author: RILEY, Judge.

text:
    Steven WEINREB, Appellant-Defendant, v. FANNIE MAE, Appellee-Plaintiff.
    No. 49A04-1211-PL-587.
    Court of Appeals of Indiana.
    July 16, 2013.

      Sherwood P. Hill, Clinton E. Blanck, Maurer Rifkin & Hill, P.C., Carmel, IN, Attorneys for Appellant.
    James E. Carlberg, James P. Moloy, Nathan T. Danielson, Bose McKinney & Evans, LLP, Indianapolis, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Steven Weinreb (Weinreb), appeals the trial court’s partial grant of summary judgment and grant of a monetary award to Appellee-Plaintiff, Fannie Mae, Inc. (Fannie Mae).

We affirm.

ISSUES

Weinreb raises eight issues for our review, three of which we find dispositive and which we consolidate as the following single issue: Whether the trial court erred when it found Weinreb personally liable based on a deficiency judgment.

On cross-appeal, Fannie Mae raises a single issue, which we restate as: Whether res judicata or collateral estoppel prevents Weinreb from challenging the trial court’s summary judgment.

FACTS AND PROCEDURAL HISTORY

Weinreb resides in New York and is engaged in the business of importing Spanish foods. For the last fifteen years, Weinreb has invested in real estate ventures, individually and with others. In 2006, Weinreb learned about an investment property in Indianapolis, the Straw-bridge Green Apartments (Apartments). Weinreb and his business partners formed WK Strawbridge, LLC (Strawbridge LLC), a single purpose entity formed to acquire title to the Apartments. Financing for the acquisition was first obtained through a non-recourse bridge loan from RAIT Financial Trust. Permanent financing was later sought from Arbor Commercial Funding, LLC (Arbor), which provided a commercial loan through Fannie Mae.

On June 16, 2008, Strawbridge LLC, through its “sole member” Shaul Kuper-wasser, executed the “Multifamily Non-Recourse Fixed +1 Note,” a promissory note (the Note), evidencing a loan by Arbor to Strawbridge LLC in the principal amount of $5,999,300, maturing in July 2018, with a fixed annual interest rate of 6.37% (the Loan) for the first nine years and with an adjustable interest rate thereafter. (Appellant’s App. pp. 18, 31). Under the Note, the principal, the interest thereon, any late charges, the interest payable in the event of Strawbridge LLC’s default, as well as a prepayment premium, constitute the “Indebtedness.” (Appellant’s App. p. 19). The Note constituted one part of the “Loan Documents,” which include an “Acknowledgement and Agreement of Key Principal to Personal Liability for Exceptions to Non-Recourse Liability” (the Guaranty), a mortgage, assignment of rents, and security agreement (the Mortgage), as well as related loan documentation. (Appellant’s App. p. 43). Contemporaneously with the execution of the Loan Documents, Arbor endorsed the Note and assigned the Mortgage and all Loan Documents to Fannie Mae, which is the current holder.

Though structured as a non-recourse loan, the Note contains carve-outs permitting full recourse liability for Strawbridge LLC under pre-determined circumstances, which include certain “Events of Default” by Strawbridge LLC. (Appellant’s App. p. 68). In relevant part, Paragraph 9(c) provides that:

[Strawbridge] shall become personally liable to [Fannie Mae] for the repayment of all of the Indebtedness upon the occurrence of any of the following Events of Default:
[•••]
(2) a Transfer that is an Event of Default under Section 21 of the [Mortgage].

(Appellant’s App. p. 26).

Section l(z) of the Mortgage defines a “Transfer” as “the granting, creating or attachment of a lien, encumbrance or security interest.” (Appellant’s App. p. 46). Section 21(a)(1) of the Mortgage specifies that “a Transfer of all or any part of the [Apartments] or any interest in the [Apartments]” constitutes an Event of Default and Section 16 of the Mortgage contains Strawbridge LLC’s agreement that the same constitutes an Event of Default. (Appellant’s App. p. 64). However, Section 21(b)(6) of the Mortgage provides that a lien against the Apartments “which is bonded off, released of record or otherwise remedied to [Fannie Mae’s] satisfaction within 30 days of the date of creation” does not constitute an Event of Default. (Appellant’s App. p. 65). Under the Guaranty, Weinreb, as “Key Principal” agreed to pay all of Strawbridge LLC’s obligations under Paragraph 9 of the Note. (Appellant’s App. p. 32).

If an Event of Default occurs, Paragraph 6 of the Note permits Fannie Mae to accelerate the Loan, thereby causing the outstanding Indebtedness to become immediately due and payable. In such case, Paragraph 10(a) of the Note provides in relevant part:

(2) Upon [Fannie Mae’s] exercise of any right of acceleration under this Note, [Strawbridge LLC] shall pay to [Fannie Mae], in addition to the entire unpaid principal balance of this Note outstanding at the time of acceleration, (i) all accrued interest and all other sums due [Fannie Mae] under this Note and the other Loan Documents, and (ii) the prepayment premium calculated pursuant to Schedule A.

(Appellant’s App. pp. 27-8). The prepayment premium represents an estimate “of the damages [Fannie Mae] will incur because of a prepayment.” (Appellant’s App. p. 28). Further,

(e) [Strawbridge LLC] recognizes that any prepayment of the unpaid principal balance of this Note, whether voluntary or involuntary or resulting from a default by [Strawbridge LLC], will result in [Fannie Mae’s] incurring loss, including reinvestment loss, additional expense and frustration or impairment of [Fannie Mae’s] ability to meet its commitments to third parties. [Strawbridge LLC] agrees to pay to [Fannie Mae] upon demand[,] damages for the detriment caused by any prepayment, and agrees that it is extremely difficult and impractical to ascertain the extent of such damages. [Strawbridge LLC] therefore acknowledges and agrees that the formula for calculating prepayment premiums set forth on Schedule A represents a reasonable estimate of the damages [Fannie Mae] will incur because of a prepayment.
(f) [Strawbridge LLC] further acknowledges that the prepayment premium provisions of this Note are a material part of the consideration for the [L]oan evidenced by this Note, and acknowledge that the terms of this Note are in other respects more favorable to [Straw-bridge LLC] as a result of [Strawbridge LLC’s] voluntary agreement to the prepayment premium provisions.

(Appellant’s App. p. 28). Schedule A to the Note provides a “yield maintenance formula” for calculating the prepayment premium. (Appellant’s App. p. 34).

Beginning in December 2009, mechanic’s liens were filed against the Apartments: a mechanic’s lien in the amount of $42,766 was filed on December 3, 2009; a second mechanic’s lien in the amount of $44,105 was filed on May 25, 2010; and a third mechanic’s lien for $1,346.74 was filed on May 26, 2010. Beginning July 1, 2010, Strawbridge LLC failed to pay its monthly installments under the Note. On August 27, 2010, Fannie Mae sent Strawbridge LLC and Weinreb a demand letter for immediate payment of the loan installments, ordered Strawbridge LLC to remit tenant rental payments directly to Fannie Mae, and advised that a failure to pay amounted to a default under the Note. Two months later, on October 25, 2010, Fannie Mae sent a written demand to Strawbridge LLC and Weinreb demanding that the mechanic’s liens be released and advising that failure to resolve the liens constituted a default under the Note. On November 24, 2010, Fannie sent another letter advising Strawbridge LLC and Weinreb of the failure to pay installments under the Note and demanding that all rents from the Apartments be paid to Fannie Mae. On December 13, 2010, a fourth mechanic’s lien was filed in the amount of $19,364. The total amount of mechanic’s liens filed was $72,287.12.

Litigation involving the lienholders, Strawbridge LLC, Arbor, and Fannie Mae ensued, with Fannie Mae asserting counter and cross-claims against various parties (Foreclosure Action). However, Fannie Mae erroneously added Weinreb to the caption and the trial court summarily ordered Weinreb’s name removed. On July 20, 2011, Fannie Mae was awarded summary judgment in rem in the amount of $7,812,683.10, which included the prepayment premium of $1,474,992.49 (Foreclosure Judgment). The trial court ordered foreclosure, but found that “Fannie Mae’s claims against [Weinreb] are not resolved by this judgment and may be pursued at a later date.” (Appellant’s App. p. 99). On September 21, 2011, the Apartments were sold at a sheriffs sale, with Fannie Mae as the successful bidder, with a bid of $6,606,314.86, thereby leaving a deficiency of $1,806,557.34 plus interest and expenses (the Deficiency).

On February 21, 2012, Fannie Mae filed its Complaint against Weinreb for the Deficiency. On April 16, 2012, Weinreb filed his answer, denying the substantive allegations and raising a number of affirmative defenses including unconscionability. On June 11, 2012, Fannie Mae filed its motion for summary judgment. On October 17, 2012, a hearing was held. On October 23, 2012, the trial court issued a partial summary judgment in favor of Fannie Mae and against Weinreb in the amount of $1,806,557.34. The trial court concluded that the Guaranty made Weinreb personally liable for an Event of Default under the Note and Mortgage and that the attachment of mechanic’s liens constituted an Event of Default. The trial court rejected Weinreb’s arguments that he had not read the Guaranty prior to signing it and that the complexity of such documents was overwhelming. Instead, the trial court concluded:

However convoluted that agreement may have seemed to a non-lawyer, Weinreb was obliged to read the document or at a minimum seek legal advice. Furthermore, [Weinreb has] not designated evidence showing that [he] was inexperienced in transactions of this nature, nor that Fannie Mae had a fiduciary obligation to point out the possible risks of the [Guaranty] to Weinreb personally. And there is certainly no designated evidence that Fannie Mae misled Weinreb as to the meaning of the [Guaranty]. There is thus no material issue of fact as to whether the [Guaranty] was unconscionable.

(Appellant’s App. p. 267).

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

DISCUSSION AND DECISION

CROSS-APPEAL

As a threshold matter, we address Fannie Mae’s argument that the doctrine of res judicata and collateral es-toppel preclude Weinreb from contesting the elements of or his liability for the Deficiency. The doctrine of res judicata bars the litigation of a claim after a final

judgment has been rendered in a prior action involving the same claim between the same parties or their privies. Micro-Vote General Corp. v. Indiana Election Comm’n, 924 N.E.2d 184, 191 (Ind.Ct.App.2010). In other words, res judicata prevents the repetitious litigation of that which is essentially the same dispute. In re L.B., 889 N.E.2d 826, 333 (Ind.Ct.App.2008). Res judicata is divided into two branches: claim preclusion and issue preclusion. See id. Claim preclusion applies where a final judgment on the merits has been rendered which acts as a complete bar to a subsequent action on the same issue or claim between those parties and their privies. Id. Issue preclusion, also referred to as collateral estoppel, bars the subsequent relitigation of the same fact or issue where the fact or issue was necessarily adjudicated in a former suit and the same fact or issue is presented in a subsequent action. Id.

A. Claim Preclusion

Asserting that claim preclusion applies, Fannie Mae argues that Weinreb cannot contest the amount of or his liability for the Deficiency resulting from the Foreclosure Judgment. Specifically, Fannie Mae contends that the Foreclosure Judgment was rendered by a court of competent jurisdiction, was on the merits, and Weinreb was a party or a privy to the Foreclosure Action.

When, as here, a party argues that the claim preclusion component of res judicata applies, four factors must be present, namely: (1) the former judgment must have been rendered by a court of competent jurisdiction; (2) the former judgment must have been rendered on the merits; (3) the matter now in issue was, or could have been, determined in the prior action; and (4) the controversy adjudicated in the former action must have been between parties to the present suit or their privies. Id. Fannie Mae argues and Weinreb does not dispute that three of the above requirements are met here. Instead, Wein-reb argues that he was not a party to the Foreclosure Action nor was he in privity with any party named therein.

Fannie Mae points to Weinreb’s connection with Strawbridge LLC to argue that Weinreb was a party. Fannie Mae asserts that the Restatement (Second) of Judgments provides support for concluding that Weinreb is a party to the Foreclosure Action:

If [a] corporation is closely held, in that one or a few persons hold substantially the entire ownership in it, the judgment in an action by or against the corporation or the holder of ownership in it is conclusive upon the other of them as to issues determined therein as follows:
(a) The judgment in an action by or against the corporation is conclusive upon the holder of its ownership if he actively participated in the action on behalf of the corporation, unless his interests and those of the corporation are so different that he should have opportunity to relitigate the issue[.]

Restatement (Second) of Judgments § 59(a).

Examining Weinreb’s affidavit, we note that Weinreb states that he was “one of six or seven members in Strawbridge LLC,” but that his role in the transaction was to be “a principal investor” who did not negotiate the financing. (Appellant’s App. p. 211). The Note is signed by Shaul Kuper-wasser, as the sole member of WK SG Investor LLC, which apparently was also a member of Strawbridge LLC. Fannie Mae’s designated evidentiary materials contain an email from Julian Blumenthal of WK Holdings, who responded to Arbor’s request for the Apartment’s rent roll. Notably, the parties did not designate additional pieces of evidence that would have shown the extent of Weinreb’s membership in Strawbridge LLC.

Fannie Mae admits that “[t]he Foreclosure Judgment noted that Fannie Mae’s claims against Weinreb were not resolved by the Foreclosure Judgment and could be pursued at a later date.” (Appellee’s Br. p. 2). Although Fannie Mae listed Wein-reb in the caption of its summary judgment motion in the Foreclosure Action, Weinreb moved the trial court to remove his name alleging that he had not been served or named as a counterclaim or cross-claim defendant, nor had Fannie Mae sought to add him. The trial court granted his motion. Further, the trial court stated in the Foreclosure Judgment that “Fannie Mae’s claims against [Wein-reb] are not resolved by this judgment and may be pursued at a later date.” (Appellant’s App. p. 99). Based on the foregoing, we do not agree that Fannie Mae has shown that Weinreb was a party to the Foreclosure Action.

Fannie Mae also asserts that Weinreb was a privy to the prior action. The term privity describes the relationship between persons who are parties to an action and those who are not parties to an action but whose interests in the action are such that they may nevertheless be bound by the judgment in that action. MicroVote, 924 N.E.2d at 196. Whereas a “party” is one who is directly interested in the subject matter and has a right to make a defense or control the proceedings, a “privy” is one who, after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment. See id. The term includes those who control an action, though not a party to it, and those whose interests are represented by a party to the action. Id. As such, an entity does not have to control a prior action, or be a party to a prior action, for privity to exist. Id. Therefore, in determining the parties for res judicata purposes, this court looks beyond the nominal parties and treats those whose interest are involved as the real parties. Id.

Fannie Mae argues that Strawbridge LLC represented Weinreb’s interests in the Foreclosure Action. However, Wein-reb was expressly excluded from the Foreclosure Action by court order and the trial court expressly left claims against Wein-reb out of the Foreclosure Judgment. Weinreb’s affidavit alleges that he did not know about the mechanic’s liens until it was too late to do anything about them. Accordingly, we conclude that Fannie Mae has not shown that Weinreb was in privity with Strawbridge LLC in the Foreclosure Action. Therefore, claim preclusion does not bar Weinreb from contesting his liability for the Deficiency.

B. Collateral Estoppel

Likewise, we conclude that collateral es-toppel does not preclude Weinreb from contesting his liability for the Deficiency. Collateral estoppel bars litigation of an issue necessarily adjudicated in a former suit. MicroVote, 924 N.E.2d at 197. Even if the two actions are not on identical claims, collateral estoppel deems that the former adjudication will be conclusive in the subsequent action. See id. Here, Fannie Mae asserts offensive collateral es-toppel since it seeks to foreclose Weinreb from re-litigating the elements of the Foreclosure Judgment. Determining the appropriateness of offensive collateral es-toppel involves two considerations: “1) whether the party against whom the prior judgment is pled had a full and fair opportunity to litigate the issue; and 2) whether it would be otherwise unfair under the circumstances to permit the use of collateral estoppel.” Eichenberger v. Eichenberger, 743 N.E.2d 370, 375 (Ind.Ct.App.2001). If the two elements are fulfilled, then the court may apply collateral estop-pel to prevent relitigation of the same issue. Id.

The trial court removed Weinreb’s name from the caption in the Foreclosure Action and expressly acknowledged that Fannie Mae could pursue its claims against him. Thus, Weinreb did not have a full and fair opportunity to litigate the enforceability of the Note or his Guaranty. Accordingly, offensive collateral estoppel does not apply here.

APPEAL

On appeal, Weinreb challenges the trial court’s partial summary judgment in favor of Fannie Mae. Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). In reviewing a trial court’s ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind.Ct.App.2008), trans. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in the light most favorable to the non-moving party. Id. at 608. The party appealing the grant of summary judgment has the burden of persuading this court that the trial court’s ruling was improper. Id.

We observe that in the present case, the trial court entered findings of fact and conclusions of law in support of its judgment. Special findings are not required in summary judgment proceedings and are not binding on appeal. Id. However, such findings offer this court valuable insight into the trial court’s rationale for its review and facilitate appellate review. Id.

The trial court found Weinreb liable under the Guaranty which in turn exposed him to personal liability for the Deficiency. Weinreb first argues that the Loan Documents are extrinsically ambiguous making summary judgment inappropriate. Next, Weinreb argues that the non-recourse carve-outs and the prepayment premium are unenforceable. Finally, Weinreb contends that the Loan Documents constitute an unconscionable agreement.

A. Ambiguity

In asserting that summary judgment was inappropriate because the Loan Documents are extrinsically ambiguous, Weinreb argues that extrinsic evidence in the form of his understanding or lack thereof should have been considered by the trial court. Specifically, he contends that anyone who understood the context of the transaction “would realize that the contract language could not mean what an untutored reader would suppose it meant, namely, that Weinreb would be liable for full recourse [...] when only $72,287.12 in [mjechanic’s [l]iens attached to the [Apartment].” (Appellant’s Br. pp. 21-22).

The interpretation of a contract is controlled by the intent of the parties as expressed by the clear language of the contract. City of Jeffersonville v. Environmental Management Corp., 954 N.E.2d 1000, 1008 (Ind.Ct.App.2011). Clear, plain, and unambiguous contract terms are conclusive of the parties’ intent, and a court will not construe the contract or consider extrinsic evidence, but will merely apply the contractual provisions as they are written. Id. Where, as is the case with the Loan Documents, when two or more instruments are executed at the same time relate to the same transaction, they may be construed together. See PNC Bank, Nat’l Ass’n v. LA Development, Inc., 973 N.E.2d 1181, 1136 (Ind.Ct.App.2012), trans. denied. However, “[i]f the terms of a written contract are ambiguous, it is the responsibility of the trier-of-fact to ascertain the facts necessary to construe the contract.” Newnam Mfg., Inc. v. Transcontinental Ins. Co., 871 N.E.2d 396, 401 (Ind.Ct.App.2007).

Weinreb raises no issue with regard to the language of the Note, Guaranty, or Mortgage; rather, he argues that the implementation of those agreements results in a latent ambiguity. If an agreement is ambiguous, we determine whether the ambiguity is patent or latent. Eckart v. Davis, 631 N.E.2d 494, 497 (Ind.Ct.App.1994). A patent ambiguity is apparent on the face of the instrument and arises from an inconsistency or inherent uncertainty of language used so that it either conveys no definite meaning or a confused meaning. Id. Extrinsic evidence is not admissible to explain or remove a patent ambiguity. Id. Conversely, a latent ambiguity does not emerge until one attempts to implement the words as directed in the instrument. Id. Extrinsic evidence is admissible to explain a latent ambiguity. Id. at 498.

Here, no ambiguity exists and we therefore decline to consider the extrinsic evidence offered by Weinreb. The Note is unambiguous; Paragraph 9(c) makes the Loan full recourse in the event of “a Transfer that is an Event of Default under Section 21 of the [Mortgage],” thereby entitling Fannie Mae to certain amounts, including the prepayment premium. (Appellant’s App. p. 26). The Mortgage is unambiguous; “the granting, creating or attachment of a lien [... ] (whether voluntary, involuntary or by operation of law)” is a Transfer under Section l(z). (Appellant’s App. p. 46). Such Transfer constitutes a default under Section 21(a) of the Mortgage if the lien is not removed, released, or otherwise remedied to Fannie Mae’s satisfaction. The Guaranty is unambiguous; as Key Principal, Weinreb “absolutely, unconditionally and irrevocably agree[d] to pay to [Fannie Mae], on demand, all amounts for which [Straw-bridge LLC] is personally liable under Paragraph 9 of [the Note].” (Appellant’s App. p. 32). Thus, the plain and ordinary meaning of the Guaranty is that Weinreb is personally liable.

Nor does any ambiguity arise upon implementation. Weinreb argues that no party would intend personal liability stretching into a million dollars based upon mechanic’s liens of approximately $72,000. Generally, parties are obligated to know the terms of the agreement they are signing, and cannot avoid their obligations under the agreement due to a failure to read it. Park 100 Investors, Inc. v. Kartes, 650 N.E.2d 347, 349 (Ind.Ct.App.1995). A failure to read does not equate with an ambiguity arising from the implementation of the clear terms of the Note, Mortgage, and Guaranty. Accordingly, we affirm the trial court’s decision on this issue.

B. Noiir-Recourse Cane-Outs and Prepayment Premium

Weinreb next challenges the enforceability of the prepayment premium, analyzing it as a liquidated damages provision. A liquidated damages clause provides for the forfeiture of a stated sum of money upon a breach of contract without proof of damages. Dean V. Kruse Foundation, Inc. v. Gates, 973 N.E.2d 583, 591 (Ind.Ct.App.2012), trans. denied. Liquidated damages clauses are generally enforceable where the nature of the agreement is such that damages for breach would be uncertain, difficult, or impossible to ascertain. Id. While liquidated damages clauses are ordinarily enforceable, contractual provisions constituting penalties are not. Id. The distinction between a penalty provision and one for liquidated damages is that a penalty is imposed to secure performance of the contract and liquidated damages are to be paid in lieu of performance. Id. To determine whether a stipulated sum payable upon breach of contract constitutes liquidated damages or a penalty, the facts, the intention of the parties, and the reasonableness of the stipulation under the circumstances of the case are all to be considered. Id. The use of the words “damages,” “penalty,” “forfeiture,” and “liquidated damages” are not conclusive, but should be considered in connection with other provisions in the contract to determine the nature of the provisions. Id. at 591-92. However, despite the plethora of abstract tests and criteria for the determination of whether a provision is one for a penalty or liquidated damages, there are no hard and fast guidelines to follow. Id. at 592.

As a result of the unresolved mechanic’s liens, the Note’s non-recourse carve out provisions entitled Fannie Mae to hold Strawbridge LLC and therefore Weinreb as guarantor, liable for the full amount of the Indebtedness, including the prepayment premium. Arguing that Indiana law has not yet construed the effect of non-recourse carve-out provisions or prepayment premiums, the parties cite a number of cases from other jurisdictions analyzing similar contractual provisions. The non-recourse carve-out provisions in a promissory note transform what is otherwise a non-recourse loan into a full recourse loan, “enabling the creditor to look beyond simply the mortgaged property for repayment of the loan.” CSFB 2001-CP-4 Princeton Park Corporate Center, LLC v. SB Rental I, LLC, 410 N.J.Super. 114, 980 A.2d 1, 5 (2009). These provisions do not constitute liquidated damages provisions because they only “define the terms and conditions of personal liability” and permit “the lender .to recover only damages actually sustained.” Id.

Similarly, we conclude that the non-recourse carve-out provisions in the Note, standing alone, do not constitute a liquidated damages provision because they define when Strawbridge LLC becomes “personally liable to [Fannie Mae] for the repayment of all of the-Indebtedness upon the occurrence of [...] a Transfer that is an Event of Default under Section 21 of the [Mortgage].” (Appellant’s App. p. 26). Thus, the mechanic’s liens, when unresolved to Fannie Mae’s satisfaction, served as a trigger for personal liability and are therefore not relevant to determining the extent of Fannie Mae’s damages resulting from Strawbridge LLC’s default. See G3-Purves Street, LLC v. Thomson Purves, LLC, 101 A.D.3d 37, 953 N.Y.S.2d 109, 113-14 (2012).

Next, we turn our attention to the prepayment premium itself. The Note specifies when the Loan becomes full recourse, Strawbridge LLC is liable for “repayment of all of the Indebtedness.” (Appellant’s App. p. 26). Indebtedness under the Note includes not only the outstanding principal, interest, late charges, default interest, and advances, but also the prepayment premium.

We conclude that the prepayment premium here constitutes a liquidated damages provision. Prepayment of a loan deprives the lender “of the interest it was to receive as consideration for making the loans.” McCae Mgmt. Corp. v. Merchants Nat. Bank and Trust Co. of Indianapolis, 553 N.E.2d 884, 888 (Ind.Ct.App.1990), trans. denied. Thus, prepayment premiums “insure[] the lender against loss of his bargain if interest rates decline.” Id. (quotation omitted). Paragraph 10(e) of the Note recites that prepayment by Strawbridge LLC subjects Fannie Mae to loss, whether its reinvestment loss or its ability to meet third party commitments in order for it to provide financing to Straw-bridge LLC. The provision also acknowledges that “it is extremely difficult and impractical to ascertain the extent of such damages.” (Appellant’s App. p. 28). Since Strawbridge LLC would have had to pay the prepayment premium whether voluntarily or involuntarily (ie., based upon its default), the prepayment premium is a forecast of Fannie Mae’s damages in the event of prepayment, rather than a penalty intended to secure Strawbridge LLC’s performance. Mindful that we may review the facts of the transaction when analyzing liquidated damages clauses, it is important that Strawbridge LLC and Weinreb’s refusal to deal with the mechanic’s hens, despite Fannie Mae’s insistence that they do so, constituted the default that permitted Fannie Mae to accelerate the Loan. See Gershin v. Demming, 685 N.E.2d 1125, 1128 (Ind.Ct.App.1997), trans. denied. Based on the foregoing, we conclude that the prepayment premium here constitutes a liquidated damages provision.

Weinreb makes essentially two arguments contesting the enforceability of the prepayment premium. First, he contests the proportion of the prepayment premium to the amount of outstanding principal since the prepayment premium represents 25% of the outstanding principal and is 25 times greater than the approximate amount of mechanic’s liens. A party seeking to enforce a liquidated damages provision must demonstrate some proportionality between the loss and the sum established as liquidated damages. Kruse, 973 N.E.2d at 593. However, as Fannie Mae argues, “the relevant question is not the size of the [prepayment premium] standing alone, but the relation between that amount and the projected loss at the time of contracting that matters.” (Appellee’s Br. p. 35). The prepayment premium is substantial because Straw-bridge LLC’s default occurred early on, some two years after disbursement of the Loan. If default had occurred later, the prepayment premium would have arguably been less given that the Yield Maintenance formula takes into account the amount of outstanding principal and remaining months for the Loan. Weinreb argues that Fannie Mae’s losses consist only of “the amount of damages allegedly incurred, [ie.], $72,287.12.” (Appellant’s Br. p. 18). However, Strawbridge LLC’s default deprived Fannie Mae of the interest it bargained to receive and forced it to unwind whatever third party lending commitments it undertook to provide the Loan to Straw-bridge LLC. Given that the Loan here was for approximately $6,000,000, payable over approximately ten years at a fixed annual interest rate of 6.37% for most of its term, we cannot conclude that the prepayment premium representing approximately 25% of the outstanding principal is grossly disproportionate to the losses suffered by Fannie Mae.

Nor do we accept Weinreb’s argument that because it is possible that Fannie Mae could have re-lent at a higher interest rate, a factual issue exists whether Fannie Mae actually lost money due to Strawbridge LLC’s default. All that is required is that the prepayment premium be reasonable and bear a relation to Fannie Mae’s loss. The Note expressly recites that it is and case law instructs that prepayment premiums designed to compensate the lender for losses occasioned by prepayment are enforceable. See McCae Mgmt. Corp., 553 N.E.2d at 888. Given Fannie Mae’s Loan with a fixed interest rate over a period of nine years, we conclude that the prepayment premium fairly compensates Fannie Mae for the interest lost. As a result, we conclude that the prepayment premium here is enforceable as a matter of law.

C. Unconscionable Agreement

Finally, Weinreb contends that the Guaranty and the Loan Documents are unenforceable because of unconscionability. Specifically, Weinreb argues that given the non-recourse carve out provisions, there is a genuine issue of material fact whether Fannie Mae used superior bargaining power to cause hardship to him.

A contract will be deemed unconscionable when a great disparity in bargaining power exists which leads the weaker party to sign a contract unwillingly or without being aware of its terms. Sequa Coatings Corp. v. N. Indiana Commuter Transp. Dist., 796 N.E.2d 1216, 1228 (Ind.Ct.App.2003), trans. denied. “The contract must be ‘such that no sensible man not under delusion, duress, or in distress would make, and such as no honest fair man would accept.’ ” Id. (citation omitted). However, even though there is a disparity in bargaining power between a lender and the guarantor, the contract is not unconscionable unless the disparity caused the guarantor to sign the guaranty unwillingly or caused the guarantor to be made unaware of its terms. See Vanek v. Indiana Nat’l Bank, 540 N.E.2d 81, 84 (Ind.Ct.App.1989), reh’g denied.

Here, the designated evidence indicates that Weinreb was not in a position of weakness or unequal bargaining power. Weinreb had a significant amount of business experience and Fannie Mae’s contractual right of full recourse is clearly spelled out in the Note and Weinreb’s personal liability is clearly defined in the Guaranty. Further, Weinreb was an absolute guarantor under the Guaranty, which contains an express waiver of notice of any default or other protection from indebtedness. We therefore conclude that Guaranty and the Loan Documents are not unconscionable. See Paul v. Home Bank SB, 953 N.E.2d 497, 504 (Ind.Ct.App.2011).

CONCLUSION

Based upon the foregoing, we conclude that claim preclusion and collateral estop-pel do not preclude Weinreb from challenging the trial court’s partial grant of summary judgment. Further, the trial court properly issued summary judgment to Fannie Mae regarding the Deficiency because 1) the Loan Documents are not ambiguous; 2) the non-recourse carve-outs and prepayment premium provisions of the Note are enforceable; and 3) the Guaranty and the Loan Documents are not unconscionable.

Affirmed.

KIRSCH, J„ and VAIDIK, J„ concur.

      . The trial court partially denied summary judgment to Fannie Mae regarding security deposits from the Apartment. The parties do not appeal this issue.


source: Caselaw Access Project

author: NAJAM, Judge.

license: Public Domain

text:
    Darla M. BRENTON, as Personal Representative of the Estate of Evelyn Norfleet, Deceased, Appellant, v. Leslie D. LUTZ, Appellee.
    No. 77A01-1302-ES-86.
    Court of Appeals of Indiana.
    July 30, 2013.

      Stephen L. Williams, Williams Law Firm, G. Stephen Fleschner, Fleschner Law Firm, Terre Haute, IN, Attorneys for Appellant.
    Mark D. Hassler, Hunt, Hassler & Lorenz LLP, Terre Haute, IN, Attorney for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Darla Brenton appeals the trial court’s order removing her as Special Administrator of the Estate of Evelyn Norfleet (“the Estate”). Brenton presents a single dis-positive issue for our review, namely, whether the trial court abused its discretion when it removed her as Special Administrator of the Estate.

We affirm.

FACTS AND PROCEDURAL HISTORY

On October 16, 2012, Norfleet, who was seventy-one years old, was struck and killed by a motor vehicle operated by Robert Foutch. Six days later, on October 22, Norfleet’s daughter, Brenton, filed a Petition to Appoint Administrator for the Sole Purpose of Collecting Damages for Wrongful Death. The trial court granted that petition the same day, and Brenton executed her Oath of Acceptance. Brenton did not inform the court that Norfleet had died testate. In her will, executed on November 17, 2010, Norfleet: nominated and appointed her son Leslie Lutz (“Lutz”) as Executor of her will; “empowered]” Lutz to settle, compromise, or pay “any claims” asserted in favor of Norfleet or her estate; designated a sole heir of her residual estate, namely, Chelcie Lutz (“Cheleie”), Lutz’s daughter; and declared that she made “no bequest to [her] four surviving ehildren[, Lutz, Brenton, Russell Lutz (“Russell”), and James Lutz (“James”),] not out of any lack of love or affection, but for reasons only known to me.” Appellant’s App. at 17-18.

On November 28, Lutz filed his Petition for Removal of Personal Representative and Her Attorney and for Appointment of Successor Personal Representative. In that petition, Lutz informed the court that Norfleet had died testate, and he attached as an exhibit to the petition a copy of Norfleet’s will. Brenton filed a response to Lutz’s petition and, following a hearing, the trial court granted Lutz’s petition and removed Brenton as Special Administrator. In its order, the trial court found in relevant part that Norfleet’s will named Lutz as Executor and expressly gave him the power to settle “any claims” asserted in favor of Norfleet or her estate. The trial court further found and ordered:

8. That the parties herein never disputed that the Last Will and Testament of Evelyn Jean Norfleet was validly executed.
9. That on October 22, 2012, Darla M. Brenton, As Personal Representative of the Estate of Evelyn Norfleet, filed a civil lawsuit entitled “Darla M. Brenton, as Personal Representative of the Estate of Norfleet v. Robert J. Foutch ” under Cause No. 77C01-1210-CT-00645 and that the law firm of Fleschner, Stark, Tanoos and Newlin paid the sum of $139.00 to file the civil lawsuit.
The Court, after hearing arguments and having reviewed the above-referenced evidence, now GRANTS the Petition for Removal.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court as follows:
1. That Evelyn Jean Norfleet died testate.
2. That the Last Will and Testament of Evelyn Jean Norfleet was properly executed and is therefore admitted to probate.
3. That Item 5 of the Last Will and Testament of Evelyn Jean Norfleet states who the Personal Representative will be and that they [sic] have the power to settle, compromise or pay any claims, including taxes, asserted in favor of [Norfleet] or against [Norfleet] or [her] estate.
4. That Darla M. Brenton is removed as Special Administrator and that G. Steven Fleschner, the law firm of Fles-chner, Stark, Tanoos & Newlin and Stephen L. Williams, and the Williams Law Firm are all hereby removed as attorneys for the Estate of Evelyn Jean Nor-fleet.
5. That Mark D. Hassler is authorized to file his Appearance in Cause No. 77 C01-1201-CT-000645.
6. That the law firm of Fleschner, Stark, Tanoos and Newlin are entitled to be reimbursed for the filing fee in [the wrongful death action]....
7. That the Estate of Evelyn Jean Norfleet shall be administered as a supervised estate.
8. That upon Leslie D. Lutz taking an oath the Clerk of this Court is directed to issue Letters Testamentary to Leslie D. Lutz, as Successor Personal Representative.

Id. at 6-7. This appeal ensued.

DISCUSSION AND DECISION

Brenton contends that the trial court abused its discretion when it removed her as Special Administrator of Norfleet’s estate for the purpose of bringing the wrongful death action. In particular, Brenton maintains that the trial court did not comply with Indiana Code Section 29-1-10-6, which governs the removal of personal representatives. But Lutz contends that Brenton was not qualified to serve as Special Administrator in the first instance and the trial court properly exercised its discretion when it removed Brenton. We agree with Lutz.

Indiana Code Section 29-1-10-15 provides in relevant part:

A special administrator may be appointed by the court if:
(a) from any cause delay is necessarily occasioned in granting letters, or
(b) before the expiration of the time allowed by law for issuing letters, any competent person shall file his affidavit with the clerk that anyone is intermed-dling with the estate or that there is no one having authority to take care of the same, or
(c) if any person shall have died testate and objections to the probate of his will shall have been filed as provided by law. The appointment of a special administrator may be for a specified time to perform duties respecting specific property, or to perform particular acts as shall be stated in the order of appointment. The fact that a person has been designated as executor in a decedent’s will shall not disqualify him from being appointed special administrator of such decedent’s estate or any portion thereof.

In her Petition to Appoint Administrator for Sole Purpose of Collecting Damages for Wrongful Death, Brenton did not cite to Indiana Code Section 29-1-10-15, nor did she allege facts that would qualify her to serve as special administrator under any of the subsections of the statute.

At the hearing on his Petition for Removal of Brenton as Special Administrator, Lutz argued that Brenton had not shown that appointment of a special administrator was appropriate under the statute. In response, Brenton argued that, because the damages in a wrongful death action inure to the benefit of the four children, they should get to decide who serves as personal representative for the wrongful death estate. And Brenton presented evidence that three of the four children had chosen Brenton to serve in that capacity. Brenton also asserted that nothing in Nor-fleet’s will dictates who should serve as personal representative for purposes of bringing a wrongful death action.

But Brenton’s primary argument to the trial court was that the court had no basis to remove her as special administrator under Indiana Code Section 29-1-10-6, which provides in relevant part:

(b) When the personal representative becomes incapacitated (unless the incapacity is caused only by a physical illness, infirmity, or impairment), disqualified, unsuitable or incapable of discharging the representative’s duties, has mismanaged the estate, failed to perform any duty imposed by law or by any lawful order of the court, or has ceased to be domiciled in Indiana, the court may remove the representative in accordance with either of the following:
(1) The court on its own motion may, or on petition of any person interested in the estate shall, order the representative to appear and show cause why the representative should not be removed. The order shall set forth in substance the alleged grounds upon which such removal is based, the time and place of the hearing, and may be served upon the personal representative in the same manner as a notice is served under this article.
(2) The court may without motion, petition or application, for any such cause, in cases of emergency, remove such personal representative instantly without notice or citation.

And, on appeal, Brenton maintains that, because the trial court does not reference Indiana Code Section 29-1-10-6 in its order removing her as special administrator, the court’s order is invalid. In support of that contention, Brenton cites In re Estate of Sandefur, 685 N.E.2d 719 (Ind.Ct.App.1997), where this court held that the trial court had erroneously removed the appellant as special administrator for the purpose of bringing a wrongful death action. In Sandefur, we stated that, “[o]nce a valid appointment of a special administrator has been made, removal of that administrator must follow the statutory provisions for removal.” Id. at 724. We observed that the trial court’s appointment of the special administrator was proper under Indiana Code Section 29-1-10-15. Id. at 728. But we held that there was “no proper basis” for her removal under Indiana Code Section 29-1-10-6 and reversed on that ground. Id. at 724.

We find this case distinguishable from Sandefur for two reasons. First, here, Norfleet died testate, unlike the decedent in Sandefur. Second, and moreover, the trial court’s appointment of Brenton as special administrator has not been shown to have been proper under Indiana Code Section 29-1-10-15. Without a valid appointment of a special administrator, there is no reason to seek removal under Indiana Code Section 29-1-10-6.

Lutz’s petition to remove Brenton was tantamount to a motion to reconsider under Indiana Trial Rule 58.4, which authorizes a court to reconsider its previous rulings. In construing Rule 53.4, this court has held that “a trial court has the inherent power to reconsider any of its previous rulings so long as the action remains in fieri.” Stephens v. Irvin, 734 N.E.2d 1133, 1135 (Ind.Ct.App.2000), trans. denied. An action is “in fieri ” if it is “pending resolution” and remains on the court’s docket. See Pond v. Pond, 700 N.E.2d 1130, 1135 (Ind.1998).

Here, the trial court had the inherent power to reconsider its appointment of Brenton as special administrator. Indeed, a trial court has “complete discretion” in the appointment of special administrators. In re Estate of Hutman, 705 N.E.2d 1060, 1063 (Ind.Ct.App.1999) (quoting Sandefur, 685 N.E.2d at 723). The trial court’s findings show that it considered the fact that Norfleet died testate to be important, and Brenton had failed to provide that information to the trial court in her petition. The trial court clearly found relevant the fact that Norfleet had named Lutz as executor and gave him the power to settle or compromise “all claims” asserted in favor of her or her estate. Appellant’s App. 6. Further, the trial court found, with reference to Indiana Code Section 29-l-10-15(c) by implication, that “the parties herein never disputed that the Last Will and Testament of Evelyn Jean Norfleet was validly executed.” Id. Thus, the trial court concluded that Brenton should be removed as special administrator. We hold that the trial court did not abuse its broad discretion when it so ruled.

Further, we address Brenton’s contention that, “[u]nder the Wrongful Death Act, the Wrongful Death beneficiaries, not the decedent, determine the Personal Representative of the Wrongful Death Estate.” Brief of Appellant at 22. In support of that contention, Brenton cites Indiana Code Section 34-23-l-2(d), which provides: “Damages awarded under subsection (c)(3)(A) for medical, hospital, funeral, and burial expenses inure to the exclusive benefit of the adult person’s estate for the payment of the expenses. The remainder of the damages inure to the exclusive benefit of a nondependent parent or nonde-pendent child of the adult person.” Brenton maintains that, because she and her siblings are the beneficiaries of the remainder of the damages, it follows that they “may nominate and select the Personal Representative of the Wrongful Death Estate.” Brief of Appellant at 22. We do not agree with Brenton’s reasoning on this point, and we reject her contention. Again, it is well settled that the trial court has broad discretion in choosing a special administrator for the purpose of bringing a claim under the Wrongful Death Act, and the special administrator must be appointed pursuant to Indiana Code Section 29-1-10-15.

Finally, Brenton contends that “Lutz is not the preferred personal representative of the wrongful death estate solely because he was named as Executor in the Last Will and Testament.” Brief of Appellant at 31 (emphasis added). Brenton is correct that Indiana Code Section 29-l-10-l(a)(l), which governs the preference of persons entitled to domiciliary letters testamentary, “by its clear language ... applies to the appointment of general administrators and, therefore, not to the appointment of special administrators.” See Sandefur, 685 N.E.2d at 723. But while Lutz erroneously based his initial petition for Brenton’s removal on that statute, his primary argument in his reply brief, filed after the hearing, focused on Brenton’s failure to comply with Indiana Code Section 29-1-10-15 when she first sought appointment as special administrator. And the trial court makes no mention of Indiana Code Section 29-1-10-1 in its order removing Brenton as special administrator. Because we hold that Brenton was not qualified to serve as special administrator under Indiana Code Section 29-1-10-15, Brenton has not shown any error to the extent the trial court may have considered Indiana Code Section 29-1-10-1 in ruling on Lutz’s petition.

Affirmed.

BAILEY, J., and BARNES, J., concur.

      . To be clear, the trial court was not required to appoint Lutz as special administrator for purposes of bringing the wrongful death claim merely because Norfleet had named him executor of her will, but the court was entitled to know that a will existed and to consider the terms of that will in exercising its discretion on this issue.


author: VAIDIK, Judge. BAKER, Judge,

text:
    Richard DILLON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 27A05-1210-CR-542.
    Court of Appeals of Indiana.
    Aug. 14, 2013.

      Craig Persinger, Marion, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

The State charged Richard Dillon with operating while intoxicated as a Class D felony based on a prior conviction within five years. Dillon moved to dismiss the felony enhancement because when he allegedly committed the instant OWI, he did not have a prior OWI within five years because the State had inadvertently dismissed it. The trial court denied Dillon’s motion to dismiss, reasoning that the trial court had reinstated Dillon’s prior OWI conviction with a nunc pro tunc entry. We find that because the trial court made the nunc pro tunc entry reinstating Dillon’s prior OWI conviction after he allegedly committed the OWI in this case, he in fact did not have a prior OWI within five years when he allegedly committed the OWI in this case. The trial court should have granted Dillon’s motion to dismiss the felony enhancement. We therefore reverse.

Facts and Procedural History

In February 2009, the State charged Dillon with, among other things, Count 1 Class A misdemeanor operating while intoxicated and Count 2 Class A misdemean- or possession of marijuana in Cause No. 14D01-0902-CM-109 (“Cause No. 109”) in Daviess Superior Court. In August 2009, Dillon pleaded guilty to both counts. The trial court entered judgment of conviction and sentence for Count 1. The court, however, withheld judgment of conviction and sentence for Count 2 pursuant to Indiana Code section 35-48-4-12, which allows a trial court to defer proceedings for possession of marijuana provided that the defendant satisfies certain conditions.

On February 1, 2011, the State filed a “Motion to Dismiss Count 1 Only.” Appellant’s App. p. 35. As it was later discovered, however, the State meant to dismiss Count 2, because Count 2 was the only count eligible for dismissal pursuant to Section 35-48-4-12. In any event, the State alleged in the motion to dismiss that Dillon had “complied with all the terms and conditions of I.C. 35^48-4-12 and ha[d] successfully completed the court custody program and paid all fees and costs associated therewith.” Id. The court granted the motion to dismiss Count 1 that same day, finding that Dillon had “complied with all the terms and conditions of I.C. 35-48-4-12.” Id. at 36.

A little over a year later, on April 13, 2012, the State charged Dillon in this case with operating while intoxicated as a Class D felony based on a prior conviction within five years in Cause No. 27D03-1204-FD-215 (“Cause No. 215”) in Grant Superior Court. Id. at 14. The prior conviction alleged was Dillon’s August 2009 OWI conviction in Cause No. 109. Id. at 15.

Six days later, on April 19, the State filed in Cause No. 109 a “Motion to Reinstate Count 1 and the Conviction Thereon.” Id. at 39. The State argued that Count 1 was “inadvertently dismissed by the State of Indiana on February 1, 2011. It was the intention of the State of Indiana to actually dismiss Count 2 following the Defendant’s completion of the court custody program.” Id. The trial court granted the motion and reinstated Dillon’s conviction for Count 1 that same day. Id. at 40. The State also filed a motion to dismiss Count 2, which the court granted. Id. at 38.

In August 2012, Dillon filed a motion to dismiss the felony enhancement. He argued that although the “logical conclusion” was that the State had intended to dismiss Count 2 when it “inadvertently” moved to dismiss Count 1, “[t]he law in Indiana is clear that an enhanced charge of OWI With a Prior as a D felony cannot stand where the predicate offense has been vacated.” Id. at 26 (citing State v. Messenger, 650 N.E.2d 702 (Ind.Ct.App.1995)). According to Dillon, the fact that the State dismissed the predicate offense by mistake should not matter; what matters is that when he committed the instant OWI, he did not have a prior OWI within five years, which is what the statute requires. Therefore, the felony enhancement should be dismissed. The trial court, however, denied Dillon’s motion to dismiss the felony enhancement. The court explained that it was

obvious that the February 1, 2011, motion and order contained] a scrivener’s error by improperly referencing Count 1, when Count 2 was the correct charge and the only charge to which Ind.Code § 35-48-4-12 applie[d].... A scrivener’s error, even one that is repeated in two documents, cannot serve as a basis to dismiss the felony enhancement in this case.

Id. at 56.

This discretionary interlocutory appeal pursuant to Indiana Appellate Rule 14(B) now ensues.

Discussion and Decision

Dillon appeals the trial court’s denial of his motion to dismiss the enhancement to his operating while intoxicated charge. Specifically, Dillon argues that the Class D felony enhancement should be dismissed because when he allegedly committed the 2012 OWI offense, his 2009 OWI conviction had been dismissed, albeit inadvertently. This presents a question of law that we review de novo.

Indiana Code section 9-30-5-3(a) provides that a person commits OWI as a Class D felony if the person has a previous OWI conviction that occurred within five years of the current violation. It is undisputed that in 2009 Dillon pleaded guilty to Class A misdemeanor OWI in Cause No. 109 and that this occurred within five years of his alleged violation in this case, Cause No. 215. And all parties agree that on February 1, 2011, the State inadvertently dismissed Dillon’s OWI conviction instead of the possession of marijuana count in Cause No. 109. See Appellant’s Br. p. 5 (“DILLON does not challenge the trial court’s conclusion that the Daviess County Prosecutor’s action in dismissing the OWI count instead of the Possession of Marijuana count was ... due to an oversight, and that their intention was to dismiss the Marijuana charge pursuant to DILLON’s conditional discharge on that count.”). The State argues, however, that the inadvertent dismissal of Dillon’s OWI conviction in Cause No. 109 was properly reinstated by the trial court’s April 19, 2012, nunc pro nunc entry and, therefore, his “[Cause No.] 109 OWI conviction was effective at the date of [Dillon’s April 7, 2012,] OWI offense [in this case, Cause No. 215].” Appellee’s Br. p. 6.

A nunc pro tunc order is an entry made now of something which was actually previously done, to have effect as of the former date. Cotton v. State, 658 N.E.2d 898, 900 (Ind.1995). Such an entry may be used to either record an act or event not recorded in the court’s order book or to change or supplement an entry already recorded in the order book. Id. The purpose of a nunc pro tunc order is (1) to correct an omission that actually occurred but was omitted because of inadvertence or mistake and (2) to make the record correspond to what actually happened and to speak the truth of the events that occurred on a particular day. Id.; Miller v. Muir, 115 Ind.App. 335, 56 N.E.2d 496, 504 (1944). To correct an error by a nunc pro tunc order, the trial court’s record must show that the unrecorded act or event actually occurred. Cotton, 658 N.E.2d at 900. A written memorial must form the basis for establishing the error or omission. Id. That is, a nunc pro tunc entry cannot be used to show that an event happened which did not actually occur. Id. at 901.

Dillon does not really dispute the Da-viess Superior Court’s authority to make a nunc pro tunc entry to reinstate his 2009 OWI conviction in Cause No. 109 based on the inadvertent dismissal of Count 1 instead of Count 2; instead, what Dillon disputes is the timing of the nunc pro tunc entry in relation to his alleged commission of the offense in this case. See Appellant’s Reply Br. p. 2 (“The fact is that the Da-viess [C]ounty OWI offense had been vacated at the time DILLON allegedly committed the new OWI offense in Grant County. As a matter of law, therefore, the enhancement should be barred.”). Dillon’s OWI conviction in Cause No. 109 was reinstated after he allegedly committed the OWI in this case. This means that when Dillon allegedly committed the OWI in this case, he did not have a prior conviction within five years because the nunc pro tunc entry had not yet been made in Cause No. 109. Had the State moved to reinstate Dillon’s inadvertently dismissed OWI in Cause No. 109 before he allegedly committed the OWI in this case, then the OWI in this case would be subject to the Class D felony enhancement pursuant to Indiana Code section 9-30-5-3. But that is not what happened. The nunc pro tunc entry therefore could not have been effective when Dillon was arrested and charged in this case for OWI, because no action had been taken yet to reinstate that conviction. Because Dillon did not have a prior OWI within five years when he allegedly committed the instant OWI, the trial court erred in denying his motion to dismiss the felony enhancement. We therefore reverse the trial court.

Reversed.

FRIEDLANDER, J., concurs.

BAKER, J., dissents with separate opinion.

BAKER, Judge,

dissenting.

I respectfully part ways from the majority inasmuch as the trial court lacked the authority to dismiss Count 1. Indiana Code section 35-48-4-12 provides that if a person with no prior conviction

relating to controlled substances pleads guilty to possession of marijuana ... as a Class A misdemeanor, the court, without entering judgment of conviction and with consent of the person may defer further proceedings and place the person in the custody of the court under such conditions as the court determines.

(Emphases added).

A judgment of conviction had already been entered on Count 1. Additionally, as acknowledged but quickly dismissed in a footnote by the majority, Section 35^48 — 4— 12 only applied to the marijuana offense. Thus, the trial court’s order dismissing Count 1 was void. See In re Guardianship of A.J.A., 991 N.E.2d 110, 115 (Ind.2013) (stating that if the General Assembly did not intend for the trial court to have the authority, the court’s action “was void ab initio and without legal effect”). Moreover, even assuming the trial court’s order dismissing Count 1 was not void, we cannot permit criminal defendants to reap the benefits of simple scriveners’ errors.

      . Indiana Code section 35-48-4-12 provides: If a person who has no prior conviction of an offense under this article or under a law of another jurisdiction relating to controlled substances pleads guilty to possession of marijuana, hashish, salvia, or a synthetic drug or synthetic drug lookalike substance as a Class A misdemeanor, the court, without entering a judgment of conviction and with the consent of the person, may defer further proceedings and place the person in the custody of the court under such conditions as the court determines. Upon violation of a condition of the custody, the court may enter a judgment of conviction. However, if the person fulfills the conditions of the custody, the court shall dismiss the charges against the person. There may be only one (1) dismissal under this section with respect to a person.

      . According to the probable-cause affidavit, the offense occurred on April 7, 2012.

      . The State makes an additional argument. It argues that the Daviess Superior Court's February 1, 2011, order dismissing Count 1 was void because the court lacked authority to act because Section 35-48-4-12 applied only to the marijuana offense yet the court dismissed the OWI conviction. This argument is without merit. The trial court's order was in response to the State's request to dismiss Count 1, die OWI conviction. This case is therefore inapposite to Beanblossom v. State, 637 N.E.2d 1345 (Ind.Ct.App.1994), which the State relies on. In Beanblossom, the defendant petitioned for a sentence modification, which the trial court granted. The State then filed a motion to correct errors, claiming that the trial court was without jurisdiction to modify the sentence because the approval of the prosecuting attorney was required because more than 365 days had elapsed. The trial court rescinded its order and entered a new order, this time with the approval of the prosecuting attorney. On appeal, this Court held that after final judgment, a court retains only such continuing jurisdiction as is permitted by the judgment or as is given the court by statute or rule. Id. at 1347.


author: BRADFORD, Judge.

text:
    In the Matter of the COMMITMENT OF T.K. T.K., Appellant-Respondent, v. Department of Veterans Affairs, Appellee-Petitioner.
    No. 49A05-1303-MH-100.
    Court of Appeals of Indiana.
    Aug. 21, 2013.

      Valerie K. Boots, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.
    Tami R. Nantz, Staff Attorney, Office of Regional Counsel, U.S. Department of Veterans Affairs, Indianapolis, IN, Attorney for Appellee.
   OPINION

BRADFORD, Judge.

An application for the emergency detention of Appellant-Respondent T.K. was filed on February 8, 2013. The application alleged that T.K. was a mentally ill and dangerous person. That same day, the trial court issued an order granting the application. T.K. was admitted to the Richard L. Roudebush VA Medical Center (“the VA Medical Center”) on or about February 11, 2013. Following a February 19, 2013 evidentiary hearing, the trial court issued an order of regular commitment, finding that T.K. was suffering from mental illness and was dangerous to others. On appeal, T.K. challenges the sufficiency of the evidence to sustain the trial court’s order. We affirm.

FACTS AND PROCEDURAL HISTORY

During the week leading up to February 8, 2013, T.K. made over twenty-five threatening phone calls to Adult and Child Inc. (“Adult and Child”). In these threatening phone calls, T.K. threatened to “cut off the genitals of staff’ and made threats to the director of the facility. Because of the large number and threatening nature of the calls, on February 8, 2013, Adult and Child filed an application for the emergency detention of T.K. The application indicated that staff at the facility noted that they found T.K. to be hostile, actively psychotic, delusional, and in need of immediate help. The trial court granted the application; issued a warrant for T.K.’s arrest; and issued an order allowing for T.K. to be detained, examined, and treated at the VA Medical Center.

T.K. was detained about three days later and admitted to the VA Medical Center. While at the VA Medical Center, T.K. was treated by Dr. Corey Trobaugh. During the course of his treatment, T.K. threatened Dr. Trobaugh by telling Dr. Tro-baugh that he could hurt him and take his money and clothes. T.K. also asked Dr. Trobaugh if he had children, and, when Dr. Trobaugh did not respond, T.K. told Dr. Trobaugh “well I can take them.” Tr. p. 14. T.K. later told Dr. Trobaugh that he could “strap [Dr. Trobaugh] into a chair and taser [him].” Tr. p. 14. Dr. Tro-baugh felt threatened by T.K’s words and menacing demeanor.

T.K. also threatened the staff at the VA Medical Center, who considered T.K’s behavior “as being largely hostile, aggressive, and threatening in nature.” Tr. p. 14. T.K. threatened to make the VA “pay” if he were committed, stating that he would “have [a] behavioral outburst that would cost the VA millions of dollars.” Tr. pp. 14,15.

After meeting with T.K. on two separate occasions and reviewing T.K’s medical history, which included a documented history of mental illness and prior mental illness-related commitments, Dr. Trobaugh diagnosed T.K. with chronic paranoid schizophrenia. In making this diagnosis, Dr. Trobaugh noted that T.K. exhibited disorganized speech, delusions of persecution, and grandiosity as well as paranoia. Dr. Trobaugh noted that T.K. did not show any insight into his mental illness, denied that he suffered from mental illness, and refused medication.

The trial court conducted an evidentiary hearing on February 19, 2013, for the purpose of determining whether a continued commitment of T.K. to the VA Medical Center was warranted. During the evi-dentiary hearing, Dr. Trobaugh acknowledged that T.K. had yet to act on any of the threats levied against anyone at Adult and Child or the VA Medical Center. For his part, T.K. attempted to diminish the serious nature of his threats against Dr. Trobaugh by construing the threats as a “miscommunication.” Tr. p. 17. Dr. Tro-baugh testified that he believed that T.K. posed a danger to others and indicated that he believed that a regular commitment was necessary to ensure that T.K. received the necessary treatment and care. Upon the conclusion of the presentation of the evidence, the trial court determined that without treatment, T.K. was a danger to others. The trial court issued an order of regular commitment, which involuntarily committed T.K. to the care of the VA Medical Center for a term of at least ninety days. This appeal follows.

DISCUSSION AND DECISION

I. The Question of Mootness

T.K. concedes that he has been discharged from his involuntary commitment at the VA Medical Center for some time now. Therefore, this court cannot render effective relief to him. See In re Commitment of J.B., 766 N.E.2d 795, 798 (Ind.Ct.App.2002). “When a court is unable to render effective relief to a party, the case is deemed moot and usually dismissed.” Id. (citing In re Lawrance, 579 N.E.2d 32, 37 (Ind.1991)). However, although moot cases are usually dismissed, Indiana courts have long recognized that a case may be decided on its merits under an exception to the general rule when the case involves questions of “great public interest.” Id. (citing In re Lawrance, 579 N.E.2d at 37). Typically, cases falling in the “great public interest” exception contain issues that are likely to recur. Id.

“The question of how persons subject to involuntary commitment are treated by our trial courts is one of great importance to society.” Id. “Indiana statutory and case law affirm that the value and dignity of the individual facing commitment or treatment is of great societal concern.” Id. (citing In re Mental Commitment of M.P., 510 N.E.2d 645, 646 (Ind.1987) (noting that the statute granting a patient the right to refuse treatment “profoundly affirms the value and dignity of the individual and the commitment of this society to insuring humane treatment of those we confine”)). The instant case involves the proof necessary for involuntary commitment. Because this is an issue of great public importance that is likely to recur, we will address it here. See generally Commitment of S.T. v. Cmty. Hosp. N., 930 N.E.2d 684, 687 (Ind.Ct.App.2010); Commitment of M.M. v. Clarian Health Partners, 826 N.E.2d 90, 94 n. 3 (Ind.Ct.App.2005), trans. denied; In re Commitment of J.B., 766 N.E.2d at 799.

II. Sufficiency of the Evidence

T.K. contends that the evidence is insufficient to prove that an involuntary commitment at the VA Medical Center was warranted. Upon review, “we consider three factors to determine whether the totality of the circumstances support an involuntary commitment: the gravity of the behavior leading to hospital admission, behavior in the hospital, and the relationship between problematic behaviors and the person’s mental illness.” Commitment of S.T., 930 N.E.2d at 690. In the instant matter, T.K. specifically argues that the evidence is insufficient to sustain the trial court’s determination that he was dangerous. T.K. also argues that the evidence is insufficient to sustain the trial court’s determination that a regular commitment order reflected the least restrictive environment suitable for his treatment.

A. Standard of Review

Proceedings for involuntary commitment are subject to federal due process requirements. For the ordinary citizen, commitment to a mental hospital produces “a massive curtailment of liberty” and thus “requires due process protection.” Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979); see also C.J. v. Health and Hosp. Corp. of Marion County, 842 N.E.2d 407 (Ind.Ct.App.2006). The loss of liberty produced by an involuntary commitment is more than a loss of freedom resulting from the confinement. Commitment to a mental hospital “can engender adverse social consequences to the individual; ... [wjhether we label this phenomena stigma or choose to call it something else ... we recognize that it can occur and that it can have a very significant impact on the individual.” Addington, 441 U.S. at 425, 99 S.Ct. 1804.

Commitment ofS.T., 930 N.E.2d at 687.

Our court has previously recognized that the extraordinary curtailment of liberty involved with a commitment to a mental hospital. See Commitment of M.M., 826 N.E.2d at 97 (citing Commitment of Gerke, 696 N.E.2d 416 (Ind.Ct.App.1998)). “Because everyone exhibits some abnormal conduct at one time or another, loss of liberty calls for a showing that the individual suffers from something more serious than is demonstrated by idiosyncratic behavior.” Id.‘There is no constitutional basis for confining a mentally ill person who is not dangerous and can live safely in freedom.’ ” Id. (quoting Commitment of J.B. v. Midtown Mental Health Center, 581 N.E.2d 448, 451 (Ind.Ct.App.1991), trans. denied).

When reviewing a challenge to sufficiency of the evidence with respect to commitment proceedings, we look to the evidence most favorable to the trial court’s decision and draw all reasonable inferences from that decision. In re the Commitment of G.M., 748 N.E.2d 1148, 1150-51 (Ind.Ct.App.2001). Moreover, if the trial court’s commitment order represents a conclusion that a reasonable person could have drawn, we will affirm the order even if other reasonable conclusions are possible. Id.
When we review the evidence supporting such a judgment, we may neither reweigh the evidence nor judge the credibility of the witnessés. In re Mental Commitment of W.W., 592 N.E.2d 1264, 1266 (Ind.Ct.App.1992). Where the evidence is in conflict, we are bound to view only that evidence that is most favorable to the trial court’s judgment. Id.
In commitment proceedings, the burden falls on petitioner to prove by clear and convincing evidence that: “(1) the individual is mentally ill and either dangerous or gravely disabled; and (2) detention or commitment of that individual is appropriate.” Ind.Code § 12-26-2-5(e).

Golub v. Giles, 814 N.E.2d 1034,1088 (Ind.Ct.App.2004), trans. denied.

B. Whether the Evidence is Sufficient to Sustain the Trial Court’s Determination that T.K. Was Dangerous

T.K. argues that the evidence presented during the evidentiary hearing is insufficient to sustain the trial court’s finding that he was dangerous at the time of the commitment hearing. T.K. acknowledges that the evidence indicates that he made “rather colorful verbal threats.” Appellant’s Br. p. 8. T.K. asserts, however, that there was no evidence that T.K. “has ever followed through with any assaultive, violent or dangerous behavior.” Appellant’s Br. p. 8. As such, T.K. argues that this type of behavior does not suggest any risk, let alone a substantial risk, that he would harm himself or others.

“Dangerousness” for our purposes is defined as “a condition in which an individual as a result of mental illness, presents a substantial risk that the individual will harm the individual or others.” I.C. § 12-7-2-53 (West 2001). “Dangerousness must be shown by clear and convincing evidence indicating that the behavior used as an index of a person’s dangerousness would not occur but for the person’s mental illness.” Commitment of C.A. v. Center for Mental Health, 776 N.E.2d 1216, 1218 (Ind.Ct.App.2002).

Commitment of M.M., 826 N.E.2d at 97. “The determination of dangerousness under the involuntary commitment statute has always been a question of fact for the trial court to decide.” Commitment of S.T., 930 N.E.2d at 689. Moreover, a trial court is not required to wait until an individual commits a physical act before determining that the individual poses a substantial risk of harm to others. M.Z. v. Clarian Health Partners, 829 N.E.2d 634, 638 (Ind.Ct.App.2005) (citing Matter of Commitment of Gerke, 696 N.E.2d at 421), trans. denied.

In the instant matter, the evidence demonstrates that in the week leading up to February 8, 2013, when Adult and Child filed its application for the emergency detention of T.K., T.K. made over twenty-five threatening phone calls to Adult and Child. In these threatening phone calls, T.K. threatened to “cut off the genitals of staff’ and made threats to the director of the facility. Staff at the facility indicated that they found T.K. to be hostile, actively psychotic, delusional, and in need of immediate help.

With respect to his interactions with T.K. following his admission to the VA Medical Center, Dr. Trobaugh testified that T.K. threatened him. Specifically, Dr. Trobaugh stated that

[T.K.] informed me that he could hurt me, that he could take my money, that he could take my clothes. He asked me if I had children, which I did not respond. He said, well I can take them. He later told me that he can strap me into a chair and taser me.

Tr. p. 14. Dr. Trobaugh testified that he felt threatened by T.K.’s words and menacing demeanor. For his part, T.K. attempted to diminish the serious nature of these threats and construe the threats against Dr. Trobaugh as a “miscommunication.” Tr. p. 17.

Dr. Trobaugh further testified that T.K’s behavior had been interpreted by the staff at the VA Medical Center “as being largely hostile, aggressive, and threatening in nature.” Tr. p. 14. T.K. also threatened to make the VA “pay” if he were committed, stating that he would “have [a] behavioral outburst that would cost the VA millions of dollars”. Tr. pp. 14, 15. Dr. Trobaugh did acknowledge that T.K. had yet to follow through on any of the threats levied against anyone at Adult and Child or the VA Medical Center.

In addition, Dr. Trobaugh diagnosed T.K. with chronic paranoid schizophrenia. T.K. exhibited disorganized speech, delusions of persecution, and grandiosity as well as paranoia. Dr. Trobaugh stated that he had reviewed T.K.’s medical records, which indicated that T.K. had been treated for mental illness in the past and had previously been subject to commitment for treatment for his mental illness. T.K. did not show any insight into his mental illness, denied that he suffered from mental illness, and refused medication. Dr. Trobaugh testified that he believed that T.K. posed a danger to others and indicated that he believed that a regular commitment was necessary to ensure that T.K. receives the necessary treatment and care. Upon review, we conclude that T.K.’s numerous threats to the therapists and staff at Adult and Child, T.K’s continued threats to Dr. Trobaugh and the staff at the VA Medical Center, T.K’s diagnosis as suffering from chronic paranoid schizophrenia, T.K’s medical history that indicates that T.K. has suffered from mental illness for some time, as well as his denial that he suffers from mental illness and refusal to take recommended medication support the trial court’s determination that, without treatment, T.K. was a danger to others.

Further, despite T.K’s claim to the contrary, relevant Indiana precedent indicates that the trial court did not have to wait until T.K. acted on any of the threats levied against the staff at Adult and Child, Dr. Trobaugh, or the staff at the VA Medical Center before finding him to be dangerous. See M.Z., 829 N.E.2d at 638; see generally also Commitment of S.T., 930 N.E.2d at 691-92 (providing that evidence demonstrating that S.T. displayed extreme anger; made, but did not carry out, threats; had to be secluded from other patients due to destructive verbal behavior; and admitted to irritability, mood swings, racing thoughts, poor anger management, erratic sleep, and increased risk-taking behaviors was sufficient to sustain the trial court’s determination that S.T. was “dangerous”); Jones v. State, 477 N.E.2d 353, 360 (Ind.Ct.App.1985) (providing that the evidence demonstrating that Jones exhibited character disorders of possibly sociopathic dimensions and was verbally assaultive and physically threatening to a degree she was sequestered from other patients was sufficient to sustain the trial court’s determination that Jones was “dangerous”).

Furthermore, to the extent that T.K. bases his claim regarding the sufficiency of the evidence upon this court’s opinion in In re Commitment of Steinberg, 821 N.E.2d 385 (Ind.Ct.App.2004), we find Steinberg to be distinguishable from the instant matter. In Steinberg, the trial court relied upon the testimony of Steinberg’s mother that she was concerned that he would “mentally just [go] away” on his trips to Blooming-ton, despite the fact that no evidence was presented that this had indeed happened or was likely to happen. 821 N.E.2d at 388 (brackets in original). This court reversed the trial court’s determination that Steinberg was dangerous, concluding that the trial court’s determination was “purely speculative” and that the trial court should not have considered Steinberg’s mother’s unfounded concern that Steinberg might “mentally just go away” as proof of dangerousness. Id.

However, unlike in Steinberg, the above-stated evidence demonstrates that the trial court’s determination that T.K. was dangerous was not based to mere speculation. The trial court’s determination was based on actual threats levied by T.K. against the staff at Adult and Child, Dr. Trobaugh, and the staff at the VA Medical Center. T.K’s claim effectively amounts to an invitation to reweigh the evidence, which we will not do. See Golub, 814 N.E.2d at 1038.

C. Whether the Evidence is Sufficient to Sustain the Trial Court’s Determination that a Regular Commitment Was the Least Restrictive Environment Suitable for T.K.’s Treatment

T.K. also argues that the evidence presented during the evidentiary hearing is insufficient to sustain the trial court’s finding that a regular commitment which placed T.K. in the care of the VA Medical Center for a period of at least ninety days was the least restrictive environment suitable for his treatment.

In general, there are three types of commitments. An emergency detention limits the detention of an individual to seventy-two hours. Ind.Code §§ 12-26-5-1 to -12. A temporary commitment may be authorized for up to ninety days. Ind.Code §§ 12-26-6-1 to -11. “A regular commitment is the most restrictive form of involuntary treatment and is proper for an individual whose commitment is expected to exceed ninety days.” In re Commitment of R.L., 666 N.E.2d 929, 930 n. 3 (Ind.Ct.App.1996); Ind. Code §§ 12-26-7-1 to -5.

J.S. v. Ctr. for Behavioral Health, 846 N.E.2d 1106, 1111 (Ind.Ct.App.2006).

“If an individual has previously been the subject of a commitment proceeding, the court may order a regular commitment if a longer period of treatment is warranted.” Ind.Code § 12-26-5-ll(d). Indiana Code section 12-26-7-4 provides that a trial court shall conduct an evidentiary hearing upon receiving a report that recommends treatment in a facility for more than ninety days.

If at the completion of the hearing and the consideration of the record an individual is found to be mentally ill and either dangerous or gravely disabled, the court may enter either of the following orders:
(1) For the individual’s custody, care, or treatment, or continued custody, care, or treatment in an appropriate facility.
(2) For the individual to enter an outpatient therapy program....

Ind.Code § 12-26-7-5.

During the evidentiary hearing, Dr. Trobaugh requested the trial court to order a regular commitment. In making this request, Dr. Trobaugh testified that he believed a regular commitment was necessary because T.K. had been subject to numerous prior mental health commitments, his condition had again deteriorated to the point that commitment was necessary, T.K. refused to admit that he suffers from mental illness or take medication as instructed, and without treatment, T.K. was a danger to others. Dr. Trobaugh testified that he believed that T.K. needed to be committed to the VA Medical Center until his condition stabilized. Dr. Trobaugh further testified that T.K. would require outpatient treatment once his condition stabilized to a point where inpatient treatment was no longer necessary.

T.K.’s medical history and past involuntary commitments suggest that T.K. required ongoing outpatient treatment to maintain his mental health once his condition stabilized. Indiana Code section 12-26-14-7 provides that if an individual

(1) has been committed under [Indiana Code § 12-26-7];
(2) is likely to benefit from a therapy program designed to decrease the individual’s dangerousness or grave disability;
(3) is not likely to be either dangerous or gravely disabled if the individual continues to follow the therapy program; and
(4) is recommended for an outpatient therapy program by the individual’s attending or examining physician;
The superintendent of the facility in which the individual is committed or the court at the time of commitment may place the individual on outpatient status for the remainder of his commitment period, subject to the conditions of outpatient therapy programs....

In light of Dr. Trobaugh’s testimony regarding T.K.’s need for inpatient treatment followed by outpatient treatment and the clear language of Indiana Code section 12-26-14-7, we conclude that the evidence is sufficient to support the trial court’s decision that a regular commitment offered the least restrictive alternative to ensure that T.K. received the needed long-term inpatient and outpatient treatment.

Furthermore, T.K. also appears to challenge the portion of the trial court’s order that ordered him to take all medications as prescribed. In In re Mental Commitment of M.P., 510 N.E.2d 645, 647 (Ind.1987), the Indiana Supreme Court held that in order to override a patient’s right to refuse treatment,

the State must demonstrate by clear and convincing evidence that: 1) a current and individual medical assessment of the patient’s condition has been made; 2) that it resulted in the honest belief of the psychiatrist that the medications will be of substantial benefit in treating the condition suffered, and not just in controlling the behavior of the individual; 8) and that the probable benefits from the proposed treatment outweigh the risk of harm to, and personal concerns of, the patient.

Dr. Trobaugh’s testimony met these requirements.

Dr. Trobaugh testified that he had personally examined T.K. twice and had spent approximately six hours reviewing his medical records. Dr. Trobaugh’s testimony made it clear that he considered the possible side effects in coming to the opinion that T.K’s condition required treatment with medication. Specifically, Dr. Trobaugh stated that

[s]ide effects are always a concern with any medication and we always weigh the risk against the benefits. And, if we were to have [T.K.] on a medication where the side effects were deemed intolerable, we would likely try to change it to a different medication.

Tr. p. 19. Upon questioning by T.K. about why medication was necessary and what T.K. would “get” from possible changes in medication, Dr. Trobaugh further stated that

[T.K.], I have a firm belief that the Haldol Decanoate injection showed some benefit in the past based on review of your medical records, and the interaction that you were having with staff. I think that more or less the issue that we’re discussing has a possibility of side effects which I think the benefits of having you on the medication currently outweigh the risk of any current side effects, and I think that we would be perfectly happy, and willing to work with you to find the medication with the lease amount of side effects that still gave us the results that we need, so that you can live an appropriate life, and have the things that you wish to have.

Tr. p. 20. Dr. Trobaugh’s testimony indicates that he wished to treat T.K’s medical condition in the least restrictive way possible so as to provide T.K. with the opportunity to live a life unencumbered by mental illness.

In sum, concluding that the evidence is sufficient to sustain the trial court’s determination that, without treatment, T.K. posed a danger to others as well as the determination that the ordered regular commitment offered the least restrictive alternative to ensure that T.K. received the needed long-term inpatient and outpatient treatment, we affirm the judgment of the trial court.

The judgment of the trial court is affirmed.

BAILEY, J., and MAY, J., concur.

      . Adult and Child provides mental health and child welfare programs in Indianapolis and central Indiana. See http://adultandchild. com/ (last visited August 8, 2013).