion for judgment on the evidence would have been converted to a summary judgment motion. 1A William E. Harvey, Indiana Practice § 12.16 at 333-34 (1999). But because the policies were attached to Great American’s answer, they cannot be considered matters outside the pleadings. See Trial Rule 9.2.

      . Great American contends that Myers has waived this issue for failure to raise it to the trial court. First, Myers did assert this argument in his "Addendum to Plaintiff's Response in Objection to Defendant Great American Insurance Group’s Motion for Judgment on the Pleadings” filed prior to the hearing on Great American’s motion. Second, our review is de novo and we must consider whether, from the face of Myers’ complaint, relief could be granted under any circumstances. Thus, regardless of arguments made or not made by Myers, either his complaint is sufficient or it is not.


author: BAKER, Judge.

text:
    SISTERS OF ST. FRANCIS HEALTH SERVICES, INC., Appellant-Defendant, v. EON PROPERTIES, LLC, Appellee-Plaintiff.
    No. 45A05-1110-PL-587.
    Court of Appeals of Indiana.
    May 29, 2012.

      Steven P. Lammers, Robert A. Anderson, Krieg Devault LLP, Scherer-ville, IN, Libby Y. Goodknight, Krieg De-vault LLP, Indianapolis, IN, Attorneys for Appellant.
    Glenn W. Kuchel, Green and Kuchel, P.C., Schererville, IN, Attorney for Appel-lee.
   OPINION

BAKER, Judge.

Here, a company that owns commercial property entered into a lease agreement and a series of amendments with a hospital. The amendments reduced the hospital’s space, thereby allowing a new tenant to lease that space under a separate lease and reducing the hospital’s rent obligation. However, one amendment provided that if the new tenant exercised its option to vacate after thirty-six months, then the hospital would be responsible for the new tenant’s rent for the last two years of the new tenant’s five-year lease. The new tenant exercised its option to vacate, thus triggering the hospital’s responsibility to pay the last two years of rent. The hospital disputes this, claiming that the new tenant failed to occupy the premises long enough or to properly exercise its option to vacate. We conclude that the plain intent of the parties was to allocate the risk that if the new tenant would vacate the premises early, then the property owner assumed the risk for the first three years of the five-year lease and the hospital assumed the risk for the last two years.

Appellant-defendant Sisters of St. Francis Health Services, Inc. (the “Hospital”) appeals the trial court’s order granting summary judgment in favor of appellee-plaintiff EON Properties, LLC, (EON), and denying its cross-motion for partial summary judgment. More particularly, the Hospital argues that the trial court failed to give effect to the clear and unambiguous terms of its lease agreements with EON. Additionally, the Hospital contends that the trial court erred when it awarded EON $182,014.62 in damages when there are genuine issues of material fact regarding EON’s alleged damages. Concluding that the trial court did not err when it granted summary judgment in favor of EON regarding the Hospital’s liability under the lease agreements, but that there are genuine issues of material fact regarding EON’s alleged damages, we affirm in part, reverse in part, and remand to the trial court for the continuation of the underlying litigation regarding damages.

FACTS

The Lease Agreement

EON owns and provides property management services for the office suite building known as the Plum Creek Center in Schererville. On July 10, 2000, EON and the Hospital entered into a ten-year Office Lease Agreement (the Lease) for approximately 9,277 square feet of medical office space (the Leased Premises) for ten years, with the term of the Lease commencing on February 1, 2001, and ending in February 2011.

Under the terms of the Lease, the minimum rent for the first year was $125,240 plus monthly common area maintenance fees, pro rata real estate taxes, and other specified charges. Thereafter, the annual rent was to be increased according to Section 2.01(a)(2) of the Lease as follows:

Annual rent for each subsequent year of the original term of this Lease shall be increased by the lesser of a) three percent (3%) of the annual rent due and payable for the prior lease year, or b) the annual rent due and payable for each prior -lease year, multiplied by a percentage equal to the percentage increase in the Consumer Price Index for ... Chicago, Gary, [and] Lake [Counties] ... published by the Bureau of Labor Statistics of the United States Department of Labor.

Appellant’s App. p. 254.

The Amendments to the Lease

On May 19, 2004, EON and the Hospital entered into a lease amendment (the First Amendment). The First Amendment provided that the Leased Premises would be reduced by approximately 625 square feet so that EON could construct a hallway, at the Hospital’s expense, for the purpose of marketing unused portions of the Leased Premises to prospective tenants.

On August 11, 2004, EON and the Hospital entered into a second lease amendment (the Second Amendment). Under the Second Amendment, the Hospital’s leased space was reduced to 5,430 square feet to release an unused portion of the Leased Premises so that EON could enter into a lease with a new tenant. The Hospital agreed to pay EON monthly installments of $5,443 for forty-four months, in consideration of EON agreeing to reduce the square footage of the Leased Premises.

On August 18, 2004, EON entered into a lease with Nykiel-Carlin (the Nykiel-Car-lin Lease) for the released portion of the Leased Premises that was the subject of the Second Amendment. The term of the Nykiel-Carlin Lease was for six years and nine months, with an annual rent of $103,000.

On March 14, 2005, EON and the Hospital entered into a third lease amendment (the Third Amendment). Under the Third Amendment, the Hospital agreed to release an additional unused portion of the Leased Premises so that EON could enter into another lease with a new tenant. Additionally, the Hospital’s rent was reduced; however, the Hospital was required to make thirty-six monthly payments of $5,740 to EON in consideration for EON agreeing to release the additional unused portion of the Leased Premises. Furthermore, Section 7 of the Third Amendment stated:

Should the subsequent tenant for the Additional Released Premises exercise its option to vacate after the initial 36 months of occupancy, [the Hospital] shall pay the rent and additional rent, which would be due and payable under the terms of the Lease for the Additional Released Premises with the subsequent tenant, for the balance of the Tenant’s initial five (5) year term of the Lease.

Appellant’s App. p. 179.

Ameriquest Lease

On February 23, 2005, EON entered into a lease with Ameriquest (the Ameri-quest Lease) for the released portion of the Leased Premises (Additional Released Premises) that was the subject of the Third Amendment. The term of the Am-eriquest Lease was for five years commencing on June 1, 2005, with an annual rent of $57,814.15.

Before entering into the Ameriquest Lease, Ameriquest demanded an option that would allow it to vacate the Additional Released Premises and end its rent obligations after thirty-six months. These terms were less favorable to EON because under the Lease, the Hospital was obligated to pay rent on the Additional Released Premises for six more years, and the Hospital did not have an option to vacate. EON advised the Hospital that it would agree to lease the space to Ameriquest if the Hospital would agree to pay the remainder of the lease after the first thirty-six months if Ameriquest stopped paying rent under the option to vacate.

On or about March 24, 2005, during the time when EON and the Hospital were executing the Third Amendment, EON and Ameriquest entered into an Addendum to the Ameriquest Lease. Section 5(a) of the Addendum (Section 5(a)) granted Ameriquest several tenant options, including an option to vacate the Additional Released Premises and terminate the Am-eriquest Lease as follows:

Option to Terminate. [Ameriquest] shall have the right to terminate this [Ameriquest Lease] at anytime after the end of the thirty-sixth (36th) month of the term of this [Ameriquest Lease] (“Termination Date”), upon ninety (90) days written notice to [EON] (“Termination Option”). If [Ameriquest] exercises its Termination Option, [Ameri-quest] shall reimburse [EON] an amount equal to the actual cost of the unamor-tized (i) [Ameriquest] Improvements (minus any [EON] construction or supervision fees), and (ii) the brokers’ commissions, amortized over a five (5) year period, and to the extent [EON] provides [Ameriquest] with substantiated documentation of such costs (“Termination Penalty”). [Ameriquest] shall pay [EON] the Términation Penalty as of the Termination Date.

Appellant’s App. p. 204.

Pursuant to Section 1 of the Addendum, the commencement date was modified to be the later of June 1, 2005, or the date EON substantially completed tenant improvements for the premises Ameriquest was leasing. On March 30, 2005, EON sent an email to Ameriquest indicating that the premises of the Ameriquest Lease would be available on June 1, 2005. On May 12, 2005, EON sent another email to Ameriquest reiterating, “[a]s we discussed, the [Ameriquest Lease] will start on June 1st.” Appellant’s App. p. 212.

Termination of the Ameriquest Lease

By May 2006, less than one year after the Ameriquest Lease had commenced, Ameriquest began experiencing financial problems. On May 2, 2006, ACC Capital Holdings, the holding company for Ameri-quest, faxed a letter to EON indicating that as of that date, Ameriquest would be closed. On June 29, 2006, Ameriquest faxed another letter to EON reiterating that, “[a]s you are aware,” Ameriquest had closed its offices at the Plum Creek Center. Appellant’s App. p. 215.

On November 7, 2007, EON and Ameri-quest entered into a Lease Termination Agreement in which EON fully released Ameriquest from “any and all claims, demands, debts, liabilities, actions, lawsuits, causes of action, damages, compensation, obligations, attorneys’ fees, costs or expenses of any kind, nature, character or description whatsoever, whether known or unknown, past, present or future, existing or suspected to exist arising in connection with the [Ameriquest] Lease.” Id. at 216. In exchange, EON received some of Amer-iquest’s office furniture and a one-time payment of $75,000. The Lease Termination Agreement did not reference the option to terminate in Section 5(a) nor did it mention that Ameriquest was exercising its option to terminate subject to its notice requirements and penalties.

EON Seeks Rent from the Hospital

Subsequently, EON turned to the Hospital to satisfy the final two years of rent on the Ameriquest Lease pursuant to the Third Amendment. The Hospital’s position was that it was not responsible for Ameriquest’s lease payments.

On March 12, 2008, EON sent the Hospital a letter indicating that the annual rent payment under the Lease, beginning with the February 2008 rent payment, would be increased by 4.05%. This increase represented the increase in the applicable Consumer Price Index, which was greater than the 8% increase expressly contemplated in Section 2.01(a)(2) of the Lease. In addition, EON does not dispute that it accepted fifty-one monthly payments of $5,443 from the Hospital rather than the forty-four monthly payments required under the terms of the Second Amendment. EON did not return the seven extra installments, which totaled $38,001.

Procedural History

On November 19, 2009, EON filed a complaint against the Hospital alleging breach of the Lease and quantum meruit. Specifically, EON alleged that the Hospital owed under the Third Amendment because the subsequent tenant (Ameriquest) had exercised its option to vacate.

On January 13, 2010, the Hospital answered and filed a counterclaim against EON for breach of the Lease and quantum meruit arising out of EON’s increase of rent payments and its acceptance of over-payments from the Hospital. Another counterclaim against EON for conversion and punitive damages was dismissed with prejudice on December 28, 2010.

On April 1, 2011, EON filed a motion for summary judgment on its complaint and on the Hospital’s counterclaim. That same day, the Hospital filed a motion for partial summary judgment on EON’s complaint, asserting that it was not liable to EON for the final two years of Ameriquest’s lease payments. The trial court heard oral argument on the motions and issued its summary judgment order on September 19, 2011.

In its September 19 order, the trial court concluded that:

The terms of the Third Lease Amendment are clear and unambiguous and reflect an attempt by EON to protect itself from the possibility that Ameri-quest might not be able fulfill its obligations under its lease with EON in the last two (2) years of that lease. This Court finds that the Third Lease Agreement did provide EON that protection. This Court further finds pivotal the fact that EON is not attempting to enforce its right against [the Hospital] for any period of time other than that which is after the initial thirty-six (36) month period that Ameriquest was leasing its space.

Appellant’s App. p. 14 (emphasis in original).

Accordingly, the trial court granted EON’s motion for summary judgment and denied the Hospital’s motion for partial summary judgment. The trial court ordered EON to file, within fourteen days, an updated itemization of amounts claimed to be due and owing from the Hospital and evidence of attorney fees and costs that EON had incurred through the summary judgment proceedings.

On September 30, 2011, EON filed an updated itemization of rent, charges, and attorney fees, claiming that the Hospital owed EON a total of $182,014.60. On October 4, 2011, the Hospital filed a motion to suspend entry of judgment, objection to updated itemization, and a motion to set remaining matters for jury trial or, in the alternative, a motion to certify the September 19 order for interlocutory appeal. The Hospital argued that there were genuine issues of material fact on the amount of damages.

On October 11, 2011, the trial court entered judgment in EON’s favor for $182,014.60 plus post-judgment interest. The trial court denied the Hospital’s remaining motions as moot in light of its order entering judgment for the payment of money against the Hospital, noting that “under Appellate Rule 14A(1), [the Hospital] may take its interlocutory appeal [from the trial court’s money judgment] as a matter of right without certification by this Court.” Appellant’s App. p. 630. Additionally, the trial court determined that the Hospital’s objection to the updated itemization and motion to set the remaining matters for trial were moot “since the contemporaneous order of this date provides that any ancillary issues can be addressed in subsequent proceedings” and “makes provision for such a determination.” Id. at 629. The Hospital now appeals.

DISCUSSION AND DECISION

I. Liability Under the Lease

A. Standard of Review

Our review of a motion for summary judgment is the same as the trial court; namely, summary judgment is appropriate only where the evidence shows that there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Wagner v. Yates, 912 N.E.2d 805, 808 (Ind.2009); see also Ind. Trial Rule 56(C). Nevertheless, the trial court’s grant of summary judgment “enters appellate review clothed with a presumption of validity,” and the appellant bears the burden of demonstrating that the trial court erred. Cnty. Council v. Northwest Ind. Reg’l. Dev. Auth., 944 N.E.2d 519, 523-24 (Ind.Ct.App.2011), trans. denied. We must construe all factual inferences in favor of the nonmoving party, and all doubts as to the existence of a material issue must be resolved against the moving party. Scribner v. Gibbs, 953 N.E.2d 475, 479 (Ind.Ct.App.2011). The fact that the parties filed cross-motions for summary judgment does not alter the standard of review on appeal. Decker v. Zengler, 883 N.E.2d 839, 842 (Ind.Ct.App.2008).

A court will construe a lease in the same manner as any other contract. Stout v. Kokomo Manor Apartments, 677 N.E.2d 1060, 1064 (Ind.Ct.App.1997). Construction of written contracts is generally a question of law for which summary judgment is particularly appropriate. Noble Roman’s Inc. v. Ward, 760 N.E.2d 1132, 1137 (Ind.Ct.App.2002). When interpreting a contract, we will read it as a whole to ascertain its intended meaning. Stout, 677 N.E.2d at 1064. When the terms of a contract are clear and unambiguous, those terms are conclusive, and the court will not construe the contract or look at extrinsic evidence, but rather, will apply the contract provisions. Id.

Notwithstanding the above, if reasonable people would find the contract susceptible to more than one construction, an ambiguity exists, and the trier of fact must ascertain the extrinsic facts necessary to interpret the contract. Farmers Elevator Co. of Oakville, Inc. v. Hamilton, 926 N.E.2d 68, 80 (Ind.Ct.App.2010), trans. denied. Conversely, if the ambiguity exists merely by the language used, construction of the ambiguous contract is a question of law for the court. Id.

B. Failure to Apply Clear and Unambiguous Language

The Hospital argues that the trial court erred by failing to apply the clear and unambiguous language of the Third Amendment. More particularly, the Hospital asserts that before it could be held liable under the Third Amendment, two conditions had to be satisfied: Ameriquest had to occupy the Additional Released Premises for thirty-six months, and it had to properly exercise its option to vacate under Section 5(a) by satisfying applicable notice provisions. As stated above, Section 7 of the Third Amendment provided in part:

Should the subsequent tenant for the Additional Released Premises exercise its option to vacate after the initial 36 months of occupancy, [the Hospital] shall pay the rent and additional rent, which would be due and payable under the terms of the Lease for the Additional Released Premises with the subsequent tenant, for the balance of the Tenant’s initial five (5) year term of the Lease.

Appellant’s App. p. 179 (emphasis added).

The Hospital points out that Ameriquest failed to occupy the Additional Released Premises for thirty-six months. To be sure, after only twenty-nine months, EON and Ameriquest terminated the Ameri-quest Lease through the Lease Termination Agreement, under which EON repossessed the Additional Leased Premises and collected $75,000 from Ameriquest. The Hospital alleges that the Lease Termination Agreement was a settlement agreement for a breached lease between EON and Ameriquest rather than an option to vacate as contemplated by the Third Amendment.

As further evidence that Ameriquest did not properly exercise its option to vacate as contemplated by the Third Amendment, the Hospital points out that Ameriquest failed to satisfy the notice requirements necessary to invoke its option to terminate under Section 5(a). As stated above, Am-eriquest’s option to terminate provided in relevant part:

Option to Terminate. [Ameriquest] shall have the right to terminate this [Ameriquest] Lease at anytime after the end of the thirty-sixth (36th) month of the term of this [Ameriquest] Lease (“Termination Date”), upon ninety (90) days written notice to [EON] (“Termination Option”).

Appellant’s App. p. 204 (emphasis added).

Here, in interpreting the Third Amendment, we will look to the Lease as a whole to ascertain the parties’ intent. See Noble Roman’s, Inc. v. Pizza Boxes, Inc., 835 N.E.2d 1094, 1098 (Ind.Ct.App.2005) (stating that “[particular words and phrases cannot be read alone, and the parties’ intentions must be determined by reading the contract as a whole”). Just before the Third Amendment was executed, the Hospital had six years remaining on the Lease with no option to vacate, which were very favorable terms to EON. The Third Amendment provided that the Hospital would give up additional space so that EON could enter into a separate lease with a new tenant, which would benefit the Hospital by reducing its rent obligation.

Notwithstanding this benefit, the Hospital was aware that the terms of the lease with the new tenant, or the Ameriquest Lease, were less favorable to EON, inasmuch as Ameriquest wanted an option to terminate after thirty-six months. Consequently, Section 7 of the Third Amendment was added, making it the Hospital’s duty to pay the rent on the Additional Released Premises if Ameriquest exercised that option. Put another way, the plain intent of the parties in executing the Third Amendment was to allocate risk between EON and the Hospital, with EON bearing the risk for the first three years of the Ameriquest Lease and the Hospital bearing the risk for the last two years of the five-year Ameriquest Lease.

As for Section 5(a), we note at the outset that the option to terminate contained therein was part of the Addendum to the Ameriquest Lease between EON and Ameriquest; the Hospital was not a party to that agreement and, therefore, cannot seek to enforce it. See OEC-Diasonics, Inc. v. Major, 674 N.E.2d 1312, 1314-15 (Ind.1996) (recognizing that “[generally, only parties to a contract or those in privity with the parties have rights under the contract”). To be sure, the Ameriquest Lease was not a sublease of the Lease with the Hospital, but rather, a separate, independent lease.

Because EON allowed Ameriquest to terminate the Ameriquest Lease outside the provisions of Section 5(a), EON had to absorb its share of the loss for the first thirty-six months that Ameriquest did not pay rent. That said, EON sought to offset some of its loss through the Lease Termination Agreement with Ameriquest, and did not seek payment from the Hospital for any loss of rent that it incurred during the first thirty-six months of the Ameri-quest Lease.

As for the notice provisions in Section 5(a), those were also for the benefit of EON. Consequently, the fact that EON did not insist upon strict adherence to the notice requirements before allowing Amer-iquest to terminate the Ameriquest Lease pursuant to the Lease Terminate Agreement does not relieve the Hospital of its obligations under the Third Amendment, and the trial court did not err by granting summary judgment in favor of EON on the issue of the Hospital’s liability under the Third Amendment.

II. Damages

The Hospital argues that the trial court erred by entering summary judgment for $182,014.60 plus statutory interest when there are genuine issues of material fact as to the damages recoverable by EON. More particularly, the Hospital contends that there are genuine issues of material fact in light of the $75,000 that EON received from Ameriquest under the Lease Termination Agreement, the $5,000 security deposit that the Hospital paid but was not credited as required under the Lease, overpayments the Hospital made but not credited under the Second Amendment, and an improperly-inflated rent increase beginning in February 2008.

In a breach of contract action, the measure of damages is the loss actually suffered by the breach. Sheppard v. Stanich, 749 N.E.2d 609, 611 (Ind.Ct.App.2001). That said, the nonbreaching party is not entitled to be placed in a better position than he would have been if the contract had not been broken. Id.

As for the $75,000 that EON received from Ameriquest, EON’s complaint against the Hospital was a direct action to enforce the Lease with the Hospital rather than an attempt to enforce the Ameriquest Lease. As stated above, the Ameriquest Lease was not a sublease of the Lease but was an independent lease. Therefore, any resolution of the breach of the Ameriquest Lease has no bearing on the Hospital’s obligations under a separate and unrelated lease.

Regarding the $5,000 security deposit that the Hospital paid under the Lease and applicable Amendments, Section 2.04 of the Lease states that “[t]he deposit shall be returned to [the Hospital] by [EON] upon the termination of the Lease, after deducting therefrom any sums owed to [EON] pursuant to provisions of this Lease.” Appellant’s App. p. 126. However, it appears from the record and from oral argument that the Hospital was never credited $5,000. Appellant’s App. p. 322-23; 611-23. EON contends that because the Hospital stopped paying rent and other obligations under the Lease, that credit is now gone. Nevertheless, there is a genuine issue of material fact on this issue.

Moving forward to the Hospital’s claim that EON’s updated itemization failed to credit it for $38,001 in overpayments, the Second Amendment provided that the Hospital was required to make forty-four payments of $5,443. Appellant’s App. p. 150-51. However, the Hospital claims that it made, and EON accepted, fifty-one payments of $5,443.

In support of this contention, the Hospital submitted the affidavit of Kendra Schuett, the financial analyst for the Hospital, who attested that she had personal knowledge of the payments made by the Hospital to EON under the Lease and applicable amendments and that she provided this information to Michael Lunn, who had a brokerage agreement with the Hospital, to assist him with his analysis of the payments made by the Hospital to EON. Appellant’s App. p. 438-39. Schuett’s affidavit further represented that Lunn’s analysis “under the Lease and applicable amendments is accurate and is consistent with the information I provided to Mr. Lunn and the spreadsheet created by me showing all of the payments made ... to EON.” Id. at 439. Lunn then used the information provided by Schuett to prepare a spreadsheet showing that fifty-one payments of $5,443 were made. Id. at 451, 453. We think this is sufficient to create a material issue of fact, thereby precluding summary judgment on this issue. See Schrvm v. Moskaluk, 655 N.E.2d 561, 564 (Ind.Ct.App.1995) (recognizing that where material facts conflict or conflicting inferences arise, summary judgment should not be entered so as to avoid “overkill in its use”)'.

Next, the Hospital maintains that EON increased the rent by the wrong percentage rate beginning with the February 2008 rent payment. More particularly, as stated above, on March 12, 2008, EON informed the Hospital of a rent increase of 4.05%, which represented the Consumer Price Index. However, the Lease states that the annual rent shall be the lesser of 3% of “the annual rent due and payable for the prior lease year, or ... the annual rent due and payable for each prior lease year, multiplied by a percentage equal to the percentage increase in the Consumer Price Index.... ” Appellant’s App. p. 254.

Here, EON does not dispute that it improperly increased the rent. Therefore, this issue also precludes summary judgment regarding the damages that EON is entitled to recover.

CONCLUSION

The trial court did not err in granting summary judgment in favor of EON on the issue of the Hospital’s liability under the Third Amendment. However, the trial court did err by granting summary in favor of EON with respect to the amount of damages owed by the Hospital. Specifically, there are genuine issues of material fact regarding whether the Hospital should receive credits for the $5,000 security deposit, its claimed overpayments under the Second Amendment, and the improperly increased rent that EON does not dispute. However, the Hospital is not entitled to a credit for the $75,000 that EON received under the Lease Termination Agreement with Ameriquest, inasmuch as it was a separate agreement involving a separate lease.

The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions to continue the underlying litigation on the issue of damages consistent with this opinion.

RILEY, J., and BAILEY, J., concur.

      . We heard oral argument on April 25, 2012, in Indianapolis. We thank counsel for their able presentations.

      . The Hospital had suggested Ameriquest as a tenant.


text:
    Clifton ERVIN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 29A05-1109-CR-454.
    Court of Appeals of Indiana.
    May 30, 2012.
    K. Michael Gaerte, Borland & Gaerte, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

Appellant-defendant Clifton Ervin brings this interlocutory appeal, challenging the trial court’s denial of his motion to suppress. Specifically, Ervin argues that although the trial court properly granted a portion of his motion to suppress, it erred in determining that only the evidence seized from the moment that an off-duty police officer ordered him to return tó his vehicle until uniformed on-duty police officers arrived at the scene should be suppressed. In other words, Ervin claims that the trial court should have issued an order “prohibiting the State from introducing all evidence obtained following Ervin’s illegal detention.” Appellant’s Br. p. 6. Concluding that the trial court properly determined that the evidence seized by the uniformed on-duty police officers should not be suppressed pursuant to the exclusionary rule, we affirm and remand this cause for trial.

FACTS

On April 2, 2010, Carmel Police Officer Jeff Sedberry was driving home with his wife and daughter. He was off duty and not in uniform or driving a marked police car. Officer Sedberry was behind a vehicle that Ervin was driving. Ervin was weaving, crossing over the center and fog lines, and nearly hit some objects on the side of the road. Ervin’s behavior led Officer Sedberry to believe that Ervin was driving while intoxicated. As a result, Officer Sedberry contacted the Fishers Police Department and reported Ervin’s location. Although Officer Sedberry continued to follow Ervin’s vehicle, he did not take any action to stop the vehicle or cause Ervin to pull over.

At some point, Ervin abruptly pulled his vehicle over on a neighborhood street. When Officer Sedberry stopped, Ervin exited his vehicle and began to walk toward Officer Sedberry in an aggressive and confrontational manner, shouting with his arms up in the air, asking why he was being followed. Officer Sedberry was concerned for his family’s safety, so he grabbed his gun, pointed it at Ervin, identified himself as a police officer, and told Ervin to return to his vehicle. Ervin complied, and moments later, some on-duty officers, who had been dispatched in response to Officer Sedberry’s call, arrived at the scene. An investigation commenced and Ervin was ultimately arrested for driving while intoxicated and other related offenses.

Thereafter, Ervin filed a motion to suppress, arguing that he was unlawfully seized because Officer Sedberry was not in uniform or driving a marked police ear. Following a hearing, the trial court ruled that a violation of Indiana Code section 9-30-2-2 occurred because Officer Sedber-ry was not in uniform or driving a marked police vehicle.

Although the trial court observed that Officer Sedberry did not initially stop Er-vin, it was determined that Officer Sedber-ry detained and arrested Ervin when he pointed his gun and ordered him back to the vehicle. Thus, the trial court determined that “only the evidence seized from the moment that Officer Sedberry ordered [Ervin] to return to his vehicle until the time of the arrival of the uniformed officers shall be suppressed.” Appellant’s App. p. 15.

However, in its order dated July 11, 2011, the trial court denied the remainder of Ervin’s motion to suppress under the exclusionary rule. In particular, the trial court’s findings provided that

The remaining issue ... is what evidence must be suppressed. The purpose of the Exclusionary Rule is to deter unlawful or improper police conduct in violation of a person’s constitutional rights. In the instant case, there has been no argument that the Defendant’s constitutional rights were violated by Officer Sedberry. The evidence supports that, had he been in uniform or a marked car, he would have had the right to stop the Defendant for a traffic violation committed in the officer’s presence. Given that there was no violation of the Defendant’s constitutional rights, it is reasonable to consider whether the Exclusionary Rule should apply and to what extent. Here, the Defendant created the very situation I.C. § 9-30-2-2 was meant to avoid. It was the Defendant who made the decision to stop and confront the officer. It was the Defendant’s approach to Officer Sedberry’s vehicle that provoked the officer to a response he would not otherwise have made but for the perceived need to protect his family from a threat that could not be fully evaluated as the Defendant came towards them in a clearly agitated posture. Even with this, his identification of himself as a police officer was as much a means of justifying his presence and his possession of a firearm to the Defendant so as to de-escalate the situation, as it was a means of enforcing his command for the Defendant to return to his vehicle. The officer made no attempt to gain any advantage or benefit from the action the Defendant had forced upon him. Moreover, had the Defendant not stopped, the communication from Officer Sedberry and his wife to police dispatch would have directed uniformed police officers to a location where they could have made a stop compliant with Indiana Code § 9-30-2-2. For these reasons, the court finds that a sweeping application of the Exclusionary Rule would be inappropriate under the facts of the instant case. The court therefore orders that only the evidence seized from the moment that Officer Sedberry ordered the Defendant to return to his vehicle until the time of the arrival of the uniformed officers shall be suppressed. The court will not apply the “fruit of the poisoned tree” doctrine to exclude any other evidence obtained on the night of the Defendant’s arrest.

Appellant’s App. p. 14-15.

Ervin now brings this interlocutory appeal.

DISCUSSION AND DECISION

As set forth above, Ervin contends that the trial court should have suppressed all of the evidence that was obtained as a result of the incident. Ervin argues that the exclusionary rule under the Fourth Amendment to the United States Constitution applies here and the trial court erred in concluding that only a portion of the evidence that related to Officer Sedberry’s interaction with him should have been suppressed.

Relevant to our discussion in resolving this issue, is an examination of Indiana Code section 9-30-2-2, the statute that the trial court relied upon in its order denying Ervin’s motion to suppress:

A law enforcement officer may not arrest or issue a traffic information and summons to a person for a violation of an Indiana law regulating the use and operation of a motor vehicle on an Indiana highway or an ordinance of a city or town regulating the use and operation of a motor vehicle on an Indiana highway unless at the time of the arrest the officer is:
(1) wearing a distinctive uniform and a badge of authority; or
(2) operating a motor vehicle that is clearly marked as a police vehicle;
that will clearly show the officer or the officer’s vehicle to casual observations to be an officer or a police vehicle. This section does not apply to an officer making an arrest when there is a uniformed officer present at the time of the arrest.

The purpose of this statute is to protect drivers from police impersonators and to protect officers from resistance should they not be recognized as officers. Davis v. State, 858 N.E.2d 168, 172 (Ind.Ct.App.2006). The statute seeks to help distinguish law enforcement officers from those individuals on our highways who, for illicit purposes, impersonate law enforcement officers. Maynard v. State, 859 N.E.2d 1272, 1274 (Ind.Ct.App.2007).

In this case, the sole basis that Ervin advanced in support of his motion to suppress was Officer Sedberry’s alleged violation of Indiana Code section 9-80-2-2. Ervin makes no claim that his constitutional rights were violated. Rather, Ervin maintains that he was illegally arrested under this statute because Officer Sedber-ry was not in uniform or driving a marked police vehicle at the time of the incident.

The undisputed evidence is that Officer Sedberry was not on duty and was not wearing a police uniform or driving a police vehicle when the encounter occurred. Tr. p. 11-12. And Officer Sedberry was following Ervin in his vehicle to keep dispatch apprised of Ervin’s location. Id. at 18-14, 33-34. He did not stop Ervin and did nothing to indicate that Ervin should pull over. Rather, as mentioned above, Ervin, of his own accord, abruptly pulled over and stopped his vehicle in a neighborhood. Ervin then approached Officer Sed-berry’s vehicle in an aggressive, confrontational manner, with his arms up in the air and shouting.

Officer Sedberry testified that out of concern for his and his family’s safety, he exited his vehicle and pointed the pistol at Ervin. At that time, Officer Sedberry identified himself as a police officer and ordered Ervin back to his vehicle. Within minutes, uniformed police officers arrived and conducted their own investigation that led to Ervin’s arrest and charge for operating a motor vehicle while intoxicated.

Given these circumstances and notwithstanding the trial court’s conclusion to the contrary, we cannot say that Indiana Code Section 9-30-2-2 was implicated to the extent that the evidence in this case should be suppressed. More specifically, the statute provides that an officer may not arrest a person “for a violation of an Indiana law regulating the use and operation of a motor vehicle on an Indiana highway” unless the officer is in uniform or a marked police vehicle. I.C. § 9-30-2-2.

At no time did Officer Sedberry arrest Ervin for violating a law regulating the use of a motor vehicle. Rather, it is apparent that Officer Sedberry’s acts of drawing his weapon and pointing the gun at Ervin were in response to the threatening and aggressive behavior that Ervin initiated, and his purpose was to keep Ervin away from his family to ensure their safety.

As a result, because Indiana Code section 9-30-2-2 is not implicated in these circumstances and Ervin does not contend that his constitutional rights were violated in this instance, the trial court properly determined that the evidence seized by the uniformed on-duty police officers should not be suppressed. Thus, we affirm the judgment of the trial court in this regard and remand this cause for trial.

The judgment of the trial court is affirmed and this cause is remanded for trial.

KIRSCH, J., and BROWN, J., concur.

      . This statute, discussed infra, pertains to a law enforcement officer's lack of authority to make an arrest in circumstances regarding the operation of a motor vehicle when the officer is not wearing a badge or uniform or driving a marked police vehicle.

      . On August 9, 2011, the trial court granted Ervin's petition to certify the question for interlocutory appeal. We accepted jurisdiction of the interlocutory appeal on October 11, 2011.


author: FRIEDLANDER, Judge.

text:
    Dianne L. PERKINS, Appellant, v. Jeffrey STESIAK, and Pfeifer, Morgan and Stesiak, Appellees.
    No. 71A03-1111-PL-521.
    Court of Appeals of Indiana.
    May 30, 2012.

      John A. Kindley, Lakeville, IN, Attorney for Appellant.
    James F. Groves, Lee, Groves & Zalas, South Bend, IN, Attorney for Appellees.
   OPINION

FRIEDLANDER, Judge.

Dianne Perkins appeals the entry of summary judgment in favor of Jeffrey Stesiak and Pfeiffer, Morgan & Stesiak (referred to collectively as Stesiak) in her legal malpractice action against Stesiak. On appeal, Perkins presents the following restated issue for review: Did the trial court err in determining that Perkins had no cognizable claim for emotional distress and, thus, granting summary judgment on that ground?

We affirm.

For purposes of summary judgment, the underlying facts of this case are not in dispute. Perkins’s thirteen-year-old, learning-disabled grandson was sexually abused by a teacher’s assistant with the South Bend Community Schools Corporation (the School District) in the fall of 2004. The abuse was not disclosed until early 2005. As a result of the abuse, Perkins’s grandson “engaged in extremely negative behaviors while in [Perkins’s] home, both during the months the sexual abuse was occurring and for years after its discovery.” Appellant’s Supplemental Appendix at 10. On multiple occasions, the negative behavior included direct physical confrontations between Perkins and her grandson.

On June 8, 2005, Perkins entered into a contingent-fee agreement with Stesiak wherein Stesiak agreed to represent Perkins and her grandson in all claims against the School District arising out of the sexual abuse perpetrated against her grandson. According to Perkins, Stesiak agreed to pursue claims for the injuries to her grandson as well as Perkins’s own emotional distress. Perkins terminated Stesiak’s representation in 2008 because he had yet to file suit. Upon obtaining new legal counsel, Perkins learned that the statute of limitations on her claim had run prior to her termination of Stesiak. Because the grandson was a minor, however, his claim remained and was ultimately settled with the School District. The settlement did not encompass any injuries or damages to Perkins in her individual capacity.

On October 1, 2010, Perkins filed the instant legal malpractice action against Stesiak. The essence of her claim is that because Stesiak did not file a lawsuit on her behalf within the applicable period of limitation, he deprived her of the right to file a legal action against the School District and consequently obtain a settlement or verdict.

Stesiak filed a motion for summary judgment on March 14, 2011, arguing that Perkins had no viable personal claim against the School District. In response, Perkins argued that she had a claim based upon her own emotional distress relating to the sexual abuse of her grandson. Following a hearing, the trial court granted summary judgment in favor of Stesiak on October 24, 2011. Perkins now appeals.

Perkins’s challenge to the trial court’s summary judgment ruling presents only legal issues, not factual ones. “In reviewing the grant of summary judgment, an appellate court faces the same issues that were before the trial court.” Spangler v. Bechtel, 958 N.E.2d 458, 461 (Ind.2011). Where the dispute is one of law rather than fact, as here, a de novo standard of review applies. Spangler v. Bechtel, 958 N.E.2d 458. Further, the party appealing from the grant of summary judgment has the burden of persuading us that the decision was erroneous. Van Kirk v. Miller, 869 N.E.2d 534 (Ind.Ct.App.2007), trans. denied.

The parties agree that disposition of the summary judgment motion “hinges on whether Perkins had a cognizable claim for the emotional distress and other damages she herself suffered as a result of the injuries done to [her grandson].” Appellant’s Supplemental Appendix at 2. On appeal, Perkins claims that she had “a viable claim for negligent infliction of emotional distress in the underlying action under both the ‘bystander’ theory of recovery and Indiana’s ‘modified impact rule.’ ” Appellant’s Brief at 4. Thus, we will address the applicability of each of these related doctrines.

The right to seek damages for emotional distress in actions for negligence “is carefully circumscribed under Indiana jurisprudence.” Spangler v. Bechtel, 958 N.E.2d at 466. Despite criticism and calls for change, our Supreme Court has consistently held that in order to recover damages for the negligent infliction of emotional distress a plaintiff must satisfy either the modified impact rule or the bystander rule. See Spangler v. Bechtel, 958 N.E.2d 458; Atlantic Coast Airlines v. Cook, 857 N.E.2d 989 (Ind.2006). “The elements for each are separate and distinct.” Atlantic Coast Airlines v. Cook, 857 N.E.2d at 998.

We turn first to the modified impact rule. This rule requires that the plaintiff sustain a direct physical impact from the plaintiffs “direct involvement in the tortfeasor’s negligent conduct.” See Atlantic Coast Airlines v. Cook, 857 N.E.2d at 996. The “incident giving rise to the emotional trauma” in this case was the sexual abuse perpetrated on Perkins’s grandson while he was at school. Id. Contrary to Perkins’s argument on appeal, the fact that she experienced a number of physical confrontations with her grandson at home during the period of sexual abuse does not establish the necessary direct physical impact required by the rule. Rather, the rule envisions the plaintiff being present at the scene of the injury-producing event and, as a result, being directly impacted in a physical manner. Therefore, Perkins’s rebanee on the modified impact rule fails as a matter of law.

Perkins’s reliance on the bystander rule is also unavailing. This rule serves as an exception to the physical impact requirement of the modified impact rule and applies when a close relative (such as Perkins) witnesses or comes upon the scene soon after the death or severe injury of their loved one. See Smith v. Toney, 862 N.E.2d 656 (Ind.2007). The requirement of the proximity of the bystander to the scene is “both a matter of time and circumstances.” Id. at 662. That is, the bystander must come on the scene “at or immediately following the incident”, and the scene “must be essentially as it was at the time of the incident, the victim must be in essentially the same condition as immediately following the incident, and the claimant must not have been informed of the incident before coming upon the scene.” Id. at 663.

Our Supreme Court has observed that witnessing an incident or its gruesome aftermath immediately thereafter is distinct from learning of a victim’s death or injury indirectly. Smith v. Toney, 862 N.E.2d 656. Further, “ ‘[bjystander claims’ are not meant to compensate every emotional trauma.” Id. at 668. “Rather they are limited to those that arise from the shock of experiencing the traumatic event.” Id.

As set forth above, the sexual abuse and injuries to Perkins’s grandson occurred at school. While she experienced subsequent acting out by her grandson, it is undisputed that Perkins never came upon the scene during or in the immediate aftermath of the sexual abuse, and she learned of it only months later. Under the circumstances, there is simply no basis for application of the bystander rule in this case.

Finally, we address Perkins’s assertion that this situation is “analogous to that of a mother who witnesses her son shot by a bullet negligently fired from hundreds of yards away, or of a mother who witnesses her son injured by a bomb left in the family’s mailbox a day earlier.” Appellant’s Reply Brief at 3. To the contrary, the examples cited by Perkins involve instances where a mother contemporaneously observes the serious physical injury to or death of her child as it is caused by the tortfeasor. It matters little when the negligence was set in motion; rather, witnessing the ultimate injury-producing event (or its immediate gruesome aftermath) is the essence of the bystander rule.

Judgment affirmed.

MAY, J., and BARNES, J., concur.

      . Perkins was appointed legal guardian of her grandson when he was twelve, and her relationship with him is analogous to that of a parent.

      . "Where legal malpractice is claimed for an attorney's failure to commence an action within the period of limitations it is generally held that one of the necessary ultimate proofs for a recovery of damages is that a recovery would have been had if the suit had been properly brought.” Basinger v. Sullivan, 540 N.E.2d 91, 93 (Ind.Ct.App.1989).

      . We note that the subsequent physical impact experienced by Perkins was caused directly by her grandson and only indirectly by (or as a collateral effect of) the sexual abuse her grandson was experiencing at school. Further, the impact upon Perkins was removed in both time and place from the injury-producing event (the sexual abuse).

      . Perkins’s reliance on Indiana Patient’s Comp. Fund v. Patrick, 906 N.E.2d 194 (Ind.Ct.App.2009) is improper, as die Supreme Court not only granted transfer in the case but also reversed our decision. Indiana Patient's Comp. Fund v. Patrick, 929 N.E.2d 190 (Ind.2010).


author: ROBB, Chief Judge.

text:
    James RIPPS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 15A01-1109-CR-436.
    Court of Appeals of Indiana.
    June 5, 2012.

      Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

James Ripps pleaded guilty to child molesting as a Class C felony in March 2009. Ripps was sentenced to eight years, six years and three hundred days of which were suspended to probation. In 2011, the State filed a probation revocation petition, alleging Ripps violated the terms of his probation by residing within one-thousand feet of a youth program center and failing to inform all people living at his residence of his sexual conviction. Ripps admitted the violations and the trial court revoked his probation and ordered him to serve the remaining portion of his sentence in prison. Ripps raises one issue for our review, which we restate as whether the trial court abused its discretion by revoking Ripps’s probation and ordering him to serve the entire suspended portion of his sentence for violating terms of his probation. Concluding the trial court did abuse its discretion by revoking Ripps’s probation and ordering him to serve the remainder of his sentence in prison, we reverse.

Facts and Procedural History

In 2009, Ripps pleaded guilty to child molesting as a Class C felony for molesting his then-four-year-old son in 1997 or 1998. The trial court sentenced Ripps in accordance with the .plea agreement to eight years with six years and three hundred days suspended to probation. Included in the terms of Ripps’s probation were conditions forbidding him from committing another crime, requiring him to inform all people living at his place of residence of his sex-related conviction, and forbidding him from living within one thousand feet of a youth program center, which is also a criminal offense for sex offenders pursuant to Indiana Code section 35-42-4-11(c).

In June 2009, the State requested Ripps’s probation be revoked, alleging Ripps violated a condition of his probation by committing another criminal offense: failure to comply with sex and violent offender registration, a Class D felony. Specifically, Ripps resided within 1,000 feet of a public park and a youth program center, a violation of Indiana Code section 35-42-4-11(c), unconstitutional as applied in State v. Pollard, 908 N.E.2d 1145 (Ind.2009). Although this was also a violation of the condition of Ripps’s probation that he not reside within 1,000 feet of school property, a public park, or a youth program center, the State did not allege such violation in its request for probation revocation. Ripps admitted he violated the condition of his probation that he not commit another crime, and the trial court granted the State’s petition to revoke Ripps’s probation.

Thereafter, Ripps moved to correct error, contending his conviction for failure to comply with sex offender registration requirements, and the subsequent probation revocation, violated the Indiana and United States Constitutions’ prohibitions against ex post facto application of the law because the statute giving rise to such criminal act took effect in July 2006 and his qualifying offense occurred several years prior to that time. The trial court agreed Ripps’s conviction for violating the residency restriction enacted in 2006 violated the Indiana Constitution’s ex post facto provision and vacated the conviction. Prior to the trial court vacating Ripps’s conviction, he served approximately one to one and one-half years in prison.

Even though Ripps’s conviction for violating the residency requirement was vacated, the terms and conditions of his probation included a similar clause. Thus, the State could have requested his probation be revoked for violating that term of his probation rather than for committing another crime. However, because the State’s petition to revoke Ripps’s probation only claimed he violated his probation by committing a crime, and because the trial court concluded Ripps should not have been convicted for said crime, the trial court concluded the State’s petition contained insufficient notice of the alleged probation violation and also vacated Ripps’s violation. The trial court specifically noted in its order that “the State could have filed a probation violation for violating conditions of probation that included living within 1,000 feet of a public park and/or a youth center program,” but it did not. Appendix [of] Appellant at 44 (emphasis added). Thus, the trial court ordered Ripps to continue with his prior sentence of probation under the same conditions.

On March 11, 2011, Ripps, who suffers from terminal prostate cancer, congestive heart failure, and obstructive pulmonary disease, moved into Ripley Crossing, an assisted-living facility where he would be able to receive the level of care his medical condition requires. On March 14, 2011, Ripps went to the sheriffs department to register his new address, and a deputy informed Ripps he was living within 1,000 feet of a public library that qualifies as a youth program center. Specifically, Sheriff Gills determined “his apartment” was approximately 980 feet from the public library. On May 27, 2011, the State filed a verified petition alleging Ripps violated conditions of his probation, and on May 28, 2011, Ripps was arrested. He still resided at Ripley Crossing on the date of his arrest. The trial court held a hearing, and Ripps admitted to the alleged violations. The trial court revoked his probation and ordered him to serve the remaining portion of his suspended sentence, two years and two-hundred and sixty-six days, in prison. Ripps now appeals. After holding oral argument on May 4, 2012, this court issued an order directing the trial court to order Ripps’s release from prison.

Discussion

I. Standard of Review

Probation is a matter of grace and a conditional liberty which is a favor, not a right. The trial court determines the conditions of probation and may revoke probation if those conditions are violated. The decision to revoke probation is within the sound discretion of the trial court. And its decision is reviewed on appeal for abuse of that discretion.

Cooper v. State, 917 N.E.2d 667, 671 (Ind.2009) (citations omitted). An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before the court. Prewitt v. State, 878 N.E.2d 184, 188 (Ind.2007). Further, on appeal “we consider only the evidence most favorable to the judgment without reweighing that evidence or judging the credibility of the witnesses. If there is substantial evidence of probative value to support the trial court’s decision that a defendant has violated any terms of probation, the reviewing court will affirm its decision to revoke probation.” Woods v. State, 892 N.E.2d 637, 639-40 (Ind.2008) (citation omitted).

II. Ripps’s Probation Revocation

“Probation revocation is a two-step process. First, the court must make a factual determination that a violation of a condition of probation actually occurred .... [T]hen, the trial court must determine if the violation warrants revocation of the probation.” Woods, 892 N.E.2d at 640 (Ind.2008) (citing Morrissey v. Brewer, 408 U.S. 471, 479-80, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). “However, even a probationer who admits the allegations against him must still be given an opportunity to offer mitigating evidence suggesting that the violation does not warrant revocation.” Id. (citing United States v. Holland, 850 F.2d 1048, 1051 (5th Cir.1988) (per curiam)).

Ripps does not contest the first step in our process. He admits that he lived within 1,000 feet of a youth program center and that he failed to inform people living at his place of residence, namely the landlord of Ripley Crossing, of his sex offender status. We thus need not decide whether libraries in general or this library in particular constitute a “youth center” as defined by Indiana Code section 35-41-1-29 or as defined by the terms of Ripps’s probation. The answer is less obvious than the State contended during oral argument. Instead, Ripps argues the trial court abused its discretion by revoking his entire suspended sentence because he “admitted he violated his probation,” “did everything in his power to fix the violation once he was made aware of it,” “voluntarily came to the Ripley County Sheriffs office to register his new address,” “was understandably confused as to what he needed to do to comply with probation” due to the 2009 proceeding that hinged on a violation of the Indiana Constitution’s ex post facto provision, and chose to live at Ripley Crossing because it was an assisted-living facility and he suffered from several serious health conditions. Brief of Appellant at 6-9. Ripps’s caretaker, Sherry Kalfrat, testified Ripps was in the process of moving from Milan, where Ripley Crossing is located, to Sunman, Indiana, when he was arrested, and that she “already had most of his stuff packed and moved.” Tr. at 32.

Our supreme court discussed the abuse of discretion standard in Tapia, v. State, 753 N.E.2d 581, 585 (Ind.2001), in which the court assessed a trial court’s denial of a motion to continue and a motion to withdraw a petition for post-conviction relief. The court stated:

Our reliance on the abuse of discretion standard invokes some of its well-worn contours. Typically, a fact-finding court is given discretion to act on an issue when it is in a better position than an appellate court to evaluate the factual context surrounding the issue. We will second-guess the fact-finding court only when it responds to that factual context in an unreasonable manner. Prof. Stroud has provided the following description of this standard of review: “Abuse of discretion review, like all mixed question review, consists of an evaluation of facts in relation to legal formulae. In the final analysis, the reviewing court is concerned with the reasonableness of the action in light of the record.” 4A Kenneth M. Stroud, Indiana Practice § 12.8 at 246 (2d ed. 1990) (emphasis in original).

Id.

Although Ripps concedes this court and our supreme court have not previously reversed a probation revocation in circumstances such as exist here, our supreme court shed light on the abuse of discretion standard specifically as it applies in probation revocation appeals in Woods. There, Woods was placed on “strict compliance” probation, which was intended to mean that any violation would automatically result in his probation being revoked. While disagreeing with such a zero-tolerance review of probation violations based on due process principles, our supreme court acknowledged the trial court’s discretion in deciding whether to revoke probation and stated, “[t]he very notion that violation of a probationary term will result in revocation no matter the reason is constitutionally suspect. For example, failure to pay a probation user fee where the probationer has no ability to pay certainly cannot result in a probation revocation.” Woods, 892 N.E.2d at 641 (citation omitted). The supreme court noted other situations in which revoking probation would be constitutionally suspect, such as “a probationer not reporting to his probation officer because he was in a coma in a hospital” or failing a urinalysis test “because of prescription medication a probationer is taking on orders from his treating physician.” Id.

Based on the totality of the circumstances, we agree with Ripps that the trial court abused its discretion by revoking his probation and ordering him to serve the remainder of his suspended sentence in prison. Ripps was sixty-nine years old and suffering from serious health issues, including terminal cancer; he was attempting to adhere to his probation conditions, as evidenced by his going to the sheriffs office to register his new address; although he was initially in violation of the residency restriction, evidence reveals he was taking steps to correct the violation by finding a new residence; while he did live within 1,000 feet of the public library, this was only so by about twenty feet and some ambiguity exists in how this distance was measured; and, last, Ripps previously served time in prison for a crime that was later vacated as violative of our constitutional ex post facto provision. Given the circumstances, it was unreasonable for the trial court to determine Ripps’s violation warranted revoking his probation.

Conclusion

Given Ripps’s medical condition, his attempt to adhere to the terms of his probation, the technical nature of the measurement between Ripley Crossing and the public library, the fact that he was in the process of moving out of Ripley Crossing when he was arrested, his having wrongly served time in prison for an offense that violated ex post facto principles, and the sheriffs department having learned of his living arrangements only because Ripps reported his location, the trial court’s revocation of Ripps’s probation was an abuse of the trial court’s discretion. We therefore reverse the trial court’s revocation of Ripps’s probation.

Reversed.

BAKER, J., and SHEPARD, Sr. J., concur.

      . We held oral argument in this case on May 4, 2012, at Franklin Community High School. We wish to thank counsel for their advocacy and extend our appreciation to the faculty, staff, and students of Franklin Community as well as members of the Johnson County Bar Association for their fine hospitality.

      . The trial court found "four (4) years [of Ripps's probation] shall be revoked to be served consecutively with” a sentence of 535 days incarceration for the offense of failure to comply with sex and violent offender registration, a Class D felony, and the "remaining time shall remain suspended under the condition that [Ripps] abide by all terms and conditions outlined herein and in previous orders of probation.” Appendix [of] Appellant at 34.

      . The exact amount of time Ripps served in prison for his conviction that was later vacated is unclear in the record. Nevertheless, he did serve some portion of time in prison for an offense that was later vacated.

      .Sheriff Gills's testimony creates ambiguity. He testified his measurement of 980 feet is "from the comer from [sic] his apartment to the corner of the property at the library.” Tr. at 18. It is unclear which location is 980 feet from the corner of library property: Ripps’s actual apartment, the assisted-living complex, or the property on which the assisted-living complex is located.

      . Although it seemed that Ripps’s number of days served were over-credited at the conclusion of the 2009 probation violation proceeding and that Ripps had less time left to serve on his original sentence than he should have, the trial court declined to correct any error in Ripps’s remaining sentence in the probation violation proceeding underlying this appeal because the State had not filed a motion requesting such a correction.

      . We stated:
      1. This Court held oral argument this morning and having read all the briefs and deliberated on the issues, we conclude that Ripps has adequately demonstrated that revoking his probation on the present basis was an abuse of discretion.
      2. While ordinarily Indiana Appellate Rule 65(E) would require certification of the opinion prior to action by the trial court, in equity and law, courts have inherent authority to require immediate compliance with their orders and decrees in order to give effective relief. Noble County v. Rogers, 745 N.E.2d 194, 198 (Ind.2001); State ex rel. Brubaker v. Pritchard, 236 Ind. 222, 226-27, 138 N.E.2d 233, 235 (1956).... Accordingly, we direct the trial court to order Ripps's release forthwith. Order (Ind. Ct. App. May 4, 2012).

      . Effective July 1, 2012, this section has been recodified as Indiana Code section 35-31.5-2-357 by Senate Enrolled Act 26.