author: WENTWORTH, J.

text:
    Douglas G. KILDSIG, Petitioner, v. Warrick County Assessor, Respondent.
    No. 82T10-1101-TA-2.
    Tax Court of Indiana.
    Oct. 8, 2013.
    Leslie C. Shively, Shively & Associates, PC, Evansville, IN, Attorney for Petitioner.
    Marilyn S. Meighen, Attorney at Law, Carmel, IN, Attorney for Respondent.
   WENTWORTH, J.

This case concerns the Indiana Board of Tax Review's determination that the burden-shifting rule contained in Indiana Code § 6-1.1-15-1(p) did not apply to its proceedings and that a portion of Douglas G. Kildsig's land was properly classified as residential excess acreage for the 2009 tax year. The Court reverses in part and affirms in part.

FACTS AND PROCEDURAL HISTORY

During the 2009 tax year, Kildsig owned 12.648 acres of land upon which his resi-denee, two pole barns, a lake, and just over 11 acres of woods was situated. The War-rick County Assessor assessed the property at $192,600 ($68,900 for land and $123,700 for improvements).

Kildsig appealed the assessment, first to the Warrick County Property Tax Assessment Board of Appeals (PTABOA) and then to the Indiana Board. On August 12, 2010, the Indiana Board held a hearing. Kildsig first claimed that because his 2009 assessment was more than 5% greater than his 2008 assessment, the Assessor bore the burden of establishing the validity of his 2009 assessment pursuant to Indiana Code § 6-1.1-15-l1(p). Kildsig also claimed that his assessment was incorrect because 11.648 acres were improperly classified as residential excess acreage rather than agricultural land. Kildsig explained that the acreage was agricultural land because he used it to grow trees that he used as firewood to heat his residence and because his neighbor's adjacent, similarly wooded parcel was classified as agrieultural land.

The Assessor, however, maintained that the classification of Kildsig's land was proper because, unlike his neighbor, he did not use his land for any qualifying agricultural purpose. The Assessor also claimed that Kildsig's assessment was proper because it was lower than both its 2005 purchase price of $207,000 and its 2008 list price of $410,000.

On November 23, 2010, the Indiana Board issued a final determination finding that Kildsig bore the burden of establishing the invalidity of his 2009 assessment because the burden-shifting rule contained in Indiana Code § 6-1.1-15-1(p) applied exclusively to PTABOA proceedings. The Indiana Board also determined that Kild-sig's land classification was proper, and therefore, it upheld his assessment.

On January 6, 2011, Kildsig initiated this original tax appeal. The Court heard oral argument on August 17, 2011. Additional facts will be supplied as necessary.

STANDARD OF REVIEW

The party seeking to overturn a final determination of the Indiana Board bears the burden of demonstrating its invalidity. Hubler Realty Co. v. Hendricks Cnty. Assessor, 938 N.E.2d 311, 313 (Ind. Tax Ct.2010). Accordingly, Kildsig must demonstrate to the Court that the Indiana Board's final determination is:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) contrary to constitutional right, power, privilege, or immunity;
(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory jurisdiction, authority, or limitations;
(4) without observance of procedure required by law; or
(5) unsupported by substantial or reliable evidence.

See § 838-26-6-6(e)(1)-(5) (2013).

ANALYSIS

Kildsig first claims that the Indiana Board's determination that Indiana Code § 6-1.1-15-1(p)'s burden-shifting rule applied exelusively to the initial phases of the appeals process (i.e., the PTABOA proceedings) is incorrect as a matter of law. (See Oral Arg. Tr. at 5-7, 13-14; Pet'r Reply Br. at 1-3; Pet'r Br. at 1-6.) A final determination of the Indiana Board is contrary to law if it violates a statute or rule of substantive or procedural law. Shelbyville MHPI, LLC v. Thurston, 978 N.E.2d 527, 529 (Ind. Tax Ct.2012).

Recently, the Court found that the burden-shifting rule contained in Indiana Code § 6-1.1-15-1(p), as clarified by Indiana Code § 6-1.1-15-17, applied throughout the entire appeals process, not just in the initial proceedings. See Orange Cnty. Assessor v. Stout, 996 N.E.2d 871, 872-75, 2018 WL 5477219, No. 49T10-1112-TA-94, slip op. at 3-7 (Ind. Tax Ct. Oct. 2, 2013). Consequently, the Indiana Board's conclusion that the burden-shifting rule did not apply to its proceedings is contrary to law.

Kildsig also claimed that the Indiana Board's determination that 11.648 acres of his land was "excess residential acreage" is not supported by substantial evidence. (See Pet'r Reply Br. at 3-4; Pet'r Br. at 7.) During the Indiana Board hearing, Kildsig argued that his Woods Management Plan showed that he used his land for an agricultural purpose. (See Cert. Admin. R. at 114, 199-200, 205-06.) Kildsig further testified that his removal of timber from this land to heat his residence showed that he used it for an agricultural purpose. (See Cert. Admin. R. at 202.) Finally, Kildsig contended that his land classification as excess residential acreage was improper because an adjacent, similarly wooded parcel was classified as agricultural land.

In contrast, the Assessor explained that although Kildsig had a Woods Management Plan, indicating that he intended to improve the timber production on the land to provide firewood, his plan was executed in 2010 and was not in effect during the 2009 tax year. (See Cert. Admin. R. at 99-101, 218, 231.) The Assessor also claimed that because Kildsig hunted in the wooded acreage and used its timber to heat his home, he used the land for recreational and residential purposes, not an agricultural purpose. (See Cert. Admin. R. at 201-02, 223-25.) Furthermore, the Assessor claimed that the classification of the adjacent, wooded parcel was not indicative of the proper classification of Kildsig's land because the adjacent timberland was part of a much larger income-producing farm. (See Cert. Admin. R. at 211-18, 227-28 (footnote added).) See also Rrar Property Assessment Guipeuings For 2002-VERSION A (2004 Reprint) (incorporated by reference at 50 Ind. Admin. Code 2.3-1-2), Bk. 1, Ch. 2 at 99 (indicating that devoting land to an agricultural use involves, among other things, the cultivation of income-producing crops). Finally, the Assessor explained that Kildsig's wooded acreage had been incorrectly classified as agricultural land for years, and that she had purposefully delayed reclassifying his land as excess residential acreage in order to change similarly misclassified land at the same time:

Basically, the previous assessor for the tax year 2006, payable 2007, had switched this particular property class from agricultural to residential. When I came into office, Mr. Kildsig had filed an appeal, and based on my further investigation of surrounding property owners, and neighbors in this area, I felt that he was switched unfairly, I guess so to say. It is not that I didn't feel that the switch was correct. I did not feel that he was agricultural or deserving of that classification on his property, but I did feel like there were other surrounding property owners that should have also been switched and were [not] done so at that time. So at that time I informed Mr. Kildsig that I would agree to switch his property back to agricultural until we could trend the entire area, and do a review of all properties and switch everyone that was necessary. I told him that would be happening in the future.

(Cert. Admin. R. at 214-15.)

A determination of the Indiana Board is supported by substantial evidence "if a reasonable person could view the record in its entirety and find enough relevant evidence to support the ... determination." Amax, Inc. v. State Bd. of Tax Comm'rs, 552 N.E.2d 850, 852 (Ind. Tax Ct.1990). Here, the Assessor's evidence indicates that Kildsig did not use his land for an agricultural purpose; Kildsig's evidence indicates he did. The Indiana Board found the Assessor's evidentiary presentation more persuasive. Now, on appeal, Kildsig invites this Court to do something that it cannot do-reweigh the evidence. See Freudenberg-NOK Gen. P'ship v. State Bd. of Tax Comm'rs, 715 N.E.2d 1026, 1030 (Ind. Tax Ct.1999), review denied (explaining that this Court may not reweigh the evidence or judge the credibility of witnesses). Indeed, this Court may not reverse a final determination of the Indiana Board simply because it disagrees with how the Indiana Board found the facts, and it may not substitute its judgment for that of the Indiana Board. See Alte Salems Kirche, Inc. v. State Bd. of Tax Comm'rs, 694 N.E.2d 810, 813 (Ind. Tax Ct.1998). Accordingly, the Court concludes that the Indiana Board's determination regarding the classification of a portion of Kildsig's land is supported by substantial evidence.

CONCLUSION

For the above-stated reasons, the Indiana Board's determination that the burden-shifting rule contained in Indiana Code § 6-1.1-15-1(p) did not apply to its proceedings is REVERSED. The Court, however, AFFIRMS the Indiana Board's determination that Kildsig's 11.648 acres were properly classified as residential excess acreage for the 2009 tax year.

      . Indiana Code § 6-1.1-15-1(p) provided:
      This subsection applies if the assessment for which a notice of review is filed increased the assessed value of the assessed property by more than five percent (5%) over the assessed value finally determined for the immediately preceding assessment date. The county assessor or township assessor making the assessment has the burden of proving that the assessment is correct.
      Ind.Code § 6-1.1-15-1(p) (2010) (repealed 2011).

      . The Indiana Board's determination on this issue is understandable, however, because the General Assembly did not clarify its intent regarding the burden-shifting rule until after the Indiana Board issued its final determination in this matter. See Pub.L. No. 172-2011 §§ 30, 32 (simultaneously repealing Indiana Code § 6-1.1-15-1(p) and enacting Indiana Code § 6-1.1-15-17 effective July 1, 2011).

      . As support, the Assessor presented an aerial map of the adjacent property that also contained its U.S. Department of Agriculture (USDA) farm number, the property's USDA abbreviated farm record, and all of its property record cards. (See Cert. Admin. R. at 117-31.)


source: Caselaw Access Project

author: MAY, Judge. ROBB, Chief Judge,

license: Public Domain

text:
    INDIANA PATIENT'S COMPENSATION FUND, Appellant-Respondent, v. Judy HOLCOMB, Personal Representative of the Estate of Mable Louis Cochran, Deceased, Appellee-Petitioner.
    No. 49A05-1207-CC-340.
    Court of Appeals of Indiana.
    Nov. 27, 2013.
    Susan E. Cline, Lewis Wagner, LLP, Indianapolis, IN, Attorney for Appellant.
    Robert W. Johnson, Johnson Jensen LLP, Indianapolis, IN, Attorney for Ami-cus Curae, ITLA.
    George C. Gray, Daniel L. Robinson, Gray Robinson Ryan & Fox, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

The Indiana Patient's Compensation Fund ("the Fund") appeals an order in this adult wrongful death action awarding Judy Holcomb, as personal representative of the estate of Mable Louise Cochran ("the Estate"), $50,440.00 in attorney fees to be paid by the Fund. The Fund argues on appeal the amount of fees exceeds that permitted by Ind.Code § 34-18-18-1, which provides: "When a plaintiff is represented by an attorney in the prosecution of the plaintiff's claim, the plaintiff's attorney's fees from any award made from the patient's compensation fund may not exceed fifteen percent (15%) of any recovery from the fund."

As attorney fees are recoverable as pecuniary damages in an adult wrongful death action, we cannot adopt the Fund's position that the total amount of attorney fees recoverable may be only 15% of what is taken from the Fund, without regard to whether or to what extent that amount includes attorney fees on the amount recovered before the Fund is reached. Instead, the 15% limitation applies only to new monies from the fund, not monies that otherwise might be characterized as attorney fees on the amount recovered before the Fund is reached, but that is included as damages when applied to the Fund. In other words, the 15% limitation does not apply to the assessment of damages caused by the tortfeasor or the calculation of excess damages of any type from the Fund.

However, as explained below, the trial court's award in the case before us does not accurately reflect either the proper amount of attorney fees or the proper allocation of money awarded from the fund. We must therefore reverse and remand.

FACTS AND PROCEDURAL HISTORY

Mable Cochran died in January 2011, and Holcomb, as personal representative, opened the Estate to pursue a wrongful death claim against the Chase Center Nursing Home. She brought the action under the Adult Wrongful Death Statute ("AWDS"), Ind.Code § 34-23-1-2, which provides for an action for the wrongful death of an unmarried adult without dependents. The AWDS permits the decedent's estate to recover medical and funeral expenses and allows the decedent's nondependent parents or children to recover damages for loss of love and companionship. McCabe v. Comm'r, Indiana Dep't of Ins., 949 N.E.2d 816, 818 (Ind.2011). Holcomb hired Gray Robinson Ryan and Fox ("Gray Robinson") to represent the Estate.

The original agreement with Gray Robinson provided the Estate would pay Gray Robinson the following:

A sum of money equal to Forty Percent (40%) received or recovered upon this claim, whether by way of settlement or by judgment.
In the event the health care provider is qualified under the [Medical Malpractice Act], then the fee shall be a sum of money equal to Fifteen Percent (15%) received or recovered upon this claim, whether by way of settlement or by judgment paid from [the Fund]. The percentage of attorney's fees on the first Two Hundred and Fifty Thousand Dollars ($250,000) received on behalf of any defendant shall be adjusted to whatever Percent is necessary, so that the total attorney's fees for all amounts recovered by way of settlement or judgment shall be as much as, but not to exceed 40%.

(App. at 6.)

The nursing home settled the Estate's claim for the $250,000 limit of its liability, and the Estate was then entitled to seek excess damages from the Fund pursuant to Ind.Code $ 34-18-15-8. The trial court approved the settlement, from which $74,800.40 was to be paid in attorney fees.

The Estate then petitioned for a determination of the amount of excess damages due from the Fund, which damages it characterized as "including compensation for loss of love and companionship for the decedent's adult children, last medical, funeral and burial expenses, and costs of administration, including expenses of litigation and attorneys' fees." (App. at 14.) The Estate and the Fund reached a settlement agreement on December 28, 2011, that provided the parties were settling "their dispute regarding [the Estate's] wrongful death damages, except for attorney's fees [.]" (Id. at 21) (emphasis added).

Pursuant to the agreement the Fund would pay the Estate $101,166.89. The settlement characterized the Estate's damages as follows:

Loss of Love and Companionship $300,000.00
Funeral/Burial Expenses 8,900.00
Medical Expenses 45,759.44
Litigation Expenses 1,507.45
TOTAL DAMAGES: $351,166.89
Amount paid by underlying provider (250,000.00)
Amount paid by [the Fund] $101,166.89.

(App. at 36.)

The trial court scheduled a hearing on the remaining issue of attorney fees, and Gray Robinson filed an affidavit that averred it had expended 126.1 hours on the case through January 80, 2012 and that additional hours were being expended in preparation for the hearing. Counsel opined that a reasonable hourly rate was $400.00.

At the hearing, the Estate noted attorney fees are now recoverable as wrongful death damages and argued:

So all those damages [including attorney fees] go into the pot of liability of the ... health care provider, for the excess damages against the Fund of $250,000-dollars, underlying limit is subtracted. And since the Fund has paid all of the other damages in this case that leaves the $50,440 as additional excess damages. Under this statute that the Fund is relying on the [Estate's] attorney would be entitled to charge up to 15 per cent of that as an additional fee.
*# * * * * *#
[The statute 34-18-18-1 just addresses what an attorney can charge a client for a recovery from the Fund{[;] it in no way addresses the underlying damages caused by the tort feasor [sic].

(Tr. at 10-11.)

The Fund did not dispute the agreed-upon underlying amount of damages as stated in the settlement, which amount did not include attorney fees; nor did it challenge the reasonableness of the $50,400 in attorney fees Gray Robinson was claiming. But it argued:

Rules of statutory construction do not support payment of the entire award of attorney fees from the [Fund].... [Ind. Code § 34-18-18-1] places ... a strict restriction on the amount that can be recovered for an act of mal practice [sic] in the state of Indiana. So the fact that the legislator [sic] chose to include another strick [sic] restriction on the amount of fees that can be recovered by Plaintiff's counsel is not unusual, nor is it inconsistent with the rest of the intent of [the Medical Malpractice Act]. The meaning of [Ind.Code § 34-18-18-1] is plain and unambiguous and ... means exactly what it says. It means that of the amount paid from [the Fund] only 15 percent of it can be fees.

(Id. at 21-28.) The $50,400 Gray Robinson was claiming, the Fund argued, violated the statute because it was a "request that [the Fund] pay an amount that is 33 per cent attorney fees." (Id. at 19.) The Fund urged the trial court to award only $17,852.98 as attorney fees. It reached that figure by dividing $101,166.89, the amount the parties agreed would be the Fund's liability without attorney fees, by 85, then multiplying that amount by fifteen percent.

The trial court awarded $50,440.00, the amount Gray Robinson characterized as "additional excess damages," (id. at 11), in attorney fees. In its findings and conclusions it found:

$101,166.89 in excess compensation was previously paid by the Fund. Pursuant to this agreement, the parties compromised and settled their "dispute regarding [the Estate's] wrongful death damages, except for attorney's fees[.]"
## * * *s * *#
[The Estate] requests an assessment of $50,400.00 in reasonable attorney's fees as a wrongful death pecuniary damage caused by the underlying tortfeasor payable by the Fund as additional excess compensation.

(App. at 46.)

In its conclusions the court quoted our Indiana Supreme Court: "[Alttorney fees, probate administration costs, and litigation costs are compensatory damages that remedy actual pecuniary losses. Therefore, we find no compelling reason why these damages should not be allowed." (Id. at 47) (quoting Indiana Patient's Comp. Fund v. Brown, 949 N.E.2d 822, 824 (Ind.2011)). The trial court concluded attorney fees are pecuniary losses caused by a tort-feasor that should be compensated just like other items of damages. It noted Ind.Code § 34-18-18-1 "does not limit the amount of pecuniary damages caused by the tortfeasor, including attorney fees, for purposes of determining excess damages payable by the Fund." (Fd. at 47-48.) It therefore concluded the amount Gray Robinson claimed, $50,400, was "properly assessable as wrongful death damages ... payable as excess compensation by the fund." (Id. at 48.)

DISCUSSION AND DECISION

The trial court was correct that the Estate's attorney fees were properly assessable as wrongful death damages payable as excess compensation by the Fund and were not limited to 15% of the $101,166.89 the parties agreed would be the Fund's liability without attorney fees. But neither the $17,852.98 suggested by the Fund nor the $50,440.00 amount premised on Gray Robinson's hourly rate appears to fairly or accurately reflect either the full amount of attorney fees the Estate paid or an amount properly recoverable from the Fund in light of the statutory limitation. We must therefore remand for a recalculation of the fee amount.

This case presents a prime example of what happens when statutes collide-the result is potentially prejudicial to both sides and likely unacceptable to both. The journey leading to this collision began in 1998, when the legislature added Ind.Code § 34-18-18-1 to the Medical Malpractice Act. That statute addresses "plaintiff's attorney's fees from any award made from the patient's compensation fund" and imposes the 15% limitation at issue in the case before us. The statute does not address whether there is a limit on the amount of attorney fees in the form of damages that may be recovered from any settlement or award that made it possible to reach the Fund.

Then, in 1999, our legislature promulgated the Adult Wrongful Death Statute (AWDS), under which the Estate brought this action. In 2011, our Indiana Supreme Court held attorney fees may be included as damages under the AWDS. See Hematology-Oncology of Indiana, P.C. v. Fruits, 950 NE2d 294 (Ind.2011); McCabe, 949 N.E.2d at 821.

It seems apparent the legislature, when it imposed the 15% limitation under the Medical Malpractice Act in 1998, did not contemplate the situation now before us-that years later, attorney fees would be recognized as adult wrongful death damages or that a plaintiff's counsel would, as the Estate's counsel does here, present a claim for attorney fees both as a part of the damages and also as a separate amount recoverable from the Fund under Ind.Code § 34-18-18-1.

In McCabe and Fruits, our Indiana Supreme Court held reasonable attorney fees incurred in the prosecution of an action under the AWDS are within the damages permitted by the statute. Whether attorney fees were damages had been in doubt, because the general wrongful death statute, enacted in 1852, had for some time been explicit that attorney fees were recoverable as damages. By contrast, the AWDS, promulgated in 1999 and effective January 1, 2000, did not explicitly include or exclude attorney fees as damages. Holcomb's action was brought in August 2011, under the AWDS, soon after Fruits and McCabe were decided.

In the case before us, the Fund and the statute limiting recovery of attorney fees from the Fund were implicated because the parties entered into a partial settlement that exceeded $250,000 and therefore gave rise to the Fund's obligation to pay. But that settlement explicitly excluded attorney fees from its calculation of damages. The settlement characterized Holcomb's damages as follows:

Loss of Love and Companionship $300,000.00
Funeral/Burial Expenses 3,900.00
Medical Expenses 45,759.44
Litigation Expenses 1,507.45
TOTAL DAMAGES: $351,166.89
Amount paid by underlying provider (250,000.00)
Amount paid by [the Fund] $101,166.89.

(App. at 36.) But the itemization in that settlement does not accurately reflect the original agreement between the Estate and its counsel, which was explicit that counsel would be paid 40% of any recovery. The original agreement between the Estate and counsel referred to a fee of 15% of the amount recovered from the Fund, then provided the percentage of attorney fees on the first $250,000 would "be adjusted to whatever Percent is necessary, so that the total attorney fees for all amounts recovered" would be 40%. (App. at 6.) Nor does the itemization reflect that from the settlement that recovered the first $250,000, counsel had already been paid $74,800.40. (App. at 9.)

Once the $250,000 threshold amount was reached, negotiation with the Fund began. A partial settlement was reached, as expressed in the itemization above, that provided for a payment from the Fund of $101,166.89, with the question of attorney fees deferred for determination by the trial court.

For reasons not apparent from the record, in its argument before the trial court for attorney fees, the Estate's counsel premised its request not on the original contingency fee agreement but instead on an hourly fee basis. Counsel stated in an affidavit that the amount of attorney fees incurred up to that time was $50,440.00. There was no request for fees expended in the action to recover from the Fund, nor was there a disclosure of the amount of fees counsel was paid from the Fund settlement.

The Fund notes that, as reflected in the partial settlement, it was obliged to pay $101,166.89, not including attorney fees. It then takes the position that because Ind.Code § 34-18-18-1 says attorney fees cannot exceed 15% of any recovery from the Fund, the Estate's counsel could be awarded only $17,852.98. Paying Gray Robinson the $50,440.00 it asked for, the Fund argues, would make its award 383% of the Fund recovery, which the statute does not permit.

Neither amount appears to fairly or accurately reflect the attorney fees the Estate incurred in this adult wrongful death case. The $50,440.00 the trial court awarded seems not to reflect either the full amount of the attorney fees the Estate paid or an amount properly recoverable from the Fund in light of the statutory limitation. The $17,852.98 figure proposed by the Fund is not consistent with the reasoning in Fruits McCabe, and Brown that attorney fees are compensatory damages that remedy actual pecuniary losses.

The record and statements at oral argument indicate the Estate paid attorney fees of $74,800.40. The Estate represented at oral argument that the additional $50,440.00, which the trial court designated as attorney fees to be included in the Fund recovery, would go back to the Estate and no additional fees would be taken from it. But under these calculations, the Estate paid $74,800.40, yet it received reimbursement of only $50,440.00 for fees, suggesting the Estate paid $24,360.40 it did not recover.

As explained above, it seems apparent the legislature did not, when it imposed the 15% attorney fee limitation, contemplate that attorney fees might subsequently be determined to be a form of damages. But to the extent the intent of the statute is to limit the amount of attorney fees recoverable from the Fund to 15% of any recovery from the Fund, the trial court's result is inconsistent with that intent. Under this caleulation ($74,800.40 minus $50,440.00), which results in the outstanding fees of $24, 360.40 that remain unre-covered by the Estate, the 15% statutory limitation is exceeded, as $24,860.40 is more than 15% of the $101,166.89 recovery from the Fund.

Under the facts the parties have placed before us, including an agreement regarding the Fund's liability that purported to include no attorney fees as damages, it is impossible to reach a result that is fair to the Estate and to its counsel, yet consistent with the statutory 15% limitation. As the trial court's award does not accurately reflect either the proper amount of attorney fees or proper allocation of money awarded from the Fund, we must reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

PYLE, J., concurs.

ROBB, C.J., dissents with separate opinion.

ROBB, Chief Judge,

dissenting.

As I read the applicable statutes and case law, a reasonable attorney's fee as an element of damages in an AWDS case is unlimited by Indiana Code section 34-18-18-1 and the entire amount is includable in the damages calculation, from which the Fund's excess damages payment is to be determined. I also believe Section 34-18-18-1 does, however, limit the amount that may be paid to the attorney from that excess damages payment. Further, I believe the majority opinion overlooks the unique procedural posture of this case and is ultimately attempting to answer a question not being asked. I therefore dissent and would hold the trial court's judgment assessing additional damages of $50,440.00 in attorney's fees to the Estate and against the Fund should be affirmed.

It is important to note at the outset that the trial court's order, and the issue appealed to this court, concerns the amount representing attorney's fees that is to be included in the damages calculation and from which the Fund's payment will be determined-a payment that will be made in total to the Estate-rather than the focus of the majority opinion, which is on the "fair amount" of attorney's fees the Estate has paid or will pay. The question of the amount that should be paid to the Estate's attorneys in fees will be determined at a later point by the probate court and is only peripherally involved in resolving the issue before us. Nonetheless, I do discuss that calculation because it is necessary for purposes of both explaining my position with regard to the issue properly before us and providing direction to the parties and the courts in further proceedings.

The Estate's claim alleges Cochran's wrongful death was caused by medical malpractice. The case therefore implicates provisions from both the AWDS and the Medical Malpractice Act. Specifically, the AWDS provides that damages:

(2) may not include:
(A) damages awarded for a person's grief; or
(B) punitive damages; and
(3) may include but are not limited to the following:
(A) Reasonable medical, hospital, funeral, and burial expenses necessitated by the wrongful act or omission that caused the adult person's death.
(B) Loss of the adult person's love and companionship.

Ind.Code § 34-23-1-2(c). The Medical Malpractice Act provides that "[when a plaintiff is represented by an attorney in the prosecution of the plaintiff's claim, the plaintiffs attorney's fees from any award made from the patient's compensation fund may not exceed fifteen percent (15%) of any recovery from the fund." Ind.Code § 34-18-18-1.

In a trilogy of cases decided June 29, 2011, our supreme court held that the "may include but are not limited to" language in the AWDS-"a standard expression designating the permissive inclusion of an open-ended class of items not to be limited by designation of specific items that follow," McCabe, 949 N.E.2d at 820-allows recovery of litigation expenses, Hematology-Oncology of Indiana, P.C. v. Fruits, 950 N.E.2d 294, 296 (Ind.2011); expenses of administration and loss of services, Brown, 949 N.E.2d at 823; and, most relevant to this decision, attorney's fees, McCabe, 949 N.E.2d at 821. McCabe was a case brought in medical malpractice, but the court specifically did not consider the implication of its holding in relation to section 34-18-18-1, noting that the issue of whether attorney's fees and expenses could be recovered from the Fund was "not within the seope of the order certified for interlocutory appeal." Id. at 821 n. 8.

It is in this context, with the contours of the interplay between the relevant statutes and the McCabe decision still unexplored, that the Estate brought this action in August 2011. All elements of the Estate's claim for damages were settled in short order but for the element of attorney's fees. As the majority notes, the statutes relevant to resolution of the attorney's fee issue "collide." Op. at 992. The fifteen percent limitation on the payment of attorney's fees out of the Fund appears in the Medical Malpractice Act, and in a case that arises strictly under the Medical Malpractice Act-that is, in a case in which medical negligence does not result in death-attorney's fees are not an element of damages, and are therefore figured on and paid out of the recovery for all the other elements of damage. There is no such limitation in the AWDS, and in a case that arises strictly under the AWDS-that is, in an ordinary, non-medical negligence case-the amount of attorney's fees that can be assessed as an element of damages is not limited. The conundrum in this case is how to fit a round peg into a square hole: in a case that arises under both the AWDS and the Act, how are attorney fees to be handled?

Several considerations factor into my resolution of this question. First, following the McCabe trilogy of cases in 2011, the legislature has not amended the AWDS with respect to what may or may not be recovered as damages. See Common Council of Mich. City v. Bd. of Zoning Appeals of Mich. City, 881 N.E.2d 1012, 1016 (Ind.Ct.App.2008) (noting that legislative inaction following judicial interpretation of a statute, particularly by our supreme court, "may be understood to signify the General Assembly's acquiescence and agreement with the judicial interpretation."). If the legislature did not intend attorney's fees to be within the damages permitted by the AWDS as interpreted by our supreme court, it could have amended the statute to so state. Moreover, if the legislature intended attorney's fees to be an element of damages under the AWDS but also intended for them to be limited, it would be simple to amend the statute to provide a cap. The majority opines it "seems apparent" the legislature did not contemplate that attorney's fees would someday be recognized as AWDS damages when it imposed the fifteen percent limitation in 1998, see op. at 992-98, but the legislature has not acted to mitigate the McCabe decision, and that is a relevant consideration in ascertaining legislative intent. *

Second, the Act contains a chapter concerning "Limits on Damages," Ind.Code § 34-18-14-1 et seq., and a separate chapter concerning "Attorney Fees," Ind.Code § 34-18-18-1 et seq. The fifteen percent limitation, appearing in chapter 18 alongside a provision that the patient can elect to pay his or her attorney on a per diem basis, is relevant to the contract between the patient and attorney for how the attorney is paid. If it was intended to be a limit on the amount of damages that could be assessed, it would more suitably be found in chapter 14. Attorney's fees are not addressed in the "Limits on Damages" chapter, however, and again, this has not been amended since the McCabe cases.

Third, it is as important to note what a statute does not say as to note what it does say. See Boling v. State, 982 N.E.2d 1055, 1058 (Ind.Ct.App.2013). In this case, Indiana Code section 34-18-18-1 does not say the attorney's fees themselves are capped at fifteen percent; it says the attorney's fees paid out of the Fund recovery are capped. Fourth, as the parties explained at oral argument, the probate court must approve the distribution of any payment from the Fund. See Ind.Code § 34-18-15-3.

And fifth, the procedural posture of this case has complicated the issue and must be recognized as unique to this case of first impression. The unfortunate consequence of the parties reaching a partial settlement is that attorney's fees were set apart in this case in a way that will presumably not be true in future cases, and makes them appear to be something they are not. In this regard, I note that although the Fund concedes it is "liable for attorney's fees" in this case, that is actually a misnomer. The Fund is liable to pay excess damages, of which attorney's fees may be an element. In future cases in which attorney's fees are included on the front end of the calculation rather than the back end, it will be more easily apparent that the Fund is simply contributing to the damages as a whole rather than seeming to contribute to any individual element of the damages.

I also note that the way in which the Estate has presented its attorney's fees has further complicated the issue, because the Estate's attorneys took $74,800.40 as a fee from the Estate's original settlement with the providers, which represented forty percent of the present value of that settlement in accordance with the fee agreement, but then presented to the trial court for purposes of determining the excess damages claim against the Fund an affidavit averring they had expended 126.1 hours at a rate of $400 per hour on this case, for a total fee of $50,400. Nonetheless, I do not think, as the majority states, that the Estate's counsel is presenting a claim for attorney's fees "both as a part of the damages and also as a separate amount recoverable from the Fund...." Op. at 993; see also id. at 994 ("The record and statements at oral argument indicate the Estate paid attorney fees of $74,800.40. The Estate represented at oral argument that the additional $50,440.00, which the trial court designated as attorney fees to be included in the Fund recovery, would go back to the Estate. ..."). The $50,440 figure is not an additional attorney's fee; it is the attorney's fee for purposes of calculating damages. The Estate is simply presenting the attorney's fee damages claim separately from the remainder of the damages because of the parties' disagreement about how the fees were to be handled.

Taking these considerations into account, and giving effect to the relevant provisions of both the Medical Malpractice Act and the AWDS, I would hold that in cases subject to both the Medical Malpractice Act and the AWDS, attorney's fees as an element of damages are to be included in the overall calculation of damages at the outset pursuant to the provisions of the AWDS and are not limited by the fifteen percent limitation of the Medical Malpractice Act. The attorney's fee included as an element of damages is to be a reasonable fee, and I note that here, as in Fruits, that fee was determined by calculating the hours expended times an hourly rate. See Appellant's App. at 29 (affidavit showing 126.1 hours in attorney time at $400.00 per hour, for an attorney's fee of $50,440.00 as requested by the Estate); Fruits, 950 N.E.2d at 296 (stating attorney's verified petition for attorney's fees showed 855.3 hours at $250.00 per hour supporting a total attorney's fee of $88,825). The Fund's liability for excess damages is to be determined based upon that overall caleu-lation of damages minus the provider payment. The majority, in stating that "the 15% limitation does not apply to the assessment of damages caused by the tort-feasor or the calculation of excess damages of any type from the Fund," op. at 990, would seem to agree with this position. I would also hold the actual attorney's fee payable from the excess damages recovery from the Fund is limited by section 34-18-18-1 of the Medical Malpractice Act to fifteen percent of that excess payment. Again, if I understand the majority opinion's reference to "an amount properly recoverable from the Fund in light of the statutory limitation," id. at 992, the majority may be in accord. Finally, the total fee payable to the attorney is governed by the terms of the fee agreement between the attorney and client, subject to the above limitation.

Where I undoubtedly part ways from the majority is with regard to what this case ultimately asks us to decide and what that decision means in practice. The majority notes on two occasions that the partial settlement of $351,166.89 does not include attorney's fees. See op. at 993 (noting the partial settlement that gave rise to the Fund's obligation to pay excess damages "explicitly excluded attorney fees from its calculation of damages") (emphasis added); id. at 995 (noting the facts before us include "an agreement regarding the Fund's liability that purported to include no attorney fees as damages"). This seems to miss the very point that the partial settlement was partial specifically because the parties could not agree on how to handle the inclusion or exclusion of attorney's fees and agreed to set that issue aside for separate determination. See Br. of Appellant at 5-6 ("The [Fund] initially disputed whether it was responsible for the payment of attorney fees at all under the AWDS, or in the amount sought by the Estate; therefore, the [parties] agreed to partially resolve the claim by payment of those damages expressly recoverable under the AWDS, and to leave open the issue of the recovery of attorney fees pending independent appellate review.").

The issue before us is simply and solely the total amount of the Fund's excess damages liability. That is the issue the trial court addressed:

CONCLUSIONS OF LAW
* ock ik
2. ... In a claim against the Fund for excess damages, pursuant to I.C. 34-18-15-8(5), when all of these recoverable damages [including attorney's fees] are added up, the amount over and above $250,000.00 is payable by the Fund as excess compensation.
83. ... On its face, 1.C. 34-18-18-1 does not limit the amount of pecuniary damages caused by the tortfeasor, in-eluding attorney's fees, for purposes of determining excess damages payable by the Fund. It merely addresses the amount an attorney representing a claimant may charge a client from a recovery from the Fund, whether that amount represents excess damages comprised of loss of love and companionship, funeral and burial expenses, medical expenses, litigation expenses, and/or attorney's fees. I.C. 34-18-18-1 does not state that for any amount awarded from the Fund, only 15% of that amount may represent attorney's fees....
4. Therefore, $50,440.00 is properly assessable as wrongful death damages caused by the tortfeasor over and above the underlying tortfeasor's liability limit, and is therefore payable as exeess compensation by the Fund.
to ooh ook
jue
JUDGMENT ENTRY
IT IS THEREFORE ORDERED, ADJUDGED & DECREED that an additional judgment shall be entered in favor of [the Estate] and against [the Fund], in the sum of Fifty Thousand Four Hundred and Forty Dollars ($50,-440.00). ...

Appellant's App. at 47-48 (emphasis in original). I agree with the trial court that the amount of the Fund's excess damages liability is the $101,166.89 already agreed to, representing loss of love and companionship, funeral and burial expenses, medical expenses, and litigation expenses, plus $50,440.00, representing a reasonable attorney's fee, for a total excess damages liability of $151,606.89, payable to the Estate. I would therefore affirm the trial court's judgment assessing an additional $50,440.00 in reasonable attorney's fees as AWDS damages to the Estate, and the Fund would pay a total of $151,606.89 in excess damages to the Estate.

I also part ways with the majority as to its ultimate disposition of this case. As the trial court noted, there is a difference between the amount of attorney's fees included as an element of the claimant's damages, and therefore includable as an element of the excess damages payment, and the amount of attorney's fees the claimant pays to his or her attorney. We are concerned here only with the former. The latter will be addressed by the probate court when it approves the distribution of the excess damages payment. Accordingly, the trial court's order only assesses an additional excess compensation amount for damages representing attorney's fees in favor of the Estate and against the Fund, which in future cases will simply be included in the original, and presumably only, excess damages award. The trial court's order does not, nor should it, address the amount to be paid to the Estate's attorneys. I do not believe we should address that, either.

For purposes of further explaining my position on how the statutes interact with each other, however, I state again that when determining how much of the excess damages payment may be distributed to the Estate's attorneys, the probate court should take into account the Medical Malpractice Act's fifteen percent limitation. In other words, when the time comes to distribute the Fund payment-which is not now-the probate court could not approve distribution of more than $22,741.08 of the Fund's payment to the Estate's attorneys ($151,606.89 x .15 = $22,741.03). Any fee balance remaining due to the attorneys pursuant to the fee agreement would have to be paid out of the earlier provider payment to the Estate.

I neither understand what the majority purports to calculate at the conclusion of the opinion, nor do I believe the majority's disposition is consistent with its earlier statements or provides any guidance to the trial court on remand.

For the foregoing reasons, I dissent.

      . We heard oral argument May 24, 2013. We commend counsel on the quality of their advocacy.

      . Ind.Code § 34-18-14-3(b) provides: "A health care provider qualified under this article ... is not liable for an amount in excess of two hundred fifty thousand dollars ($250,000) for an occurrence of malpractice."

      . For reasons not apparent from the record, in its argument before the trial court for attorney fees, the Estate's counsel premised its request not on the original contingency fee agreement but instead on an hourly fee basis.

      . That amount appears to reflect the amount referred to in the Gray Robinson affidavit 126.1 hours multiplied by Gray Robinson's hourly rate of $400.

      . The Medical Malpractice Act limits the liability of a qualified health care provider whose medical negligence proximately caused death to $250,000. Ind.Code § 34-18-14-3(b). If a judgment or settlement fixes damages in excess of a qualified health care provider's liability, then a plaintiff may recover excess damages from the Fund. Ind.Code § 34-18-14-3(c). The total amount recoverable for an act of malpractice occurring after June 30, 1999, and resulting in injury or death of a patient may not exceed $1,250,000. Ind.Code § 34-18-14-3(a)(3). The malpractice for which the Estate recovered occurred after June 30, 1999.

      . The general wrongful death statute, enacted in 1852 and again in 1881, was amended in 1899, 1933, 1937, 1949, 1951, 1957, 1965, 1982, and 1998. Durham ex rel. Estate of Wade v. U-Haul Int'l, 745 N.E.2d 755, 761 n. 3 (Ind.2001).

      . The $74,800.40 figure represents 40% of $187,001.00, the present value of a settlement that included a lump-sum payment and an annuity.

      . We acknowledge the Fund's agreement this amount is reasonable. Still, the figure is puzzling, as the contingency fee agreement allowed a fee of 40%, and 40% had in fact been subtracted from the first part of the settlement. Although difficult to believe, one must wonder whether the claim for $50,440.00 is based on an hourly rate or whether, in light of the prior payment of $74,800.40, that claim reflects an acknowledgment the higher figure was not reasonable and amounts to an admission the fees were excessive.

      . The Estate's counsel advised the trial court "no additional attorney's fees would be claimed from the additional recovery of excess damages for attorney's fees." (Br. of Appellee at 10 n. 2.)

      . The amount of attorney's fees that can be charged and collected is, of course, limited by the Rules of Professional Conduct to a reasonable fee. See Ind. Professional Conduct Rule 1.5(a).

      . Because the issue of attorney's fees has been specifically set aside, it appears at first blush as though the Fund would be paying the entirety of the fees. See Tr. at 19 (counsel for the Fund arguing to the trial court (as she did to this court at oral argument) that ordering the Fund to pay an additional $50,440.00 means that thirty three percent of the Fund's payment is attributable to attorney's fees). If attorney's fees are included as an element of damages in the overall damages calculation, however, it would be impossible to parse which entity is paying what amount of which element.

      . The fee agreement between the Estate and Gray Robinson provides for a forty percent fee, which would be $160,642.76 on the recovery herein, and Gray Robinson has already been paid $74,800.40 out of the provider payment, both of which amounts are greater than the $50,440.00 in "reasonable attorney's fees" verified to the trial court. See also Fruits, 950 N.E.2d at 296-97 (petition for attorney's fees showed fee at an hourly rate of $88,825.00; "settlement recap" showed plaintiff agreed to $91,659.20, or forty percent of gross recovery pursuant to contingent fee agreement, being distributed as attorney's fees). Like the majority, see op. at 994 n. 8, I am troubled by the disparity, but the actual attorney's fee due is not before us, and I would leave for another day the issue of whether it is proper for an attorney to collect more in fees pursuant to a contingent fee arrangement than is calculated to be a "reasonable attorney's fee" for purposes of assessing damages. Moreover, as the majority notes, the Estate's attorneys indicated at oral argument that they do not in fact intend to claim any additional attorney's fees over and above the $74,800.00 they have already been paid.


author: DAVID, Justice.

text:
    Richard Eric JOHNSON, Appellant (Petitioner below), v. Gillian Wheeler JOHNSON, Appellee (Respondent below).
    No. 49S05-1303-DR-199.
    Supreme Court of Indiana.
    Dec. 12, 2013.

      Bruce A. Kotzan, Indianapolis, IN, Attorney for Appellant.
    Michael G, Ruppert, Jaimie L. Cairns, Indianapolis, IN, Attorneys for Appellee.
   DAVID, Justice.

The Indiana Child Support Guidelines provide both structure and flexibility for trial courts to set and modify child support obligations in ways tailored to the cireum-stances of the parties before them. The Guidelines obligate trial courts to follow certain processes and consider certain factors, but there remains a degree of latitude within which a court may fashion an order that best meets the needs of the child and also reflects the financial realities of the parents.

Here, the trial court modified a prior child support order in several respects and the noncustodial parent appealed. The Court of Appeals affirmed in part and reversed in part, including reversing the trial court's determination of credits for the custodial parent's health insurance costs and the noneustodial parent's Social Security benefits. We grant transfer and affirm the trial court on those two issues, finding its approach to be appropriate in light of the flexibility afforded by our Guidelines, and summarily affirm the Court of Appeals in all other respects.

Facts and Procedural History

Eric and Gillian Johnson married in 1994 and divorced in 1999, with two children resulting from the marriage. They executed a comprehensive settlement agreement, later approved by a trial court in a 1999 divorce decree, under which Gillian was granted physical custody of the two children with both parties sharing legal custody. As another part of that agreement and decree, Erie was ordered to pay Gillian ninety dollars per week, per child, for child support and also maintain health insurance for the children. Eric and Gillian also agreed to each pay fifty percent of the children's uninsured healthcare expenses. *

In 2008, Eric retired from the Marion County Sheriff's Department, terminating his eligibility for group insurance coverage. He and Gillian agreed to a modification of the 1999 decree that required Gillian to obtain a health insurance policy for their two children from her employer, and dropped Eric's weekly child support to seventy-five dollars per week, per child.

In 2011, Eric sought to modify the 1999 decree again. Eric was now receiving Social Security Retirement benefits and because of that Gillian was receiving a monthly benefit for each child. Eric sought to credit that amount against his child support obligation. He also sought to modify his obligation to pay a percentage of the children's higher education costs and his parenting time allotment. Gillian responded, alleging that she had incurred uninsured health care expenses for which Eric had not paid his fifty percent share and also requesting an order that Eric pay a portion of the children's extracurricular expenses.

The parties also disagreed as to the amount of credit Gillian was owed in the child support calculation because of the cost for her to insure the two children. Gillian's employer offered three plans: an individual employee plan, for $.08 per month; an individual plus one plan, for $379.02 per month; and a family plan, for $494.54 per month. Gillian was on the family plan in order to insure everyone-however, by this point she had another child outside of the two from her marriage to Eric. Eric therefore claimed that her base insurance cost was that of the individual plus one plan, and she should be awarded a credit equal only to the difference between that plan and the family plan-an amount that calculated to $26.75 per week. Gillian, however, claimed that her credit should be two-thirds of the cost of insuring all three of her children. In other words, the cost for each child would be the cost of the family plan minus the amount for Gillian's individual coverage, divided by three; the credit for the two children would then be two-thirds of that amount-or $76.67 per week.

The trial court credited Eric for the children's Social Security benefits by including the benefits in Gillian's weekly adjusted income on the child support obligation worksheet. It then gave Gillian a credit in the amount of $76.67 per week for the cost incurred in obtaining health insurance. The net result reduced Erie's child support obligation to a total of $138 per week, down from $150 per week. It also ordered Eric to pay additional money for uninsured health expenses incurred by the children, up to fifty percent of the costs, denied Eric's request to modify his obligation to contribute to the children's higher education expenses, and modified the parenting time and transportation cost provisions of the 1999 decree.

Eric appealed, claiming the trial court erred in assessing his obligation to pay uninsured health expenses, applied an inappropriate credit to Gillian when determining her health insurance costs, erred in its modification of the parenting time, transportation cost, and extracurricular expenses provisions of the 1999 decree, improperly denied his request to modify his secondary education obligation, and improperly computed the credit resulting from his Social Security benefits The Court of Appeals, in an unpublished memorandum decision, affirmed in part and reversed in part. Johnson v. Johnson, 979 N.E.2d 718 (Ind.Ct.App.2012). It affirmed the trial court's calculation of uninsured health care expense obligations, modification of parenting time, and the denial of Eric's request to modify his higher education obligation. Id. at *1. It reversed, however, on the issues of Gillian's health insurance credit, transportation costs, extracurricular expenses, and the credit for Eric's Social Security Retirement benefits. Id.

Both Eric and Gillian sought transfer, which we grant only to address the trial court's calculation of Gillian's health insurance credit and the application of Erie's Social Security Retirement benefits. We summarily affirm the Court of Appeals decision in all other respects. Ind. Appellate Rule 58(A).

Standard of Review

The trial court's judgment here included specific findings of fact and conclusions of law. The conclusions of law are reviewed de novo. Johnson. v. Johnson, 920 N.E.2d 253, 256 (Ind.2010). But pursuant to Trial Rule 52(A), we "shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Factual findings are only clearly erroneous where there is no support for them in the record, either directly or by inference; a judgment is only clearly erroneous when it applies an improper legal standard to proper facts. Johnson v. Wysocki, 990 N.E.2d 456, 460 (Ind.2013). "In either case, we must be left 'with the firm convietion that a mistake has been made.'" Id. (quoting Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind.1997)).

I. Gillian's Credit for Health Insurance Premiums

Indiana's Child Support Guidelines provide that "[the weekly cost of health insurance premiums for the child(ren) should be added to the basic obligation whenever either parent actually incurs the premium expense or a portion of such expense." Ind. Child Support Guideline 3(E)(2). The commentary to this Guideline explains that this is accomplished by giving a credit to the parent who actually pays the cost; but "[ilf health insurance coverage is provided through an employer, only the child(ren)'s portion should be added and only if the parent actually incurs a cost for it."

The commentary to Guideline 7, explaining how to apply this eredit on the Health Insurance Premium Worksheet, says that the amount credited should be "the cost of the child's portion, if known, or the difference between the cost of insuring a single party versus the cost of family coverage." It also. notes that unique cireumstances may arise, including those involving subsequent spouses and/or children, and "[the treatment of these situations rests in the sound discretion of the' court, including such options as prorating the cost." Child Supp. G. 7, emt.

Again, Eric's position was that the amount credited here should equal the difference between the family coverage plan and the individual plus one plan, because Gillian needed to insure her other child regardless. Gillian's position was that the amount credited should be two-thirds the cost of insuring all three of her children. The trial court found that Erie's $26.75 per week credit was unfair "because [Gillian] cannot insure the parties' children for that amount." (App. at 16.) On the other hand, it found Gillian's proposed $76.67 credit equitable "because she only gets a credit for two-thirds of the cost, and, thus, if she sought child support for her subsequently born child and received a one-third eredit for his portion of the premium she would ultimately receive eredit for the actual amount of health insurance premium costs she pays." (App. at 16.)

We recognize that Eric's position has meérit, in that the trial court's division of the health insurance premium could be construed as requiring him to pay a portion of the cost to insure Gillian's third child. And the fact that that Gillian apparently receives no support from the father of her third child is certainly not Eric's fault. -

Nevertheless, that does not mean this assessment of a credit is clearly erroneous. For one thing, even if Gillian did not have her subsequent child she could not insure the two children under the individual plus one plan-she would still have to pay the full cost of the family plan. Erie's proposal therefore could not represent the cost Gillian actually incurred in obtaining health insurance for their two children.

And for another thing, because Gillian does have the subsequent child, the trial court's apportionment assigns each child an equal monetary value with respect to this credit. In theory, if Gillian obtained child support from the father of the subsequent third child, that amount would be reflected as a credit equal to the amount credited for one of her and Erie's children. Eric's proposal, however, would result in Gillian receiving a substantially larger eredit for that third child than for the other two.

While this certainly works to Eric's benefit, it would have the reverse impact on that third child's father. Under Erics proposal, Gillian would be responsible for her own coverage and Eric would be responsible for the difference between the individual plus one plan and the family plan-around $115 per month. The third child's father, however, would be responsible for the difference between Gillian's individual plan and the individual plus one plan-just a little under $380 per month.

In sum, while we acknowledge that other trial courts might approach this issue differently, when the Guidelines do not explicitly dictate a bright-line procedure to be followed our standard of review is flexible enough to permit the trial court judge to fashion child support orders that are tailored to the cireumstances of the particular case before them and consequently reflect their best judgment. Here the trial court fashioned a solution that it believed was equitable to the parties and we are not left with a firm conviction that a mistake was made by its doing so. We therefore affirm the trial court with respect to the credit Gillian received for her health insurance premium costs.

II. Eric's Social Security Retirement Benefits

A parent's child support obligation may also be subject to an adjustment for Social Security benefits. Child Supp. G. 3(G)(5). Social Security Disability benefits are automatically included in the weekly gross income of the noneustodial parent and applied as a credit to his or her child support obligation. Child Supp. G. 3(G)(5)(a)(2)(ii). Social Security Retirement benefits, however, "may, at the court's discretion, be credited to the noncustodial parent's current child support obligation. The credit is not automatic. The presence of Social Security Retirement benefits is merely one factor for the court to consider in determining the child support obligation or modification of the obligation." Child Supp. G. 3(G)(5)(a)(2)(ii). The rationale for this Guideline arose in Stultz v. Stultz, 659 N.E.2d 125 (Ind.1995).

In Stultz, a noncustodial father sought to modify his child support obligation to reflect, in part, Social Security Retirement benefits being paid directly to his children. The trial court denied the modification, finding the retirement benefits were not income for either the children or retiree, but instead a benefit made available to the children at no cost to a retiree. It also noted that the Indiana Code required trial courts to consider, among other things, "the standard of living the child would have enjoyed had the marriage not been dissolved or had the separation not been ordered" in fashioning (or modifying) a child support order. Id. at 127. And had the Stultz's marriage not dissolved, "the children would have enjoyed the benefit of all of the [mother's] income plus the retirement, plus the social security retirement benefits they received, plus the [father's] income." Id.

The Court of Appeals reversed, holding that a parent ordered to pay child support is always entitled to a credit for any Social Security benefits received by that parent's children. Id. at 126. It relied on a case holding that a disabled parent was entitled to receive a credit against his or her child support obligations in an amount equal to Social Security Disability benefits received by the child. Id. at 127; see Poynter v. Poynter, 590 N.E2d 150 (Ind.Ct.App.1992), trans. denied. The Court of Appeals equated Social Security Retirement benefits to Social Security Disability benefits, and concluded that the trial court had no discretion not to award the noneustodial parent a credit for those benefits received. Stultz, 659 N.E.2d at 128.

We disagreed and affirmed the trial court, noting first that on a dollar for dollar credit system, the result reach by the Court of Appeals would effectively have reduced the father's obligation to nothing. Id. at 126. But we also found significant case law supporting the view that a credit for Social Security Retire ment benefits was not automatic, and rather was "merely one factor for the trial court to consider in determining the child support obligation or modification of the obligation." Id. at 128. And the trial court reviewed a number of factors in reaching its decision, not the least of which was the statutory consideration of the standard of living the children would have enjoyed had the marriage lasted-and that standard of living would have included the benefits of the father's retirement. Id.

We refused to completely foreclose "the possibility of other trial courts, in certain cases, granting a credit to a social security recipient parent for benefits received by a child," but nevertheless anticipated "that such a credit will generally be denied, at least with respect to social security retirement benefits." Id. at 128-29. "Congress has created an entitlement for the minor children of all social security participants who retire. But it is the children's entitlement, not the retiree's, and should not as a general rule diminish. the legal obligation of retirees to support their children." Id. at 130.

Here, the trial court engaged in a two-step analysis in determining if Eric should receive a credit for his children's Social Security Retirement benefits, and if so, in what amount. Looking first to the statutory factors governing the determination of child support, it focused on Erie and Gillian's financial resources and the standard of living the children would have enjoyed had their parents remained married. It found that Gillian was the sole wage earner in a family of four, whereas Erie's household consisted only of Eric and his new wife-who was employed full-time-and that both Eric and Gillian had been able to increase their savings in recent years. -It also found that if it applied a dollar for dollar eredit, the children's standard of living would be reduced by more than thirty percent.

It did determine, however, that Eric was entitled to some credit in the determination of his child support because of the Social Security Retirement benefits. To determine the amount, the trial court cited a footnote in Stultz in which this Court said

[Iln those situations where the trial court concludes that it is appropriate to give a Social Security recipient parent credit for Social Security benefits paid directly to a child, the trial court should in fact include the amount of the benefits in the recipient parent's adjusted income for purposes of calculating the parents' relative share of the total child support obligation.

(App. at 14 (citing Stultz, 659 N.E.2d at 126 n. 2).) It therefore included the Social Security Retirement benefits in Gillian's weekly adjusted income on the child support worksheet.

On appeal, Eric argues that "[tlhis approach set the basie support obligation at a higher level than the children would have enjoyed had the family remained intact and thereby devoted a substantially higher percentage of total family income to the children's support." (Appellant's Br. at 32.) Instead, he says, "an adjustment for Gillian's receipt of these funds should be shown as a credit to him on line 7 of the [child support worksheet]." (Appellant's Br. at 32.) This, he concedes, would have resulted "in a negative support amount." (Appellant's Br. at 36 n. 3.) We cannot agree with his proposal.

We recognize that determination of how to apply a child's receipt of Social Security Retirement benefits in a child support order can be complicated, and present challenges to a trial court-and not applying those benefits poses the risk that the trial court may fashion a child support order under which "the children of divorcing parents enjoy a standard of living much greater than that which they enjoyed pre-disso-lution." Thompson v. Thompson, 868 N.E.2d 862, 865 (Ind.Ct.App.2007). This would most certainly be the opposite-but equally inappropriate-danger of applying the Poynter methodology.

And we likewise agree-and our Child Support Guidelines now reflect-that a mechanical application of the trial court methodology in Stullz (ie., a strict denial of eredit) would be improper, and the opinion "should be applied to provide for the exercise of the trial court's discretion." Id. at 868 (encouraging use of methodology from Stuilts's footnote 2). "[UItilizing such a methodology will promote the aims of the Support Guidelines, will treat similarly situated families the same, and will provide for children receiving the same degree of support post-dissolution that they had when their parents' marriage was intact." Id."

Eric's claim-that the trial court's order gives his children a higher standard of living than they would have enjoyed had their parents' marriage continued, and devotes a substantially higher percentage of total family income to child support-is language pulled from Thompson. See id. at 869. The implication of his argument is that this language is the lens through which we should review the modification of his child support order. We disagree.

We do not read Thompson as setting forth the test for reviewing every determination of a credit for Social Security Retirement benefits. Rather, the case very articulately expresses two extreme approaches for that credit. On one end there are those instances where the trial court provides a dollar for dollar credit to the noncustodial parent, effectively wiping away the child support obligation. See id. at 868. And on the other end are those cases where the child support obligation is determined without any consideration of the benefits, effectively providing the child-and eustodial parent-with a windfall. See id. At and beyond those two boundaries, Thompson said, generally lies the abuse of the trial court's discretion.

The trial court here followed neither of those extreme approaches. Instead, it followed the flexible methodology set forth in Stultz, encouraged in Thompson, and reflected in the Child Support Guidelines. And it reached an amount somewhere in between the two extremes. Moreover, without needing to assess whether that determination was in and of itself clearly erroneous, Erie's proposed alternative-a dollar for dollar credit effectively negating his child support obligation-is expressly prohibited by both Stultz and Thompson. Essentially, he is asking us to revisit Stultz and hold that the entitlement owed to his children by the government should relieve him of his financial obligation to provide support. This we will not do.

Conclusion

We therefore affirm the trial court order with respect to the calculation of Gillian's health insurance premium credit and application of Erie's Social Security Retirement benefits. We summarily affirm the Court of Appeals as to the remaining issues.

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

      . This reduction was not a result of Eric's retirement; the original child support calculation apparently did not factor in three children that Eric had prior to his marriage with Gillian.

      . This particular point was not adopted into the Guidelines.

      . Those factors are now codified at Indiana Code § 31-16-6-1(a) (Supp.2013), and include:
      (1) the financial resources of the custodial parent;
      (2) the standard of living the child. would have enjoyed if:
      (A) the marriage had not been dissolved; or
      (B) the separation had not been ordered; or
      (C) in the case of a paternity action, the parents had been married and remained married to each other;
      (3) the physical or mental condition of the child and the child's educational needs; and
      (4) the financial resources and needs of the noncustodial parent.


author: DICKSON, Chief Justice.

text:
    INDIANA GAS COMPANY, INC. and Southern Indiana Gas and Electric Company, et al., Appellants (Respondents), v. INDIANA FINANCE AUTHORITY and Indiana Gasification, LLC, Appellees (Petitioners).
    No. 93S02-1306-EX-407.
    Supreme Court of Indiana.
    Dec. 17, 2013.

      Norman T. Funk, Libby Y. Goodknight, Krieg DeVault, LLP, Clayton C. Miller, Bamberger, Foreman, Oswald & Hahn, LLP, Todd A. Richardson, Joseph P. Rom-pala, Lewis & Kappes, P.C., Jerome E. Polk, Polk & Associates LLC, Indianapolis, IN, Robert E. Heidorn, Joshua A. Claybourn, Evansville, IN, Attorneys for Appellants.
    Larry J. Wallace, James A.L. Buddenb-aum, Travis W. Montgomery, Parr Richey Obremskey Frandsen & Patterson LLP, Karl L. Mulvaney, Michael R. Limrick, Bingham Greenebaum Doll LLP, Mark W. Cooper, A. David Stippler, Randall C. Hel-men, Indianapolis, IN, J. Thomas Vetne, Brian M. Kubicki, Jones Obenchain, LLP, South Bend, IN, Jefferson A. Lindsey, Lindsey Law Office, Rockport, IN, Attorneys for Appellees.
    Rosemary G. Spalding, Spalding & Hilmes, PC, William M. Waltz, Timothy J. Rushenberg, Indianapolis, IN, Attorneys for Amicie Curiae.
   DICKSON, Chief Justice.

This is an appeal from an order of the Indiana Utility Regulatory Commission ("the IURC") approving a contract for the purchase of substitute natural gas ("SNG") and directing the procedure for resolving future related disputes. After the Court of Appeals voided the contract because a definitional term deviated from the required statutory definition, the contracting parties amended the contract to correct the error. We hold that the contract, as amended, renders the definitional issue moot and summarily affirm the Court of Appeals as to all other claims.

In 2009, the Indiana General Assembly passed the Substitute Natural Gas Act, authorizing the Indiana Finance Authority ("IFA") to contract for the purchase of SNG to be delivered to "retail end use customers" ("REUCs"). Under the SNG Act, purchase contracts must provide a guarantee of savings to REUCs and be approved by the IURC. In January 2011, IFA executed a contract with Indiana Ga-sification, LLC ("Indiana Gas") for the purchase of SNG ("the Contract"). IFA and Indiana Gas petitioned the IURC for its approval. Several regulated gas utilities ("the Utilities") were joined in the proceeding. Industrial transportation companies ("the Industrial Group") and consumer advocacy groups ("the Citizens Group") intervened. After an evidentiary hearing, the IURC found the Contract guarantees the required savings and approved the Contract, but declined to decide the scope of REUC as used in the Contract ("the Order").

The Utilities, Industrial Group, and izens Group appealed the IURC's Order. On October 30, 2012, the Court of Appeals issued its decision holding that "(1) the Utilities and the Industrial Group's claims are justiciable," and (2) "the Commission did not exceed its jurisdiction when it approved the Contract.". Indiana Gas Co. v. Indiana Fin. Auth., 977 N.E.2d 981, 1003 (Ind.Ct.App.2012). But the court reversed the IURC's approval of the Contract because the Contract's definition of REUC applies to industrial transportation customers. Id. By December 13, 2012, IFA and Indiana Gas entered into an "Amended Contract" that deletes from. the Contract the language the Court of Appeals found improper. In all other aspects, the Contract remains unchanged. Even though presented with the Amended Contract, the Court of Appeals denied rehearing. We granted transfer, thereby vacating the reversal of the IURC's Order pursuant to Indiana Appellate Rule 58(A). We hold that the Amended Contract defines REUC compatible with the SNG Act and renders the definitional issue moot.

"The General Assembly created the Indiana Utility Regulatory Commission primarily as a fact-finding body with the technical expertise to administer the regulatory scheme devised by the legislature." N. Ind. Pub. Serv. Co. v. United States Steel Corp., 907 N.E.2d 1012, 1015 (Ind.2009) [hereinafter NIPSCO]. The Indiana Code authorizes judicial review of IURC orders as follows:

An assignment of errors that the decision, ruling, or order of the commission is contrary to law shall be sufficient to present both the sufficiency of the facts found to sustain the decision, ruling, or order, and the sufficiency of the evidence to sustain the finding of facts upon which it was rendered.

Ind.Code § 8-1-3-1 (2012). This amounts to a multiple tiered review. NIPSCO at 1016. First, the order must contain specific findings on all the factual determinations material to its ultimate conclusions. Id. We review the conclusions of ultimate facts, or mixed questions of fact and law, for their reasonableness, with greater deference to matters within the IURC's expertise and jurisdiction. Id. (citing McClain v. Review Bd. of Ind. Dept. of Workforce Dev., 693 N.E.2d 1814, 1317-18 (Ind.1998)). Second, the findings of fact must be supported by substantial evidence in the record. Id. We neither reweigh the evidence nor assess the credibility of witnesses and consider only the evidence most favorable to the IURC's findings. Id. (quoting McClain, 693 N.E.2d at 1317). Finally, we review whether IURC action is contrary to law, "but this constitutionally preserved review is limited to whether the Commission stayed within its jurisdiction and conformed to the statutory standards and legal principles involved in producing its decision, ruling, or order." Id.

Definition of "Retail End Use Customer"

On transfer, IFA and Indiana Gas concede that the Contract's definition of REUC is incompatible with the SNG Act, but they argue the Court of Appeals majority erred in reversing the IURC's Order. IFA and Indiana Gas do not simply ask this Court to follow Chief Judge Robb's dissent, but instead ask this Court to

affirm the [IURC's] approval of the Contract regardless of the addition of the 37 words, and in doing so the Court may also take note that the definitional issue is now moot because the offending 37 words have been removed by the IFA/[Indiana Gas] Contract amendment{.] ‘

Appellees Trans. Pet. at 14 (emphasis added). IFA and Indiana Gas explain that, under Section 15.5 of the Contract, "[the Contract permits [IFA and Indiana Gas] to amend their agreement." Id. To this point, the Utilities respond that "[alny assertion that the [Amended Contract] moots the issue of the Contract's defective definition of 'retail end use customer' and negates the need for further proceedings before the Commission is not well taken" because "[plursuant to Section 15.2 of the Contract, the Contract became void and unenforceable in its entirety" when the Court of Appeals found the Contract's definition of REUC deviated from the statutory definition. Appellant Utilities Joint Response to Trans Pet. at 9-10. Because the Amended Contract's definition of REUC is compatible with the SNG Act and our grant of transfer vacated the reversal of the IURC's Order, we dismiss the definitional issue as moot and affirm the IURC's approval of the Contract.

The Amended Contract's definition of REUC is compatible with the SNG Act. The Commission has the authority to approve a final purchase contract so far as the contract comports with the statutory requirements of the SNG Act. See Ind. Code § 4-4-11.6-14. The SNG Act defines an REUC as "a customer who acquires energy at retail for the customer's own consumption" from a gas utility or through a program approved by the IURC with rates subject to approval by the IURC. Ind.Code § 4-4-11.6-10 (2012). The Contract's definition of REUC adds language to the statutory definition, stating:

"Retail End Use Customers" for purposes of this Agreement has the meaning set forth in Indiana Code 4-4-11.6-10; provided that, for the absence of doubt, "retail end use customer" means all Indiana customers of each applicable local gas distribution company except for industrial transport customers with an annual volume level of 50,000 deka-therms or greater.

Industrial Group's App'x at 384 (italic emphasis added). We agree with the Court of Appeals that this inclusion of transportation customers renders the Contract's definition of REUC incompatible with the statutory definition. But the Amended Contract deletes the language the Court of Appeals found improper, adopting a definition identical to-and thus compatible with-that under the SNG Act.

This Court's grant of transfer vacated the reversal of the ITURC's Order, leaving IFA and Indiana Gas free to amend the Contract under Section 15.5. Under Indiana Appellate Rule 58(A), if this Court grants transfer, the prior appellate opinion or decision is automatically vacated, except for those portions we expressly adopt or summarily affirm. We agree with the Utilities that, under Section 15.2, a provision determined invalid, void, or unenforceable by any court having jurisdiction would invalidate, void, and make unenforceable the Contract in its entirety. But Section 15.2 does not apply because, upon this Court's grant of transfer, any invalidation of the REUC definitional provision was undone. Under Section 15.5 of the Contract, as approved by the IURC, IFA and Indiana Gas were free to amend-and did amend-the Contract to fix the definitional issue.

IFA and Indiana Gas have resolved the definitional issue; thus the issue is moot. "When the concrete controversy at issue in a case 'has been ended or settled, or in some manner disposed of, so as to render it unnecessary to decide the question involved," the case will be dismissed." Matter of Lawrance, 579 N.E.2d 32, 37 (Ind.1991) (quoting Dunn v. State, 163 Ind. 317, 321, 71 N.E. 890, 891 (1904)). Appellants requested that this Court vacate the IURC's Order in part because the Contract's definition of REUCs improperly applied to industrial transportation customers; IFA and Indiana Gas have addressed this concern by amending the Contract approved by the IURC and rendering it unnecessary for this Court to decide the issue.

Conclusion

Finding the definition of REUC in the Amended Contract to be compatible with the SNG Act, we dismiss that issue as moot and affirm the IURC's Order approving the Contract. As to all other claims, we summarily affirm the decision of the Court of Appeals.

RUCKER, DAVID, MASSA, RUSH, JJ., concur. >

      . Appellee Indiana Gasification, LLC ("'Indiana Gas") should not be confused with Appellant Indiana Gas Company, Inc.

      . The Contract between IFA and Indiana Gas appears to be the one and only SNG purchase contract executed by the IFA.

      . Approximately six months later, on May 10, 2013, Indiana Governor Michael R. Pence signed into law Senate Enrolled Act 494, which appears to amend the SNG Act to require that-regardless of this Court's decision-the Amended Contract must be submitted to the IURC for approval. See Ind.Code § 4-4-11.6-14 (2013). We decline the request of Indiana Gas to address the validity and impact of Senate Enrolled Act 494 as part of this appellate proceeding.

      . Chief Judge Robb, dissenting, would delete the 37 words and otherwise affirm the Commission's Order. We find it unnecessary to review which approach was correct because the Amended Contract renders the issue moot.

      . "15.5. Amendments. Any amendments to this Agreement must be in writing executed by both Parties." Industrial Group's App'x at 361.

      . "15.2 Non-Severability. All of the provisions of this Agreement constitute a material integral part of the Parties' agreements and this Agreement shall be construed in whole and not in part so that if individual provisions, agreements or covenants are determined to be invalid, void or unenforceable by any court having jurisdiction, then such determination shall invalidate, void, and make unenforceable this Agreement in its entirety." Id.

      . The Court of Appeals did not rely upon the non-severability provision but rather reversed the IURC's Order because the IURC exceeded its statutory authority by approving a definition incompatible with the statutory standard. See Indiana Gas Co. v. Indiana Fin. Auth., 977 N.E.2d 981, 1003 (Ind.Ct.App.2012).


author: MAY, Judge.

text:
    Roger Jay PIATEK, M.D., and The Piatek Institute, Appellants-Defendants, v. Shairon BEALE, Appellee-Plaintiff.
    No. 49A04-1209-CT-463.
    Court of Appeals of Indiana.
    Aug. 15, 2013.
    Edward L. Murphy, Jr., William A. Ramsey, Murphy Ice & Koeneman LLP, Fort Wayne, IN, Attorneys for Appellants.
    Mary A. Findling, Findling Park & Associates, P.C., Michael J. Woody, Indianapolis, IN, Attorneys for Appellee.
   OPINION ON REHEARING

MAY, Judge.

Roger Jay Piatek, M.D., and the Piatek Institute (collectively "Piatek") petition for rehearing of our decision dated May 20, 2013, affirming the jury verdict against Piatek and in favor of Shairon Beale ("Beale"). We grant the petition for rehearing in order to address an argument Piatek advanced on appeal and to note a mischaracterization of the record by Pia-tek's counsel in their rehearing petition. We reaffirm our original opinion.

In his appeal of this medical malpractice verdiet, Piatek argued, among other things, that the trial court should have instructed the jury on Beale's contributory negligence. We found no error, as there was no evidence of conduct on Beale's part that contributed to the harm she suffered. Piatek v. Beale, 994 N.E.2d 1140, 1147-48 (Ind.Ct.App.2013).

On rehearing, Piatek argues the trial court should have given a contributory negligence instruction because Beale did not provide Piatek with an accurate medical history. Before we consider that argument, we must address Piatek's egregious mischaracterization of the record in the Petition for Rehearing.

Piatek says "Beale herself asserts that Dr. Piatek's lack of her accurate medical history was the proximate cause of her harm." (Appellant's Petition for Rehearing at 2.) Piatek directs us to three places in the trial transeript, none of which reflect Beale ever made any such assertion, or even suggest she might have. Not only is there no support at those places in the transcript for Piatek's statement, the pages to which Piatek directs us do not even include evidence. Rather, all are from opening or closing statements by counsel. It is axiomatic that the arguments of counsel are not evidence. See Young v. Butts, 685 N.E.2d 147, 150 (Ind.Ct.App.1997) (arguments of counsel constitute no evidence whatsoever).

In Young, Butts testified she was driving 60 miles per hour. On appeal, Young's counsel stated the speed limit was fifty-five and asserted Butts was therefore speeding. There was no evidence in the record to support that assertion; rather, the testimony in the record was that the speed limit was 65 miles per hour. Young's appellate counsel then stated Butts "admitted in her testimony that she had been traveling at a rate of speed in excess of the limit for that particular area.... This admission, made under oath, is evidence that Defendant-Appellee, Beth Butts, was speeding." Id. The page of the record to which Young's counsel directed us contained no such admission nor was there any statement that could be interpreted as such an admission.

We found the misrepresentations by Young's counsel "particularly offensive," id. at 151, because they would, if true, directly affect the propriety of the trial court's judgment. Because of the misstatements and various deficiencies in Young's brief, we found Young's appeal frivolous, without merit, and brought in bad faith, and we remanded for a determination of the appropriate amount of damages to be awarded Butts for the defense of the appeal. Id. at 151-52.

The misrepresentation by Piatek's counsel is offensive for the same reason: had Beale "herself assert[ed] that Dr. Piatek's lack of her accurate medical history was the proximate cause of her harm," (Appellant's Petition for Rehearing at 2), such a statement would have directly affected the propriety of the trial court's judgment.

We note this misrepresentation in Pia tek's petition for rehearing came after we noted a number of deficiencies in the brief Piatek's counsel submitted on appeal. Those deficiencies included raising allegations not referred to in the Statement of the Issues as required by Indiana Appellate Rule 46(A)(4), 994 N.E.2d at 1142 n. 1; a transcript submitted with pages out of order, in violation of App. R. 28, id.; allegations of error unsupported by explanation or citation to legal authority, id.; and mischaracterization of certain testimony. Id. at 1147-48 n. 8.

As for Piatek's argument on rehearing that a contributory negligence instruction was required because Beale did not provide an accurate medical history, we reaffirm our decision. We acknowledge case law that indicates a patient may be contributorily negligent if she gives her doctor false or incomplete information when she is capable of providing an aceu-rate history. See, eg., Fall v. White, 449 N.E.2d 628, 633 (Ind.Ct.App.1983). Dr. Piatek asked Beale if she had ever before taken Armour Thyroid. She said she had, sometime in the 1990s, and had no problems with it. That statement was incorrect. Beale had forgotten that, because of a prescribing error in the 1990s, she had at one point taken four times the correct dosage and it made her dizzy.

That Beale did not remember the 1990s prescribing error did not require a contributory negligence instruction. Contributory negligence is conduct on the part of the plaintiff that contributes as a legal cause to the harm she has suffered and that falls below the standard to which she is required to conform for her own protection. Id. at 634. There was no evidence Beale's non-disclosure that she had, years before, experienced dizziness when she took four times the proper amount of Armour Thyroid contributed as a legal cause to the harm she suffered. Specifically, there was no evidence Dr. Piatek would not have prescribed a normal dosage of Armour Thyroid if he had known Beale had an adverse reaction years before to a dosage that was four times the proper amount.

We grant Piatek's petition for rehearing and reaffirm our original decision in all respects.

BAKER, J., and MATHIAS, J., concur.

      . Piatek's counsel does not, in his petition for rehearing, acknowledge Beale's reaction to Armour Thyroid came after she took four times the correct dosage. He says only "Beale herself now admits that she had previously suffered a negative reaction to Armour Thyroid." (Appellant's Petition for Rehearing at 2.)

      . Piatek submitted a Motion for Leave to Amend Appellant's Petition for Rehearing to correct an erroneous citation to the transcript. In light of our disposition of this rehearing request, we have by separate Order denied the Motion as moot.