author: BROWN, Judge.

text:
    The ESTATE OF K. David SHORT by Judith Y. SHORT, Personal Representative, Appellant-Plaintiff, v. BROOKVILLE CROSSING 4060 LLC d/b/a Baymont Inns & Suites and MPH Hotels, Inc. d/b/a Baymont Inns & Suites, Appellees-Defendants.
    No. 49A02-1112-CT-1128.
    Court of Appeals of Indiana.
    July 31, 2012.

      J. David Hollingsworth, Alexander P. Pinegar, Church, Church, Hittle & Antrim, Fishers, IN, Attorneys for Appellant.
    Richard R. Skiles, A. Kristine Lindley, Skiles Detrude, Indianapolis, IN, Attorneys for Appellees.
   OPINION

BROWN, Judge.

Judith Short, as personal representative of the estate of David Short (the “Estate”), appeals the trial court’s grant of summary judgment in favor of Brookville Crossing 4060 LLC d/b/a Baymont Inns & Suites and MPH Hotels, Inc. d/b/a Baymont Inns & Suites (“Baymont”). The Estate raises five issues which we revise and restate as whether the court erred in granting Bay-mont’s motion for summary judgment. We affirm.

The relevant facts as designated by the parties follow. On the evening of January 3, 2009, at around 10:20 p.m., David Short checked into the Baymont Inn & Suites in Indianapolis, Indiana (the “Hotel”) with front desk clerk Laura Sentman. During check in, Short did not act peculiar in any way.

That evening and into the morning of January 4, 2009, between the hours of 11 p.m. and 7 a.m., night auditor Seth Devine was the only Baymont employee on duty. Devine was aware that the temperature that evening was below freezing. At around 11:15 p.m., Devine received a call from a guest at the Hotel complaining of noise coming from Short’s room, Devine went to the room and knocked, and after receiving no response he entered, observed that no one was present, and turned down the television in the room. Upon leaving the room, Devine observed Short entering the building through a side door located on the north side of the building and briefly spoke with him.

At some point, unbeknownst to Devine, Short again left the Hotel. A video camera located at the north door documented that, at approximately 3:20 a.m., Short was returning to the Hotel when he appeared to fumble with his key-card at the door, and, at 3:23 a.m., he collapsed, hitting his head against a wall before falling to the ground. The camera was part of a system in which a monitor was located in the general manager’s office which displayed images from each of sixteen video cameras. The general manager’s office is adjacent to the front desk. After falling, Short was visible on the camera and did not move.

At approximately 7 a.m., Gustavo Martinez, a Baymont maintenance employee, . noticed Short lying outside the north door as he was driving around the corner of the Hotel and called the front desk, notifying General Manager Debbie Speziale, who had recently arrived and had walked in through the Hotel’s main entrance. Spez-iale and Devine proceeded to the north door and observed Short lying outside the door, and Speziale called 911 while Devine exited out another door and walked around the Hotel and back to the north door because he could not open the door due to Short lying in front of it. Devine checked for a pulse but was unable to locate one, and he observed that Short was purple and appeared to be dead. Ultimately, the Marion County Health Department pronounced Short dead at 7:38 a.m. from “Complications of acute alcohol intoxication and atherosclerotic coronary artery disease” and noted that “Environmental Cold Exposure” was a “Significant Condition [] Contributing To Death But Not Resulting In The Underlying Cause.... ” Appellant’s Appendix at 89.

On November 13, 2009, the Estate filed a complaint for damages as a result of wrongful death and request for trial by jury alleging negligence by Baymont which caused Short’s death. On February 2, 2010, Baymont filed its answer. On June 18, 2010, Devine was deposed in which he testified that, during his shift, he does not walk around the building to make routine or periodic inspections of the exterior doors not visible from the front desk and that he is to stay at the main entrance because that is where unregistered guests must enter and it is a danger to have the desk unmonitored during overnight hours. Devine also testified that he will make observations if there is a reason to leave the front desk, such as if a guest requests something, but that “if there’s no need for me to be away from the desk, there’s no possibility for me to be able to check those doors....” Id. at 67. Devine testified that he examines the exterior of the building and the doors when he arrives for his shift by driving around the building and makes notes necessary for the day shift or maintenance workers about issues he identifies, and he will again look at the Hotel’s exteri- or when he leaves in the morning. Devine testified that he had been told that the purpose of the video monitoring system was to deter- potential crime and to record crimes committed to aid police investigation, and that the system also was equipped with a “panic system” which allows the Hotel to immediately notify the police if a crime has been committed. Id. at 66.

Devine testified that, on the night in question, he did not receive requests from guests near the north door after the incident in which he let himself into Short’s room to turn down the television. He testified that during his shift that evening, he passed through the general manager’s office on three occasions while on his way to other areas of the Hotel, that two of those occasions were after Short had collapsed, and that on each occasion he glanced at the video monitor which was located about ten to twelve feet from him as he passed. The monitor, which was a nineteen-inch screen, displayed sixteen images at once, and the only image large enough for Devine to see at that distance was the image of the main entrance and not the north door. Devine testified that he did not notice Short at any time between 8:20 a.m. and 7:00 a.m. on the monitor either walking to the hotel across the parking lot or collapsing and lying near the north door. Devine testified that he reviewed the video showing Short’s body and found that there was no activity at the north door following the fall until 7 a.m.

Further, on October 4, 2010, Sentman was deposed in which she testified that she does not discuss the security system when guests check in and that, if they ask, she tells guests that “there’s cameras that record the inside exits.” Id. at 41. Sentman testified that she has experience working the night audit shift and that she had been instructed while working that shift “to stay in the front desk or lobby area as much as possible” and to not leave the front desk “unless you absolutely have to,” such as for two or three minutes to “run a towel up to a guest room” or use the restroom. Id. at 42. She also testified that she smokes and will smoke “[r]ight outside the lobby” where she can observe the front desk. Id.

Also on October 4, 2010, Speziale was deposed in which she testified that her employees perhaps checked the video monitor one or two times during their shift and that there was no rule about employees checking the monitor. Speziale testified that Baymont had an unwritten rule that the night auditor should not be away from the front desk for more than two minutes if possible. She also testified that in order to see the video monitor clearly, one needed to be about three or four feet away from it. She testified that the Baymont had an employee handbook, that employees were required to sign an acknowledgement that they had received the handbook, and that Devine signed for his copy of the handbook. She also testified that the Hotel had never had an issue of a vagrant in a doorway.

On September 2, 2011, Baymont filed a motion for summary judgment along with a memorandum in support and designation of evidence. On November 4, 2011, the Estate filed a response and designation of evidence in support of response to Bay-mont’s summary judgment motion, as well as a memorandum in support of its response. On November 29, 2011, the court held a hearing on Baymont’s summary judgment motion in which Baymont’s counsel noted at the hearing that “[tjhere was no snow or any weather condition that would put us on notice that there could have been an issue that night” and that “Short simply fell over due to his own problem.... ” Transcript at 3. The Estate argued at the hearing, among other things, that Baymont imposed a duty on itself in its employee handbook in that it required employees to keep the doorways clear. That same day, the court granted Bay-mont’s motion, finding that “there are no genuine issues of material fact precluding the entry of summary judgment in this case-” Appellant’s Appendix at 6. This appeal follows.

The issue is whether the court erred in granting Baymont’s motion for summary judgment. Our standard of review for a trial court’s grant of a motion for summary judgment is well settled. 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. Id. Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. In reviewing a trial court’s ruling on a motion for summary judgment, we may affirm on any grounds supported by the Indiana Trial Rule 56 materials. Catt v. Bd. of Comm’rs of Knox Cnty., 779 N.E.2d 1, 3 (Ind.2002).

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-mov-ant designates facts and evidence in response to the movant’s motion. Id.

This action sounds in negligence and specifically concerns the duty element in a negligence claim. “Generally, whether a duty exists is a question of law for the court to decide.” Rhodes v. Wright, 805 N.E.2d 382, 386 (Ind.2004) (citing Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514, 517 (Ind.1994)). “However, if factual questions are interwoven, the existence of a duty may be a mixed question of law and fact appropriate for determination by a jury.” Griffin v. Simpson, 948 N.E.2d 354, 357 (Ind.Ct.App.2011), trans. denied; see also Douglass v. Irvin, 549 N.E.2d 368, 369 n. 1 (Ind.1990) (“While it is clear that the trial court must determine if an existing relationship gives rise to a duty, it must also be noted that a factual question may be interwoven with the determination of the existence of a relationship, thus making the ultimate existence of a duty a mixed question of law and fact.”) (quoting Clyde E. Williams & Assocs. v. Boatman, 176 Ind.App. 430, 435, 375 N.E.2d 1138, 1141 (1978)). To determine whether a duty exists, we must balance three factors: “(1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy concerns.” Baker v. Fenneman & Brown Properties, LLC, 793 N.E.2d 1203, 1206 (Ind.Ct.App.2003); see also Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991), reh’g denied. However, this balancing test is a useful tool to determine whether a duty exists “only in those instances where the element of duty has not already been declared or otherwise articulated.” N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 465 (Ind.2008). “Absent a duty there can be no negligence or liability based upon the breach.” Kroger Co. v. Plonski, 980 N.E.2d 1, 6 (Ind.2010) (citing Peters v. Forster, 804 N.E.2d 736, 738 (Ind.2004)).

“It is well-settled that, ‘[a]s a general rule, an individual does not have a duty to aid or protect another person, even if he knows that person needs assistance.’ ” A.S. v. LaPorte Reg’l Health Sys., Inc., 921 N.E.2d 853, 860 (Ind.Ct.App.2010) (quoting Baker, 793 N.E.2d at 1206 (citing L.S. Ayres v. Hicks, 220 Ind. 86, 93, 40 N.E.2d 334, 337 (1942), reh’g denied with opinion, 220 Ind. 86, 41 N.E.2d 195 (1942))). As noted in Baker, however, there are exceptions to this general rule and among them is a duty which arises from certain special relationships between the parties, described by § 314A of the Restatement (Second) of Torts as follows: § 314A. Special Relations Giving Rise to Duty to Aid or Protect

(1)A common carrier is under a duty to its passengers to take reasonable action:
(a) to protect them against unreasonable risk of physical harm, and
(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.
(2) An innkeeper is under a similar duty to his guests.
(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.
(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.

Baker, 793 N.E.2d at 1207 (quoting Restatement (Second) of ToRts § 314A (1965)) (emphases added).

The Estate argues that the three-part Webb balancing test supports the existence of a duty on Baymont to protect Short in this instance. First, regarding the relationship between the parties, the Estate argues that “[a] duty exists in this case by virtue of the hotel-guest relationship” and that “the duty’s contours were in this factual context and whether the duty was breached are questions for the jury to decide.” Appellant’s Brief at 14. The Estate argues that “the designated evidence creates issues of fact concerning whether the Baymont should have known of Short’s peril” and thus summary judgment was not appropriate. Id. at 15. The Estate argues that Baymont should have known that Short was in danger because it “had a clear policy, which Devine the night auditor was aware of but essentially ignored, requiring all hotel exits to be kept clear” and that, had he taken steps to insure that the north door exit was clear he would have discovered Short. Id. at 20.

The Estate argues that Devine could have checked the north door in a number of ways. First, the Estate designated evidence indicating that walking from the front desk to the doorway and back takes one minute and thirty-nine seconds which is less than the unwritten rule that the night auditor should not be away from the front desk for more than two minutes. On that score, the Estate argues that the unwritten rule is “riddled with exceptions” because Devine “would routinely leave the front desk to prepare breakfast, wash laundry, fulfill guests’ requests, enter the general manager’s office to pick up paperwork, and smoke cigarettes.” Id. at 21. Next, the Estate argues that Devine “could have more carefully examined the video monitor, which would merely have required him to walk into the general manager’s office and walk up to a 19 inch monitor” and “would have taken him approximately 10 seconds.... ” Id. at 20. The Estate argues that “Devine admitted that he ‘glanced’ at the video monitor on at least two occasions subsequent to Short’s fall and three occasions during his shift” which “raises the question: why would he even ‘glance’ at the monitor if it is not used for monitoring the hotel’s premises” and was merely for recording purposes as argued by Baymont at the summary judgment hearing. Id. at 22.

Regarding the other Webb factors, the Estate argues that “Short’s ultimate injury was obviously foreseeable,” noting that “the appropriate question is not whether [ ] Baymont could foresee Short’s fall, but rather, could [ ] Baymont foresee that Short would suffer grave injuries after he fell.” Id. at 23. The Estate argues that “[a]s discussed above, considerable evidence raises at the very least a question of fact concerning whether the Baymont had reason to know of Short’s peril.” Id. The Estate also argues public policy supports that a duty should be imposed in this situation because “[s]ociaI policy dictates that the storeowner, who is deriving this economic benefit from the presence of the customer, should assume the affirmative duty [to help customers who become ill as] a cost of doing business.” Id. at 24 (quoting Baker, 793 N.E.2d at 1209). The Estate argues that while true imposing a duty can “deter individuals from taking responsibility for their actions, it cannot be the law of this case that a premises owner should avoid using the resources at its disposal to occasionally check on the safety of its guests.” Id. at 25.

Baymont argues that “Indiana law governing the duty owed by an innkeeper to its guest[s] is clearly established.” Appel-lees’ Brief at 8. Baymont’s assertion is that “the Estate’s argument misses the distinction between what the Estate maintains Baymont should have done to discover Short (and whether Baymont had a duty to do so) and what the Estate maintains Bay-mont should have known, had it taken the actions the Estate argues it should have (which goes to breach).” Id. at 9. Regarding the Estate’s argument that Baymont owed Short a duty by virtue of his being a hotel guest, Baymont notes that the Estate’s citation to authority for this proposition is as to premises liability, specifically Section 343 of the Restatement (Second) of Torts; however, Short did not slip and fall or was otherwise injured by a condition of the land and thus, “Baymont’s duty to Short is not defined by the requirements of § 343 of the Restatement, but rather defined by § 314A....” Id. at 13.

Regarding § 314A, Baymont argues that it did not have “actual knowledge of [Short’s] presence at the back door or his need for assistance until 7:00 a.m. .... at which time it immediately responded,” that “[t]he only other way [it] could owe Short a duty under § 314A is if it had reason to know of his predicament prior to that time,” and that “[t]he only way [it] could have known of Short’s predicament is if it had a legal duty to monitor the video camera system or patrol the hallways on the off chance it might discover guests who had fallen ill and needed assistance.” Id. at 13-14. Baymont mentions that “[t]his premise is without any support in Indiana law,” and as such it “had no ‘reason to know’ of Short’s predicament until shortly after 7 a.m. on January 4, 2009.” Id. at 15. Baymont also argues that “Short’s collapse, which is the event that led to his death, was not foreseeable” and thus “Baymont had no reason or duty to anticipate his collapse or that he might need help in the middle of the night.” Id. at 17. Baymont argues that public policy weighs against imposing a duty because the camera system was intended to deter crime and arguably increases the safety of guests and employees, and “[a] ruling that premises owners who install camera systems must also continuously or routinely observe the monitors to detect invitees who experience sudden medical emergencies would have a deterrent effect on the installation of such systems. Id. at 18.

As noted in Baker, liability based upon § 314A is not limited “to situations where the plaintiff was an invitee and the instrumentality causing the injury belonged to the defendant.” 793 N.E.2d at 1208. Indeed, the duty imposed explicitly “extends to cases where the illness or injury is due to natural causes, to pure accident, to the acts of third person, or to the negligence of the plaintiff himself....” Id. (quoting Restatement § 314A cmt. d). However, as highlighted by Baymont in its arguments, an innkeeper has a duty to its guests to provide first aid only after it knows or has reason to know that they are ill or injured. Thus, this case turns on whether Baymont had reason to know between the hours of 3:20 a.m. and 7 a.m. that Short was in peril after collapsing outside the north door.

According to the Restatement, “[t]he duty in each case is only one to exercise reasonable care under the circumstances,” and the defendant “is not hable where he neither knows nor should know of the unreasonable risk, or of the illness or injury” and “is not required ... to give aid to one whom he has no reason to know to be ill.” Restatement § 314A cmt. e. Also, the exception applies “only where the relation exists between the parties, and the risk of harm, or of further harm, arises in the course of that relation” such that “[a] carrier is under no duty to one who has left the vehicle and ceased to be a passenger, nor is an innkeeper under a duty to a guest who is injured or endangered while he is away from the premises.” Id. at cmt. c; but see Kellner v. Lowney, 145 N.H. 195, 761 A.2d 421 (2000) (holding motel owner could be liable for injury to boy crossing public highway between two portions of motel property because owner should have foreseen the risk to his guests of crossing the highway to get from hotel rooms to portion of hotel property where religious services were held).

Here, the bases cited by the Estate as to why it should have known of Short’s peril are that it was a short walk for Devine, the night auditor, to leave the front desk and check the door, and that if Devine had examined the video monitor in the general manager’s office he would have viewed Short lying on the ground outside of the door. Regarding the first basis, we note that the designated evidence reveals that Devine was supposed to stay at the main entrance because it was a danger to have the front desk unmonitored during overnight hours, that he examines the exterior of the building when he arrives and leaves during his shift, that he will make observations of other parts of the Hotel including the north door if he has an independent reason to be in that part of the building, and that on the night in question, following the incident in which he entered Short’s room earlier in the evening to turn down Short’s television, he had no other requests which required him to travel to the north side of the building. Thus, routine door checks were not within the scope of Devine’s nightly duties such that he should have known of Short’s peril. To the extent that the Estate suggests that the claim Devine is to stay at the front desk is “riddled with exceptions” because he testified that he “routinely leave[s] the front desk to prepare breakfast, wash laundry, fulfill guests’ requests, enter the general manager’s office to pick up paperwork, and smoke cigarettes,” Appellant’s Brief at 21, we note that with the exception of fulfilling guest requests which was addressed above, these other incidents are located in the vicinity of the front desk. Also, to the extent that the Estate suggests that De-vine ignored the company policy to keep the hotel exits clear, we note that it is unclear at .best that the policy required Devine to proactively seek out obstructions during his shift, and that, in any event, any supposed failure on Devine’s part to comply with this policy cannot result in liability on Baymont’s part under § 314A. See note 3, supra.

As to the second basis, the Estate claims that because Short’s peril was captured on the Hotel’s video monitoring system, had Devine “more carefully examined the video monitor” in the general manager’s office, located next to the front desk, he would have discovered Short. Appellant’s Brief at 20. The designated evidence reveals that Devine had been told that the purpose of the video monitoring system was to deter potential crime and to record crimes committed to aid police investigation, that it was equipped with a panic system function to immediately notify police of a crime, that Devine passed through the general manager’s office twice following Short’s collapse, and that on each occasion he glanced at the video monitor. The video monitor was located about ten to twelve feet from Devine when he would pass through the office. The monitor was a nineteen inch screen, displayed sixteen images at once, and the image of the main entrance was larger than the others such that it was the only image large enough for Devine to see at that distance as he glanced at it. Also Sentman, who was present when Short checked in, testified that she does not inform guests of the video monitoring system and if guests ask she tells guests that “there’s cameras that record the inside exits.” Appellant’s Appendix at 41. Speziale, the general manager and Devine’s boss, testified that there was not a rule requiring employees to check the video monitor and that in order to see the video monitor clearly, one needed to be about three or four feet away from it. Thus, the fact that Short’s body was visible on the video monitor screen was not sufficient to alert Baymont and specifically Devine of Short’s peril.

Indeed, this case is unlike Baker and the cases to which it cites in that the situation of Short’s peril had not been presented to Devine, who was the only employee working during the hours in question, in any significant way such that he should have recognized the perilous situation. See Baker, 793 N.E.2d at 1205 (plaintiff, while at the counter of the business, “suddenly fell backward” in which his “head hit the floor, and he was knocked unconscious and began having convulsions”); see also Gingeleskie v. Westin Hotel, et al., 145 F.3d 1337, 1998 WL 279393 at *2 (9th Cir.1998) (holding question of fact existed regarding whether hotel took reasonable steps under § 314A to get a sick man to a hospital when the employee called a cab rather than an ambulance); Southland Corp. v. Griffith, 332 Md. 704, 633 A.2d 84, 91-92 (1993) (holding business had a duty to provide aid to injured customer by calling the police when a customer requested the employee do so); Hovermale v. Berkeley Springs Moose Lodge No. 1483, 165 W.Va. 689, 690-691, 271 S.E.2d 335, 337-340 (1980) (holding that owner owed a duty under § 314A to decedent who while having a drink and standing at the bar collapsed to the floor, and one of the bartenders on duty instructed other patrons “take him out to his car to ‘sleep it off,’ ” and the decedent was discovered the next day still in his vehicle having died of a heart attack “sometime within two to five hours after being placed in the vehicle”); Depue v. Flatau, 100 Minn. 299, 301-302 111 N.W. 1, 1-2 (1907) (homeowner held liable for aggravating the injuries of a businessman whom homeowner sent away unattended on a cold winter night after the businessman felt severely ill and fainted); Miller v. McDonald’s Corp., 439 So.2d 561, 565 (La.Ct.App.1983) (holding business owner had duty to render reasonable aid after learning person on his premises is injured or ill and remanding to allow plaintiff to amend his complaint to so allege), writ not considered 442 So.2d 462 (La.1983); Estate of Starling v. Fisherman’s Pier, Inc., 401 So.2d 1136, 1136-1138 (Fla.Dist.Ct.App.1981) (holding that question of fact existed regarding owner’s duty owed to a “passed-out drunk customer” who was left lying near the ocean on a pier and was ignored and who subsequently fell from the pier and drowned), rev. denied 411 So.2d 381 (Fla.1981); Lloyd v. S.S. Kresge Co., d/b/a K-Mart, 85 Wis.2d 296, 298-299, 303-305, 270 N.W.2d 423, 424, 426-427 (Wis.Ct.App.1978) (holding question of fact existed regarding whether K-Mart failed to give reasonable assistance to customer who was ill when it forced her to wait for her ride outside the store on a cold winter night after she informed store personnel that “she was not feeling well and was running a temperature” and “that if she went outside to wait, there was a possibility she would be chilled to the bone and become seriously ill”).

The rule advocated by the Estate would have the effect of expanding the scope of the “have reason to know” element of § 314A to instances in which the owner did not have knowledge of the situation of peril, rather than instances currently within its scope in which the owner knew of the situation but failed to recognize the peril that attached. See L.S. Ayres, 220 Ind. at 95-96, 40 N.E.2d at 338 (noting that the measure of the duty is “not unlike that imposed by the rule of the last clear chance or doctrine of discovered peril,” in which “the defendant must have had knowledge of the plaintiffs situation of peril ... ”). We conclude that Baymont did not have reason to know of Short’s peril and thus the court did not err in granting its motion for summary judgment. See McCann v. Miller, No. 08-561, 2009 WL 4641713, at **1, 3, 6 (E.D.Pa. Dec. 7, 2009) (holding that hotel was entitled to summary judgment against plaintiff hotel guests where the plaintiffs were assaulted while on hotel property and the question was whether, under § 314A, the hotel “had reason to know that the assault was going to occur”).

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of Baymont.

Affirmed.

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

      . The tort of negligence is comprised of three elements: (1) a duty on the part of the defendant in relation to the plaintiff; (2) a breach of duty, that is, a failure on the part of the defendant to conform his conduct to the requisite standard of care required by the relationship; and (3) an injury to the plaintiff resulting from that failure. Douglass v. Irvin, 549 N.E.2d 368, 369 (Ind.1990).

      . We note that recently, two members of the Indiana Supreme Court have questioned the usefulness of the Webb framework in that the "foreseeability" factor, which, as Chief Justice Dickson described, was "traditional but redundant," is factored into the analysis for both duty and proximate cause. Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1126 (Ind.2010) (Dickson, J., dissenting); see also id. at 1125-1126 ("My specific complaint about Webb is that it identifies ‘foreseeability’ as one of the three factors the courts are to evaluate in deciding whether the defendant has a duty to the plaintiff.... I have tried to spell out some of the pernicious consequences of this confusion in Theodore R. Boehm, A Tangled Webb — Reexamining the Role of Duty in Indiana Negligence Law, 37 Ind. L. Rev. 1 (2003).") (Boehm, J., concurring in result).

      . The Estate makes a related argument in another section of its brief and without citation to authority that, independent of the analysis under Webb or § 314A, Baymont had a self-imposed duty "based upon its own safety and security policies,” noting that the "employee handbook stated without any equivocation that employees were required to keep all exits clear.” Appellant's Brief at 13 (citing Appellant's Appendix at 121). The Estate argues that "[tjhere can be no dispute that the door at which Short fell was an exit from the Baymont,” that "[fjor more than three and one half hours the doorway was not clear,” and that ”[h]ad Devine taken minimal steps— looking at the monitor or walking to the doorway — he would have fulfilled his obligation to keep the doorways clear” and would have discovered Short. Id.

      The Baymont employee manual states that "[t]he safety and security of employees as well as guests is extremely important,” that "jyjou must work carefully at all times to ensure your own safety as well as that of others,” and that "[a]mong the things you must do are: ... 3. Be sure that all exits are kept clear.” Appellant’s Appendix at 121. However, even if the employee handbook established such a duty (in which Baymont cites case law to the contrary), the Estate’s argument would fail on proximate cause. This court has recently addressed proximate cause in negligence actions, stating:
      [w]hether an act is the proximate cause of an injury depends upon whether the injury was a natural and probable consequence of the negligent act which, in light of the attending circumstances, could have been reasonably foreseen or anticipated. The negligent act must set in motion the chain of circumstances which contribute to or cause the resulting injury.

        Key v. Hamilton, 963 N.E.2d 573, 584 (Ind.Ct.App.2012) (quoting Humphery v. Duke Energy Ind., Inc., 916 N.E.2d 287, 292 (Ind.Ct.App.2009)) (emphasis added). Simply, any failure on Baymont's part to keep the north door exit clear did not set in motion circumstances causing or contributing to Short’s death, nor was Short’s death, which was caused by a medical condition and exacerbated by his exposure to the cold, a natural and probable consequence of any such failure.

      . The Estate argues in its reply brief that "the designated evidence raises at least an inference upon which a jury could find that the Baymont” had actual knowledge of Short's peril which should defeat summary judgment because Devine could have been "untruthful in whether or not he saw Mr. Short’s body.” Reply Brief at 6. However, the Estate has not designated evidence bringing Devine's credibility into question, and on summary judgment only "reasonable” inferences are to be construed in favor of the nonmovant. Also, the Estate, in paragraph 11 of its complaint, averred that Short's body "was not found or otherwise discovered by an employee of the Baymont until approximately 7:00 AM on January 4, 2009.” Appellant's Appendix at 38.


source: Caselaw Access Project

author: BAILEY, Judge.

license: Public Domain

text:
    James E. CORRY and Gayle Corry, Appellants-Plaintiffs, v. Steve JAHN, Woodland Homes of Ft. Wayne, LLC, Scott R. Malcolm, Oakmont Development Co., LLC and Mike Thomas Associates/F.C. Tucker, Inc., Appellees-Defendants.
    No. 02A03-1107-PL-323.
    Court of Appeals of Indiana.
    Aug. 7, 2012.

      Charles E. Davis, Davis Law, LLC, Fort Wayne, IN, Attorney for Appellants.
    Oakmont Development Co., LLC, Andrew S. Williams, Mike Thomas Associates/F.C. Tucker, Inc., Jonathan H. Nusb-aum, Esq., Beers Mailers Backs & Salin, LLP, Fort Wayne, IN, Attorneys for Ap-pellees.
   OPINION

BAILEY, Judge.

Case Summary

James and Gayle Corry (“the Corrys”), whose residence was built by Woodland Homes of Ft. Wayne, LLC (“Woodland”) brought suit for breach of contract, breach of fiduciary duty, breach of warranty, negligence, and fraud against Woodland, builder/realtor Steve Jahn (“Jahn”), realtor Scott Malcolm (“Malcolm”), Oak-mont Development Co., LLC (“Oakmont”) and Mike Thomas Associates/F.C. Tucker, Inc. (“MTA”). The trial court granted summary judgment to Oakmont and MTA, denied the Corrys’ motion to correct error, and directed the entry of judgment upon the partial summary judgment order. The Corrys present a single, consolidated issue: whether partial summary judgment was erroneously granted. We affirm.

Facts and Procedural History

The facts most favorable to the Corrys, the non-movants for summary judgment, are as follows. In 2001, Malcolm, an MTA realtor and a friend of James Corry, introduced the Corrys to his colleague, Jahn. In addition to being an MTA realtor, Jahn was the president of Woodland, a residential construction company. Jahn was an “approved builder” on a list maintained by MTA and Jeff Thomas of MTA believed that Jahn may have built some model or “spec” homes for Oakmont. (Appellee’s App. 355.)

The Corrys agreed to purchase from Woodland a lot in Perry Lake Estates that Woodland had obtained from Oakmont, the developer of that subdivision. On June 20, 2001, Michael Thomas, as General Partner of Oakmont issued a letter after reviewing a “progress drawing” or “completed drawing” of the proposed residence showing the proposed elevation. (Appel-lee’s App. 408.) The letter was addressed To Whom It May Concern:

This is to verify that the house being built at 1207 Dakota Drive (lot 117 Perry Lake Estates III) meets all architectural requirements set forth by the developer.

(Appellee’s App. 452.)

On November 16, 2001, the Corrys entered into a contract with Woodland for the construction of a residence on Lot 117, next to Malcolm’s lot. Oakmont had procured a joint soil test report regarding Lot 117 and Malcolm’s lot and had been advised either that Lot 117 required pilings or pilings would be the most economical way to deal with unstable soil. In light of that information, Oakmont had agreed to sell the lot to Woodland at a reduced cost, to offset the cost of pilings. However, the construction contract between the Corrys and Woodland did not require pilings.

Jahn and the Corrys had several pre-construction meetings, often at MTA offices, with Malcolm present at some of the meetings. One or both of the Corrys repeatedly raised the issue of soil suitability. According to Jahn, the area was known to have “muck streams” and was considered “vulnerable.” (Appellee App. 425.) Jahn first advised the Corrys “that [the] house would require pilings” because of soil conditions but later informed them that they “didn’t need pilings.” (Appellee App. 107-8.) Jahn’s recommended alternative was to remove muck, compact dirt fill and “beef up” the concrete slab. (App. 408.) The concrete slab was poured one inch thicker than a typical slab, and steel rods were used instead of wire. The rods were in both the footers and the slab.

“Almost from the beginning” of moving into their new residence in 2002, the Cor-rys began to observe structural problems. (Appellee’s App. 58.) Floor tiles cracked, there were cracks in the ceilings and walls, and a wall dropped away from the ceiling. The Corrys contacted Jahn, who advised them that cracks were routine and performed some cosmetic repairs.

The problems persisted and it eventually became apparent that the Corrys’ house was sinking. In 2007, after learning that Woodland had gone bankrupt, the Corrys asked Malcolm to arrange a meeting with Mike Thomas of MTA. The meeting did not produce any solutions and the Corrys, at their own significant expense, had helical piers installed to stabilize the house.

On October 31, 2007, the Corrys filed a complaint for damages. As amended, the complaint asserted breach of contract, breach of fiduciary duty, breach of warranty, negligence, and fraud claims against Jahn, Woodland, Malcolm, Oakmont and MTA. Oakmont and MTA jointly moved for summary judgment on each of the claims. On March 28, 2011, the trial court (concluding “it is most obvious to this Court that the Plaintiffs are suing Oak-mont and MTA because Woodland Homes has gone out of business and filed bankruptcy”) granted partial summary judgment. (App. A-198.) On February 14, 2012, the trial court directed the entry of judgment pursuant to Indiana Trial Rule 54(B). This appeal ensued.

Discussion and Decision

I. Standard of Review

A party seeking summary judgment bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Smith v. City of Hammond, 848 N.E.2d 333, 337 (Ind.Ct.App.2006), trans. denied. Once the movant satisfies this burden through evidence designated to the trial court pursuant to Indiana Trial Rule 56, the non-movant may not rest upon its pleadings, but must designate specific facts demonstrating the existence of a genuine issue for trial. Id.

A genuine issue of material fact exists where facts concerning an issue that would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue. Huntington v. Riggs, 862 N.E.2d 1263, 1266 (Ind.Ct.App.2007), trans. denied.

On review, we apply the same standard as the trial court: we must decide whether there is a genuine issue of material fact that precludes summary judgment and whether the moving party is entitled to judgment as a matter of law. Carie v. PSI Energy, Inc., 715 N.E.2d 853, 855 (Ind.1999). In so doing, we consider only those portions of the pleadings, depositions, and other matters specifically designated to the trial court by the parties for purposes of the motion. Ind. Trial Rule 56(C), (H). We accept as true those facts alleged by the non-moving party, which are supported by affidavit or other evidence. McDonald v. Lattire, 844 N.E.2d 206, 212 (Ind.Ct.App.2006).

The trial court’s order granting summary judgment is cloaked with a presumption of validity and the appellant bears the burden of demonstrating that the trial court erred. Heritage Dev. of Indiana, Inc. v. Opportunity Options, Inc., 773 N.E.2d 881, 888 (Ind.Ct.App.2002). Where, as here, the trial court has entered specific findings, they may provide valuable insight into the trial court’s rationale, but we are not limited to reviewing the trial court’s reasons for granting or denying summary judgment. Meyer v. Marine Builders, Inc., 797 N.E.2d 760, 767 (Ind.Ct.App.2003). Rather, a grant of summary judgment may be sustained on any theory or basis supported by the designated materials. Smith v. Yang, 829 N.E.2d 624, 625 (Ind.Ct.App.2005).

Breach of Contract

The Corrys alleged that each of the defendants breached the construction contract by allowing the house to be built without pilings and failing to disclose soil problems. They point to the apparent fact that each defendant profited in some way from the consummated real estate transaction. Oakmont and MTA denied the existence of a construction contract between the Corrys and Oakmont or MTA, much less a breach.

“The essential elements of a breach of contract action are the existence of a contract, the defendant’s breach thereof, and damages.” Haegert v. University of Evansville, 955 N.E.2d 753, 758 (Ind.Ct.App.2011). Here, the designated materials disclose that the Corrys entered into a written construction contract with Woodland Homes. Regardless of Oakmont’s or MTA’s receipt of lot proceeds or a sales commission, neither is a party to the construction contract, with attendant obligations. Their designated materials negated the elements of the Corry’s breach of contract claim; thus, the trial court properly granted partial summary judgment on this claim.

Breach of Fiduciary Duty

The Corrys next alleged that the defendants had a fiduciary duty which they breached when they “failed to disclose their actual/potential conflict of interest ■with Plaintiffs, in that Jahn and Malcolm as licensed real estate agents were working for both the seller of the property and the Plaintiffs as the buyers.” (App. A-34.) More specifically, the Corrys claim that Jahn and Malcolm acted as dual agents or limited agents and only belatedly obtained a written consent pursuant to Indiana Code Section 25-34.1-10-12.

Indiana Code Section 25-34.1-10-12 provides in relevant part: “A licensee may act as a limited agent only with the written consent of all parties to a real estate transaction.” Nonetheless, the Corrys have not alleged that the untimely disclosure was a source of specific harm to them. Indeed, Indiana Code Section 25-34.1-10-12(c) additionally provides: “A cause of action does not arise against a licensee for disclosing or failing to disclose information in compliance with this section, and the limited agent does not terminate the limited agency relationship by making a required disclosure.” Thus, even assuming there was a failure to timely obtain the written consent, this did not create a cause of action in favor of the Corrys and the trial court properly granted partial summary judgment on the purported claim.

Breach of Warranty

The Corrys alleged that “[t]he work, materials and construction were not as warranted, but were defective.” (App. A-35.) They identified the defect as the “sinking slab” and further alleged that Oakmont and MTA had knowledge of the defect and the subsequent failure to cure. (App. A-35.)

A warranty of habitability warrants that the house will be free from those defects which substantially impair its use and enjoyment. R.N. Thompson & Assoc., lnc. v. Wickes Lumber Co., 687 N.E.2d 617, 620 (Ind.Ct.App.1997), trans. denied. In Barnes v. Mac Brown & Co., Inc., 264 lnd. 227, 229, 342 N.E.2d 619, 621 (1976), our supreme court extended the implied warranty of habitability to second or subsequent purchasers in the case of latent defects that are not discoverable upon the purchaser’s reasonable inspection and which manifest themselves after the purchase.

Oakmont and MTA denied having made any warranty of habitability to the Corrys. In an attempt to withstand the grant of partial summary judgment, the Corrys claimed that Oakmont, as developer of the subdivision, had impliedly warranted that the soil of Lot 117 was suitable for building when the land was transferred to Woodland and this warranty extends to the Corrys.

The Corrys rely upon Jordan v. Talaga, 532 N.E.2d 1174 (Ind.Ct.App.1989), trans. denied, for the proposition that a developer “is liable to the ultimate homeowner for a house that was built on bad soil under implied warranty.” Appellant’s Brief at 18. In that case, developers had subdivided land such that a known channel of water ran along the border of the lot eventually purchased by the Talagas. Id. at 1178. The developers determined that an existing swale on the edge of the Talagas’ lot would adequately handle the water drainage and direct it into the storm sewers. Id. A builder purchased the lot, sold it to the Talagas, and built a residence thereon, without being informed of any water problem. Id.

Although no water problem arose during construction, soon after occupancy the homeowners experienced backyard flooding and contacted both the builder and developers. Id. Additional measures did not alleviate the situation and eventually the Talagas had sustained significant damage to real and personal property, and they deemed their house, with the existing water course, to be “worthless.” Id. at 1180. The Talagas sued the developers under alternative theories of negligence and breach of an implied warranty of habitability (claiming that the developers “knowingly sold property improved for the purpose of home building located in a substantial natural water course”). Id. at 1177. A jury awarded the Talagas damages; on appeal, a panel of this Court affirmed the verdict under the theory of an implied warranty of habitability. Id.

The Jordan Court stated the issue before it as: “whether a professional developer who improves land for the express purpose of residential homebuilding with knowledge but without disclosure of a latent defect in the real estate that renders the land unsuitable for the purpose of residential homebuilding breaches an implied warranty of habitability?” Id. at 1182. Finding very little authority in our state to provide direction, the Court took note of decisions in other states, and quoted the holding of a Colorado case, Rusch v. Lincoln-Devore Testing Laboratory, Inc., 698 P.2d 832, 835 (Colo.App.1984):

Accordingly, we hold that if land is improved and sold for a particular purpose, if [the] vendor has reason to know that the purchaser is relying upon the skill or expertise of the vendor in improving the parcel for that particular purpose, and the purchaser does in fact so rely, there is an implied warranty that the parcel is suitable for the intended purpose.

Jordan, 532 N.E.2d at 1185 (quoting Rusch).

The Jordan Court went on to observe that “the facts and circumstances of the present case are particularly appropriate for the imposition of an implied warranty of habitability,” in that the developers had done “more than sell raw land” and had platted, subdivided, and engineered considerable improvements. Id. The developers were professionals in real estate and one developer’s real estate company had handled the sale of the home to the Talagas. Id. They knew about the water channel and were in the best position to choose to leave the lot in question undeveloped. Id. As such, they were in the best position to “absorb the loss attributable to the latent, undisclosed defect in the real estate they sold.” Id. at 1185-86.

Jordan is inapposite here. The defect identified by the Corrys in their amended complaint is the “sinking slab.” (App. A-35.) This defect (which we assume, for summary judgment purposes, to exist) arose from failure to employ adequate construction techniques and not the subdividing or improvement of the land. Nor was there an undisclosed condition of the soil amounting to a latent defect. By all accounts, the developer, realtors, builder, and buyers all knew that Lot 117 required more than conventional building methodology to ensure house stability. Oakmont and MTA did not withhold information on the need for pilings and the land was apparently suitable for the purpose of residential homebuilding if pilings had been used. Jahn determined and recommended that a “beefed up” slab should instead be constructed. (App. 408.) The Corrys acquiesced to this recommendation. The source of the “defect” is the alternative methodology employed by the builder.

The trial court properly declined to impose an implied warranty of habitability upon the developer and real estate agency where the one positioned to prevent the harm — as discerned from undisputed facts — was the builder.

Negligence

The Corrys’ negligence count alleged that Jahn’s work was defective and negligently performed in an “unworkman-like fashion” and that Oakmont and MTA “failed to insure that their agent, Jahn, complied with proper building practices on this home site that they sold and recommended for building by Jahn.” (App. A-37.) More specifically, the Corrys averred that Michael Thomas of MTA approved building plans (by issuance of the June 2001 letter approving architectural design) without following up and confirming that Jahn was using pilings.

Oakmont and MTA respond that they had no duty to supervise Jahn or Woodland in the performance of the contract and that the Corrys did not bring a negligence claim within the two-year statute of limitations applicable to claims of professional negligence. The Corrys maintain that they have sustained damage to their real property and thus a six-year statute of limitations for injury to real property is applicable. However, we observe that the actual loss claimed is that of economic loss, and so the Corrys are relegated to contractual as opposed to tort remedies for the defect.

A defendant is liable to a plaintiff for the tort of negligence if (1) the defendant has a duty to conform its conduct to a standard of care arising from its relationship with the plaintiff, (2) the defendant has failed to conform its conduct to that standard of care, and (3) an injury to the plaintiff was proximately caused by the breach. Indianapolis-Marion Co. Public Library v. Charlier Clark & Linard, P.C., 929 N.E.2d 722, 726 (Ind.2010). Where the injury to the plaintiff is from a defective product or service, the defendant is liable under a tort theory if the defect causes personal injury or damage to property other than the product or service itself. Id. Indiana cases have followed a rule precluding tort liability for purely economic loss — that is, pecuniary loss unaccompanied by any property damage or personal injury (other than damage to the product or service itself) and this has become known as the “economic loss rule.” Id. at 727. “[T]hese losses are viewed as disappointed contractual or commercial expectations.” Gunkel v. Renovations, Inc., 822 N.E.2d 150, 154 (Ind.2005).

In Indianapolis-Marion Co. Public Library, the Library had become concerned about the structural integrity of a parking garage, which was to serve as the foundation for the remainder of the library structure. Id. at 725. The Library hired an expert who confirmed that there were construction and design defects; based upon that report, the Library suspended construction and undertook repair work. Id. The Library brought suit against multiple defendants including sub-contractors and an engineer alleging negligent failure to perform engineering, administrative, and design work in a skillful, careful, workmanlike manner along with breach of contract claims with the parties with whom the Library had a contractual relationship. Id. The parties with whom the Library had a contract settled and the trial court granted the subcontractors and engineer partial summary judgment under the “economic loss rule.” Id.

Our supreme court affirmed the grant of partial summary judgment. In so doing, the Court recognized that there are “several principal justifications” for the economic loss rule, including the inaptitude of tort law to resolve purely commercial disputes. Id. at 728-29. The Court found this justification “clearly implicated,” explaining:

From the outset of the project, the Library looked to a series of contracts to establish the relative expectations of the parties. And reliance on contract law in this regard is perhaps greater in construction projects than any other industry[.]

Id. at 730. A second justification — liability should not be imposed when it creates potential for liability so uncertain in time, class, or amount that the defendant should not fairly be expected to account for the potential liability when undertaking the conduct — was not directly implicated, because the damages were “by no means indeterminate,” nor was there exposure for an indeterminate time or to an indeterminate number of plaintiffs. Id. The Court explained that the economic loss rule operates as a general rule to preclude recovery in tort for economic loss, but does so only for purely economic loss and even when there is a purely economic loss, exceptions to the general rule exist. Id.

After considering the Library’s claim that there was an imminent risk of physical injury, the Court concluded that the Library had purchased a “product or service” that was an integral part of a construction project and “the economic loss rule applie[d].” Id. at 732. Although the Library argued that “the economic loss rule should not be applied to engineers and design professionals, whether or not in privity of contract with a plaintiff,” the Court reiterated: “our default position in Indiana is that in general, there is no liability in tort for pure economic loss caused unintentionally.” Id. at 736 (emphasis in original.)

The Court went on to conclude: “[w]e believe that the reasons for applying the economic loss rule to all participants in such a network or chain of contracts in a major construction project are compelling, whatever that rationale might be for not applying the economic loss rule to design professionals in other settings or contexts.” Id. In essence, “ ‘the law should permit the parties to a transaction to allocate the risk that an item sold or a service performed does not live up to expectations.’ ” Id. at 737 (quoting Gunkel, 822 N.E.2d at 155).

Here, although the Corrys’ construction contract was with Woodland, there were a “series of contracts to establish the relative expectations of the parties.” Indianapolis-Marion Co. Library, 929 N.E.2d at 730. The damages claimed are for economic loss, that is, costs of repair and replacement of the defective product and diminution in the value of the product because it is inferior in quality. The Corrys may not recover under a negligence theory for purely economic loss. The trial court properly granted summary judgment to Oakmont and MTA upon the negligence claim.

Fraud

Finally, in their claim for fraud or constructive fraud, the Corrys have alleged that Jahn, acting as an agent of Oakmont and MTA, advised that his “special slab” construction would alleviate any soil conditions. (App. A-39.) According to the complaint, Oakmont and MTA knew Lot 117 was not suitable for building a residence without pilings or piers “but failed to disclose such facts,” they failed to disclose “that Jahn or Woodland alone was the builder” or that “Jahn was not an agent of Oakmont or [MTA],” and they failed to “report a latent and detrimental soil condition to Plaintiffs.” (App. A-38-A-39.) In sum, the Corrys have claimed that Jahn made a false recommendation for which Oakmont and MTA are responsible because they had pre-existing knowledge of unstable soil.

To prevail against Oakmont or MTA in a cause of action for fraudulent misrepresentation, the Corrys must demonstrate that: (1) Oakmont or MTA made false statements of past or existing material facts; (2) Oakmont or MTA made such statements knowing them to be false or recklessly without knowledge as to their truth or falsity; (3) the statements were made to induce the Corrys to act upon them; (4) the Corrys justifiably relied and acted upon the statements; and the Cor-rys suffered injury. Wise v. Hays, 943 N.E.2d 835, 840 (Ind.Ct.App.2011).

The Corrys concede that they were initially informed, at least by Jahn, of the need for pilings, (a recommendation that has apparently proven sound); thus, there was no “latent” defect. Oakmont and MTA do not claim that they, in addition to Jahn, specifically informed the Corrys of the need for pilings. However, they denied that they have made any false statement of past or existing material fact. In response, the Corrys have identified no such statement by Oakmont or MTA.

Instead, the Corrys assert that Jahn made an untenable claim and that both Malcolm and Jahn (who remain as defendants in this litigation) made statements that bad soil was in a corner of the lot. This arguably allowed the impression (to which Gayle Corry testified) that the bad soil was confined to that area and the house would not be directly affected. However, it does not amount to an affirmative misrepresentation regarding the character of the soil on which the house was constructed.

The Corrys seek to hold Oakmont and MTA responsible for Jahn’s representations under a theory of derivative liability. Oakmont and MTA have denied that Jahn was authorized to act as an agent for either during the construction of the Cor-rys’ residence. Jahn also denied that he acted in an agency capacity vis-á-vis Oak-mont or MTA. The question of whether an agency relationship exists and of the agent’s authority is generally a question of fact. Johnson v. Blankenship, 679 N.E.2d 505, 507 (Ind.Ct.App.1997), trans. granted and summarily aff'd, 688 N.E.2d 1250 (Ind.1997).

In Indiana, “actual agency” is a relationship that results from the manifestation of consent by one party to another that the latter will act as an agent for the former. Hope Lutheran Church v. Chellew, 460 N.E.2d 1244, 1247 (Ind.Ct.App.1984). Actual authority is created by written or spoken words or other conduct of the principal which, when reasonably interpreted, causes the agent to believe that the principal desires him so to act on the principal’s account. Scott v. Randle, 697 N.E.2d 60, 66 (Ind.Ct.App.1998), trans. denied. The agent must acquiesce to the arrangement and be subject to the principal’s control. Hope Lutheran Church, 460 N.E.2d at 1247.

In contrast, apparent authority “exists where the actions of the principal give the contracting party the reasonable impression that the agent is authorized to enter into an agreement on behalf of the principal.” Heritage Dev. of Indiana, Inc., 773 N.E.2d at 889. The principal must make some communication that instills a reasonable belief as to the agent’s authority in the mind of the third party and, as such, the alleged agent’s statements alone are not sufficient to create apparent authority. Id.

Here, the designated factual material most favorable to the Corrys reveals that Jahn once signed — without authorization from Oakmont — a sales disclosure form indicating that he was doing so as a representative of Oakmont. Although he maintained an additional business address and a personal cell phone, Jahn frequently used office space at MTA for meetings and had access to MTA support staff and telephones. Gayle Corry “assumed” that Mike Thomas, Jahn, Malcolm, and Oak-mont were all “one entity” because of “dealings” held with the same people at the same place. (Appellee’s App. 50.) Likewise, James Corry felt that there was “one company” in that “all the people” seemed to be “in cahoots.” (Appellee’s App. 208.)

There is, however, no designated evidence that Oakmont or MTA directly or indirectly communicated to the Corrys that Jahn, when performing his duties as the principal of his construction company, also acted as an agent for Oakmont or MTA. The Corrys’ assumptions and the limited sharing of office resources would not permit a reasonable finder of fact to conclude that Jahn was an agent of Oak-mont or MTA for purposes of constructing the Corrys’ residence. Neither could a reasonable factfinder conclude that Malcolm was acting as an agent of Oakmont or MTA when — during the construction process — he spoke of the location of the bad soil or acquiesced in Gayle’s conclusion that it was in a corner beyond the proposed house site.

For summary judgment purposes, we take as true the allegation that Jahn advised his “special slab” construction would alleviate soil conditions. According to Jahn’s deposition, he told the Corrys his method was the “best way to construct the home.” (Appellee’s App. 428.) Gayle Corry testified in her deposition that Jahn had claimed, “your house will be standing long after your children and grandchildren are gone. You know, this [method] actually makes a house more sound than lots that don’t require pilings and don’t have them.” (Appellee’s App. 146.) This is not, however, a representation of existing fact. Fraud may not be based upon representations regarding future conduct, or upon broken promises, unfulfilled predictions or statements of existing intent which are not executed. Biberstine v. New York Blower Co., 625 N.E.2d 1308, 1315 (Ind.Ct.App.1993), tram, dismissed. Here, Jahn’s representation of the adequacy of his building method amounts to a future prediction or puffery, for which Oakmont and MTA cannot be held liable under a fraud theory. The trial court properly granted Oakmont and MTA partial summary judgment on the fraud claim against them.

Conclusion

Oakmont and MTA were not parties to the construction contract at issue in this litigation. Thus, the trial court properly granted them summary judgment on the breach of contract claim. No cause of action arises from belated provision of a limited agency disclosure form, and thus the trial court properly granted Oakmont and MTA summary judgment on this claim. The trial court properly declined to impose an implied warranty of habitability on Oakmont and MTA where the builder was the entity best positioned to prevent the harm. Oakmont and MTA are entitled to summary judgment upon the breach of warranty of habitability claim. The Cor-rys’ claim is for economic loss and they are relegated to recovery in contract as opposed to negligence law. The trial court properly granted Oakmont and MTA summary judgment upon the negligence claim. Finally, the designated materials reveal that Oakmont and MTA made no fraudulent misrepresentation to the Corrys. Jahn did not act as an agent of either entity when representing that his building methodology was superior and would produce a long-standing product. Accordingly, the trial court properly granted summary judgment to Oakmont and MTA on the fraud claim.

Affirmed.

ROBB, C.J., and MATHIAS, J., concur.

      . The Corrys also assert that they have not waived their right to a jury trial and, on remand, the matter should be scheduled for trial by a jury. On April 19, 2011, the trial court ordered that the case against the remaining defendants (Jahn, Malcolm, and Woodland) would be tried to the bench. This order is not referenced in the Corrys’ Notice of Appeal and has not been certified for interlocutory appeal. Therefore, we do not address the propriety of that order.

      . Jahn explained that he was one of a group of builders "allowed to build” when Mike Thomas "had a subdivision" and that there was a list of approved builders. (Appellee's App. 406.)

      . It appears from the record that the lot had not actually been deeded to Woodland from Oakmont when the Corrys agreed to buy the lot from Woodland. Jahn testified when deposed that it was a “common practice" to record deeds "at the same time” from the developer to the builder and from the builder to the homeowner.

      .James Corry testified in his deposition that Jahn had said "your house will be on piers.” (Appellee’s App. 194.) According to James' testimony, he was aware that a house built on bad soil would sink.

      . In Smith v. Miller Builders, Inc., 741 N.E.2d 731 (Ind.Ct.App.2000), Miller Builders improved real estate and sold it to the wife of an experienced homebuilder, Crachy. Crachy constructed a house, the basement of which flooded on one occasion. The Smiths purchased the residence and were informed by the Crachys of the prior flooding. Id. at 734. Mr. Smith observed some standing water in a drainage basin and asked Crachy whether the elevation of the water would be a problem. Id. at 741. It was ultimately discovered that Miller, the developer, had constructed drainage basins with less capacity than the plans called for. The trial court concluded that the Smiths had not relied upon Miller’s skills or expertise and could not recover under an implied warranty of habitability. Id. On appeal, the developer claimed that reliance is an essential element of the implied warranty of habitability. However, this Court concluded that the Jordan Court had not adopted the holding of Rusch. and "proof of reliance on the subdivision developer is not mandated by our holding in Jordan.” Id. We remanded the case for a determination of whether there had been a breach of an implied warranty of habitability.

      . The Corrys have alleged that pilings should have been used on their lot, like that of Malcolm’s next door to the Corrys.

      . Although the Corrys were aware that pilings had been recommended (and Jahn himself had first recommended pilings), their agreement to forego the pilings may have resulted from a misunderstanding of the affected area. Gayle Corry's affidavit includes the averment that “Jahn and Malcolm told us that the bad soil was located in a corner where we were not building.” (App. A-178K.) In her deposition, she explained: "There was one point where they said — we asked something about the problem with the soil, and they said it's out on the corner, and I can remember pointing my finger and I said, ‘Well, we're not building out on the corner, so it’s not going to be a problem, right?’ And nobody corrected me, and it ends up later that it's the corner of the house.” (Appellee’s App. 146.)

      .Although not an averment in the complaint, the Corrys later argued that Oakmont was negligent for not ensuing that additional engineering analysis was conducted.

      . Our supreme court, in Indianapolis-Marion Co. Public Library, acknowledged that there can be exceptions to the economic loss rule for services in appropriate circumstances: "we have mentioned possible exceptions (for purposes of illustration only) — lawyer malpractice, breach of a duty of care owed to a plaintiff by a fiduciary, breach of a duty to settle owed by a liability insurer to the insured, and negligent misstatement — that suggest situations in which the economic loss rule would not apply in the services context.”’ 929 N.E.2d at 742. Here, the essence of the negligence claim against Oakmont and MTA is that they failed to supervise the building process and monitor compliance with the need for pilings.

      . This may be a reference to helical piers, which the Corrys ultimately had installed.

      . In her deposition, Gayle Corry was asked "Were you aware of soil problems at the time you built the home?” and she responded, "We were told that it would be a piling lot.” (Ap-pellee's App. 149.)

      . The designated materials indicate that Jahn was employed as a real estate agent for MTA. Accordingly, during the sale — as opposed to the construction — he acted as a representative of MTA.


author: DARDEN, Senior Judge.

text:
    HDNET, LLC, Appellant, v. NORTH AMERICAN BOXING COUNCIL, Appellee.
    No. 49A02-1112-PL-1146.
    Court of Appeals of Indiana.
    Aug. 10, 2012.

      Judy S. Okenfuss, Thomas E. Mixdorf, Brian J. Paul, Stephen E. Reynolds, Ice Miller, LLP, Indianapolis, IN, for Appellant.
    Gary P. Price, Sara R. Blevins, Matthew S. Tarkington, Lewis & Kappes, P.C., Indianapolis, IN, for Appellee.
   OPINION

DARDEN, Senior Judge.

STATEMENT OF THE CASE

HDNET LLC (“HD”) appeals the trial court’s grant of partial summary judgment in favor of North American Boxing Council (“NABC”).

We reverse and remand.

ISSUES

1. Whether the trial court erred in determining as a matter of law that the Indiana Uniform Trade Secrets Act (“IUTSA”) did not preempt NABC’s common law claim for idea misappropriation where the claim did not rise to the level of a statutorily-defined trade secret.
2. Whether the trial court erred in determining as a matter of law that the IUTSA did not preempt NABC’s statutory claim for civil conversion of its idea.

FACTS

HD is a television channel that broadcasts exclusively in high-definition via cable and satellite. Its programming is varied and has included mixed martial arts (“MMA”). NABC is a professional boxing and MMA sanctioning body.

In 2007, HD and NABC exchanged a series of e-mails discussing a broadcast arrangement involving HD’s broadcast of MMA events and the future development of weekly broadcasts of a MMA fight series. Included in one of the e-mails was information wherein NABC outlined how NABC and HD could develop a “unique branded fight series for [HD] ” that was significantly different from the “single entity” model then in use by the major players in the MMA industry. (App. 19). Further discussions between the parties fleshed out the information outlined in the e-mail. The parties did not enter into a contract; however, NABC considered the information communicated to HD to be a protectable commercial idea.

On March 17, 2008, NABC filed a complaint against HD in which it alleged the following facts:

On or about August 22, 2007, [Mark Cuban, HD’s owner] formed HDNet Fights. HDNet Fights is a Delaware corporation with principal offices in Dallas, Texas and Denver, Colorado. HDNet Fights, upon information and belief, was formed for the purpose of operating a business that sanctions, promotes and broadcasts mixed martial arts using the confidential and proprietary information of NABC.
⅝ ⅜ ⅜ ⅜
NABC has been deprived of the value of its confidential, proprietary information, despite the promises of HDNet. NABC seeks recovery of all monies derived from HDNet’s unlawful usurpation of NABC’s information and business opportunity.

(App. 22, 24). Based upon these facts, NABC alleged the following: Count I: Idea Misappropriation; Count II: Unfair Competition; Count III: Breach of Oral Contract; Count IV: Breach of Implied Covenant of Good Faith and Fair Dealing; Count V: Negligence; Count VI: Misappropriation of Trade Secrets; Count VII: Conversion of Trade Secrets; and Count VIII: Promissory Estoppel.

In its May 31, 2011 scheduling order, the trial court acted upon a request by the parties and instructed them to file appropriate motions and supporting memoranda addressing the preemption provision of the IUTSA and its application to NABC’s idea misappropriation and conversion elaims. On June 10, 2011, NABC filed a motion for partial summary judgment addressing the preemption provision and NABC’s claim of Count I: Idea Misappropriation and Count VII: Conversion of Trade Secrets, and HD filed a response. The trial court held a hearing on the matter, and on October 18, 2011, it granted partial summary judgment, finding that NABC’s claims were not preempted under the IUTSA.

On November 15, 2011, HD filed a motion to certify the trial court’s order for interlocutory appeal, which the trial court granted. On February 3, 2012, we granted HD’s motion to accept jurisdiction.

DECISION

Standard of Review

HD contends that the trial court erred in granting partial summary judgment on NABC’s claim that the IUTSA does not preempt NABC’s common law idea misappropriation and civil conversion counts. Summary judgment is appropriate 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). Questions of statutory construction are particularly amenable to resolution by summary judgment, as they are pure questions of law. Koppin v. Strode, 761 N.E.2d 455, 460 (Ind.Ct.App.2002), trans. denied. We review questions of law de novo and owe no deference to the trial court’s legal conclusions. Id.

Background of the Uniform Trade Secrets Act (“UTSA”) and the IUTSA

The UTSA was drafted by the National Conference of Commissioners on Uniform State Laws (“Commissioners”) in 1979 and amended in 1985. 14 Uniform Laws Annotated, Uniform Trade Secrets Act With 1985 Amendments, 529, 530 (historical notes) (2005). The Commissioners expressed the following rationale for drafting of the UTSA:

Notwithstanding the commercial importance of state trade secret law to interstate business, this law has not developed satisfactorily. In the first place, its development is uneven ... Secondly, even in states in which there has been significant litigation, there is undue uncertainty concerning the parameters of trade secret protection, and the appropriate remedies for misappropriation of a trade secret.

Id. at 531. The Commissioners intended that the UTSA “be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this Act among states enacting it.” Id. § 8 at 656 (brackets omitted). This general purpose has been stated as follows:

[T]o create a uniform business environment [with] more certain standards for protection of commercially valuable information, and to preserve a single tort action under state law for misappropriation of trade secret as defined in the statute and thus to eliminate other tort causes of action founded on allegations of misappropriation of information. If the UTSA’s preemption provision only preempted claims of misappropriation of information that meets the statutory definition of a “trade secret,” the provisions purpose would be undermined. In every instance where a plaintiff could not meet the statutory requirements of the Uniform Act, the court would be forced to re-analyze the claim under the various common law theories. Such a result would undermine the uniformity and clarity that motivated the creation and passage of the Uniform Act.

Firetrace USA, LLC v. Jesclard, 800 F.Supp.2d 1042, 1048-49 (D.Ariz.2010), reconsideration denied (citations omitted).

In 1982, Indiana adopted the UTSA “substantially as promulgated by the [Commissioners].” Amoco Prod. Co. v. Laird, 622 N.E.2d 912, 917 (Ind.1993). The Prefatory Note to the UTSA declares not only that the act is “a substitution for unitary definitions of trade secret, but that it ‘also codifies the results of the better reasoned eases concerning the remedies for trade secret misappropriation.’” Id. (quoting 14 Uniform Laws Annotated, Uniform Trade Secrets Act With 1985 Amendments, 435 (prefatory note) (1990)). “It is thus apparent that Indiana legislators, adopting the UTSA, sought the uniform application of the UTSA definitions of trade secret consistent with the application of the act in other adopting jurisdictions.” Id. Therefore, “case law from other UTSA jurisdictions becomes relevant authority for construction of trade secret law in Indiana.” Id. at 918.

The IUTSA contains two provisions that are central to the case before us. Indiana Code section 24-2-3-l(b) provides that the IUTSA “shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject matter of this chapter among states enacting the provisions of this chapter.” Indiana Code section 24-2-3-l(c), the preemption provision, provides that the IUT-SA “displaces all conflicting law of this state pertaining to the misappropriation of trade secrets, except contract law and criminal law.” This preemption provision is stronger than that found in either the 1979 or 1985 versions of the UTSA. Infinity Prod., Inc. v. Quandt, 810 N.E.2d 1028, 1033 (Ind.2004); AGS Capital, 884 N.E.2d at 307.

Rules of Statutory Construction

In statutory construction, our primary goal is to ascertain and give effect to the intent of the legislature. U.S. Steel Corp. v. Northern Ind. Pub. Serv. Co., 951 N.E.2d 542, 553 (Ind.Ct.App.2011), trans. denied. The language of the statute itself is the best evidence of legislative intent, and we must give all words their plain and ordinary meaning unless otherwise indicated by the statute. Id. Furthermore, we presume that the legislature intended statutory language to be applied in a logical manner consistent with the statute’s underlying policies and goals. Id. We must read the statute as a whole and excessive reliance on a strict literal meaning should be avoided. Jones v. Farmers Mut. Ins. Co., 926 N.E.2d 116, 121 (Ind.Ct.App.2010).

1. Idea Misappropriation

NABC contends that the IUTSA is unambiguous, and that if the language of the preemption provision of Indiana Code section 24-2-3-1 is given its plain meaning, then it applies only to actions where a “conflicting law” that “pertains” to the misappropriation of “trade secrets” is at issue. NABC reasons that the preemption provision applies only to “trade secrets” and that its claim of idea misappropriation does not “pertain” to a “trade secret” as the term is used in the IUTSA. Thus, NABC concludes that its idea misappropriation claim cannot be “conflicting law.” NABC claims that any other construction would read more into the statute than the plain language allows. NABC’s Br. at 12-13.

As stated above, one essential goal of the UTSA is to make uniform the law of the states adopting it. Indeed, our legislature specifically adopted this goal in Indiana Code section 24 — 2—3—1 (b). NABC’s construction of the preemption provision completely disregards the legislature’s directive that the IUTSA is to be “applied and construed to effectuate its general purpose to make uniform the law....” Thus, NABC fails to read Indiana Code section 24-2-3-1 as a whole, ignoring subsection (b) to excessively rely on the isolated terms of subsection (c). The result is a narrow reading of the IUTSA that does not comport with the intent of our legislature or the majority of courts that have analyzed the preemption provisions of their uniform trade secret acts.

NABC’s construction of IUTSA’s preemption provision is reminiscent of that proposed by the plaintiff in BlueEarth Biofuels, LLC v. Hawaiian Elec. Co., 123 Hawaii 314, 235 P.3d 310, 319 (Haw.2010), wherein BlueEarth argues that

the plain language of the preemption provision [“HUTSA”] ... refers only to “trade secrets” as defined by the Act. The preemption provision nowhere refers to “other confidential information.” It follows, then, that the statute only anticipates preemption of common law claims involving trade secrets.
Since there is no statutory language regarding preemption of other confidential information not rising to the level of trade secrets, there is no reason to think such preemption was intended.

In rejecting BlueEarth’s construction of the Hawaii preemption statute, the Supreme Court of Hawaii recognized that a minority of courts have adopted the “plain language” construction of UTSA-inspired state statutes. However, the BlueEarth court joined the majority of jurisdictions in holding that the UTSA’s preemption provision “abolishes all free-standing alternative causes of action for theft or misuse of confidential, proprietary, or otherwise secret information falling short of trade secret status (e.g. idea misappropriation, information piracy, theft or commercial information, etc.).” Id. at 321, 235 P.3d 310 (quoting Hauck Mfg. v. Astec Indus., 375 F.Supp.2d 649, 655 (E.D.Tenn.2004)).

The rationale for these majority decisions has been explained as follows:

States adopting statutory provisions analogous to the UTSA’s section 7 intend that at least some prior law relating to the protection of commercial information be displaced. Permitting litigants in UTSA states to assert common-law claims for misappropriation or misuse of confidential data would reduce the UTSA to just another basis for recovery and leave prior law effectively untouched. Further, by expressly exempting “contractual remedies, whether or not based upon misappropriation of a trade secret” and “other civil remedies that are not based upon misappropriation of a trade secret” from its preemptive penumbra, the UTSA makes clear that only those claims addressing or arising out of wrongs distinct from pure information piracy survive passage of the trade secret statute. Indeed, contrary interpretations of the UTSA’s “Effect on Other Law” provision ... effectively negate the UTSA’s goal of promoting uniformity in “trade secrets” law. Additionally, these contrary interpretations render the statutory preemption provision effectively meaningless.

Id. at 321-22, 235 P.3d 310 (quoting Unik-el, Bridging the “Trade Secret” Gap, 29 Loy. U. Chi. L.J. at 887-88 (footnotes omitted)). The UTSA creates a “two-tiered” approach to protection of commercial knowledge, under which “information is classified only as either a protected ‘trade secret’ or unprotected ‘general skill and knowledge.’ ” Id. at 322, 235 P.3d 310 (quoting Unikel at 867-68 (footnote omitted)).

Although such an interpretation of Indiana Code section 24-2-3-1 (c) seems harsh, we emphasize that our statute does not preempt claims for misappropriation of information or ideas that are protected by contract. See BlueEarth, 123 Hawai'i at 322, 235 P.3d 310. To the extent that a plaintiff is seeking to recover for the defendant’s misappropriation of plaintiffs intellectual property, it is seeking to recover for misappropriation of trade secrets. These secrets are protected under the IUTSA, and

a plaintiff who complains of the defendant’s use of its information, but who cannot prove that the information is secret, should not be able to rely on one of these [common law] torts (or any other common law variants) to bypass the requirement that it prove secrecy. If trade secret law does not preempt these torts, the point of the secrecy requirement will be lost, and with it the benefits of dissemination of new inventions.

Id. (quoting Mark A. Lemley, The Surprising Virtues of Treating Trade Secrets as IP Rights, 61 Stanford L.Rev. 311, 345-46 (Nov. 2008)). In short,

A claim cannot be preempted or not preempted based entirely upon whether or not the information at issue qualifies as a trade secret. If the information is a trade secret, the plaintiffs claim is preempted: if not, the plaintiff has no legal interest upon which to base his or her claim. Either way, the claim is not cognizable.

Hauck, 375 F.Supp.2d at 657.

NABC’s interpretation of the IUTSA would encourage piece meal litigation and would thus fail to implement the legislature’s intended goal of uniformity. Accordingly, we conclude that the trial court’s summary judgment order is erroneous as a matter of law.

2. Conversion

HD contends that the trial court erred in granting summary judgment on NABC’s civil conversion claim. In evaluating HD’s contention, it is important to understand NABC’s argument. First, NABC claims that its civil conversion claim falls within the preemption provision of the IUTSA, which as stated above, provides that the IUTSA “displaces all conflicting law of this state pertaining to the misappropriation of trade secrets, except contract law and criminal law.” I.C. § 24-2-3-l(c). NABC points to AGS Capital as particularly instructive. In AGS Capital, we examined a civil RICO claim related to the theft of trade secrets and specifically addressed the question of whether that claim was preempted by the IUTSA. 884 N.E.2d at 306. We held that the RICO claim was not preempted by the IUTSA because the civil remedy is derivative of criminal law. Id. at 808.

NABC argues that civil conversion is also “derivative” of criminal law because it provides a civil remedy for a crime.

However, our analysis in AGS Capital is more nuanced than NABC’s reading of the case. In reaching our conclusion in AGS Capital, we considered that civil RICO and criminal RICO were part of the same statutory scheme having a significant deterrent purpose. Id. at 308. Although the civil and criminal RICO statutes were codified in different locations in the Indiana Code, they were enacted as part of the same public law. In AGS Capital, we emphasized that the civil RICO statute was part of a conscious one-two punch adopted by the legislature to combat “the more sinister forms of corruption and criminal activity.” Id. We stated:

[T]he preemption provision of IUTSA should not prohibit RICO from fulfilling its purpose where the form of the corruption involves the systematic acquisition of economically valuable information through the artifice of competitors’ employees in order to gain an unlawful economic advantage in the marketplace. RICO is structured to reach and punish these diabolical operations that are a greater threat to society than random theft. In consideration of the purpose and goals of the entire RICO framework, we conclude that the civil remedy portion providing for a private action is derivative of the criminal law. Thus, this type of action is not preempted by IUTSA.

Id. We further explained that our ruling would result in a greater disincentive for the “strategic, repetitive theft of trade secrets” because under the civil RICO provision treble damages and attorney fees are mandatory, whereas under the IUTSA they are discretionary. Id. at 308-09. It is for these reasons that the civil RICO statute is “derivative,” not simply because it provides a civil remedy for a crime.

The same is not true of the Crime Victim’s Relief Act (“the Act”), which contains Indiana Code section 34-24-8-1, the statute that defines civil conversion. The Act was not enacted as part of the same statutory scheme as criminal conversion. The Act is not part of a one-two punch — or “two fronts and a field of land mines to deter and ultimately eliminate egregious and schematic criminal activity” — that makes up the unique RICO statutory scheme. See AGS Capital, 884 N.E.2d at 308. Rather, the Act provides a civil remedy for a host of crimes, including random theft. Its focus is on providing the victim “relief’ for the alleged crime, allowing him or her to recover attorney fees and costs in pursuing the action. See I.C. § 34-24-3-1. Thus, it is not “derivative” in the way that we held that the civil RICO statutory scheme is derivative of the criminal RICO scheme.

The upshot is that NABC’s civil conversion allegation does not delineate a criminal act; it merely outlines another allegation of civil misappropriation of NABC’s ideas. Thus, the conversion action is not saved by the criminal law exception to the IUTSA’s preemption provision.

CONCLUSION

The IUTSA is intended to foster uniformity in the definition of state laws, and a party may not read this design out of the statutory scheme under the guise of “plain language” or any other rule of construction. NABC’s “plain language” reading of IUTSA’s preemption provision lays waste to both legislative intent of the IUTSA and the overall intent of the UTSA. Accordingly, the trial court erred in granting summary judgment on NABC’s idea misappropriation claim.

NABC’s civil conversion claim does not fall within the “criminal law” exception to the IUTSA’s preemption provision. Therefore, the trial erred in granting summary judgment on the claim.

Reversed and remanded for further proceedings.

FRIEDLANDER and BROWN, JJ., concur.

      . Although NABC characterized Count VII in its complaint as the conversion of "trade secrets,” it referred to the count in its motion for summary judgment on preemption simply as "conversion” and contended that it could assert such an independent claim even if it failed to prove a trade secret. (App. 885).

      . AGS Capital Corp. v. Prod. Action Int’l, LLC, 884 N.E.2d 294, 308 n. 4 (Ind.Ct.App.2008) and courts across the country have used the term "preemption” as a synonym for "displace.” We follow their lead.

      . (a) Except as provided in subsection (b) of this chapter, this chapter displaces conflicting tort, restitutionary, and other law of this State providing civil remedies for misappropriation of a trade secret.
      (b) This chapter does not affect:
      (1)Contractual remedies, whether or not based upon misappropriation of a trade secret;
      (2) Other civil remedies that are not based upon misappropriation of a trade secret; or
      (3) Criminal remedies, whether or not based upon misappropriation of a trade secret.
      HRS § 482B-8 (2008).

      . Although the parties do not address the standard of proof, we note that the standard is important. As one court has stated:
      [Plerhaps a better formulation of the UTSA preemption standard would be a "same proof" standard under which a claim will be preempted when it necessarily rises or falls based on whether the defendant is found to have "misappropriated" a "trade secret" as those two terms are defined in the UTSA. Stated another way, if proof of a non-UTSA claim would also simultaneously establish a claim for misappropriation of trade secrets, it is preempted irrespective of whatever surplus elements or proof were necessary to establish it.

        Houck, 375 F.Supp.2d at 658.

      . The civil RICO statute, Indiana Code section 34-24-2-6 (formerly Indiana Code section 34-4-30.5-5), and the criminal RICO statute, Indiana Code section 35-45-6-2, were both enacted by P.L. 199-1980.

      . The civil conversion statute is part of the Crime Victim’s Relief Act that was enacted by P.L. 26-1977, while the criminal conversion statute, Indiana Code section 35-43-4-3, was enacted by P.L. 148-1976.