text:
    David E. LYONS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 76A03-1112-CR-582.
    Court of Appeals of Indiana.
    Oct. 11, 2012.

      Hugh N. Taylor, Auburn, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

Appellant-defendant David E. Lyons appeals his convictions for five counts of Child Molesting, a class A felony. Specifically, Lyons contends that his convictions must be reversed because fundamental error occurred when a child psychologist was permitted to testify about various characteristics and behaviors that are common in child sexual abuse victims. Finding no error, we affirm the judgment of the trial court.

FACTS

K.F. was born in December 1995. KF.’s paternal grandmother babysat for K.F. on a daily basis while her parents were at work. Lyons, who is KF.’s uncle, was born in 1960, and he lived with his parents from 2004 to 2006 in Steuben County. During these years, Lyons spent periods of time alone in his bedroom with K.F. He bought K.F. ice cream, a laptop computer, paid for her tenth birthday party, and told her that she was beautiful.

KF.’s grandmother also babysat for KF.’s friend, Jessica Mofield. Lyons would tell Jessica that he thought K.F. was “hot” and that Jessica was the type of girl that people wanted to marry but that K.F. was the kind of girl that people wanted to date. Tr. p. 539^40.

Sometime in 2004, Lyons began molesting K.F. On one occasion, Lyons placed his hands in K.F.’s underwear and put his fingers inside K.F.’s vagina while she was sitting on Lyons’s lap playing a computer game. At some point during the encounter, Lyons told K.F. that she should “trust him.” Id. at 404.

On another occasion, Lyons again put his fingers inside K.F.’s vagina. And in another instance, when K.F. was still eight years old, Lyons put K.F. on his bed, removed all of her clothes, and put his tongue inside her “private.” Tr. p. 410-15. At some point in 2004, Lyons made K.F. put her mouth on his penis and told her not to tell anyone.

In the summer of 2006, Lyons removed KF.’s pants and tried to put his penis inside her. Lyons’s penis touched both the “outside and the inside” of KF.’s genitals. However, his penis would “only go in a little way,” and it hurt K.F. Id. at 424-29. Lyons again told K.F. not to tell anyone about the incident. That same summer when Lyons and K.F. were in the garage at her house, Lyons picked up a board with a hole in it, placed his penis through the hole, and had K.F. put her mouth on his penis.

Also during the summer of 2006 just before leaving for vacation, K.F. noticed that she was bleeding from her “private area.” Tr. p. 447-48. During their vacation, K.F.’s mother observed that K.F. had some redness and irritation in and around her genitals. Later that same year, K.F. told Mofield about the incident involving the board when Lyons made her put her mouth on his penis. Id. In January 2010, K.F. told her then-boyfriend, Nathan Beatty, that her uncle had “raped” her when she was younger. Id. at 434-38, 599-601. K.F. was crying when she told him about this and told Beatty not to tell anyone. Although Beatty urged K.F. to tell her mother about the incident, she decided not to do so. Later in 2010, K.F. told her mother that Lyons had hurt her, but she refused to say anything more.

At some point, K.F. feared that Lyons was going to molest her younger sister and developed a number of emotional problems. For instance, K.F. attempted to run away from home after a fight with her parents. When KF.’s mother found her, she took K.F. to a local hospital. While there, K.F. began to scream, “don’t touch me” when the nurses were trying to hold her down. Tr. p. 566. She also yelled, “he touched me.” Id. K.F. then disclosed that Lyons had been molesting her. During a physical examination, a nurse discovered a scar from a one-centimeter laceration on KF.’s genitals that was at least a year old. The nurse determined that it was probably the result of a forcible injury.

On October 14, 2010, the State filed five counts of child molesting, a class A felony, against Lyons. Count I alleged an act of sexual intercourse with K.F., and the remaining counts alleged various acts of deviate sexual conduct. Counts I and II alleged acts that occurred between June 1, 2006, and September 1, 2006, while the other three counts covered a time period between January 1, 2004, and September 1, 2006.

At a jury trial that commenced on August 17, 2011, the State called Dr. Judith Williams to testify. Dr. Williams is a licensed clinical psychologist with extensive experience counseling child victims of sexual abuse. Although Dr. Williams had counseled K.F. from April to June of 2010, her testimony was not specifically related to KF.’s treatment.

Instead, Dr. Williams testified about general characteristics, mannerisms, and behaviors that are common among child abuse victims. When the deputy prosecutor asked Dr. Williams to describe the type of person to whom a child will initially disclose abuse, Lyons objected on the grounds that the question “called for speculation.” Tr. p. 518. After Dr. Williams confirmed that her answer would be based on “studies,” the trial court overruled the objection. Id. Lyons made no further objection to Dr. Williams’s testimony.

Dr. Williams testified that sex abuse victims will spend time with the offender if the victim feels “special.” Id. at 517-27. And most of the time, the victim does not want the offender to get in trouble. Dr. Williams testified that victims feel guilty, are depressed, and lack self esteem. Moreover, some victims have suicidal thoughts.

Dr. Williams also testified that children often do not disclose instances of abuse because they are confused or embarrassed and believe that the offender’s actions are their fault. The child victim also is quite often afraid of the offender and feels obligated to keep a promise made to the offender not to tell anyone about the abuse.

Following the presentation of the evidence, Lyons was found guilty on all counts and subsequently sentenced to thirty years on each count. The sentences were ordered to run consecutively to each other for an aggregate term of 150 years. Lyons now appeals.

DISCUSSION AND DECISION

Lyons claims that the trial court erred in permitting Dr. Williams to testify at trial about characteristics and behaviors common among child molest victims. More specifically, Lyons contends that it was fundamental error to permit such opinion testimony that was based upon psychological studies when no basis for reliability was established. In short, Lyons contends that his convictions must be reversed because Dr. Williams based her responses on speculation.

In resolving this issue, we initially observe that Lyons failed to object to Dr. Williams’s testimony regarding the behaviors and characteristics that child molestation victims display. As noted above, Lyons objected only once to Dr. Williams’s testimony — “to the form of the question” which called for “speculation” when the deputy prosecutor asked Dr. Williams whom a child victim will generally tell about incidents of sexual abuse. Tr. p. 518. That objection is not the same as the argument that Lyons is now raising on appeal. Thus, his claim is waived. See Brown v. State, 783 N.E.2d 1121, 1125-26 (Ind.2003) (holding that the failure to make a contemporaneous objection at trial waives any claim on appeal that evidence was improperly admitted). Moreover, a defendant cannot object on one ground at trial and then raise a different claim of error on appeal. Small v. State, 736 N.E.2d 742, 747 (Ind.2000).

In an effort to circumvent waiver, Lyons argues that he is entitled to a reversal on the basis of fundamental error. Fundamental error, however, is an extremely narrow exception that applies only where the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process. Mendenhall v. State, 963 N.E.2d 553, 567 (Ind.Ct.App.2012), trans. denied.

The fundamental error exception is available only in egregious circumstances. Id. And the mere fact that error has occurred and that it will prejudice the defendant is not sufficient to invoke the fundamental error exception; rather, the error must be such that the defendant could not possibly have received a fair trial and that the appellate court is left with the conviction that the verdict is clearly wrong and of such dubious validity that justice cannot permit it to stand. Owens v. State, 937 N.E.2d 880, 885 (Ind.Ct.App.2010), trans. denied.

That said, we note that Indiana Evidence Rule 702(a) provides that

[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In construing the above, only one of these characteristics — knowledge, skill, experience, training, or education—is necessary to qualify an individual as an expert. Otte v. State, 967 N.E.2d 540, 547 (Ind.Ct.App.2012), trans. denied.

In our view, Lyons mistakenly contends that Dr. Williams’s testimony was “scientific testimony” and is therefore governed by the principles set forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and the requirements of Evidence Rule 702(b). This rule provides that “[e]x-pert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.” (Emphasis added).

Our Supreme Court has determined that the “specialized knowledge” set forth in Evidence Rule 702(a) is not necessarily scientific knowledge, and it need not be proven reliable by means of “scientific principles.” Malinski v. State, 794 N.E.2d 1071, 1084 (Ind.2003). Rather, such evidence is governed only by the requirements of Rule 702(a), and any weaknesses or problems in the testimony go only to the weight of the testimony, not to its admissibility, and should be exposed through cross-examination and the presentation of contrary evidence. Turner v. State, 953 N.E.2d 1039, 1050 (Ind.2011).

Dr. Williams was testifying to specialized knowledge about sex abuse victims based on her training, education, and experience as a licensed clinical psychologist who has extensive experience counseling victims of sexual abuse. Her testimony was not based on any scientific principles or rules. Rather, Dr. Williams was testifying generally about matters commonly observed in sexual abuse victims in the psychological literature and in her own practice.

Dr. Williams has specialized knowledge in the area of child sexual abuse that goes beyond the knowledge generally held by lay observers. She is a licensed and practicing clinical psychologist with masters degrees in counseling education and clinical psychology as well as a doctorate in clinical psychology. Dr. Williams has had “considerable experience” counseling patients who are victims of sexual abuse. Tr. p. 514-15. Approximately one-third of Dr. Williams’s practice consists of children, and about one-third of those patients have been sexually abused, meaning that she counsels approximately one hundred sexually abused children per year. In other words, Dr. Williams has specialized knowledge in the area of child sexual abuse that would assist the jury in understanding the evidence and determining the facts at issue.

We note that while jurors can and should rely on their own common sense, a search for the truth also requires them to understand and consider the extent to which their personal assumptions may be invalid. Gaining insight and information from a witness with a deep knowledge of, and extensive experience in, a relevant field helps the jurors to perform their task more accurately. We also note that Lyons was free to cross-examine Dr. Williams regarding the studies upon which she was relying and to emphasize for the jury that these studies may have been only valid for treatment purposes and thus not intended to be used for diagnostic purposes or as reliable tools for assessing whether abuse actually occurred.

Additionally, we cannot agree with, Lyons’s assertion that the admission of Dr. Williams’s testimony violates the principles set forth in Steward v. State, 652 N.E.2d 490 (Ind.1995). Steward addressed the propriety of admitting Child Sexual Abuse Accommodation Syndrome (CSAAS) evidence. Id. at 491-93. The CSAAS evidence presented at trial was not intended to serve as a diagnostic tool to prove that sexual abuse had occurred; rather, it was intended for use in treating victims and their families, and it “helpfed] to explain reactions, such as recanting or delayed reporting, of children assumed to have experienced abuse.” Id. at 493. Therefore, the Steward court determined that the CSAAS evidence could not be used to prove, either directly or by implication, that abuse actually occurred in that ease. Id. at 499.

On the other hand, it was also established in Steward that “once a child’s credibility is called into question, proper expert testimony may be appropriate” under Evidence Rule 702(a). Id. More particularly, it was observed that

because research generally accepted as scientifically reliable recognizes that child victims of sexual abuse may exhibit unexpected behavior patterns seemingly inconsistent with the claim of abuse, such evidence may be permissible under Indiana Evidence Rule 702(a)’s authorization of ‘specialized knowledge [which] will assist the trier of fact to understand the evidence.’

Id. (quoting Evid. R. 702(a)).

In this case, Dr. Williams did not testify that there was any recognized syndrome or profile of child sexual abuse victims, much less that K.F. fit such a profile and had therefore been abused. In fact, Dr. Williams did not specifically testify about K.F. And just as important, the State did not present Dr. Williams’s testimony to prove — even by implication or inference — that K.F. had been molested. Instead, the State offered Dr. Williams’s testimony because K.F.’s credibility had been called into question. Indeed, Lyons repeatedly emphasized alleged inconsistencies in KF.’s various statements regarding the abuse and a changing time pattern in the accusations. And Dr. Williams’s testimony was presented to show the jury that things Lyons was using to attack KF.’s credibility, were, in fact, not atypical of child sex abuse victims. In sum, this was a proper use of expert testimony in this realm. See Stout v. State, 612 N.E.2d 1076, 1080 (Ind.Ct.App.1993) (recognizing that expert testimony that an individual’s behavior is consistent or inconsistent with that observed from other victims is a type of evidence that is admissible).

In our view, the requirements of Evidence Rule 702 were satisfied here, and we conclude that the admission of Dr. Williams’s testimony did not constitute error, much less fundamental error.

The judgment of the trial court is affirmed.

ROBB, C.J., and BRADFORD, J., concur.

      . Ind.Code § 35-42-4-3.

      . Among other things, Daubert declared that when "faced with a proffer of expert scientific testimony, the trial judge must determine at the outset ... whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert, 509 U.S. at 592, 113 S.Ct. 2786. Daubert also observed that "the statements constituting scien-tifie explanation must be capable of empirical test,” and "another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication ... is not the sine qua non of admissibility; it does not necessarily correlate with reliability.” Id. at 592-93, 113 S.Ct. 2786.


source: Caselaw Access Project

author: WENTWORTH, Judge.

license: Public Domain

text:
    INDIANA DEPARTMENT OF STATE REVENUE, INHERITANCE TAX DIVISION, Appellant, v. The Supervised ESTATE OF John A. SCHOENENBERGER, Deceased, Appellee.
    No. 49T10-1010-TA-54.
    Tax Court of Indiana.
    Sept. 7, 2012.
    John T. Casey, Rensselaer, IN, Attorney for Appellee.
    Gregory F. Zoeller, Attorney General of Indiana, Lynne D. Hammer, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
   WENTWORTH, Judge.

The Indiana Department of State Revenue, Inheritance Tax Division appeals the Lake Circuit Court’s (probate court) determination that the Estate of John A. Schoe-nenberger was entitled to interest on its refund claim computed according to the 1980 version of Indiana Code § 6 — 1.1-10-1 and judgment interest. In challenging the probate court’s ruling, the Department claims that interest is to be calculated according to the 2007 version of Indiana Code § 6-4.1-10-1. Accordingly, the resolution of this appeal depends on whether the 1980 or the 2007 version of Indiana Code § 6-4.1-10-1 applies for purposes of computing interest on the Estate’s claim for refund of inheritance tax. The Court reverses and remands.

FACTS AND PROCEDURAL HISTORY

On February 23, 2003, John A. Schoe-nenberger died testate. On November 21, 2003, his Estate remitted an estimated inheritance tax payment, in the amount of $1.8 million, to the Lake County Treasurer. The Estate and the Department subsequently agreed that the Estate would file its Indiana inheritance tax return when the Internal Revenue Service completed its audit of the Estate.

On April 6, 2007, the Estate sent its completed return and a letter to the Department, which stated in part:

As the return reflects, the inheritance [tax] due is $1,056,534.04. A[] timely estimated inheritance tax payment of $1,800,000 was made to the Lake County Treasurer’s office[.] Thank you for your patience in this matter. Upon review please advise as to refund due.

(Appellant’s App. Ex. F at 27.) About six months later, the Department sent the Estate a “Notice of Additional Inheritance Tax Due” (Notice), explaining that the Estate’s inheritance tax liability was $1,113,549.00. Along with the Notice, the Department explained that the Estate must file with the probate court a copy of its return and an order determining inheritance tax due. The Department also enclosed a blank Form IH-5 Claim for Refund form for the Estate to complete and return to the Department.

On February 19, 2008, the Estate filed its return with the probate court. On April 8, 2008, the probate court issued an order determining that the Estate’s inheritance tax liability was $1,113,549.00. The probate court’s order, however, did not account for the 5% statutory discount of $55,677.45 for early payment of the tax, which reduced the Estate’s inheritance tax liability to $1,057,871.55. (Cf. Appellant’s App. Ex. J at 33 with Ex. I at 31.)

On April 14, 2008, the Estate filed a Form IH-5 refund claim with the Department, requesting a refund of overpaid inheritance tax in the amount of $686,451.00 ($1,800,000 minus $1,113,549). (Appellant’s App. Ex. K at 34.) On May 13, 2008, the Department mailed the Estate’s attorney a $742,128.45 refund check, which took into account the 5% early payment discount ($1,800,000 minus $1,057,871.55). (See Appellant’s App. Ex. L at 37.) The next month, the Estate filed another refund claim with the Department, asserting that it should have received interest on the $742,128.45 refund. On July 11, 2008, the Department denied the Estate’s claim.

The Estate timely filed a Complaint Contesting Refund/Petition for Interest on Refund with the probate court. The Estate subsequently moved for summary judgment, arguing that its right to interest was triggered under the 1980 version of Indiana Code § 6-4.1-10-1 because when it overpaid its inheritance tax on November 21, 2003, that version of the statute was in effect. (See Appellant’s App. Ex. V at 96-100.) The Department responded that it owed the Estate no interest pursuant to the 2007 version of the statute because the Estate’s right to any interest was determined when it filed its refund claim on April 14, 2008, and the 2007 version was then in effect. (See Appellant’s App. Ex. W at 117-18.) On June 18, 2010, the probate court granted summary judgment in favor of the Estate. (See Appellant’s App. Ex. B.) The Department then filed a Motion to Correct Error (Motion). On September 16, 2010, the probate court denied the Department’s Motion and issued a Nunc Pro Tunc Order specifying that the Estate should have received $199,347.84 in interest and also awarded the Estate judgment interest. (Appellant’s App. Ex. C at 7-8 (footnote added).)

The Department appealed to this Court on October 4, 2010, and the Court heard oral argument on May 9, 2011. Additional facts will be supplied as necessary.

STANDARD OF REVIEW

This Court acts as a true appellate tribunal when reviewing an appeal of a probate court’s determination regarding a claim for refund of inheritance tax. Ind. Code § 6-4.1-10-5 (2012). Accordingly, while the Court will afford the probate court great deference in its role as the finder of fact, it will review its legal conclusions de novo. In re Estate of Young, 851 N.E.2d 393, 395 (Ind. Tax Ct.2006) (citation omitted).

LAW

Indiana Code § 6-4.1-10-1 governs all claims for the refund of Indiana inheritance tax. Prior to 1980, this statute did not provide for the payment of interest on refund claims whatsoever. See, e.g., 1976 Ind. Acts 69, 98-99; 1937 Ind. Acts 846-48; 1931 Ind. Acts 192, 207-11. In 1980, however, the General Assembly amended the statute to expressly authorize, among other things, the payment of interest:

(a)A person may file with the department of state revenue a claim for the refund of inheritance or Indiana estate tax which has been erroneously or illegally collected. Except as provided in section 2 of this chapter, the person must file the claim within three (3) years after the tax is paid or within one (1) year after the tax is finally determined, whichever is later.
(b)The amount of the refund that a person is entitled to receive under this chapter equals the amount of the erroneously or illegally collected tax, plus interest at the rate of six percent (6%) per annum computed from the date the tax was paid to the date it is refunded.

Ind.Code § 6-4.1-10-1 (1980) (emphases added) (hereinafter “the 1980 version”). The 1980 version of the statute was in effect when Schoenenberger died, when the Estate remitted its estimated payment of inheritance tax on November 21, 2003, and when it sent its return and letter to the Department on April 6, 2007.

Effective July 1, 2007, the General Assembly amended Indiana Code § 6^4.1-10-1 subsection (b) and added subsection (c):

(b) The amount of the refund that a person is entitled to receive under this chapter equals the amount of the erroneously or illegally collected tax, plus interest calculated as specified in subsection (c).
(c) If a tax payment that has been erroneously or illegally collected is not refunded within ninety (90) days after the date on which the refund claim is filed with the department of state revenue, interest accrues at the rate of six percent (6%) per annum computed from the date the refund claim is filed until the tax payment is refunded.

Ind.Code § 6-4.1-10-l(b)-(c) (2007) (amended 2009) (emphasis added) (hereinafter “the 2007 version”). The 2007 version of the statute was in effect when the probate court determined the Estate’s inheritance tax liability on April 8, 2008, and when the Estate filed its Form IH-5 refund claim with the Department on April 14, 2008.

ANALYSIS

The parties disagree about whether the 1980 version or the 2007 version of the inheritance tax refund statute applies. The Department maintains that the probate court should have applied the 2007 version of the statute because that version was in effect on April 14, 2008 when the Estate filed its Form IH-5 refund claim. (See Appellant’s Br. at 9-13 (footnote added).) The Estate, on the other hand, maintains that the probate court properly applied the 1980 version for the two alternative reasons discussed below.

(1)

First, the Estate contends it is not the date it filed its Form IH-5 refund claim that controls, but the date it overpaid its tax, which was on November 21, 2003 when subsection (b) of the 1980 version of the statute was in effect. (See Oral Argument Tr. at 21-23, 30-31; Appellee’s Br. at 11, 14-25, 43^16.) This contention assumes that the sole requirement triggering the right to interest under the 1980 version of the statute is making an overpayment of tax that necessarily results in an erroneously or illegally collected tax.

The unambiguous meaning of the 1980 version of subsection (b) states that a refund includes both the amount of erroneously or illegally collected tax and interest on that amount from the date paid to the date refunded. I.C. § 6-4.1-10-l(b) (1980). Thus, knowing the amount of tax overpaid is prerequisite to calculating the amount of interest that may be due. The 1980 version of subsection (b), however, may not be read in isolation, but must be considered with reference to subsection (a). See State v. Adams, 583 N.E.2d 799, 800 (Ind.Ct.App.1992) (stating “[ejach part [of a statute] must be considered with reference to all other parts” of the statute) (citation omitted), trans. denied. Accordingly, to obtain the refund provided under the inheritance tax refund statute, subsection (a) indicates that a taxpayer must timely file a refund claim for the amount of erroneously or illegally collected tax. Indeed, cases interpreting Indiana Code § 6 — 4.1—10—1 (a) make clear that an estate’s failure to timely file a refund claim may bar its ability to recover an erroneous overpayment of inheritance tax and any interest thereon. See Sibbitt v. Indiana Dep’t of State Revenue, 563 N.E.2d 146, 147-49 (Ind.Ct.App.1990), trans. denied; In re Estate of Compton, 406 N.E.2d 365, 367-72 (Ind.Ct.App.1980). Consequently, a taxpayer is not entitled to a refund with interest based solely on an overpayment of tax that results in the erroneous or illegal collection of tax, as the Estate urges. The taxpayer must also submit a timely filed refund claim. Thus, the Estate’s first argument is unpersuasive.

(2)

Alternatively, the Estate argues that to the extent its right to receive interest depends on the date it filed its refund claim, the 1980 version of the statute still applies. (See Appellee’s Br. at 30-34.) The Estate reasons that its April 6, 2007 letter asking the Department to “advise as to refund due” and attached inheritance tax return was tantamount to filing a claim for refund because it put the Department on notice. (See Appellee’s Br. at 30-34 (footnote added).)

Both the 1980 and 2007 versions of the refund statute contain the same statute of limitations with respect to the filing of a refund claim: “the person must file the claim within three (3) years after the tax is paid or within one (1) year after the tax is finally determined, whichever is later.” I.C. § 6^4.1 — 10—1 (a) (2007) (emphasis added); I.C. § 6-4.1-10-l(a) (1980) (emphasis added). In this case, the Estate’s inheritance tax liability was finally determined on April 8, 2008, the day the probate court determined the amount of inheritance tax due. See Ind.Code § 6-4.1-12-1 (2012) (providing that the probate court “deter-minéis] the inheritance tax imposed as a result of [a] resident decedent’s death and [] hear[s] all matters related to the tax determination”); accord Indiana Dep’t of State Revenue v. Estate of Parker, 924 N.E.2d 230, 235 n. 1 (Ind. Tax Ct.2010). Consequently, the Estate’s April 6, 2007 filing of its return and letter with the Department was not a valid refund claim because the probate court had not yet determined the amount of inheritance tax due as of that date.

The Estate, however, did file a valid refund claim on April 14, 2008, six days after the probate court determined its inheritance tax liability and more than nine months after the 2007 version took effect. Thus, the 2007 version of Indiana Code § 6-4.1-10-1 governed any right the Estate had to interest on its refund claim. That version of the statute provided that the Estate would receive interest on its refund claim if the Department failed to pay the refund claim within ninety days of its receipt. See I.C. § 6-4.1-10-l(b)-(c) (2007). The Department paid the claim well within that period, just twenty-nine days after receiving the claim; therefore, the probate court erred in granting the Estate interest on its refund claim and judgment interest thereon.

CONCLUSION

For the above-stated reasons, the Court REVERSES the probate court’s determination. Accordingly, the Court REMANDS this matter to the probate court for action consistent with this opinion.

      . The Estate remitted the estimated payment to preserve its right to the 5% statutory discount for early payment. See Ind.Code § 6-4.1-9-2 (2003); 45 Ind. Admin. Code 4.1-9-2(a) (2003).

      . The probate court held a hearing on the Motion for Summary Judgment and the Motion to Correct Error, but there is no transcript of either of those hearings. (See Am. Notice Completion Clerk's R., Mar. 24, 2011.)

      . The General Assembly’s 2009 amendment of Indiana Code § 6-4.1-10-1 has no bearing on the outcome of this matter.

      . The Department has suggested that the Estate intentionally overpaid its inheritance tax liability as an "investment opportunity” because at that time the rate of return on refunds exceeded the rate of return on government bonds. (See Appellant’s Br. at 10.) It was reasonable, however, that the Estate might overestimate its tax liability because of the uncertainty caused by the impending will contest. (See Appellee's Br. at 19-20, 35.)

      .The language of subsection (a) states that "[a] person may file with the department of state revenue a claim for the refund of inheritance ... tax[.]” Ind.Code § 6-4.1-10-l(a) (1980). While the use of the word "may" indicates that filing a refund claim in the manner prescribed is discretionary, it is mandatory if the person wants the other benefits, such as interest, provided by the full statute.

      . The Department has claimed that the Estate’s April 6, 2007 filing of its return and letter was not a valid refund claim because the Estate did not use an official Claim for Refund form. (See Appellant's Br. at 15.) Given its disposition of the case, however, the Court need not address this argument.

      . The Estate argues that the Department’s long-standing, informal practice of automatically processing refund claims, absent the formal filing of a claim for refund, virtually eliminates that filing requirement. (See Oral Argument Tr. at 27-28; Appellee’s Br. at 31-32.) While Indiana courts may apply equitable doctrines with respect to inheritance tax matters, the party advocating the Court’s use of those doctrines must explain the reasons they apply and provide legal authority for their application. See Indiana Dep’t of State Revenue v. Smith, 473 N.E.2d 611, 614-15 (Ind.1985). The Estate has not done so here.

      .The Estate argues that because the Department had use of its money for more than four years and it did not, a requirement that the refund cannot be given until the probate court makes its final order is unfair. (See Appel-lee’s Br. at 35-36.) The Estate reasons that unfairness results because filing a petition for reappraisal or redetermination could prolong the issuance of such orders. (See Appellee’s Br. at 35-36.) The Court acknowledges the complexities attendant to large estates, like the one here, but will not limit or extend the plain meaning of Indiana Code § 6-4.1-10-1. See Indiana Dep’t of State Revenue v. Estate of Parker, 924 N.E.2d 230, 233 (Ind. Tax Ct.2010) (citation omitted).


text:
    In the Matter of Anna E. FULKERSON, Respondent.
    No. 02S00-0901-DI-9.
    Supreme Court of Indiana.
    Oct. 18, 2012.
   PUBLISHED ORDER REVOKING PROBATION AND IMPOSING SUSPENSION

This Court entered an order suspending Respondent from the practice of law without automatic reinstatement, effective October 13, 2009, for a period of at least one year. Respondent filed a petition for reinstatement on October 13, 2010. On August 24, 2011, this Court entered an order reinstating Respondent subject to successful completion of probation of at least two years on terms to be determined by the Indiana Judges and Lawyers Assistance Program (“JLAP”). The order stated: “If Respondent violates her probation, the Commission may petition the Court to revoke her probation and to re-impose her suspension without automatic reinstatement.”

On August 10, 2012, the Commission filed a motion to revoke Respondent’s probation, asserting that Respondent materially violated the terms of the JLAP monitoring agreement. According to a notification from JLAP the Commission received on July 31, 2012:

• Respondent did not provide a urine screen on July 12, 2012.
• She did not participate in monthly therapy sessions for the last two months.
• She stopped seeing her psychiatrist in December 2011 with JLAP’s approval but had not obtained a recent reevaluation requested by JLAP.
• She did not sign the necessary release to allow JLAP’s staff to obtain a report from her pain management specialist.

Respondent filed a response on August 29, 2012, stating:

• She was laid off from her minimum wage job around March 1, 2011, and is currently seeking employment.
• She continues to cooperate with JLAP and to comply with the terms of her probation that do not involve financial obligations.

Respondent has failed to address the Commission’s allegation that she did not sign the necessary release to allow JLAP’s staff to obtain a report from her pain management specialist — a probation requirement that would not involve a financial burden. We deem this to be an admission of this allegation, see Admis. Disc. R. 23(17.2)(b), and conclude that this violation alone is sufficient grounds for revoking her probation.

In addition, we note that the JLAP notification details the efforts JLAP has made to minimize her costs for services and states that Respondent says she will not pay for or go into debt for a service she does not need. Respondent’s answer to the Commission’s motion to revoke probation does not address the allegation that she told JLAP that she does not believe she needs these services.

Being duly advised, the Court GRANTS the motion and revokes Respondent’s probationary reinstatement to the practice of law. Respondent’s suspension without automatic reinstatement is re-imposed, beginning November 30, 2012. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b). The costs of this proceeding are assessed against Respondent.

The Court directs the Clerk to serve a copy of this Order upon Respondent and the Executive Secretary by personal service or by certified mail return receipt requested. The Court further directs the Clerk to forward a copy of this Order to all entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Janice R. GAMBILL, Respondent.
    No. 64S00-1109-DI-562.
    Supreme Court of Indiana.
    Oct. 18, 2012.
   PUBLISHED ORDER POSTPONING EFFECTIVE DATE OF SUSPENSION AND SETTING DEADLINE FOR RESPONSE TO MOTION TO RECONSIDER

By order dated September 7, 2012, this Court entered an order suspending Respondent from the practice of law in this state for a period of not less than six months, without automatic reinstatement, beginning October 19, 2012.

On October 10, 2012, Respondent filed a “Petition to Stay Execution of Disciplinary Action and Motion to Reconsider.”

The Court now postpones the effective date of Respondent’s suspension to November 26, 2012.

The Court further orders that any response by the Commission to Respondent’s motion to reconsider be filed no later than November 5, 2012. No extensions of time or additional briefing shall be allowed.

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


author: DAVID, Justice.

text:
    NATIONAL WINE & SPIRITS, INC., National Wine & Spirits Corporation, NWS, Inc., NWS Michigan, Inc., and NWS, LLC, Appellants (Plaintiffs below), v. ERNST & YOUNG, LLP, Appellee (Defendant below).
    No. 49S02-1203-CT-137.
    Supreme Court of Indiana.
    Oct. 23, 2012.

      Todd J. Kaiser, John K. Henning, Indianapolis, IN, Attorneys for Appellants.
    Karl L. Mulvaney, Brian W. Welch, Phil L. Isenbarger, Indianapolis, IN, Attorneys for Appellee.
   DAVID, Justice.

In this case, a company hired an accounting firm to provide auditing services. Their agreement provided that any claim arising from the services would be submitted to arbitration. During the years covered by the agreement, an employee of the company committed fraud and theft, causing significant losses to the company.

The company alleged negligence, breach of contract, and unjust enrichment against the accounting firm and demanded arbitration. The arbitration panel ultimately found the accounting firm negligent and the company comparatively negligent. The company then filed the present suit, claiming the accounting firm committed deception because the documents that the accounting firm produced during the arbitration were misleading and caused the arbitration panel to find the company comparatively at fault.

We hold that, under the facts of this case, the issue underlying the deception claim is the veracity of the documents produced at arbitration, which was an issue necessarily decided by the arbitration panel. Accordingly, issue preclusion bars the company’s deception claim, and we affirm the trial court’s grant of summary judgment in favor of the accounting firm.

Facts and Procedural History

In 1998, National Wine and Spirits (NWS) hired Ernst & Young (E & Y) to perform auditing services for NWS’s fiscal years 1998 through 2001. NWS and E & Y agreed that “[a]ny claim or controversy arising out of or relating to the services covered by” the auditing agreement “shall be submitted ... to binding arbitration.”

During the fiscal years covered by the auditing agreement, an employee in NWS’s accounts-receivable department, Diane Woodrum, committed fraud and theft and caused approximately $4.2 million in losses to NWS. In late 2001, NWS filed a complaint in trial court, asserting claims of negligence, breach of contract, and unjust enrichment against E & Y. E & Y responded with a motion to compel arbitration and stay proceedings, which the trial court granted. Accordingly, in 2002, NWS filed a demand for arbitration, asserting the same claims against E & Y as those asserted to the trial court.

Approximately seven months before arbitration, E & Y produced about 40,000 pages of documents from its audits of NWS. Among the documents was a memo by E & Y auditor David Sems (“Sems Memo”). The Sems Memo was written after the discovery of Woodrum’s fraudulent activity and references the audit team’s contacts with Woodrum: “There were several incidences where questions where [sic] raised and the audit team contacted Ms. Woodrum for answers and explanations. These explanations are recorded in the audit work papers.”

Just ten days before the arbitration hearing, E & Y produced additional computer records called “cell notes” that the previously produced documents did not contain. According to E & Y, the copier service had inadvertently failed to print the documents with the cell notes, which were additional remarks about the figures contained in the main body of the documents. Given the timing of the cell-notes disclosure, the arbitration-panel chairman asked NWS’s counsel whether NWS was prepared to proceed or whether NWS wanted more time. NWS’s counsel stated NWS wanted to proceed.

The cell notes indicated that E & Y had spoken with NWS employees Matt Al-brecht and Cindy Sullivan about suspicious increases in accounts receivable. E & Y used the cell notes at arbitration as evidence that NWS was guilty of comparative fault. NWS presented evidence to refute the information contained in the cell notes. In particular, Albrecht and Sullivan testified that they never talked to anyone from E & Y, and Albrecht, Sullivan, and other NWS employees testified that information contained in the cell notes was inaccurate.

The arbitration panel concluded that E & Y was negligent and that NWS was comparatively negligent and responsible for 40% of its own losses. Accordingly, the panel ordered E & Y to pay NWS 60% of its losses, which amounted to approximately $2.25 million. E & Y sent NWS a check for that amount, and the parties entered a joint stipulation for dismissal of the court case with prejudice. In September 2004, the trial court dismissed the case with prejudice.

Less than two years later, NWS sued E & Y for fraud and deception in connection with the records E & Y produced and relied upon during arbitration. The complaint alleged several theories of deception: (1) E & Y may have altered the cell notes once litigation began to make it appear that E & Y auditors did not act negligently; (2) E & Y auditors may have entered false information initially that would incorrectly cause a finder of fact to determine E & Y acted properly, and E & Y intentionally produced the false cell notes in the arbitration proceedings; and (3) E & Y scrubbed the work papers of incriminating documents, and E & Y intentionally produced them in this misleading form during the arbitration proceedings. E & Y moved for summary judgment, and the trial court granted E & Y summary judgment on NWS’s fraud claim but denied the motion as to the deception claim. E & Y then filed a second motion for summary judgment on NWS’s deception claim, producing an expert’s opinion that the cell notes were not altered after they were created. The trial court granted E & Y’s second motion for summary judgment.

On appeal, NWS contended that, as a threshold matter, the trial court should have dismissed E & Y’s second summary judgment motion as an “improper” successive motion. Nat'l Wine & Spirits, Inc. v. Ernst & Young, LLP, 954 N.E.2d 1017, 1020 (Ind.Ct.App.2011). NWS further contended that the trial court should have denied the motion because a material issue of fact existed regarding its second and third theories of deception. Id. The Court of Appeals rejected NWS’s threshold argument, but it concluded that the evidence does allow an inference in favor of NWS on its second and third theories of deception and, accordingly, summary judgment was improper. Id. at 1020-22. In reaching this conclusion, the Court of Appeals rejected E & Y’s alternative arguments that NWS’s allegations do not give rise to theories of deception and that res judicata bars NWS’s claims. Id. at 1021-23.

We granted transfer. We summarily affirm the decision of the Court of Appeals that E & Y’s successive motion for summary judgment was proper. Ind. Appellate Rule 58(A)(2).

Standard of Review

In reviewing summary judgment, this Court applies the same standard as the trial court: summary judgment is proper when the moving party demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). If the trial court’s summary judgment can be sustained on any basis in the record, we affirm. Harris v. Traini, 759 N.E.2d 215, 221 (Ind.Ct.App.2001), trans. denied.

Issue Preclusion

E & Y contends that both components of res judicata — issue preclusion and claim preclusion — preclude NWS’s deception claim and support summary judgment in E & Y’s favor. E & Y argues that the matter NWS now seeks to litigate either was decided or could have been decided in the arbitration proceeding. Specifically, E & Y maintains that NWS simply “seeks to use a deception claim to overturn the arbitration panel’s decision to attribute 40% comparative fault to it.”

We agree with E & Y that, under these circumstances, issue preclusion bars NWS’s deception claim. Accordingly, we need not address whether claim preclusion also applies.

Issue preclusion, or collateral es-toppel, bars subsequent relitigation of the same fact or issue where that fact or issue was necessarily adjudicated in a former lawsuit and that same fact or issue is presented in a subsequent suit. Hayworth v. Schilli Leasing, Inc., 669 N.E.2d 165, 167 (Ind.1996). This rule applies even if the second adjudication is on a different claim. Tofany v. NBS Imaging Sys., Inc., 616 N.E.2d 1034, 1037 (Ind.1993).

The present scenario involves defensive collateral estoppel, as E & Y, the defendant, seeks to prevent NWS, the plaintiff, from relitigating an issue that NWS has already litigated and lost in the arbitration proceeding. See Small v. Centocor, Inc., 731 N.E.2d 22, 28 (Ind.Ct.App.2000), trans. denied. There are three requirements for the doctrine of collateral estoppel to apply: (1) a final judgment on the merits in a court of competent jurisdiction; (2) identity of the issues; and (3) the party to be estopped was a party or the privity of a party in the prior action. Id. Furthermore, two additional considerations are relevant in deciding whether the defensive use of collateral estoppel is appropriate: “whether the party against whom the judgment is pled had a full and fair opportunity to litigate the issue, and whether it would be otherwise unfair under the circumstances to permit the use of collateral estoppel.” Id. Because there is no dispute that the parties to the current action are the same as those involved in the arbitration, we need not address that requirement.

A. Final Judgment on the Merits

Issues determined in arbitration are binding and conclusive and may bar relitigation of those issues. Brougher Agency, Inc. v. United Home Life Ins. Co., 622 N.E.2d 1013, 1016 (Ind.Ct.App.1993). In essence, a final judgment or award resulting from an arbitration proceeding is accorded the same force of res judicata as a judgment of a court. See id.

NWS does not question this general rule, and NWS further concedes that “[tjhere is no dispute that the arbitrators ruled on NWS’s negligence claims, that the arbitrators issued an award based on the negligence findings, that E & Y paid the arbitration award, or that NWS accepted the award.” NWS argues, however, that there is no final judgment on the merits because “E & Y never confirmed the arbitrator’s award in accordance with Indiana law.” NWS cites Indiana Code sections 34-57-1-20 (2008), 34-57-2-12, and 34-57-2-16 in support of its argument. NWS also cites two cases to support its contention: Gayheart v. Newnam Foundry Co., 271 Ind. 422, 393 N.E.2d 163 (1979), and Fruehauf Corp. v. Review Board of the Indiana Employment Security Division, 148 Ind.App. 627, 269 N.E.2d 184 (1971).

In response, E & Y states that the fact that an arbitration award has not been confirmed has no impact on collateral-es-toppel analysis. E & Y cites several federal decisions in support. E.g., Stulberg v. Intermedics Orthopedics, Inc., 997 F.Supp. 1060, 1067-68 (N.D.Ill.1998) (noting that “other courts have given preclusive effect to unconfirmed arbitration awards where contractual or state law rights are at issue”).

After reviewing the statutes and cases that NWS cites in support of its argument, we find that they do not stand for the proposition that an award must be confirmed to have preclusive effect. Confirmation is a purely procedural mechanism by which a court converts an arbitration award into a judgment for enforcement purposes. However, “[t]he reality is that confirmation is not necessary in the vast majority of cases.” Susan Wiens & Roger Haydock, Confirming Arbitration Awards: Taking the Mystery Out of a Summary Proceeding, 33 Wm. Mitchell L. Rev. 1293, 1295 (2007). This is because “[ljosing parties commonly abide by the arbitration award and pay what they owe or otherwise comply with the decision.” Id.

The arbitration agreement here provided that NWS and E & Y would submit their disputes arising out of the auditing services to arbitration, the result of which would be “binding” on all parties. The arbitrators’ final resolution of the issues presented at arbitration was an award to NWS, which E & Y paid to NWS. To not afford preclusive effect to this final determination on the merits solely because the award was unconfirmed would be unsound and at odds with the purposes that underlie the doctrine of res judicata. Accordingly, we agree with E & Y that, under these circumstances, “collateral es-toppel applies] to issues resolved by arbitration “where there has been a final determination on the merits, notwithstanding a lack of confirmation of the award.’ ” Jacobson v. Fireman’s Fund Ins. Co., 111 F.3d 261, 267-68 (2d Cir.1997) (citing Hilowitz v. Hilowitz, 85 A.D.2d 621, 444 N.Y.S.2d 948, 949 (1981)). Thus, the first requirement of issue preclusion is satisfied.

B. Identity of the Issues

The “identity of the issues” requirement of the collateral-estoppel doctrine is met when an issue that was necessarily adjudicated in the prior proceeding is the same issue presented in the subsequent lawsuit. Afolabi v. Atl. Mortg. & Inv. Corp., 849 N.E.2d 1170, 1175 (Ind.Ct.App.2006). The requirement is not met, however, if the issue is one that was not actually litigated and determined but only one that might have been litigated and determined. Id,.

NWS offers two reasons why that this requirement of collateral estoppel was not met: (1) because NWS was prohibited from raising the current deception claim in the prior arbitration action and (2) because the arbitration panel did not specifically decide the veracity of the cell notes and work papers in question. We address each argument in turn.

NWS contends that collateral estoppel cannot apply to a matter that could not have been adjudicated in the prior proceeding. NWS explains that the deception claim was outside the scope of the arbitration agreement and, thus, outside the scope of the arbitrators’ authority. The arbitration agreement provided that “[a]ny controversy or claim arising out of or relating to the services covered by this letter or hereafter provided ... shall be submitted ... to binding arbitration.” NWS acknowledges that any claim arising out of or relating to E & Y’s audit services provided to NWS would fall under the agreement. NWS argues, however, that “the deception claim does not ‘arise out of or relate to’ E & Y’s services covered by the arbitration agreement.” Essentially, NWS claims that the actions giving rise to the deception claim — namely, the production of the cell notes and work papers at arbitration— took place after the auditing services had completed and the relationship between NWS and E & Y had terminated. In response, E & Y notes that the issue underlying NWS’s deception claim is the veracity of the cell notes and work papers and that an argument regarding the veracity of the documents created during the audits is clearly within the scope of the arbitration clause.

This Court has described a similar arbitration clause as having “all-encompassing language.” PSI Energy, Inc. v. AMAX, Inc., 644 N.E.2d 96, 100 (Ind.1994) (evaluating the clause “any controversy [or] claim ... arising out of or relating to this Agreement or breach thereof shall be settled by arbitration”). Furthermore, in construing arbitration agreements, “every doubt is to be resolved in favor of arbitration, and the parties are bound to arbitrate all matters, not explicitly excluded, that reasonably fit within the language used.” Mislenkov v. Accurate Metal Detinning, Inc., 743 N.E.2d 286, 289 (Ind.Ct.App.2001) (internal quotation marks omitted) (quoting Ziegler v. Whale Sec. Co., 786 F.Supp. 739, 741 (N.D.Ind.1992)).

Here, NWS claims deception based on either falsified or scrubbed work documents that E & Y produced for the arbitration proceeding. It would defy logic to say that this issue falls outside the scope of the broad arbitration clause, as the documents certainly arise out of or relate to the audit services that E & Y provided for NWS. NWS focuses attention on the fact that the alleged deception occurred once the documents were produced at arbitration, as opposed to when they were created. But NWS, as evidenced by its second argument below, recognizes that the issue underlying its deception claim is the veracity of the allegedly falsified or scrubbed documents. And we cannot see how the documents at issue, which all directly discuss the audit, do not relate to or arise out of the auditing services. Thus, this issue falls within the scope of the arbitration agreement.

This brings us to NWS’s next argument — that the arbitration panel did not specifically determine the veracity of the cell notes or work papers at issue and thus the “identity of the issues” requirement was not met. NWS argues that because the arbitration award did not make findings concerning the weight afforded to the documents in question, it is left to conjecture whether the panel determined the documents’ veracity. E & Y responds that the “entire premise” of NWS’s case has been that the arbitrators placed great emphasis on the content of the cell notes and work papers in apportioning 40% of the fault to NWS.

In its brief on appeal, NWS consistently mentions the documents in question as having an effect on the panel’s apportionment of comparative fault. For example, NWS frames one of its allegations against E & Y as “deception by ... using false statements in the A/R workpapers and cell notes to establish NWS’s comparative fault.” NWS cannot argue that the panel did not decide the veracity of the documents and then also claim that the reason the panel decided NWS was comparatively at fault was because the documents E & Y produced were falsified or scrubbed. In other words, NWS claims that the documents in question were responsible for the panel’s determination of comparative fault against it, which necessarily means that NWS concedes that the panel found those allegedly deceptive documents to be truthful. Accordingly, NWS is attempting to relitigate an issue that was already decided — the veracity of the documents produced by E & Y at arbitration.

We find the present case similar to Prudential Securities Inc. v. Hornsby, 865 F.Supp. 447 (N.D.Ill.1994), which involved a dispute between a securities broker and an investor. In that case, the securities broker sought to stop a second arbitration, where the claims arose from a prior arbitration in which the investor had obtained an award against the securities broker. Prudential, 865 F.Supp. at 448. In its second arbitration claim, the investor asserted, among other things, that the securities broker “fraudulently” concealed internal memoranda during the first arbitration proceeding and that his first arbitration award would have been higher had the arbitrators known of the memoranda. Id. at 448-49. The district court found that the investor’s “attempt to arbitrate an ‘independent’ fraud claim against [the securities broker] is, in reality, an attempt to augment and modify the first arbitration award.” Id. at 451. In other words, the court found that the second arbitration was simply an attempt by the investor to obtain the amount he would have received in the first arbitration but for the security broker’s fraudulent conduct. Id. at 452. Notably, the court cited a case that rejected an attempt to characterize a subsequent claim as independent based on the types of damages sought. Id. at 450; see, e.g., Corey v. N.Y. Stock Exch., 691 F.2d 1205, 1218 (6th Cir.1982) (“Corey’s claims constitute a collateral attack against the award even though Corey is presently ... requesting damages for the acts of wrongdoing rather than the vacation, modification or correction of the arbitration award.”). NWS attempts to distinguish Prudential by stating that its deception claims are not covered by the arbitration agreement. But, as discussed above, we have found otherwise. Accordingly, for the foregoing reasons, we find that the “identity of issues” requirement of the collateral-estoppel doctrine is met.

C. Full and Fair Opportunity to Litigate the Issue

An important consideration to determine whether application of collateral estoppel is proper is “whether the party against whom the judgment is pled had a full and fair opportunity to litigate the issue.” Hayworth, 669 N.E.2d at 167. In discussing this requirement, this Court has stated that defensive collateral estoppel, when compared to offensive collateral es-toppel, “is more likely to promote judicial economy.” Id. at 168.

Here, NWS states it did not have a full and fair opportunity to litigate the issue because it did not have an opportunity to conduct discovery into the claims. NWS premises its argument on the following clause in the arbitration agreement: “No discovery will be permitted in connection with the arbitration unless it is expressly authorized by the arbitration panel upon a showing of substantial need by the party seeking discovery.”

E & Y responds that both parties here agreed to arbitration procedures that limited discovery, and this limitation on discovery is routine in arbitration agreements and should not be viewed negatively.

As we stated earlier, the issue NWS is currently attempting to litigate — the veracity of the documents — was covered by the arbitration agreement. Although the arbitration agreement limited discovery to that which is expressly authorized by the panel, NWS never asked the panel for additional discovery. In fact, even though the cell notes were produced just ten days before arbitration, NWS’s counsel stated that he wanted to proceed. After finding out the timing of the disclosure of the cell notes, the panel chair stated to NWS’s counsel, “So you haven’t had a tremendous amount of time to look at those. I do want to make sure you feel like you want to proceed anyway.” NWS’s counsel stated, ‘Tes, we do. We want to proceed.”

Ultimately, the transcript of the arbitration proceeding suggests that the panel would have given NWS more time to inspect the cell notes that were produced late. NWS cannot now complain that it did not have a fair and full opportunity to litigate the issue of the veracity of the documents when it chose to proceed despite being given an opportunity to postpone the start of the arbitration. NWS could have asked for a continuance. It chose instead to proceed. Thus, we find that NWS had a full and fair opportunity to litigate the issue of the veracity of the documents in question.

D. Fairness of Collateral Estoppel

A final consideration is “whether it would be otherwise unfair under the circumstances of the particular case to apply collateral estoppel.” Id. at 167. NWS argues that the application of collateral estoppel is unfair because “E & Y proposes to hold the efforts of NWS during an arbitration for which NWS could not adequately prepare against it when litigating a separate and distinct claim of deception.”

Although the claim is one of deception, the issue at the heart of the deception claim is the veracity of the documents, which NWS itself states resulted in the panel’s comparative-fault determination against it. And, as explained above, NWS cannot now complain it could not adequately prepare to litigate that issue when given the opportunity to postpone the arbitration.

Conclusion

Collateral estoppel precludes NWS’s deception claim because the issue underlying that claim — the veracity of E & Y’s documents — was already decided during the arbitration proceedings. Accordingly, on that basis, we affirm the trial court’s grant of summary judgment in E & Y’s favor.

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

      . E & Y raises a number of other arguments on transfer supporting its summary judgment motion. Because of our disposition in this case, we need not address those additional arguments.

      . Indiana Code section 34-57-1-20 states in full,
      If the award is confirmed, judgment shall be given in favor of any party to whom any sum of money or damages has been awarded that the party recover the amount awarded. If the award orders any act to be done by either party; judgment shall be entered that the act be done according to the award.

      . Indiana Code section 34-57-2-12 states in full,
      Upon application of a party, but not before ninety (90) days after the mailing of a copy of the award to the parties, the court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in sections 13 and 14 of this chapter. Upon confirmation, the court shall enter a judgment consistent with the award and cause such entry to be docketed as if rendered in an action in the court.

      . Indiana Code section 34-57-2-16 states in full,
      Except as otherwise provided, an application to the court under this chapter shall be by motion and shall be heard in the manner and upon the notice provided by law or rule of court for the making and hearing of motions. Unless the parties have agreed otherwise, notice of an initial application for an order shall be served in the manner provided by law for the service of a summons in civil cases.

      . A person who “knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity” commits deception. I.C. § 35-43-5-3(a)(2) (2008). NWS's deception claim is based on the deception statute and Indiana Code section 34-24-3-1 (Supp.2012), which gives statutory authority for civil actions based upon crimes committed under Indiana Code article 35-43.


author: BROWN, Judge.

text:
    COLUMBUS REGIONAL HOSPITAL, Appellant-Defendant, v. Clyde AMBURGEY, Individually and as Executor of the Estate of Moreen Amburgey, Appellee-Plaintiff.
    No. 03A01-1110-CT-450.
    Court of Appeals of Indiana.
    Sept. 19, 2012.

      Steven J. Cohen, T. Graham Dycus, Zeigler Cohen & Koch, Indianapolis, IN, Attorneys for Appellant.
    Laura J. Conyers, Findling Park and Associates, P.C., Indianapolis, IN, Attorney for Appellee.
    Michael J. Stapleton, Elizabeth B. Searle, Ball Eggleston PC, Lafayette, IN, Attorneys for Amicus Curiae Indiana Trial Lawyers Association.
   OPINION

BROWN, Judge.

Columbus Regional Hospital (the “Hospital”) appeals the trial court’s denial of its request for partial summary judgment. The Hospital raises one issue which we revise and restate as whether the court erred in failing to enter summary judgment in its favor on the basis that the expiration of the statute of limitations with respect to two physicians foreclosed the suit brought by Clyde Amburgey, in his individual capacity and as administrator of the estate of his wife Moreen (collectively, “Amburgey”), against the Hospital. We affirm.

FACTS

The relevant facts most favorable to Amburgey and as designated by the parties follow. On May 3, 2005, Moreen was admitted to the Hospital by Dr. Michael Whitworth for revision of her intrathecal pump catheter. Clyde and Moreen were told that Moreen would return home after the surgery. After the procedure, Dr. Whitworth informed Clyde that the surgery went well and that he could see Mor-een in the outpatient surgery area in about twenty minutes. At some point, Moreen experienced a decreased level of consciousness and suffered a seizure. Dr. Jiangm-ing Xu, an employee of Southeastern Indiana Anesthesia which provides anesthesia services to the Hospital, was on call for anesthesia and responded to a page. Dr. Xu then consulted with Dr. Donald Harris whose wages were paid by Neurology & Sleep Sciences. Moreen died later that morning. At no time during the day, evening, or night did anyone ever inform Clyde that any care provided to Moreen was performed by independent contractors or persons not employed by the Hospital. Clyde also did not have any knowledge of “the relationship between the [Hospital] and the physicians, Dr. Xu and Dr. Harris, who [he] now know[s] provided care to Moreen after her surgery.” Appellant’s Appendix at 42.

PROCEDURAL HISTORY

On May 3, 2007, Amburgey filed a Proposed Complaint for Damages against Dr. Whitworth, Dr. Timothy McEwan, and the Hospital with the Indiana Department of Insurance. Amburgey alleged that the defendants were negligent and that the care and treatment rendered by the defendants was below the standard of care and was a cause of Moreen’s death. Amburgey also alleged:

That at all times relevant herein [the Hospital] had various agents, employees, and assigns, including certain radiological technicians and nurses, in their employ who[ ] rendered care to [Moreen], in conjunction with all other Defendants named herein; as such, [the Hospital] is responsible for the acts and/or omissions of their agents, employees, and assigns through the doctrine of respondeat superior and apparent agency ...

Id. at 21.

On November 17, 2010, the Medical Review Panel found: “As to [the Hospital] there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury.” Id. at 100. In January 2011, Amburgey filed an Amended Complaint for Damages with the trial court against Dr. Whitworth, Dr. Mc-Ewan, and Columbus Regional Hospital. In February 2011, the court granted Dr. McEwan’s motion for summary judgment.

In May 2011, Amburgey filed a Motion for Partial Summary Judgment on the Issue of Apparent Agency. Amburgey alleged that the Hospital did nothing to inform Clyde or Moreen that any medical treatment provided to Moreen was being performed by an independent contractor and requested that Dr. Xu, the anesthesiologist who was on call at the Hospital that afternoon, and Dr. Harris, a neurologist, should be deemed by the court to be the apparent agents of the Hospital. Ambur-gey alleged that “[i]t is not relevant whether Dr. Xu and/or Dr. Harris were or were not independent contractors” and that the only “thing that is relevant to the apparent agency question is whether the [H]ospital did anything to inform Moreen or Clyde of the alleged relationship and whether Mor-een and Clyde had any reason to believe that the individuals caring for Moreen after the procedure were anything other than hospital employees.” Id. at 37.

In July 2011, the Hospital filed a response to Amburgey’s motion for partial summary judgment. The Hospital argued that Dr. Xu and Dr. Harris were independent contractors, that Amburgey failed to name either Dr. Xu or Dr. Harris, that the statute of limitations had since run on any claims Amburgey may have had against either Dr. Xu or Dr. Harris, and that there could be no basis for liability against the Hospital without a basis of liability against either Dr. Xu or Dr. Harris. The Hospital requested the court to find that Dr. Xu and Dr. Harris were not the Hospital’s ostensible agents or that material issues of fact existed.

After a hearing on the motion, the court took the matter under advisement. On August 16, 2011, the court found that there were genuine issues of material fact regarding the claim of apparent agency and denied Amburgey’s motion for partial summary judgment.

On September 12, 2011, the Hospital filed a motion for certification of question for interlocutory appeal. On September 20, 2011, the court granted the Hospital’s motion for certification of question for interlocutory appeal and stayed the proceedings pending final determination on appeal. Specifically, the court’s order indicated that the Hospital’s motion should be granted with respect to the following question of law:

Whether the trial court erred in finding that genuine issues of material fact existed in medical malpractice complaint against the [Hospital] based, in part, on a theory of ostensible agency liability for the alleged acts of two (2) independent contractor physicians where the alleged ostensible agents of the [Hospital] cannot be independently held liable because they have not been named as defendants and the statute of limitations has run against them.

Id. at 13.

On October 11, 2011, the Hospital filed a motion for leave to file interlocutory appeal requesting this court to accept jurisdiction over the discretionary interlocutory appeal of the trial court’s order denying Amburgey’s motion for partial summary judgment, “denying [the Hospital’s] request that the Court find that as a matter of law neither Jiangming Xu, M.D. and Donald Harris, M.D. were the ostensible agents of [the Hospital] and finding that material issues of fact regarding the claim of apparent agency existed.” Hospital’s Motion for Leave to File Interlocutory Appeal. On November 7, 2011, this court accepted jurisdiction of the interlocutory appeal pursuant to Ind. Appellate Rule 14(B). On November 8, 2011, the Hospital filed a notice of appeal indicating that it was appealing the August 16, 2011 order denying Amburgey’s motion for partial summary judgment.

ISSUE

The issue is whether the court erred in failing to enter summary judgment in the Hospital’s favor on the basis that the expiration of the statute of limitations with respect to Dr. Xu and Dr. Harris foreclosed Amburgey’s suit against the Hospital. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind.2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. We must carefully review a decision on summary judgment to ensure that a party was not improperly denied his day in court. Id. A party moving for summary judgment bears the initial burden of showing no genuine issue of material fact and the appropriateness of judgment as a matter of law. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 975 (Ind.2005). If the movant fails to make this prima facie showing, then summary judgment is precluded regardless of whether the non-movant designates facts and evidence in response to the movant’s motion. Id.

The Hospital essentially argues that when the cause of action is extinguished against an independent contractor physician, there exists no means by which vicarious liability can be found against a hospital. In other words, the Hospital argues that “prior to apparent or ostensible agency imposing liability upon the hospital as the principal, a basis of liability must exist as to the independent contractor physician.” Appellant’s Brief at 12. The Hospital argues that because the statute of limitations has run on the claims against Dr. Xu and Dr. Harris, “any findings of liability on the part of Dr. Xu and Dr. Harris cannot flow to the Hospital by operation of law.” Id. at 13. The Hospital requests that this court reverse the ruling of the trial court and remand this matter with instructions to enter an order finding that, as a matter of law, neither Dr. Xu or Dr. Harris were ostensible agents of the Hospital.

Amburgey does not appeal the trial court’s denial of his motion for partial summary judgment and requests that this court affirm the trial court’s finding that there are genuine issues of material fact regarding the claim of apparent agency. Amburgey argues that the Hospital’s argument is contrary to Indiana law “where it is well recognized that under the doctrine of respondeat superior, the master or principal is chargeable with and liable for any negligent acts committed by its agent or servant while the servant is acting in the course and scope of his employment.” Ap-pellee’s Brief at 16. Amburgey also argues that “an injured party may sue either or both at his choosing.” Id.

The Indiana Trial Lawyers Association (the “Association”) filed an amicus brief and argues that the Hospital is imploring this court to create new law. The Association argues that “even when an agent is not named in a suit, the agent may still be found to have been negligent; and that is sufficient to make the principal vicariously liable.” Amicus Brief at 7. The Association argues that “[i]f an agent has committed a negligent act, a limitations bar against the agent does not render the act non-negligent. Rather, the statute of limitations is just an affirmative defense, which limits the remedy.” Id. at 9-10. The Association contends that requiring agents to always be named in lawsuits would increase litigation and be a disservice to the orderly administration of justice. The Association also contends that the Hospital fails to explain how it is harmed if the statute of limitations expires against its agent subsequent to the Hospital having been timely sued.

ANALYSIS

Initially, we review Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 147-153 (Ind.1999), in which the Indiana Supreme Court discussed apparent or ostensible agency. The Court held that where a plaintiff alleges negligence was not committed by a hospital, but instead by a physician working at the hospital, the plaintiff must present a theory by which a court can find the hospital vicariously liable for the actions of a physician who practices there. 714 N.E.2d at 147. “Vicarious liability is ‘indirect legal responsibility.’ ” Id. (quoting Black’s Law Dictionary 1404 (5th ed. 1979)). “It is a legal fiction by which a court can hold a party legally responsible for the negligence of another, not because the party did anything wrong but rather because of the party’s relationship to the wrongdoer.” Id. Courts employ various legal doctrines to hold people vicariously liable, including respondeat superior, apparent or ostensible agency, agency by estoppel, and the non-delegable duty doctrine. Id. Some doctrines are based in tort law, some are based in agency law. Id. at 147-148.

Respondeat superior is the applicable tort theory of vicarious liability. Id. at 148. Under respondeat superior, an employer, who is not liable because of his own acts, can be held liable for the wrongful acts of his employee which are committed within the scope of employment. Id. In this context, “employer” and “employee” are often stated in broader terms as “master” and “servant.” Id. One important aspect in applying respondeat superi- or is differentiating between those who are servants and those who are independent contractors. Id. A servant is defined in the following general manner: one who is employed by a master to perform personal services and whose physical conduct is subject to the right to control by the master. Id. It is the employer’s right to control that generally separates a servant from an independent contractor. Id. “An independent contractor can, therefore, be defined as ‘a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.’ ” Id. (quoting Restatement (Second) of Agency § 2(3)). It is important to distinguish between servants and independent contractors in the tort context because, while a master can be held liable for a servant’s negligent conduct under respondeat superior, a master generally cannot be held liable for the negligence of an independent contractor. Id. The theory behind non-liability for independent contractors is that it would be unfair to hold a master liable for the conduct of another when the master has no control over that conduct. Id.

Apparent agency is a doctrine based in agency law. Id. It is most often associated with contracts and the ability of an agent with “apparent authority” to bind the principal to a contract with a third party. Id. “Apparent authority ‘is the authority that a third person reasonably believes an agent to possess because of some manifestation from his principal’ ” Id. (quoting Pepkowski v. Life of Ind. Ins. Co., 535 N.E.2d 1164, 1166 (Ind.1989)). The manifestation must be made by the principal to a third party and reasonably cause the third party to believe that an individual is an agent of the principal and to act upon that belief. Id. The manifestations can originate from direct or indirect communication. Id. They can also originate from advertisements to the community. Id.

In certain instances, apparent or ostensible agency also can be a means by which to establish vicarious liability. Id. at 148-149. The Indiana Supreme Court has observed:

One enunciation of this doctrine is set forth in the Restatement (Second) of Agency section 267, which provides that:

One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or. skill of the one appearing to be a servant or other agent as if he were such.

Id. at 149. Under a Section 267 analysis, if, because of the principal’s manifestations, a third party reasonably believes that in dealing with the apparent agent he is dealing with the principal’s servant or agent and exposes himself to the negligent conduct because of the principal’s manifestations, then the principal may be held liable for that negligent conduct. Id.

Another similar enunciation of this doctrine is set forth in Section 429 of the Restatement (Second) of Torts (1965), which is captioned “Negligence in Doing Work Which is Accepted in Reliance on the Employer’s Doing the Work Himself’ and which provides:

One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.

Id. (quoting Section 429). Both Section 267 and Section 429 are estoppel-based. Id. To the extent that Section 429 differs from Section 267 when applied in the hospital context, the primary difference appears to be that the reliance element is less subjective under Section 429. Id.

The Court expressly adopted the formulation of apparent or ostensible agency set forth in the Restatement (Second) of Torts Section 429. Id. at 152. The Court held that, under Section 429, a trier of fact must focus on the reasonableness of the patient’s belief that the hospital or its employees were rendering health care. Id. This ultimate determination is made by considering the totality of the circumstances, including the actions or inactions of the hospital, as well as any special knowledge the patient may have about the hospital’s arrangements with its physicians. Id. The Court concluded that a hospital will be deemed to have held itself out as the provider of care unless it gives notice to the patient that it is not the provider of care and that the care is provided by a physician who is an independent contractor and not subject to the control and supervision of the hospital. Id. A hospital generally will be able to avoid liability by providing meaningful written notice to the patient, acknowledged at the time of admission. Id. Under some circumstances, such as in the case of a medical emergency, however, written notice may not suffice if the patient had an inadequate opportunity to make an informed choice. Id. As to the meaning and importance of reliance in this specific context, the Court agreed with cases that hold that if the hospital has failed to give meaningful notice, if the patient has no special knowledge regarding the arrangement the hospital has made with its physicians, and if there is no reason that the patient should have known of these employment relationships, then reliance is presumed. Id.

With this background in mind, we turn to the issue of whether the expiration of the statute of limitations regarding any claim against Dr. Xu or Dr. Harris forecloses-Amburgey’s claim against the Hospital. We observe that there is no designated evidence suggesting that Amburgey ever brought a claim directly against Dr. Xu or Dr. Harris that was dismissed on the basis of the running of the statute of limitations. The designated evidence also does not reveal a judicial order finding that Dr. Xu and Dr. Harris were not negligent. Further, Amburgey filed the complaint against the Hospital prior to the running of the applicable statute of limitations.

While Indiana has not addressed this specific issue, we observe that some of our sister states have concluded that the running of a statute of limitations with respect to a physician does not preclude a complaint against a hospital on a theory of vicarious liability and apparent authority. See Abshure v. Methodist Healthcare-Memphis Hosps., 325 S.W.3d 98, 112 (Tenn.2010) (observing that the plaintiffs filed a proper vicarious liability claim against a hospital before their claims against a doctor were extinguished by operation of law and holding that the subsequent procedural bar of their claims against the doctor did not prevent the plaintiffs from pursuing their timely filed vicarious liability claim against the hospital); Kashishian v. Port, 167 Wis.2d 24, 481 N.W.2d 277, 286-287 (1992) (holding that the doctrine of apparent authority could be a basis for a medical malpractice action against a hospital for the negligent acts of independent contractors, that the dismissal of the independent contractor based upon the failure to timely file a notice of claim was not a determination of the physician’s negligence, and that such a dismissal was appropriate despite the fact that the suit could be maintained against the hospital), reconsideration denied; Pamperin v. Trinity Mem’l Hosp., 144 Wis.2d 188, 423 N.W.2d 848 (1988) (Steinmetz, J., dissenting) (noting that the statute of limitations had run against the negligent doctors and they could not be joined as defendants; the majority in Pamperin allowing the plaintiffs to proceed with their lawsuit against the hospital).

CONCLUSION

In light of Sword and the foregoing authorities which we find persuasive, as well as our review of the designated evidence in this case, we conclude that the trial court did not err in denying Amburgey’s Motion for Partial Summary Judgment and in finding that genuine issues of material fact exist regarding the claim of apparent agency.

For the foregoing reasons, we affirm the decision of the trial court.

Affirmed.

BAKER, J., and KIRSCH, J., concur.

      . The record does not contain a copy of this motion.

      . Although the Hospital did not file a cross-motion for summary judgment, in its response to Amburgey's motion for partial summary judgment, the Hospital argued that the statute of limitations had since run on any claims Amburgey may have had against either Dr. Xu or Dr. Harris, and that there could be no basis for liability against the Hospital without a basis of liability against either Dr. Xu or Dr. Harris. Ind. Trial Rule 56(B) provides that "[w]hen any party has moved for summary judgment, the court may grant summary judgment for any other party upon the issues raised by the motion although no motion for summary judgment is filed by such party.”

      . The Hospital cites Ind.Code § 34-18-7-1 which sets forth the limitations period for claims brought against a health care provider. Amburgey does not argue that the statute of limitations had not run against Dr. Xu or Dr. Harris.


author: ROBB, Chief Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant-Intervening Defendant, Alan Steady, Appellee-Defendant, v. Richard KERN, Appellee-Plaintiff.
    No. 49A02-1201-CT-34.
    Court of Appeals of Indiana.
    Sept. 20, 2012.

      Mark D. Gerth, Kightlinger & Gray, LLP, Indianapolis, IN, Attorney for Appellant.
    Robert R. Foos, Jr., Lesley A. Pfleging, Lewis Wagner, LLP, Indianapolis, IN, Attorneys for Appellees.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

A jury found Alan Steady one-hundred percent at fault for injuries Ronald Kern sustained when the two were involved in a car accident, and a $98,000 judgment was entered against Steady to compensate Kern for his injuries. Because Steady was only insured up to $25,000, State Farm, Kern’s insurer, paid Kern underinsured motorist benefits. Steady requested that the trial court deem the judgment against him satisfied because Kern was compensated by State Farm, and the trial court granted Steady’s motion. State Farm appeals, raising one issue for our review: whether the trial court erred when it deemed the judgment entered against Steady satisfied. Concluding the trial court did err, we reverse and remand.

Facts and Procedural Histoi"y

In October 2006, Kern and Steady collided while driving their vehicles, and the accident resulted in various bodily injuries to Kern. Kern brought suit against Steady to recover for his injuries, and Kern’s insurer, State Farm, intervened as a party defendant. Kern’s insurance policy with State Farm provided for medical costs and underinsured motorist coverage. After Kern filed a motion in limine, State Farm was removed as a named party. In March 2011, a jury found Steady one-hundred percent at fault, determined Kern’s damages were $98,000, and returned a verdict for such amount. The trial court entered a general judgment on the jury verdict in favor of Kern and against Steady in the amount of $98,000 plus costs and interest.

Because Steady’s insurance policy included a $25,000 limit, State Farm issued a check to Kern in the amount of $68,000. Steady’s insurer issued two checks to Kern, one for $25,000, the limit of Steady’s policy, and a second for $6,334.79 for medical costs and interest. State Farm moved the trial court to allow it to be realigned as a party plaintiff so that it could execute against the judgment as a subrogee of Kern to the extent of the payments State Farm made to Kern. The trial court denied State Farm’s motion. Thereafter, Steady moved the trial court to deem the judgment entered against him as satisfied. The trial court granted Steady’s motion. State Farm now appeals. Additional facts will be supplied as appropriate.

Discussion and Decision

I. Standard of Review

Indiana Trial Rule 60(B)(7) provides that a trial court may relieve a party from a judgment when the judgment has been satisfied. We review a trial court’s grant of a motion for relief from judgment for abuse of discretion. TacCo Falcon Point, Inc. v. Atlantic Ltd. P’ship XII, 937 N.E.2d 1212, 1218 (Ind.Ct.App.2010). A trial court abuses its discretion when its ruling is clearly against the logic and effect of the facts and circumstances before the court. Id. We will not reweigh the evidence. Id. The movant bears the burden to demonstrate that relief is both necessary and just. Dillard v. Dillard, 889 N.E.2d 28, 33 (Ind.Ct.App.2008).

II. Satisfaction of Judgment

As a threshold matter, Steady argues State Farm lacks standing to appeal. “Standing is similar to, though not identical with, the real party in interest requirement of Trial Rule 17. The point of both requirements is to insure that the party before the court has a substantive right to enforce the claim that is being made in the litigation.” Pence v. State, 652 N.E.2d 486, 487 (Ind.1995) (citations omitted). “Standing is defined as having sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. In order to have standing, the party challenging the law must show adequate injury or the immediate danger of sustaining some injury.” Indiana Civil Rights Comm’n v. Indianapolis Newspapers, 716 N.E.2d 943, 945 (Ind.1999) (quotations omitted).

Steady argues State Farm lacks standing because State Farm was not a party to the case at the time judgment was entered against Steady. We disagree. Although State Farm was not a party to the proceeding, it did sustain a tangible injury by the trial court deeming the judgment against Steady satisfied. Indiana’s Uninsured and Underinsured Motorist Coverage Act requires insurers to offer coverage to their insureds for automobile accidents in which they are entitled to recover damages from uninsured or under-insured motorists. See Ind.Code section 27-7-5-2(a). Kern purchased such coverage from State Farm. The Act also provides:

The insurer shall be subrogated, to the extent of such [uninsured or underin-sured motorist] payment, to the proceeds of any settlement or judgment that may later result from the exercise of any rights of recovery of [the insured] against any person or organization legally responsible for said bodily injury or death, or property damage, for which payment is made by the insurer. Such insurer may enforce such rights in its own name or in the name of the [insured] ....

Ind.Code § 27-7-5-6(a). Thus, since State Farm has a statutory right to be subrogated to the proceeds of the judgment entered against Steady, it was demonstrably injured by the judgment against Steady being deemed satisfied. We therefore conclude State Farm has standing to appeal.

We now turn to the merits of State Farm’s appeal. State Farm contends the trial court erred by deeming the judgment against Steady satisfied. State Farm cites Peele v. Gillespie, 658 N.E.2d 954 (Ind.Ct.App.1995), trans. denied, for support. In Peele, Gillespie was injured in a motor vehicle accident while riding as a passenger in Peele’s vehicle. Gillespie sued Peele and sought damages for his injuries, but Gillespie also filed an underinsured motorist claim with his insurer, Prudential Insurance Company of America. Prudential ultimately paid Gillespie $100,000 in underinsured motorist benefits. Thereafter, Peele argued any judgment entered against him and in favor of Gillespie should be set off by the $100,000 that Prudential paid to Gillespie as compensation for his injuries because to hold otherwise would allow Gillespie a double recovery. Id. at 956.

We disagreed with Peele, noting that insurance policies typically include a sub-rogation clause which provides that once an insured receives payment from a third-party tortfeasor, the insurer is entitled to reimbursement for the amount of benefits it previously paid to the insured. Thus, insureds typically do not end up with a double recovery. In Peele, however, Prudential missed its opportunity to subrogate Gillespie’s proceeds because Prudential failed to abide by the requirements of its policy and statutory law, so Gillespie was in a position to possibly receive a double recovery. Despite this fact, we concluded, “Peele is not entitled to benefit from Gillespie’s prudence in obtaining insurance coverage or from Prudential’s failure to abide by its policy provisions and statutory law. Instead, we find it proper for the benefit to inure to Gillespie.” Id. at 959.

Rather than moving for setoff, Steady moved the trial court to deem the judgment against him satisfied because Kern was paid underinsured motorist benefits by his insurer. Despite this difference, the principle remains the same. When an insurer compensates its insured due to a third party tortfeasor being un-derinsured, the third party tortfeasor’s liability is not reduced. Rather, Indiana Code section 27-7-5-6(a) provides that the insurer may enforce its insured’s right of recovery against the third-party tortfea-sor, either in its own name or in the name of its insured, and that the insurer shall then be subrogated to the proceeds of any settlement or judgment that results. To allow a judgment entered against the third-party tortfeasor to be deemed satisfied due to the insurer’s underinsured motorist payment to its insured would undermine the purpose of this statute. Thus, we conclude that when a judgment is entered against a third-party tortfeasor, said judgment is not satisfied when the plaintiffs insurer compensates the plaintiff due to the third-party tortfeasor’s being underin-sured. Steady is not entitled to benefit from Kern’s carefulness and assiduousness in obtaining underinsured motorist insurance coverage. The trial court therefore erred in deeming the judgment against Steady satisfied.

Conclusion

The judgment entered against Steady should not have been deemed satisfied due to State Farm’s underinsured motorist coverage payment to Kern, and therefore the trial court erred. We reverse and remand to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

BAKER, J., and BRADFORD, J., concur.

      . State Farm had already paid Kern $5,000 for medical costs.

      . Steady also argues it would be "fundamentally unfair to allow State Farm to be substituted as a party plaintiff and pursue proceedings supplemental on the judgment.” Appellee’s Brief at 15. We disagree. Indiana Code section 27~7-5-6(a) provides that an insurer may enforce rights of recovery, either acting in its own name or in the name of its insured.

      . State Farm also argues it is entitled to recover post-judgment interest. To the extent State Farm is correct, we leave the determination of this amount to the trial court.