author: RILEY, Judge.

text:
    Harold O. FULP, Jr., Appellant-Plaintiff, v. Nancy A. GILLILAND, Individually and as Successor Trustee of the Ruth E. Fulp Revocable Trust Dated June 29, 2005, Appellee-Defendant.
    No. 41A01-1111-TR-530.
    Court of Appeals of Indiana.
    Aug. 14, 2012.
    Rehearing Denied Nov. 1, 2012.

      Robert M. Hamlett, Frank <& Kraft, Indianapolis, IN, Attorney for Appellant.
    Thomas W. Vander Luitgaren, Brandi R. Foster, Van Valer Law Firm, Greenwood, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Plaintiff, Harold O. Fulp, Jr. (Harold), appeals the trial court’s denial of his request for specific performance of a purchase agreement which he entered into with Ruth E. Fulp (Ruth) and which was rescinded by Appellee-Defendant, Nancy A. Gilliland (Gilliland), Individually and as Successor Trustee of the Ruth E. Fulp Revocable Trust.

We affirm in part and reverse in part.

ISSUES

Harold raises five issues on appeal, which we consolidate and restate as the following two issues:

(1) Whether Ruth, as the settlor, trustee, and sole lifetime beneficiary of the Ruth E. Fulp Revocable Trust, could properly execute a purchase agreement for the sale of the Trust property, thereby divesting the Trust; and

(2) Whether the trial court erred by determining that Gilliland did not tortiously interfere with the purchase agreement when she rescinded the agreement upon becoming successor trustee.

FACTS AND PROCEDURAL HISTORY

Ruth was married to Harold 0. Fulp, Sr. (Fulp). During their marriage, three children were born: Harold, Terry Fulp (Terry), and Gilliland. The family resided at the family farm, which consisted of approximately 254.66 acres and was located in Franklin, Indiana. After Fulp’s death in 1990, Harold farmed the land on a cash rent basis. On May 19, 2004, Ruth sold fifty acres, consisting mostly of woodland, to Gilliland’s daughter for $110,000.

On June 29, 2005, Ruth executed the Ruth E. Fulp Revocable Trust (the Trust), designating herself as the settlor, trustee, and sole lifetime beneficiary and incorporating the family farm as the main Trust corpus by quitclaim deed. Ruth’s three children were named as remainder beneficiaries. Article I of the Trust provided, in pertinent part, that “the settlor shall have the right to alter, amend or revoke this agreement in any respect or particular.” (Appellant’s App. p. 40).

Following the execution of the Trust and due to her advancing age and infirmity, Ruth moved to the Indiana Masonic Home in Franklin, Indiana, where she resides to this day. Of Ruth’s three children, Harold was the only child interested in farming the family farm. Because Ruth wanted the farm to remain in the family, Gilliland encouraged Ruth to ask Harold about his interest in purchasing the real estate. In August 2010, while Harold visited Ruth in the nursing home, Ruth approached Harold about buying the farm. Harold indicated that he was interested if he could obtain a loan to do so. On a next visit, Harold presented his mother with a piece of paper showing a scenario of sale price options, reflecting a total sale price from four thousand dollars per acre down in one hundred dollar increments to one thousand five hundred dollars per acre. Arriving at a price of two thousand two hundred dollars per acre, Harold mentioned to Ruth that this was the sale price she had given to her granddaughter in 2004. Harold suggested that the same price per acre be used for his transaction. Ruth responded, “I guess I could” sell the farm for that price. (Transcript p. 21). Harold told his mother, “well, mom, I know the ground’s worth more than that, but, [], it’s up to you.” (Tr. p. 70). Harold testified that his mother stated “What I done for one, I can do for another.” (Tr. p. 70).

On September 7, 2010, Harold again visited his mother presenting her with a Purchase Offer Agreement to sell the farm for a total purchase price of $450,252. Even though Ruth could not read the form without her glasses, she signed the sales agreement in front of two witnesses. After signing the agreement, Ruth contacted Gil-liland and advised her of the transaction. Approximately two weeks later, on September 21, 2010, Ruth resigned as trustee and Gilliland assumed the role of successor trustee of the Trust. The following day, September 22, 2010, Jack Rogers (attorney Rogers), Ruth’s attorney, advised Ruth’s three children that

[y]our mother, [], is distressed about the fair market value of her farm. She wishes to treat all three of you equally after she passes on, but in the meanwhile, she wishes to have the financial resources to pay her own way at the Masonic Home while she is alive. She has a line of credit at Mutual Savings Bank based on the bank’s appraisal of the value of her farm. This appraised value is approximately $900,000.00. Any sale of the farm for less than this value will result in a gift tax issue that the U.S. Congress has yet to resolve.
In any event, your mother is not able to emotionally handle the Fulp Family’s diversity of interests and objectives. For this reason she has resigned as the Trastee of her revocable trust and has turned the trusteeship over to [Gilliland] with Ruth’s brother, Robert, as the backup trustee, both of whom are interested in your mother’s care and comfort during her lifetime.

(Appellant’s App. p. 320).

On October 8, 2010, Harold’s attorney wrote to Ruth, informing her that Harold had arranged financing to buy the family farm in accordance with the Purchase Offer Agreement and requesting permission to set a closing date. Four days later, on October 12, 2010, attorney Rogers responded

I am soriy to report that [Ruth] is not mentally competent to manage her financial affairs and she is in fact no longer in control of the real estate you reference. There will be no real estate closing in the near future. In fact, [Ruth] does not have a copy of any agreement to sell any land, nor does she know the terms of the sale you reference. This is not unusual for a 91 year old person confined to a long-term care facility where trained staff is well aware of the mental health of each of their patients.

(Appellant’s App. p. 57). Thereafter, Gilli-land repudiated the Purchase Offer Agreement.

On November 22, 2010, Harold filed his Complaint seeking the docketing of the Trust, the removal of Gilliland as trustee, specific performance of the Purchase Offer Agreement, and bringing a claim for tor-tious interference with a contract. On April 12, 2011, Gilliland filed a counterclaim against Harold, alleging tortious interference with an inheritance. On April 30, 2011, the trial court granted Harold’s motion to dismiss Gilliland’s counterclaim. On July 27, 2011, the trial court conducted a bench trial. Thereafter, on October 27, 2011, the trial court entered a detailed Order and Judgment, comprised of twenty pages and one hundred and nine findings, concluding, in pertinent part, that

57. The consideration for the sale was approximately one-half of the known bank appraisal at the time, [ ]. [Gilliland] argues from this disparity that the transaction was the result of either mental incapacity by [Ruth] or undue influence by [Harold]. However, a family dynamic is also present. In establishing the sales price of the farm, [Harold] confronted his mother with the fact that she had previously sold acreage for an amount less than the appraised value of the acreage. This placed [Ruth] in the position of either accepting the price established in a prior transaction on the principle that she would treat her son and her granddaughter the same or she would have to demand a higher price, presumably based on fair market value, and thus implicitly state to her son that she had previously allowed her granddaughter to benefit from a transaction with a reduced per acre sales price but she would now apply different terms of sale. She elected the former at the time. The decision is logical from the standpoint that she is not showing favoritism as to the family members to whom she has sold farm acreage, and the decision permits the farm to remain in the family.
58. From a consideration of all factors, the court is unable to determine that the sale of the farm for an amount less than the appraised value of the farm establishes any mental incapacity of [Ruth], The [c]ourt must conclude the contrary from the evidence presented, [Ruth] was mentally competent and made a rationale decision.
* * *
66. The [c]ourt is unable to find undue influence. As noted above, the price that was established was a sensible decision based upon the family relationships and past history. Essentially, under the circumstances, [Harold] “pitched” that the prior price established in the sale to the granddaughter was a fair price, and [Ruth] agreed. This is not undue influence. The court also notes that the Purchase Offer Agreement was witnessed by two employees of the Indiana Masonic Home. One of the employees was described as a nurse. The testimony was that the agreement was signed at the nurse’s station. Although neither party called either witness to testify, the [c]ourt is aware from prior experience that employees in hospitals, nursing homes and assisted living facilities are particularly cautious in serving as witnesses. Here, the employees only signed as witnesses and without being asked to certify any particular facts. However, the [c]ourt may conclude that the execution of the Purchase Offer Agreement occurred in front of other individuals, and the circumstances of the situation did not raise any particular concern to those individuals acting as witnesses from serving as witnesses. The [c]ourt does not find that undue influence has been established.
101. Here [Harold] seeks specific performance in equity of the contract that he procured by breach of the fiduciary duty that he as a beneficiary owed to the Trust and beneficiaries entering into a contract with the [t]rustee by which the [t]rustee breached her fiduciary duties by selling trust property for less than the fair market value of the property.
102. For the [c]ourt to enforce the contract in equity would be to condone a beneficiary’s breach of fiduciary duty and a violation of Indiana Code [section] 30-4-3-20. While [Ruth], in her capacity as a beneficiary, may be equally culpable with the remainder beneficiary, [Harold], in the commission of a breach of fiduciary duty, both [Ruth], as [trustee, and [Harold], as remainder beneficiary, owed a fiduciary duty to the other remainder beneficiaries. The [c]ourt accordingly concludes that the action by [Harold] for specific performance is barred under the “unclean hands” doctrine and the unwillingness of equity to condone a breach of trust by specific enforcement of the contract.
103. Accordingly, the [c]ourt declines to award [Harold] specific performance under Count III of his petition.
104. The [c]ourt turns to the Petition for Removal of Trustee. The [c]ourt has found that [Ruth] was not mentally incompetent at the time that she resigned as [t]rustee. Indeed, [Harold] acknowledges that [Ruth] was mentally competent to sign the Purchase Offer Agreement on September 7, 2010, which was only fifteen (15) days prior to her resignation of trustee. The [c]ourt found no evidence that [Gilliland] exercised undue influence in causing [Ruth] to resign. Robert Campbell, [Ruth’s] brother, was very clear that the decision of [Ruth] to resign was her voluntary act. [Ruth] was also clear that it was her decision alone to resign as [t]rustee. While the relationship of [Gilliland] as Attorney In Fact and as the care provider for [Ruth] would give rise to the presumption of undue influence, the presumption is rebutted by the evidence from Robert Campbell and [Ruth]. [Harold] presents no evidence to establish undue influence other than is created by the presumption.
105. The [c]ourt denies the Petition of [Harold] for the removal of [Gilliland] as [successor [t]rustee under Count II of his Petition.
* * *
107.[] [T]he [c]ourt holds in favor of [Gilliland] and against [Harold] on the [c]omplaint for [t]ortious [interference [w]ith [c]ontract.
108. The [c]ourt therefore finds that [Harold] takes nothing by his Petition. Judgment is entered in favor of the [Trust] and [Gilliland] and against [Harold].

(Appellant’s App. pp. 17-18, 19-20, 27-28).

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

DISCUSSION AND DECISION

I. Standard of Review

Where, as here, the trial court enters findings and conclusions sua sponte, we apply the standard of review set out in Indiana Trial Rule 52. Chidester v. City of Hobart, 631 N.E.2d 908, 909 (Ind.1994). We determine whether the evidence supports the findings and the findings support the judgment. Bowyer v. Ind. Dep’t of Natural Res., 944 N.E.2d 972, 983 (Ind.Ct.App.2011). In deference to the trial court’s proximity to the issues, we disturb the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment. Id. We do not reweigh the evidence, but only consider the evidence favorable to the trial court’s judgment. Id.

While we review findings of fact under the clearly erroneous standard, we review de novo a trial court’s conclusions of law. Id. Where cases present mixed issues of fact and law, we have described the review as applying an abuse of discretion standard. Id. We will conclude a judgment is clearly erroneous if no evidence supports the findings, the findings fail to support the judgment, or if the trial court applies the incorrect legal standard. Id. at 983-84. In order to determine that a finding or conclusion is clearly erroneous, an appellate court’s review of the evidence must leave it with the firm conviction that a mistake has been made. Id. However, sua sponte findings control only as to the issues they cover and a general judgment will control as to the issues upon which there are no findings. Tracy v. Morell, 948 N.E.2d 855, 862 (Ind.Ct.App.2011). A general judgment entered with findings will be affirmed if it can be sustained on any legal theory supported by the evidence. Id.

II. The Trust

In framing his argument that the trial court erred when it concluded that he is not entitled to the equitable remedy of specific performance of the Purchase Offer Agreement, Harold focuses on Ruth’s status as settlor of the Trust. He contends that based on the provisions of the Trust, Ruth, as settlor, reserved a right to revoke and amend the Trust as she saw fit. This reserved right necessarily included a right to sell part of the Trust corpus, which was properly exercised by Ruth when she entered into the Purchase Offer Agreement. In response, Gilliland, like the trial court, concentrates her argument on Ruth’s capacity as trustee, maintaining that as trustee, Ruth was required to administer the Trust solely in the interest of the beneficiaries and preserve the Trust’s property. Having failed to do that, Ruth breached her fiduciary duties with Harold’s aid by selling the farm significantly below fair market value. As such, Gilliland — and the trial court — conclude that Harold, having unclean hands by encouraging Ruth to breach her fiduciary duty, is not entitled to specific performance.

Evaluating the parties’ respective arguments requires us to interpret and construct the Trust instrument. The interpretation of a trust is a question of law for the court. Paloutzian v. Taggart, 931 N.E.2d 921, 925 (Ind.Ct.App.2010). The primary purpose of the court in construing a trust instrument is to ascertain and give effect to the settlor’s intention and carry out this intention unless it is in violation of some positive rule of law or against public policy. Id. This court is not at liberty to rewrite the trust agreement any more than it is at liberty to rewrite contracts. Id. When a trust instrument must be construed by a court, we attempt to discern the settlor’s intent in light of the facts and circumstances existing at the time the instrument was created. Id.

A trust is “a fiduciary relationship between a person who, as trustee holds title to property and another person for whom, as beneficiary, the title is held.” Ind.Code § 30-4-l-l(a). The trust is a peculiar product of the Anglo-American system. The principles, rules and standards of the law of Trusts owe their origin and development in large part to the circumstance that England had for centuries separate courts of common law and chancery, to which is due the distinction between legal interests and equitable interests which is the basis for the law of Trusts. RESTATEMENT (SECOND) OF TRUSTS, intro, note (1959).

Within the area of trusts, the inter vivos or revocable trust is a unique legal entity. Through its use, the settlor may transfer property to a trustee, reserving the beneficial use of the property for the life of the settlor with the remainder to designated beneficiaries. In the Matter of Walz, 423 N.E.2d 729, 732 (Ind.Ct.App.1981). Although the settlor enjoys the beneficial use of the trust property until his death, trust property is not subject to the administration of his estate. Id. Where, as here, a settlor transfers, assigns and sets over to a trustee title to property owned by him in a proceeding to create a trust inter vivos, the interest therein passes immediately to the trustee, and the trust is consummated even though the trust instrument reserves to the settlor the income for life, an absolute power to revoke the trust in whole or in part and the right to control investments and further to modify the trust in any respect. Id. (quoting Smyth v. Cleveland Trust Co., 172 Ohio St. 489, 179 N.E.2d 60 (1961)). With respect to the settlor’s power to revoke, Indiana’s Trust Code reads, in pertinent part, as follows:

(c) The settlor may revoke or amend a revocable trust as follows:
(1) The settlor may comply with a method provided in the terms of the trust.
(2) If the terms of the trust do not provide a method or the terms of the trust provide a method that is not expressly made the exclusive method to revoke or amend the trust, the settlor may revoke or amend the trust by:
(A) executing a will or codicil that:
(i) expressly refers to the trust; or
(ii) specifically devises property that would otherwise have passed according to the terms of the trust; or
(B) any other method that:
(i) is in writing; and
(ii) manifests clear and convincing evidence of the settlor’s intent.

I.C. § 30-4-3-1.5(c).

Once the settlor delivers property to a trustee by virtue of a trust agreement, the trustee takes the legal title to the property and the cestui trust or beneficiary takes the equitable title. Breeze v. Breeze, 428 N.E.2d 286, 287 (Ind.Ct.App.1981). Both have a property interest recognized by law. Id. Where the trust provides that the trustee shall hold and manage the property and pay the income derived therefrom and a part of all of the corpus in its discretion to one beneficiary for life and the remainder, if any, to a remainder beneficiary upon the death of the first beneficiary, both the first beneficiary and the remainder beneficiary, upon the activation of the trust, acquire an interest and one that can be assigned by either beneficiary. Id. at 287-88.

Here, Ruth settled the revocable trust, transferred property into the Trust, designated herself as trustee, and became the beneficiary for life of the Trust corpus. The Trust instrument specified that upon Ruth’s death, the Trust shall become irrevocable with the remainder of the corpus to be dispensed between the remainder beneficiaries, i.e., her three children. In its Order, the trial court focused on Ruth’s capacity as trustee, as well as her corresponding fiduciary duty to manage the Trust and safeguard its trust corpus. However, first and foremost, Ruth is the settlor of the trust — without her transfer of property, the Trust could not be settled.

Although the question of whether an individual who combines the positions of settlor of a revocable trust, trustee, and beneficiary for life should be considered the settlor or trustee for purposes of a property transfer out of the Trust has not been examined in Indiana, the trial court in its Order relied on Marshall & Ilsley Trust Co. v. Woodward, 848 N.E.2d 1175 (Ind.Ct.App.2006). However, we find Marshall to be inapposite as it analyzes whether a named remote contingent beneficiary of an irrevocable trust is entitled to an accounting. See id. at 1178.

Closer related to the current circumstances than the Marshall case, is our recent opinion of Kesling v. Kesling, 967 N.E.2d 66, 79 (Ind.Ct.App.2012), in which we examined if a settlor, who placed shares of stock into a revocable inter vi-vos trust and named himself as trustee and beneficiary retained his shareholder status. Analyzing the legal status of a revocable trust in Indiana, we noted the Internal Revenue Code’s treatment of a revocable trust whereby settlors with the ability to control the assets of their revocable trust possess an ownership interest and bear the tax consequences. See id. at 85. Combining the IRS view with the trust declaration’s provision that the set-tlor could revoke the trust at any time, we concluded in Kesling that the placement of the shares in a trust did not eliminate the settlor’s shareholder’s status. Id. at 86.

In Moon v. Lesikar, 280 S.W.3d 800 (Tex.Ct.App.2007), the Texas appellate court was faced with a beneficiary of a revocable trust bringing an action against the trustee for breach of fiduciary duty in order to challenge the sale of stock by the settlor to the trustee prior to the settlor’s death. In her concurring opinion, Justice Guzman analyzed the respective rights and duties of a settlor and trustee. She persuasively noted as follows:

[The trust] reserved to the settlor the power to modify or revoke the trust, in whole or in part, and Carolyn, [the beneficiary], did not argue that [the settlor’s] decision [to sell stock to the trustee] was the result of coercion, undue influence, lack of capacity, or was otherwise involuntary. To the contrary, Carolyn essentially complains that [the trustee] violated his fiduciary duty to her by failing to influence [the settlor] to abandon his intent to transfer the [stock] to him. She contends that, as a trustee, [the trustee] has a fiduciary duty to the contingent beneficiaries, and must therefore prevent the co-trustee from removing property from the trust or transferring former trust property to him. In effect, she argues that, in his capacity as a trustee, [the trustee’s] duty to her as a contingent beneficiary trumps his duty to fulfill the expressed intent of the set-tlor.
But this argument elevates the rights of a beneficiary above the rights of the settlor. Here, the settlor is also a trustee; thus, under the fiduciary duties that Carolyn suggests, the settlor would share the same duty to prevent the removal of the trust property. Thus, the settlor could revoke the trust only by breaching his duty to every beneficiary, contingent beneficiary, and remainder-man who held an interest, however attenuated, in the trust property. Under this interpretation, the trust would no longer be freely revocable. Because a fiduciary must also place the interests of the one to whom a duty is owed above his own interests, it would seem that the settlor, in his capacity as trustee, would have a duty to prevent himself, in his capacity as settlor, from revoking the trust. This result is inconsistent with the Trust Code and the terms of the trust documents.

Id. at 809 (internal references omitted).

In the ease before us, Ruth, as settlor, retained the right to alter, amend or revoke the Trust in any respect. At the time of its creation, Ruth intended the Trust to provide her with a lifelong beneficiary income. To that end, she transferred, among others, the family farm into the Trust corpus. Following the execution of the Trust and facing advanced age, Ruth expressed a desire to keep the farm in the family. After talking with Harold, she entered into a Purchase Offer Agreement with him and sold him the family farm. Thereafter, Ruth resigned as trustee; Gilliland became the successor-trustee and rescinded the Purchase Offer Agreement.

Pursuant to the terms of the Trust, Ruth, as settlor, entered into a valid agreement with Harold, selling part of the Trust’s corpus and thus, in effect partially amending the Trust. Holding otherwise and viewing Ruth as trustee would make the Trust in effect irrevocable as she would no longer be free to control her assets but instead would owe a duty to the beneficiaries which would trump her own interest as settlor and owner of the Trust corpus. Absent a finding of undue influence or mental incapacity — which Gilliland does not allege, nor did the trial court find any — Ruth entered into a valid agreement and Harold is entitled to specific performance of the Purchase Offer Agreement.

III. Tortious Interference With A Contractual Relationship

Next, Harold contends that the trial court erred when it concluded that Gilliland had not tortiously interfered with the Purchase Offer Agreement when she repudiated the agreement upon becoming the successor-trustee of the Trust.

The elements constituting an action for tortious interference with a contract are well-established: (1) the existence of a valid and enforceable contract; (2) defendant’s knowledge of the existence of the contract; (3) defendant’s intentional inducements of breach of the contract; (4) the absence of justification; and (5) damages resulting from defendant’s wrongful inducement of the breach. Melton v. Ousley, 925 N.E.2d 430 (Ind.Ct.App.2010). All of these elements must be shown to establish this tort. Id.

On September 7, 2010, Ruth, as settlor of the Trust, and Harold entered into the valid Purchase Offer Agreement to sell the farm. On September 22, 2010, attorney Rogers notified Ruth’s children that Ruth had voluntarily resigned as trustee and Gilliland had been appointed successor-trustee. Thereafter, on October 12, 2010, Rogers informed Harold’s counsel that “there will be no real estate closing” and Gilliland repudiated the Purchase Offer Agreement. (Appellant’s App. p. 57).

The main contention of the parties turns on the absence of justification. Harold claims that “[t]here was never any question, or reason to dispute, that [Gilliland’s] repudiation of the Agreement after she became [successor [t]rustee was motivated by her intention to maximize her potential inheritance under the Trust, and for no other reason.” (Appellant’s Br. p. 17). Gilliland, on the other hand, contends that she was concerned about the legality of the transaction, as it depleted the Trust corpus.

In determining whether an intentional interference is justified, the following factors may be considered: (a) the nature of the defendant’s conduct; (b) the defendant’s motive; (c) the interests of the plaintiff with which the defendant’s conduct interferes; (d) the interests sought to be advanced by the defendant; (e) the social interests in protecting the freedom of action of the defendant and the contractual interests of the plaintiff; (f) the proximity or remoteness of the defendant’s conduct to the interference; and (g) the relations between the parties. Dietz v. Finlay Jewelry Corp., 754 N.E.2d 958, 970 (Ind.Ct.App.2001). The weight to be given each consideration may differ from case to case, but the overriding question is whether the defendant’s conduct has been fair and reasonable under the circumstances. Bilimoria Computer Sys., LLC v. Am. Online, Inc., 829 N.E.2d 150, 156 (Ind.Ct.App.2005). This element of absence of justification is established only if the interferer acted intentionally, without legitimate business purpose and the breach is malicious and exclusively directed to the injury and damage of another. See id. The existence of a legitimate reason for the defendant’s actions provides the necessary justification to avoid liability. Id.

Pursuant to the Trust instrument, the trustee has the duty to administer the Trust solely in the interest of the beneficiaries and to preserve the Trust property. Being confronted with a Purchase Offer Agreement that depleted the Trust corpus and sold the farm below fair market value, Gilliland, as successor trustee, had a legitimate and reasonable reason to repudiate the agreement. Therefore, we conclude that she did not tortiously interfere in the contractual relationship between Ruth and Harold.

CONCLUSION

Based on the foregoing, we conclude that Ruth, as the settlor, of the Trust could properly execute a purchase agreement for the sale of the Trust property and Gilliland did not tortiously interfere with the purchase agreement when she rescinded the purchase agreement upon becoming successor trustee.

Affirmed in part and reversed in part.

BAILEY, J. and CRONE, J. concur.

      . In her appellate brief, Gilliland raises several claims, encouraging us to find that "Harold's specific performance claim would be unfair, harsh, oppressive, unconscionable, inequitable and would result in an unfair and unjust gain and enrichment to Harold and omitted valuable consideration.” (Appellee's Br. p. 30). Even though Gilliland pled these affirmative defenses in her answer to the Complaint, none of these were presented to the trial court during the trial. Moreover, although she asserts these equitable allegations, she does not appear to contest the trial court's findings that Ruth’s decision in pricing the farm as she did was "logical,” "rational,” and "sensible” based on the family dynamic and history. (Appellant’s App. pp. 17-19). Therefore, we refuse to disturb the trial court's findings. Furthermore, Gilliland's argument that ”[i]t can reasonably be inferred that, after the sale to her son, she will have no assets with which to support herself after a mere five year if you assume her basic living costs [of] approximate Eight Thousand Dollars ($8,000.00) per month” is not supported by any evidence in the record besides Gilli-land's testimony at trial. (Appellee's Br. p. 31). With respect to Gilliland's claim that Harold failed to act in good faith by not encouraging Ruth to discuss the sale with Gilliland, we note that Ruth initiated the transaction at Gilliland's advice and Harold visited three times to complete the transaction during August and September of 2010, presenting Ruth with a range of sale prices. It is clear that Gilliland must have been aware about ongoing conversations between Ruth and Harold.


source: Caselaw Access Project

author: ROBB, Chief Judge.

license: Public Domain

text:
    Michael K. CURTS, Individually and as Personal Representative of the Estate of Dorothy J. Curts, Deceased, Appellant-Plaintiff, v. MILLER’S HEALTH SYSTEMS, INC., a/k/a Miller’s Merry Manor, Logansport, LLC, d/b/a Miller’s Merry Manor, Appellees-Defendants.
    No. 09A02-1112-CT-1191.
    Court of Appeals of Indiana.
    Aug. 15, 2012.

      Jay T. Hirschauer, Hirschauer & Hir-schauer, Logansport, IN, Attorney for Appellant.
    Janet A. McSharar, Albert Barclay Wong, Harrison & Moberly, LLP, Indianapolis, IN, Attorneys For Appellees.
   OPINION

ROBB, Chief Judge.

Case Summary and Issues

Michael Curts, acting individually and as personal representative of the Estate of Dorothy J. Curts, brought suit against Miller’s Merry Manor nursing home (“Man- or”), claiming wrongful death, breach of contract, and negligent infliction of emotional distress. The trial court granted summary judgment in favor of Manor. Curts appeals, raising two issues: 1) whether Theresa Weitkamp, as a nurse and nursing home administrator, can qualify as an expert witness and offer an expert opinion as to whether Manor breached its standard of care and whether such alleged breach caused Dorothy Curts’s injuries and subsequent death; and 2) whether a genuine issue of material fact exists such that summary judgment is inappropriate. Concluding nurses can potentially have sufficient expertise to qualify as experts for the purposes of medical standards of care and medical causation, but that the evidence designated does not demonstrate that Weitkamp has sufficient expertise and thus no genuine issues of material fact exist, we affirm the trial court’s grant of summary judgment for Manor.

Facts and Procedural History

Dorothy Curts, an elderly woman in her eighties, was admitted to Manor. On May 7, 2006, the evidence reveals Dorothy had an accident while in Manor’s care. She was taken to the local emergency room and treated, but approximately 24 hours after the incident she passed away. Dorothy’s son, Michael Curts, brought suit, acting individually and as personal representative of the Estate of Dorothy J. Curts. He raised claims of wrongful death, breach of contract, and negligent infliction of emotional distress. All three claims relied upon his factual assertions that Manor acted negligently in providing care for Dorothy and that such negligence caused Dorothy to fall out of her bed, hit her head, and die.

Manor moved to stay the proceedings, alleging it was a qualified health care provider that opted to be covered under the Indiana Medical Malpractice Act. A medical review panel consisting of three medical doctors convened and ultimately determined, “[t]he evidence does not support the conclusion that [Manor] failed to meet the appropriate standard of care as charged in the complaint and the conduct complained of was not a factor of the resultant damages.” Appendix to Brief of Appellant at 23.

Thereafter, Manor moved for summary judgment, designating as evidence the medical review panel’s decision. Curts filed a response and designated as evidence both a deposition and report letter of Theresa Weitkamp, a registered nurse and nursing home administrator, a portion of a deposition of Michael Curts, and the admission contract between Dorothy and Manor. After a hearing, the trial court granted Manor’s motion for summary judgment.

In her report letter, Weitkamp summarized the clinical records relating to the care and services provided to Dorothy at Manor and at area hospitals when such medical care was necessary. Dorothy was admitted to Manor for nursing care after she suffered a stroke and made at least one trip to an emergency room. Her medical issues were varied, including weakness and contusions on her left side, fatigue, and diabetes. Dorothy had a history of falling, and her physician ordered a sensor alarm and bed and chair alarms for her room. Despite this, she fell at Manor on at least one occasion prior to the incident at issue, which resulted in a fractured left hip.

Dorothy “had urinary frequency and had to be toileted often” and “was also incontinent at times.” Id. at 125. Weitkamp’s letter reports that Dorothy would regularly turn on her call light to obtain assistance in getting to the restroom, but such attempts were often neglected and Dorothy would either wait a lengthy period for help or try to make it to the restroom on her own. In December 2005, this resulted in staff responding to an alarm and finding Dorothy lying on the floor in her room. She was unable to move without pain, but was otherwise uninjured. She was routinely reminded to ask for assistance before getting up from her bed.

In early 2006, nurses noted occasions where Dorothy urinated every twenty to thirty minutes during the night. She began setting off her bed alarm in an effort to get assistance more quickly. In April 2006, she was found sitting next to her bed after she got up so she could “pee in the trash can.” Id. at 126. Despite all of these events, Weitkamp noted that no new measures were implemented to reduce Dorothy’s risk of falling.

Around 1:00 pm on May 7, 2006, a staff person responded to an alarm in Dorothy’s room and found her lying face down on the floor. She had a large knot and a laceration about two centimeters long on her forehead, and she was lying in a significant amount of blood. She was taken to the emergency room within a few minutes. Doctors discovered a fractured wrist and severe fractures to her spine. Although she was considered stable, she died at 12:15 pm on May 8, 2006.

Weitkamp concluded “it is my opinion that Miller’s Merry Manor ... deviated from commonly accepted standards of care and practice as well as from OBRA regulations, federal law mandating care given in nursing homes.” Id. at 122. Specifically, she states Manor breached commonly accepted standards of care by “[flailing to provide adequate supervision to prevent accidents,” “[flailing to respond to alarms in a manner timely enough to prevent accidents,” “[flailing to take measures to determine the root cause of Mrs. Curts’ urinary problems,” “[flailing to provide staff in adequate numbers to meet the needs of their residents,” and “[flailing to provide care and services to enable residents to attain or maintain their highest practicable physical well-being.” Id. Weit-kamp then states, “[a]s a result, Mrs. Curts fell multiple times, finally sustaining an injury which led to her untimely death.” Id.

In Curts’s deposition, he states that he arrived at the nursing home just after Dorothy’s May 7 accident, and that when he came into the room he saw her lying on the floor in a large puddle of blood. Similar to Weitkamp, he also commented upon Dorothy’s difficulties and the nursing home’s lack of sufficient personnel to care for her in his deposition.

After a hearing, the trial court granted Manor’s motion for summary judgment. Curts now appeals.

Discussion and Decision

I. Standard of Review

On appeal from a grant of summary judgment, our standard of review is the same as that of the trial court. Cox v. Northern Indiana Pub. Serv. Co., Inc., 848 N.E.2d 690, 695 (Ind.Ct.App.2006). We thus apply a de novo standard of review. Id. Summary judgment is appropriate when the designated evidence demonstrates there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). “When the defendant is the moving party under T.R. 56(C), the defendant is entitled to summary judgment when it demonstrates undisputed material facts which negate at least one element of the plaintiffs claim.” Nikou v. INB Nat’l Bank, 638 N.E.2d 448, 454 (Ind.Ct.App.1994).

II. Summary Judgment

Manor has met its initial burden of establishing a prima facie showing that no genuine issue of material fact exists because it included in its designated evidence the unanimous opinion of the medical review panel that “[t]he evidence does not support the conclusion that [Manor] failed to meet the appropriate standard of care as charged in the complaint and the conduct complained of was not a factor of the resultant damages.” App. to Br. of Appellant at 36; see McGee v. Bonaventura, 605 N.E.2d 792, 794 (Ind.Ct.App.1993) (stating “a unanimous opinion of the [medical review] panel that the defendant did not breach the applicable standard of care is sufficient to negate the existence of a genuine issue of material fact.”). Therefore, the question we must address is whether Curts, the nonmoving party, has met his burden of establishing that a genuine issue of material fact does exist such that summary judgment is inappropriate.

Although Curts argues in passing his claim is one of negligence rather than medical malpractice, “[m]edical malpractice cases are no different from other kinds of negligence actions regarding that which must be proven.” Bader v. Johnson, 732 N.E.2d 1212, 1216-17 (Ind.2000). To survive the summary judgment stage, Curts is therefore required to establish the following elements: 1) Manor owed Dorothy a duty, 2) Manor breached its duty by acting below the applicable standard of care, and 3) such breach proximately caused the resulting harm. Id. at 1217. Curts argues the evidence establishes all three required elements and therefore a genuine issue of material fact exists.

A. Nurses As Expert Witnesses

We have previously addressed whether nurses can testify as expert witnesses regarding medical causation and medical standards of care in a handful of cases, and we have generally concluded they cannot. In Nasser v. St. Vincent Hosp. & Health Servs., 926 N.E.2d 43, 44 (Ind.Ct.App.2010), trans. denied, the plaintiff argued the hospital “committed malpractice when the nursing staff did not respond to her repeated calls for help and allowed her to deliver two eighteen-week stillborn fetuses alone in her hospital bed,” and that such malpractice caused her to suffer severe emotional distress requiring medical care and medication. A medical review panel was formed, consisting of two medical doctors and one registered nurse. The doctors concluded the hospital did not fail to meet the applicable standard of care and the conduct complained of was not a factor of the resultant damages, but the nurse concluded the hospital failed to meet the standard of care and such failure was a factor of the resultant damages.

We ultimately concluded that even though nurses are qualified to serve on medical review panels pursuant to the Medical Malpractice Act, the expert opinion of a medical review panel is admissible, and members of medical review panels can be called to testify, Indiana Evidence Rule 702 prevents nurses from qualifying as experts regarding medical causation even where they served on the medical review panel in a case. Id. at 51-52. Because the plaintiff did not designate any evidence on the issue of causation other than the nurse’s minority opinion from the review panel process, we affirmed the trial court’s grant of summary judgment in favor of the hospital. Id. at 52. See also Clarian Health Partners, Inc. v. Wagler, 925 N.E.2d 388 (Ind.Ct.App.2010) (concluding nurse’s affidavit inadmissible for purposes of determining the cause of plaintiffs injuries where the plaintiff suffered leg damage and deformity after undergoing open heart surgery during which a complication arose and her femoral artery was compromised because of the “significant difference in the education, training, and authority to diagnose and treat diseases between physicians and nurses”), trans. denied; Long v. Methodist Hosp. of Indiana, Inc., 699 N.E.2d 1164 (Ind.Ct.App.1998) (addressing whether potential missteps during open heart surgery caused a staph infection, we concluded “[bjecause there is a significant difference in the education, training, and authority to diagnose and treat diseases between physicians and nurses, we hold that the determination of the medical cause of injuries, which is obtained through diagnosis, for purposes of offering expert testimony is beyond the scope of nurses professional expertise” and nurses are therefore not qualified to offer expert testimony as to the medical cause of injuries), trans. denied; Stryczek v. The Methodist Hosps., 694 N.E.2d 1186 (Ind.Ct.App.1998) (concluding nurse not qualified to testify regarding whether hospital failed to timely communicate a proper diagnosis prior to patient undergoing a course of radiation treatment or whether such alleged failure to timely communicate a proper diagnosis caused cardiac damage), trans. denied.

In the cases discussed above, the medical causation issues were rather complex. In Nasser, the question was whether the hospital’s failure to respond to a patient’s calls and the patient’s having delivered two stillborn fetuses in her hospital bed caused her severe emotional distress such that medical care and medication were required. In Clarian Health Partners, Inc., the question was whether a complication during open heart surgery caused the patient’s leg damage and deformity. Similarly, in Long, the issue was whether missteps during and/or after open heart surgery caused a staph infection. In Sto'yezek, the question was whether a more timely diagnosis was possible and whether the alleged untimely diagnosis caused cardiac damage. In cases such as these, having sufficient expertise to qualify as an expert witness for the purpose of opining on medical causation or medical standards of care would likely require more experience and understanding than that of even a highly-experienced nurse. However, the case before us asks whether a nursing home failed to meet its standard of care and whether injuries from Dorothy’s fall caused her death approximately twenty-four hours later. In a scenario such as this, we cannot foreclose the possibility that some nurses have sufficient expertise to qualify as an expert witness.

We conclude we are not prepared to declare a blanket rule that nurses cannot qualify as expert witnesses under Indiana Evidence Rule 702 and testify as to whether a healthcare provider breached a standard of care or whether an alleged breach caused an injury. Indiana Evidence Rule 702(a) provides “a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Just as the Rule states, we hold a nurse could qualify as an expert regarding medical standards of care and causation in some circumstances. The determinative question is whether the nurse has sufficient expertise, as provided in Rule 702(a), with the factual circumstances giving rise to the claim and the patient’s injuries.

Here, Curts has not presented sufficient evidence of Weitkamp’s expertise for us to conclude she qualifies as an expert concerning Manor’s alleged breach of care and whether such alleged below-standard care caused Dorothy’s demise. In her deposition she briefly discussed her education and work history, but there is nothing in the record indicating she regularly deals with matters of this kind, has acquired education and/or training specific to a patient like Dorothy and her needs, has expert knowledge of the governing federal regulations, has sufficient expertise to comment on the manner and cause of Dorothy’s death, or anything else which could demonstrate she qualifies as an expert.

B. Genuine Issue of Material Fact

Having concluded insufficient evidence was designated establishing Weit-kamp’s qualifications as an expert, we must also conclude Curts has failed to meet his burden of establishing a genuine issue of material fact. Other than a doctor’s order that Dorothy’s bed and chair should be equipped with sensor alarms, the record is void of any indication whether a medical doctor had issued specific orders for Dorothy’s treatment and care and, if such orders were given, whether Manor’s care for Dorothy adhered to those orders. Other than Weitkamp’s testimony, the record is also void of evidence demonstrating Manor’s alleged failure to provide proper care caused Dorothy’s death. Thus, the only evidence designated concerning whether Manor breached its standard of care and whether the alleged negligent conduct caused Dorothy’s fall and death is the unanimous medical review panel opinion, which conclusively states Manor did not breach its standard of care and the alleged misconduct was not a factor in the resulting injuries and death of Dorothy.

Curts’s argument that common sense supports a conclusion that Manor breached its duty of care and caused Dorothy’s injuries and death is unpersuasive. Merely because an elderly person falls and injures herself in a nursing home, even when it has happened before, does not establish that it was the nursing home’s responsibility based upon professional medical standards to protect her from such a fall. Additionally, the fact that Dorothy fell and injured her head does not necessitate a conclusion that the fall caused her death. Dorothy was taken to a hospital and treated after she fell from her bed. The actions or inactions of paramedics or hospital staff which occurred after Dorothy’s fall could have caused her demise, or, given her age, her death could have resulted from natural causes. Curts therefore cannot rely on common sense in arguing he has established a genuine issue of material fact.

Conclusion

While we hold it is possible for a nurse to have sufficient expertise to qualify as an expert witness under Indiana Evidence Rule 702 and opine on whether the care of certain healthcare providers fell below the requisite standard of care and whether such inadequate care caused a particular medical injury, here, Curts designated insufficient evidence to establish Weitkamp has such expertise. Curts has therefore failed to meet his burden of establishing a genuine issue of material fact, and we conclude summary judgment is appropriate for Manor and affirm the trial court.

Affirmed.

BAILEY, J., and MATHIAS, J., concur.

      . We held oral argument in this case on July 26, 2012, at the Indiana Court of Appeals Courtroom in Indianapolis. We thank counsel for their capable advocacy.

      . Indiana Code section 34-18-2-14 defines “health care provider," and includes in its definition "registered or licensed practical nurse.” Indiana Code section 34-18-10-5 states, "[e]xcept for health care providers who are health facility administrators, all health care providers in Indiana, whether in the teaching profession or otherwise, who hold a license to practice in their profession shall be available for selection as members of the medical review panel.”

      . Indiana Code section 34-18-10-23 provides: "A report of the expert opinion reached by the medical review panel is admissible as evidence in any action subsequently brought by the claimant in a court of law. However, the expert opinion is not conclusive, and either party, at the party's cost, has the right to call any member of the medical review panel as a witness. If called, a witness shall appear and testify.”


author: BAILEY, Judge.

text:
    Reko D. LEVELS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 82A01-1201-CR-25.
    Court of Appeals of Indiana.
    Aug. 15, 2012.

      Karen M. Heard, Vanderburgh County Public Defender’s Office, Evansville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Reko D. Levels appeals his convictions of battery and public intoxication, both class B misdemeanors. We reverse.

Issue

The sole issue for our review is whether Levels waived his right to a jury trial.

Facts and Procedural History

In November 2011, Levels was charged with domestic battery as a class A misdemeanor and public intoxication as a class B misdemeanor. At the November 10, 2011, initial hearing, the trial court advised Levels that he had the right to a “public and speedy trial, by court or by jury....” Tr. at 4. Later in the hearing, Levels told the trial court that he wanted a jury trial “ten days ahead of time.” Tr. at 10. Following a bench trial, the trial court convicted Levels of battery as a class B misdemeanor, a lesser included offense of domestic battery, and public intoxication as a class B misdemeanor. Levels appeals.

Discussion and Decision

Levels’ sole contention is that he did not waive his right to a jury trial. The right to a jury trial in misdemeanor cases is controlled by Criminal Rule 22, which provides:

A defendant charged with a misdemean- or may demand trial by jury by filing a written demand therefor not later than ten (10) days before his first scheduled trial date. The failure of the defendant to demand a trial by jury as required by this rule shall constitute a waiver by him of trial by jury unless the defendant has not had at least fifteen (15) days advance notice of his scheduled trial date and of the consequences of his failure to demand a trial by jury.

This Court has previously explained that a waiver is not valid unless the trial court advises a defendant of the consequences of his failure to demand a jury trial no later than ten days prior to the trial date. Vukadinovich v. State, 529 N.E.2d 837, 838 (Ind.Ct.App.1988). It is fundamental error for a court to deny defendant a jury trial without first eliciting a personal waiver from him. Id. There can be no waiver absent the trial court’s affirmative advisement to a defendant that he waives his right to a jury trial unless he demands it no later than ten days prior to the scheduled trial date. Casselman v. State, 472 N.E.2d 1310, 1311 (Ind.Ct.App.1985). Further, where the defendant is not advised by the court as required by the rule, his failure to request a jury trial cannot be deemed a waiver. Wilson v. State, 453 N.E.2d 340, 342 (Ind.Ct.App.1983).

Here, the trial court advised Levels at his initial hearing that he had a right to a jury trial. However, the trial court failed to adequately advise Levels of the consequences of failing to demand a jury trial. The court did not mention the necessity of making such a request no later than ten days prior to the scheduled trial date, and at no time did the trial court disclose that the failure to make the request would waive Levels’ right to a jury trial. There is also no indication that Levels knew that the demand had to be in writing. Because the advisement was insufficient, there was no valid waiver of a jury trial.

Reversed.

RILEY, J., and CRONE, J., concur.

      . We disagree with the State’s contention that the advisement was unnecessary in this case because Levels "explicitly indicated his awareness of this requirement by stating 'I want a jury trial too ... ten days ahead of time.’ " Tr. at 10. Rather, we agree with Levels that his reference to "ten days ahead of time” does not reveal that he knew the request had to be in writing or even what the ten days had to be ahead of.


author: CRONE, Judge.

text:
    Bryan J. FIELDS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 20A04-1202-CR-57.
    Court of Appeals of Indiana.
    Aug. 17, 2012.
    William J. Cohen, Cohen Law Offices, Elkhart, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Andrew A. Kobe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

A jury found Bryan J. Fields guilty of class D felony operating a vehicle while intoxicated. The trial court entered judgment of conviction as a class D felony and imposed an eighteen-month suspended sentence. At that time, the trial court indicated that it would consider a potential reduction of the felony conviction to a misdemeanor after approximately one year provided that Fields complied with the terms and conditions of probation and committed no further criminal offenses. During a review hearing held almost one year after the conviction, the trial court denied Fields’s request to reduce his D felony conviction to an A misdemeanor. Specifically, the trial court concluded that it had no authority to modify the conviction. On appeal, Fields contends that the trial court erred when it determined that it had no such authority. We disagree with Fields and affirm.

Facts and Procedural History

On January 11, 2010, the State charged Fields with operating a vehicle while intoxicated as a class D felony, due to a prior conviction within the last five years for operating a vehicle while intoxicated. See Ind.Code § 9 — 30—5—3(a)(1). Following a trial on October 18, 2010, the jury found Fields guilty as charged. On January 24, 2011, the trial court entered its order, which states in pertinent part:

Court accepts jury’s verdict of Guilty and enters conviction of OWI w/Prior Within 5 years, Class D felony. SENTENCE: 18 months IDOC w/credit for one day served plus equal earned credit time, suspended except 5 days without equal earned credit time (balance of 4 days to serve); reporting probation for 18 months;
Conviction entered conditionally subject to potential reduction to a misdemeanor provided defendant complies with all terms and conditions of probation and commits no further criminal offenses within the next year. Set for review hearing 1/9/12 at 9:00 a.m. Defendant ordered to appear. Judgment. Bond released. Commitment ordered.

Appellant’s App. at 47. Fields appealed his conviction. On September 29, 2011, we affirmed his conviction by unpublished memorandum decision. See Fields v. State, No. 20A03-1102-CR-101, 2011 WL 4499857 (Ind.Ct.App. Sept. 29, 2011).

Thereafter, the scheduled review hearing was held by the trial court on January 9, 2012, to address the potential reduction of Fields’s felony conviction to a misdemeanor. Following the hearing, the trial court issued its order denying Fields’s request for reduction of his conviction. That order reads as follows:

Defendant appears w/counsel, William Cohen: State appears by DPA Aimee Herring. State objects to misdemeanor reduction. Arguments heard. Court finds on the basis of his progress that defendant is entitled to reduction to a misdemeanor but the case of State v. Brunner, 947 N.E.2d 411, 2011 [ (2011) ] Indiana Supreme Court opinion, appears to dictate that the Court has no authority and it would be error to reduce to a misdemeanor except at the moment of conviction and prior to sentencing or with the consent of the State of Indiana, which has not been given. Motion to reduce to a misdemeanor denied.

Appellant’s App. at 23. This appeal ensued.

Discussion and Decision

Fields contends that the trial court erred when it denied his request to reduce his class D felony conviction to a class A misdemeanor because the court improperly determined that it lacked the authority to do so. Indiana Code Section 35-50-2-7 outlines the circumstances by which a defendant may have his class D felony conviction converted to a class A misdemeanor conviction. That section provides, in relevant part, that “if a person has committed a Class D felony, the court may enter judgment of conviction of a Class A misdemeanor and sentence accordingly.” Ind. Code § 35-50-2-7(b). In interpreting this statutory provision, our supreme court determined that the legislature has not granted the trial court the statutory authority to modify a conviction at any time other than while delivering the sentence. State v. Brunner, 947 N.E.2d 411, 416 (Ind.2011). Specifically, the Brunner court held that the language of Indiana Code Section 35-50-2-7(b) indicates that the legislature intended to limit the trial court’s authority to reduce a class D felony to a class A misdemeanor to the moment the trial court first enters its judgment of conviction and before the trial court announces sentence. See id.

Despite this pronouncement of legislative intent, Fields maintains that Indiana Code Section 35-50-2-7(b), when read in conjunction with Indiana Code Section 35-38-1-17, grants the trial court authority to convert his felony conviction to a misdemeanor within one year of sentencing. Matters of statutory interpretation present pure questions of law. Id. When interpreting statutes, we take words and phrases in their plain and usual meaning. Id. (citing Ind.Code § 1 — 1^1—1(1)). Indiana Code Section 35-38-1-17 provides in part that

[wjithin three hundred sixty-five days (365) after ... a convicted person begins serving the person’s sentence ... the court may reduce or suspend the sentence .... If more than three hundred sixty-five (365) days have elapsed since the convicted person began serving the sentence ... the court may reduce or suspend the sentence, subject to the approval of the prosecuting attorney....

By its plain language, Indiana Code Section 35-38-1-17 clearly addresses the trial court’s authority to reduce or suspend a sentence, not the trial court’s authority to convert a conviction from a felony to a misdemeanor. Fields does not seek a sentence reduction. Rather, he seeks a conviction conversion. In light of the plain language used by our legislature, and in light of our supreme court’s opinion in Brunner, we must conclude that Indiana Code Section 35-38-1-17 does not grant the trial court the authority to reduce a felony conviction to a misdemeanor.

We acknowledge the trial court’s own confusion regarding its authority when, after entering judgment of conviction on the jury’s verdict and pronouncing sentence, it stated that Fields’s felony conviction would be “subject to potential reduction to a misdemeanor” at a later date. Appellant’s App. at 47. However, as stated above, the trial court does not have that statutory authority. While it may be equitable and desirable for the legislature to give a trial court discretion to modify a properly entered conviction like the conviction at issue here, at this time, the legislature has not given any such authority. See Brunner, 947 N.E.2d at 417. Accordingly, the trial court properly denied Fields’s request to convert his class D felony conviction to an A misdemeanor conviction. The judgment of the trial court is affirmed.

Affirmed.

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

      . We note that Indiana Code Section 35-38-1-1.5 also outlines circumstances by which a defendant may have his class D felony conviction converted to a class A misdemeanor. Section 35-38-1-1.5(a) provides that "[a] court may enter judgment of conviction as a Class D felony with the express provision that the conviction will be converted to a Class A misdemeanor within three (3) years if the person fulfills certain conditions.” The court may exercise this option "only if the person pleads guilty to a Class D felony that qualifies for consideration as a Class A misdemeanor under IC 35-50-2-7,” and certain other conditions are met including consent of the prosecuting attorney. Ind.Code § 35-38-1-1.5(a). Fields concedes that this statutory provision is inapplicable here.

      . Although the Brunner court did not specifically address Indiana Code Section 35 — 38—1— 17, we note that in its companion case of State v. Boyle, 947 N.E.2d 912 (Ind.2011), the court cited Section 35-38-1-17 but did not change its conclusion that trial courts lack the statutory authority to convert felony convictions to misdemeanors except under the above-mentioned circumstances.


author: NAJAM, Judge.

text:
    Jason FIELDS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 47A04-1110-CR-577.
    Court of Appeals of Indiana.
    Aug. 21, 2012.

      Lorinda Meier Youngcourt, Lawrence County Public Defender, Bedford, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Jason Fields appeals his convictions for two counts of dealing in methamphetamine, as Class B felonies, following a jury trial. Fields presents a single issue for review: whether the trial court abused its discretion when it answered a question from the jury about the meaning of one of the final instructions.

We affirm.

FACTS AND PROCEDURAL HISTORY

In March and April 2011, Fields lived with Joseph Roe. On April 4, at Roe’s request, Fields purchased methamphetamine from Shon Michaels. On April 6, Fields again purchased methamphetamine from Michaels at Roe’s request. Unbeknownst to Fields, Roe was working as a confidential informant for the Bedford Police Department, and both transactions were controlled buys made with marked money provided by the police.

On May 6, the State charged Fields with two counts of dealing in methamphetamine, as Class B felonies. The trial court denied the State’s subsequent motion to elevate the offenses to Class A felonies. A three-day trial was conducted September 27 through 29. During deliberations, the jury submitted a question to the judge, asking for clarification of part of final instruction number 11. That instruction reads:

Before you may convict the Defendant, the State must have proved each of the following beyond a reasonable doubt:
1. The Defendant
2. knowingly delivered
3. methamphetamine, pure or adulterated.
AND
The State must have proved beyond a reasonable doubt that:
1. that [sic] the prohibited conduct of the Defendant was not the product of [a law enforcement officer] [or] [a law enforcement officer’s agent] using persuasion or other means likely to cause the Defendant to engage in the conduct, or
2. that [sic] the Defendant was predisposed to commit the offense.
Keeping in mind that conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.
If the State failed to prove each of the above referenced elements beyond a reasonable doubt, including the elements relating to entrapment, you should find the Defendant not guilty of dealing in methamphetamine, a Class “B” Felony for the Count under consideration.

Appellant’s App. at 116. The jury’s question asked: “On page 11[.] The State must have proved beyond a reasonable doubt that question 1 or 2 [sic]. Do both 1 and 2 we have to agree or on just one of them.” Id. at 123. The trial court recalled the jury and, in the presence of the parties and their counsel, answered the jury’s question as follows:

Okay for the record the Jury is reassembled, everyone else is also in the courtroom. Members of the Jury, my answer to your question is very specific and you’re [sic] question was very specific as to instruction eleven (11), the second part. And as you know the second part has one (1) or two (2). It is not both, one (1) or. Either/or. Okay, alright. So having done that I’ll send you back out.

Transcript at 550.

Fields moved for a mistrial for “changing instructions.” Id. at 549. The trial court denied that motion. The jury subsequently returned a verdict finding Fields guilty of both counts of dealing in methamphetamine, as Class B felonies. The court entered judgment of conviction accordingly and sentenced Fields to ten years, enhanced by eight years for aggravating circumstances, for an aggregate sentence of eighteen years with two years probation, to be served concurrently. Fields now appeals.

DISCUSSION AND DECISION

Fields appeals from the denial of his motion for a mistrial following the trial court’s response to a jury question after deliberations had begun. On appeal, the trial court’s discretion in determining whether to grant a mistrial is afforded great deference because the trial court is in the best position to gauge the surrounding circumstances of an event and its impact on the jury. McManus v. State, 814 N.E.2d 253, 260 (Ind.2004), cert. denied, 546 U.S. 831, 126 S.Ct. 53, 163 L.Ed.2d 83 (2005). We therefore review the trial court’s decision solely for abuse of discretion. Id. After all, “a mistrial is an extreme remedy that is only justified when other remedial measures are insufficient to rectify the situation.” Id. (citation and internal quotation marks omitted).

Fields contends that the trial court erred when it answered the question the jury submitted after deliberations had begun, thereby “modifying” the final jury instructions. Appellant’s Brief at 11. Generally, “[o]nce deliberations commence, the trial court should not give any additional instructions.” Cabell v. State, 461 N.E.2d 1101, 1102 (Ind.1984). “This rule precludes the trial court from giving any special emphasis, inadvertent or otherwise, to a particular issue in the case, and thus avoids the possibility that the additional instruction(s) may tell the jury what it ought to do concerning that issue.” Id.

“The generally accepted procedure in answering a jury’s question on a matter of law is to reread all instructions in order to avoid emphasizing any particular point and not to qualify, modify, or explain its instructions in any way.” Martin v. State, 760 N.E.2d 597, 601 (Ind.2002). However, our supreme court has permitted departure from this procedure when a trial court is faced with an omitted and necessary instruction or must correct an erroneous instruction, as long as it is fair to the parties in the sense that it should not reflect the judge’s view of factual matters. Id. “[I]t is only when the jury question coincides with an error or legal lacuna in the final instructions that a response other than rereading from the body of final instructions is permissible.” Jenkins v. State, 424 N.E.2d 1002, 1008 (Ind.1981) (alterations in original).

Still, a trial court is not required to provide information automatically and mechanically every time the jury requests it. Henri v. Curto, 908 N.E.2d 196, 205 (Ind.2009) (quotation marks omitted). Rather, it has discretion to determine whether a jury question relates to the jury’s desire to be informed as to a point of law arising in the case. Id. If the court determines that the jury wishes to be so informed, the court is required to answer the question after notice to the parties or their attorneys. Id. (citations omitted).

Indiana Code Section 34-86-1-6 governs the procedure a trial court must follow when answering a jury question submitted during deliberations. That statute provides:

If, after the jury retires for deliberation:

(1) there is a disagreement among the jurors as to any part of the testimony; or
(2) the jury desires to be informed as to any point of law arising in the case;
the jury may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or the attorneys representing the parties.

Ind.Code § 34-36-1-6. The statutory phrase “any point of law arising in the case” is construed narrowly and mandates that the trial court inform counsel and provide a discrete answer only when the jury question “points up ‘an error or legal lacuna in the final instructions.’” Henri, 908 N.E.2d at 205 (citing Foster v. State, 698 N.E.2d 1166, 1171 (Ind.1998)).

Once the trial court, in the exercise of its discretion, has determined that a question posed ... by the jury relates to ... the jury’s “desire to be informed as to any point of law arising in the cased’ Ind.Code § 34-36-1-6 (emphasis added), the court then must supply the requested information, to the extent that it consists of [an] answer to the legal question.

Foster, 698 N.E.2d at 1170 (citation omitted, emphasis in original).

Our opinion in Taylor v. State, 677 N.E.2d 56 (Ind.Ct.App.1997), trans. denied, is instructive. There, after deliberations had begun, the jury informed the trial court that it had several questions. The court brought the jury back to open court, in the presence of the parties and their counsel.

First, the jury asked about the difference between the three different charges and whether they must convict on an all or nothing basis. The judge replied that he could not discuss the differences between the charges and informed them that they could re-read the instructions for guidance. The judge then answered the second part of their question by saying that the court would sort out any duplicity in verdicts at the time of sentencing, and that they should look at each charge individually and determine whether the State has met its burden. The jury again asked for clarification, and the judge told them that they could enter a guilty or not guilty verdict on each of the counts independently. Then the jury asked if any of the charges weighed more heavily than the others because of the order of the instructions, to which the judge informed them that there was no priority. Next the jury asked if “deliver” is “a hard enough fact.” After the judge expressed that he was not sure of the question, the prosecutor stated that “Deliver is not separately defined.” (R. 852). Finally, the jury asked if the instructions were to be considered line by line or item by item. The judge stated that they need to be considered as a whole. He then clarified his earlier statement about the court sorting out duplicities' by affirming that what the jury does is binding on the court, that the three charges are separate, and that they are to infer nothing else from what he said. (R. 850-854).

Id. at 62.

On appeal, the defendant argued that the trial court’s responses had “weakened the State’s burden of proof and violated his right to consult with counsel and have assistance of counsel.” Id. Citing the former Indiana Code Section 84-1-21-6 (re-codified at Indiana Code Section 34-36-1-6 (1998)), we held that the trial judge correctly followed the procedure set out in the statute. Specifically, the “jury wanted to be informed about a point of law. The judge called them into open court where he answered their questions in the presence of the defendant and both attorneys.” Id. The trial court’s answers “did not go to the merits of the case but cleared up a potentially dangerous misunderstanding of the jury that their response must be of an all or nothing nature.” Id. And, even if the communication were deemed inappropriate, we held that the defendant had not shown reversible error because the trial judge had cautioned the jury to imply nothing from his answers other than that the jury was to decide guilty or not guilty on each charge. Id. at 64.

Here, Fields contends that the trial court’s response to the jury’s mid-deliberation question constituted a modification of the jury instructions. We cannot agree. As in Taylor, the trial court merely answered the jury’s question of law arising in the case. In doing so, the trial court followed the procedure set out in Section 34-36-1-6 by calling the jury back to open court and answering the question in the presence of counsel. Under these circumstances, the trial court was not required to reread the final instructions in their entirety. See Martin, 760 N.E.2d at 601; Jenkins, 424 N.E.2d at 1003.

Still, Fields cites Crowdus v. State, 431 N.E.2d 796 (Ind.1982), in,support of his contention that the trial court’s communication to the jury in this case constitutes reversible error. That case is inapposite. In Crowdus, the jury requested an instruction on entrapment, which had not previously been included in the final instructions. But in the present case, the trial court merely answered a question of law arising in the case, namely, whether paragraphs 1 and 2 of the second part of Jury Instruction 11 required a jury finding beyond a reasonable doubt on both paragraphs or “just one of them.” The question presented was a narrow point of law, which the trial court answered succinctly and without any elaboration. The trial court neither modified the final instructions nor gave an additional instruction. Fields has not shown that the trial court erred when it answered the jury’s question. As such, Fields has not shown that the trial court abused its discretion when it denied his motion for mistrial.

Affirmed.

KIRSCH, J„ and MAY, J., concur.

      . There is no material difference between the language of former Indiana Code Section 34-1-21-6 and Indiana Code Section 34-36-1-6.


text:
    In the Matter of Shane E. BEAL, Respondent.
    No. 27S00-1204-DI-221.
    Supreme Court of Indiana.
    Aug. 27, 2012.
   PUBLISHED ORDER CERTIFYING TERMINATION OF NONCOOPERATION SUSPENSION

Pursuant to Indiana Admission and Discipline Rule 23(10)(f), this Court suspended Respondent from the practice of law in this State for failing to cooperate with the Disciplinary Commission concerning a grievance filed against Respondent. On August 28, 2012, the Executive Secretary of the Disciplinary Commission filed a “Certification of Compliance,” stating that Respondent has now cooperated with its investigation. Pursuant to Admission and Discipline Rule 23(10)(f)(3), Respondent’s suspension from the practice of law terminated as of the date the certification was filed.

The Court therefore ORDERS that Respondent’s suspension from the practice of law for failure to cooperate in this case be shown as terminated as of August 23, 2012, and that Respondent be shown as reinstated to the practice of law in this state if no other suspension is in effect.

Pursuant to Admission and Discipline Rule 23(10)(f)(5) and Rule 2(h), Respondent’s failure to pay any outstanding costs assessed in this case by the due date of the next annual registration fee (October 1) will subject Respondent to an order of suspension from the practice of law.

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.