author: Mathias, Judge.

text:
    STATE of Indiana, Appellant/Cross-Appellee-Plaintiff, v. Beth A. NEFF, Appellee/Cross-Appellant-Defendant.
    Court of Appeals Case No. 18A02-1708-IF-1933
    Court of Appeals of Indiana.
    FILED May 11, 2018
    Attorneys for Appellant: Curtis T. Hill, Jr., Attorney General of Indiana, Patricia C. McMath, Civil Appeals Section Chief, Larry D. Allen, Deputy Attorney General, Indianapolis, Indiana
    Attorney for Appellee: Jeffrey M. Heinzmann, Heinzmann Law Office, LLC, Fishers, Indiana
   Mathias, Judge.

[1] On July 12, 2017, the State filed a complaint for removal from office against Yorktown clerk-treasurer Beth A. Neff ("Neff") for neglecting to perform several of her official statutory duties. Neff filed a motion to dismiss the complaint, which the Delaware Circuit Court denied. After a summary evidentiary proceeding, the trial court entered findings of fact and conclusions of law and entered judgment in Neff's favor and against removal from office.

[2] The State appeals the entry of judgment on the merits in favor of Neff. We reverse and remand. Neff also cross-appeals the trial court's decision to deny her motion to dismiss, and on this issue, we affirm.

Facts and Procedural History

[3] Neff was elected to serve as the clerk-treasurer for the town of Yorktown (the "Town"), Indiana in 2007, and she has served in that capacity ever since. In 2013, the State Board of Accounts ("SBA") performed an examination and audit of Yorktown's 2012 financial records kept by Neff. On December 5, 2013, SBA Field Examiner Mike Wade ("Wade") compiled a report of his findings following the examination. Wade discovered several errors with the Town's records including that: (1) Neff had failed to reconcile Yorktown's accounts for all of 2012; and (2) Yorktown's Park One Wastewater Utility account was overdrawn by $140,943. As a result, Yorktown's 2012 annual report submitted to the State did not properly reflect the actual financial activity of the Town.

[4] On November 14, 2013, prior to issuing the financial report, Wade and his supervisor Bill Vinson ("Vinson") met with Neff, town council president Robert Ratchford, and town manager Pete Olson to explain the issues. Wade and Vinson discussed the errors with Neff and also directed her to the applicable sections of the Indiana Code and the State Board of Accounts Manual-the Accounting Uniform Compliance Guidelines Manual for Cities and Towns (the "Manual")-in order to rectify the errors and avoid making them again in the future. Vinson and Wade also explained audit adjustments totaling $57,752.92 that Neff needed to correct to come into compliance with SBA standards.

[5] In 2016, Wade returned to the Town to perform an audit of the financial records kept by Neff from 2013-2015. On November 10, 2016, Wade compiled and filed a report of his findings following the examination. The report states in part:

The Town's accounting records have not been reconciled to depository balances since December 31, 2012. The accounting records contained numerous posting errors, such as transactions not being posted, receipts posted to incorrect funds, and transfer between funds' errors. In addition, as incorrect transactions were discovered, correcting transactions were recorded incorrectly.

Ex. Vol., State's Ex. 2 Financial Statements Examination Report, p. 3. Specific examples of errors that Wade's examination uncovered included: (1) the Town's books had still not been properly reconciled; (2) during 2014, two transfers totaling $124,826 were posted as transfers out without a corresponding transfer in; (3) during 2015, six state distributions to the Town totaling $73,955 were not receipted to the Town's records; (4) the Town's ledger and annual financial reports for 2013, 2014, and 2015 did not include the financial activity of several Town funds; (5) five of the Town's accounts had overdrawn balances; and (6) there were over twenty accounts affected by incorrect posting errors. See Ex. Vol, State's Ex. 2 Supplemental Compliance Report, p. 4-5; Tr. Vol. 2, pp. 62-68; 124-25. Vinson testified that the examination uncovered so many errors that the SBA was unable to identify all of them. Tr. Vol. 2, p. 120.

[6] On October 13, 2016, prior to issuing the report, Wade and Vinson met with Neff, town council president Richard Lee ("Lee"), and town manager Pete Olson. Wade and Vinson again discussed the errors with Neff and directed her to the applicable sections in both the Indiana Code and the Manual addressing the issues. It was during this meeting that Lee first learned that the Town's books had not been properly reconciled for forty-eight consecutive months. Lee then advised Neff to get outside help in order to fix the problems. Neff suggested hiring the accounting firm Hartman Williams a couple of weeks before the November 2016 town council meeting, and the town council approved the proposal.

[7] Hartman Williams's goal was to come in and rectify the Town's books for 2011-2015 with an initial cost of $20,000 approved by the Town. Hartman Williams's employee Donna Vinson ("Donna") began working with Neff on the Town's books in November 2016. After Donna began working on the Town's books, the Town council was notified that "the problem was somewhat more substantial and significant than they thought," Tr. Vol. 2, p. 178, and the cost to remedy the problems increased.

[8] After several months, Donna was able to get the Town's 2011-2015 books reconciled to within $232 at a cost to the Town of over $67,000. As part of her work, Donna had to conduct a bank reconciliation for every month from January 2012 through December 2015 because they had not been performed. Moreover, Donna discovered when reviewing the Town's books that: (1) $16,190.55 of the $57,752.92 in adjustments Wade and Vinson provided to Neff in 2013 had not been corrected on the Town's records; (2) over one-hundred and fifty posting errors; (3) thirty-four of the Town's funds required adjustment; and (4) net errors totaling $346,340.82. See generally Ex. Vol., State's Ex. 10; Tr. Vol. 2, pp. 218-234. Donna's report filed on June 16, 2017, discussed eighteen separate findings of errors with the Town's financial records.

[9] On July 12, 2017, the State filed a complaint for Neff's removal from office based on her alleged negligent failure to perform her statutory duties as the Town's clerk-treasurer. The three-count complaint alleged in relevant part:

Count 1
[...] For the last 24 months the Defendant herein has on more than one occasion refused or neglected to perform the official duties of the Clerk-Treasurer of Yorktown in that she has failed to reconcile at least monthly the balance of public funds, as disclosed by the records of the local officers with balance statements provided by the respective depositories, all pursuant to the requirements of Indiana Code §§ 5-8-1-35(2) and 5-13-6-1(e).
Count 2
[...] The Defendant herein, being a public officer, i.e. Yorktown Clerk-Treasurer during the last 24 months has failed to follow the direction of the state examiner (Indiana State Board of Accounts) in keeping the accounts of the Yorktown Clerk-Treasurer all pursuant to I.C. § 5-11-1-10, a class B infraction; [...]
Count 3
[...] The Defendant herein being a public officer, i.e. Yorktown Clerk-Treasurer during the following 24 months, has failed to adopt and use the systems of accounting and reporting adopted by the State Board of Accounts (SBOA) all pursuant to the Accounting and Uniform Compliance Guideline Manual for Cities and Towns (SBOA Manual) as directed by the SBOA, and as such commits a class C infraction which shall result in a forfeiture of office all pursuant to I.C. 5-11-1-21. [...]

Appellant's App. pp. 25-28 (emphasis in original).

[10] On July 17, 2017, Neff filed a motion to dismiss the complaint, which the trial court denied on July 27. On July 28, the trial court held a summary evidentiary proceeding on the complaint. And on August 1, the court issued an order finding that "[t]he State proved beyond a reasonable doubt that Neff failed to reconcile the Town's books for forty-eight consecutive months ." Appellant's App. p. 13 (footnote omitted) (emphasis in original). But the court entered a judgment on the merits in favor of Neff and found that removal was not warranted because "Neff is making mistakes and not performing up to the standards expected by the State Board of Accounts for Town Clerks. This is misfeasance and not nonfeasance." Id. at 16. The State now appeals the trial court's decision, and Neff cross-appeals the trial court's decision denying her motion to dismiss.

Removal from Office

[11] Here, the trial court issued both findings of fact and conclusions of law, and very importantly, the factual findings are not in dispute. We will review the court's conclusions of law de novo . Citizens Action Coalition of Ind. v. Koch , 51 N.E.3d 236, 240 (Ind. 2016).

[12] Article VI Sections 7 and 8 of the Indiana Constitution provide the mechanism and standards by which an officer of the State can be impeached. Section 7 states:

All State officers shall, for crime, incapacity, or negligence, be liable to be removed from office, either by impeachment by the House of Representatives, to be tried by the Senate, or by a joint resolution of the General Assembly; two-thirds of the members elected to each branch voting, in either case, therefor.

And Section 8 provides that "[a]ll State, county, township, and town officers, may be impeached, or removed from office, in such manner as may be prescribed by law." Our supreme court has explained that both sections should be construed together. McComas v. Krug , 81 Ind. 327, 333 (1882).

[13] In accordance with both constitutional provisions, our legislature enacted Indiana Code section 5-8-1-35 (the "Removal Statute") which provides that an elected official can be removed for "refusing or neglecting to perform the official duties pertaining to the officer's office." Id. at (a)(2). The State sought Neff's removal under this statute.

[14] The duties of a clerk-treasurer are delineated in Indiana Code section 36-5-6-6(a) which explains that a clerk-treasurer shall do the following:

(1) Receive and care for all town money and pay the money out only on order of the town legislative body.
(2) Keep accounts showing when and from what sources the clerk-treasurer has received town money and when and to whom the clerk-treasurer has paid out town money.
(3) Prescribe payroll and account forms for all town offices.
(4) Prescribe the manner in which creditors, officers, and employees shall be paid.
(5) Manage the finances and accounts of the town and make investments of town money.
(6) Prepare for the legislative body the budget estimates of miscellaneous revenue, financial statements, and the proposed tax rate.
(7) Maintain custody of the town seal and the records of the legislative body.
(8) Issue all licenses authorized by statute and collect the fees fixed by ordinance.
(9) Serve as clerk of the legislative body by attending its meetings and recording its proceedings.
(10) Administer oaths, take depositions, and take acknowledgment of instruments that are required by statute to be acknowledged, without charging a fee.
(11) Serve as clerk of the town court under IC 33-35-3-2, if the judge of the court does not serve as clerk of the court or appoint a clerk of the court under IC 33-35-3-1.
(12) Perform all other duties prescribed by statute.

[15] The parties do not disagree that Neff failed to perform statutory duties required by her office. Rather, the parties disagree as to the level of negligence in failing to fulfill those duties necessary to remove a clerk-treasurer from office. The State argues that "nonfeasance is not a failure to complete all duties all the time, but that the total failure or neglect of a required duty may suffice." Appellant's Br. at 15. And Neff contends that "removal must be for a failure to perform all of the duties, not for the failure to perform a specific duty or even group of duties." Appellee's Br. at 14-15. Both parties cite to the same two cases to support their respective positions.

[16] In State v. McRoberts , 207 Ind. 293, 192 N.E. 428 (1934), the State sought to remove several Gibson County councilmen from office for failing to appropriate $300 in traveling expense funds for the Gibson County School Superintendent. Id. at 429-30. Our supreme court upheld the trial court's dismissal of the State's complaint and explained:

Can it be said that because the council refused and neglected to make an appropriation for this one specific item that the members thereof are subject to be removed from office under the statute in question? We do not think so. It is not alleged in the petition that the appellees acted in bad faith or fraudulently when they refused to make the appropriation. This is not a case where an officer has refused and neglected to perform the official duties of his office, as, for instance, where a sheriff closes his office and remains away and refuses and neglects to discharge the duties thereof, and has no one to perform his official duties. The latter case would come squarely within the statute. In the instant case, however, there is no allegation that the county council or any member thereof has failed, refused, or neglected to perform the duties of their office, other than the refusal or neglect to make this one item of appropriation.

Id. at 430. The McRoberts court clarified the difference between malfeasance and nonfeasance and noted that the latter "is an omission to perform a required duty at all or total neglect." Id. It then identified two legitimate reasons why the council may have decided against approving the travel expenditure including: (1) at the time, taxpayers across Indiana were urging county officers to cut all useless and unnecessary expenses; and (2) that it was reasonable to believe that the council believed it was not necessary to make a traveling expense appropriation for the superintendent until the expense was actually incurred. Id. at 431.

[17] In State ex rel. Ayer v. Ewing , 231 Ind. 1, 106 N.E.2d 441 (1952), the State sought to remove Ayer, a Hammond Township trustee, for neglecting to perform official duties pertaining to his office. Id. at 442. Specifically, the State alleged that Ayer refused to consider the request and applications of two teachers for Hammond schools unless each paid $100 to his political campaign. The Ayer court framed the issue as follows:

The alleged reasons for the trustee's refusal are unimportant. The only question is: Did the trustee have a right to refuse to consider the application either with or without reasons? If he had a right to refuse to consider the application, his act in doing so cannot by any flight of the imagination be construed as refusing or neglecting to perform the official duties pertaining to his office[.]

Id. at 443. Our supreme court then explained that because Ayer "employed qualified teachers for all the schools in his township he performed his duties in full in that matter. It cannot be said that because he did not consider, appoint or employ relator as a teacher, he neglected or refused to perform his official duties." Id. The Ayer court noted that "in any special statutory proceedings [ ], all jurisdictional averments required by the statute under which the proceeding is based must be contained in the petition or the court in which it is filed[.]" Id. at 446. And because the verified accusation levied against Ayer did not allege a general failure to perform official duties, the State failed to properly allege the jurisdictional facts required by statute. Accordingly, our supreme court made permanent its temporary writ prohibiting the trial court from exercising further jurisdiction. Id.

[18] The State argues that McRoberts and Ayer support its position that "the pervasive and continued neglect of [Neff's] duties as the financial manager of Yorktown itself fit squarely within the Removal Statute." Appellant's Br. at 17. Neff contends that the two cases stand for the proposition that a clerk-treasurer cannot be removed from office for acts of misfeasance, and that nonfeasance necessary to justify removal must be a total neglect to perform all duties. The Removal Statute states, "refusing or neglecting to perform the official duties pertaining to the officer's office" can constitute removal. I.C. § 5-8-1-35(a)(2). And we do not read our supreme court's holdings in McRoberts or Ayer to require the abandonment of all of an officer's statutory duties in order to justify removal from office.

[19] Although we recognize several alleged errors committed by Neff during her time as clerk-treasurer, specifically from 2011-2015, we focus on the allegations in Count I of the State's complaint which alleged that Neff had "failed to reconcile at least monthly the balance of public funds," Appellant's App. p. 25, for a period of forty-eight consecutive months. Indiana Code section 36-5-6-6(12) requires a clerk-treasurer to "[p]erform all other duties prescribed by statute." And one of those statutory duties is to "reconcile at least monthly the balance of public funds, as disclosed by the records of the local officers, with the balance statements provided by the respective depositories." Ind. Code § 5-13-6-1(e). Moreover, section 2-7 of the Manual states that "[t]he record balance at the end of every month shall be reconciled with the bank balance." Ex. Vol., State's Ex. 11.

[20] Neff was aware of her statutory duty to reconcile the Town's books at the end of each month. Wade's report to Neff and the Town on the 2012 financials noted, "Bank reconciliations were not complete at the time the Annual Report was filed." Ex. Vol., State's Ex. 1, p. 24. During the exit interview, Wade went over the bank reconciliation issue with Neff, and he testified that she "[s]eemed to understand," Tr. Vol. 2, p. 60, what he was saying and what he was showing her. Wade also pointed Neff to the applicable Indiana Code sections and Manual sections to prevent similar errors in the future.

[21] Wade's 2016 report on the Town's financial records for 2013-2015 notes, "The Town's accounting records have not been reconciled to depository balances since December 31, 2012." Ex. Vol, State's Ex. 2 Financial Statements Examination Report, p. 3. When Wade was asked about this during the hearing, the following testimony took place:

[Prosecutor]: The second thing that you note there, that's in bold, is bank account reconciliations?
[Wade]: Right.
[Prosecutor]: That's the same problem that occurred in 2012?
[Wade]: Yes.
[Prosecutor]: And, again, it continued throughout 2013?
[Wade]: Yes.
[Prosecutor]: 2014?
[Wade]: Yes.
[Prosecutor]: 2015[?]
[Wade]: Yes.
[Prosecutor]: Again, same issues as noted in the 2012 exit interview?
[Wade]: Yes.
[Prosecutor]: At the end of 2015, do you know how many continuing or consecutive months the books had not been reconciled?
[Wade]: Thirty-six.
[Prosecutor]: So, 36 consecutive months, the books of Yorktown were not reconciled?
[Wade]: Correct.

Tr. Vol. 2, pp. 65-66. Vinson testified regarding Wade's findings and explained, "Well, we look at the bank reconciliation that the unit is to perform and [Wade] went through all 36 months of the examination period, and the attempt to reconcile never occurred. I mean, the actual reconciling of the records to the bank never occurred through any of those months." Id. at 126. Accountant Donna Vinson also discovered in her examination of the Town's records that bank reconciliations had not been completed for forty-eight consecutive months. Id. at 213-14.

[22] Unlike the councilmen in McRoberts or the trustee in Ayer , Neff's failure to reconcile the Town's books was not an isolated incident explainable as a discretionary function, but rather represented a total omission to perform a required statutory duty for forty-eight straight months. See McRoberts , 192 N.E. at 430. Moreover, distinguished from McRoberts , Neff did not have any potential legitimate reason for neglecting to properly reconcile the Town's financial records on a monthly basis. And distinguished from Ayer , Neff did not have the discretion not to reconcile the Town's financial records with or without reason. Thus, we reject Neff's reading of McRoberts and Ayer and hold that an officeholder like Neff need not abandon each and every statutory duty before removal from office may be warranted.

[23] The trial court here stated in its findings "[t]he State proved beyond a reasonable doubt that Neff failed to reconcile the Town's books for forty-eight consecutive months ." Appellant's App. p. 13 (footnote omitted) (emphasis in original). Importantly, this is not a discretionary duty; rather this is a statutorily required official duty for the clerk-treasurer of a town. See I.C. § 5-13-6-1(e). And a failure to reconcile the Town's financial records for forty-eight straight months is the precise egregious failure to exercise a statutory duty that our supreme court identified in McRoberts and Ayer . The potential effect of Neff's inaction was explained by Donna during the hearing:

[I]n order to meet statutory requirements for expending funds, you have to know how much money you have in the funds. If the fund doesn't have any money, then the statute prohibits more money from being expended. So, if you've got errors that you haven't identified, then you don't really know what's in those funds. And without that, then you can't make decisions about whether or not, the clerk-treasurer's responsibility is not spending money if there's no money there to spend. The town council's responsibility is to make decisions regarding how the town's going to use their money. If they don't know exactly what's there, then they're not making decisions based on good information. The other, the other thing that comes into play is that tax rates are, one of the things that goes into the budgetary process is, what the June 30 balances are for a unit of government for those property tax, or funds that receive property taxes. If you are putting down that June 30 balance and it's not correct because you've got an accumulation of errors, then that's going to affect your tax rate. Either by raising it too much, if you are showing a lower balance than you really have, or reducing it by not, by showing more than you have in the fund.

Tr. Vol. 2, pp. 220-21.

[24] While Neff's actions may not rise to the level of the hypothetical provided by the McRoberts court "where a sheriff closes his office and remains away and refuses and neglects to discharge the duties thereof," 192 N.E. at 430, she neglected to perform a critical, official, and mandatory duty of her office for an extended period of time. Therefore, we hold that Neff's failure, over a period of years, to perform a critical, official and mandatory duty for a clerk-treasurer falls squarely within the confines of Article VI Sections 7 and 8 of the Indiana Constitution and our legislature's response via the Removal Statute.

Neff's Cross-Appeal

[25] Neff also cross-appeals arguing that the trial court erred when it denied her motion to dismiss the State's complaint against her. Appellee's Br. at 23-27; Appellee's Reply Br. at 6-8. We review a trial court's denial to grant or a deny a motion to dismiss for an abuse of discretion. State v. Thakar , 82 N.E.3d 257, 259 (Ind. 2017).

[26] Due to the summary nature of Neff's proceeding, the State here had to meet a higher standard of pleading in its complaint. See Ayer , 106 N.E.2d at 446. The State's complaint specifically alleged several ways in which Neff neglected to perform her duties as clerk-treasurer including: (1) her failure to reconcile monthly the Town's financial accounts for twenty-four months; (2) eight detailed examples of Neff's failure to use and follow the Manual; and (3) five detailed examples of Neff's failure to follow and implement the recommendations of the SBA. See Appellant's App. pp. 25-28; Cf. Ayer , 106 N.E.2d at 442 (the State only alleged a single failure of Ayer's official duties). We agree with the trial court that the State's complaint sufficiently alleged specific facts necessary to fall under the trial court's jurisdiction under Indiana Code section 5-8-1-35(a)(2). See Appellant's App. p. 78. Thus, the trial court did not abuse its discretion when it denied Neff's motion to dismiss.

Conclusion

[27] The Removal Statute does not require a town's clerk-treasurer to refuse or neglect to perform each and every official duty before removal from office is warranted. And based on the facts and circumstances before us, because Neff neglected to properly reconcile the Town's financial records for forty-eight consecutive months, the trial court erred when it determined that her removal was not warranted under the Constitution of Indiana and the Removal Statute. Accordingly, we reverse the trial court's decision not to remove Neff from office, and we remand for proceedings consistent with this opinion. On Neff's cross-appeal, we affirm the trial court's decision to deny Neff's motion to dismiss.

[28] Reversed in part, affirmed in part, and remanded.

Riley, J., and May, J., concur.

      Wade's first name is Curtis, but he testified during the hearing that he preferred to be called Mike. Tr. Vol. 2, p. 49.

      Vinson explained the reason for the three-year gap in audits for Yorktown during the hearing:
      The state board of accounts had lost about a third of its staff over the prior seven or eight years and we just, quite honestly, were not able to get to these audits as quickly as possible. We had the opportunity to pick up all three years and so we came to do the examination for all three years.
      Tr. Vol. 2, p. 115.

      Donna Vinson is Bill Vinson's wife, but there is no allegation of a conflict of interest. Donna explained during the proceedings how her firm was independently hired and that she was assigned to help the Town. See Tr. Vol. 2, pp. 204-05.

      Richard Lee, the Yorktown town council president at the time, testified that the council decided it was not worth thousands of extra dollars for Donna to balance the Town's funds to $0. Tr. Vol. 2, pp. 178-79.

      At the time of the proceedings, Donna had entered into a new open-ended contract with the Town at a per-hour cost to reconcile the books from January 1, 2016, through the date of the hearings. Tr. Vol. 2, pp. 179-80.

      We recognize that the State's complaint alleged Neff's failure for the preceding twenty-four months because of a statute of limitations concern. See I.C. 34-28-5-1(c)(2). However, for the purposes of our discussion, we focus on Neff's failure to reconcile the books as a whole once she was made aware of her error.

      We take this opportunity to agree with the State and hold that due to the quasi-criminal nature of the removal proceedings, the proper standard for a trial court in finding its facts in these situations is for clear and convincing evidence and not beyond a reasonable doubt. See, e.g., Tucker v. Marion County Dept. of Public Welfare , 408 N.E.2d 814 (Ind. Ct. App. 1980) ; see also Matter of Boso , 160 W.Va. 38, 231 S.E.2d 715, 718 (1977) (quotation and citation omitted); State v. Manning , 220 Iowa 525, 259 N.W. 213, 216 (1935) ; McMillen v. Diehl , 128 Ohio St. 212, 190 N.E. 567, 568 (1934). But this had no effect on the outcome of the case before us because the underlying facts are not in dispute, and the trial court still found the higher threshold was met.

      We reject Neff's argument that she did not commit nonfeasance because she was attempting to reconcile the books but consistently made errors. See Appellee's Br. at 17-18. Neff was instructed by Wade and Davis at their exit meeting in 2013 on how to properly perform reconciliations. Despite any attempt, Neff's errors caused the Town's books to not be properly reconciled for a period of forty-eight consecutive months. Neff's duty as clerk-treasurer required her to properly reconcile the books "at least monthly." I.C. 5-13-6-1(e).


source: Caselaw Access Project

author: Riley, Judge.

license: Public Domain

text:
    AMERICAN ACCESS CASUALTY COMPANY, Appellant-Defendant, v. CINCINNATI INSURANCE COMPANY, Appellee-Plaintiff.
    Court of Appeals Case No. 29A02-1712-CT-2792
    Court of Appeals of Indiana.
    FILED May 16, 2018
    Attorneys for Appellant: Ryan O. Farner, Thomas E. Rosta, Metzger Rosta, LLP, Noblesville, Indiana
    Attorneys for Appellee: Richard R. Skiles, Carlo T. Girolamo, Skiles Detrude, Indianapolis, Indiana
   Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Defendant, American Access Casualty Company (American Access), appeals the trial court's denial of its motion for summary judgment on Appellee-Plaintiff's, Cincinnati Insurance Company (Cincinnati Insurance), third party Complaint for declaratory judgment.

[2] We affirm.

ISSUE

[3] American Access presents us with one issue on appeal, which we restate as: Whether the business use exception in American Access' insurance policy bars coverage to Cincinnati Insurance.

FACTS AND PROCEDURAL HISTORY

[4] On August 4, 2013, Roland Hall (Hall), while riding a bicycle along Cumberland Road, was struck by a vehicle driven by Jairiel Berfect (Berfect). The vehicle driven by Berfect was owned by Demelece Stewart (Stewart). At all times relevant to this case, both Berfect and Stewart were insured by American Access under separate insurance policies. At the time of the accident, Berfect was employed part-time by Advantage Home Health Care (Advantage Home) as a home health aid and was scheduled to visit two patients. When the incident occurred, Berfect had concluded one appointment and was on her way to work her shift at a second patient's residence. Advantage Home "does not compensate home health aides for their travel time to patient's [sic] homes" or pay mileage for travel time. (Appellee's App. Vol. II, p. 30). "Home health aide employees are paid only for on premise services performed at a patient's residence." (Appellee's App. Vol. II, p. 30). Advantage Home is insured by Cincinnati Insurance.

[5] Hall filed a complaint against Berfect and Advantage Home, alleging damages resulting from the collision. On February 6, 2016, Advantage Home tendered its request to American Access to provide a defense to Advantage Home in the cause against Hall. American Access did not respond to the tender request. On October 18, 2016, in an effort to determine several coverage issues, Cincinnati Insurance, as Advantage Home's insurer, filed a third party Complaint for declaratory judgment, seeking a judgment as to American Access' defense and indemnity obligations to Advantage Home and the priority of coverage as to the respective Berfect and Stewart policies and Cincinnati's insurance policy, and asserting, in part, that American Access had a duty to defend Advantage Home as "Advantage [Home] is an insured under the Berfect Policy[.]" (Appellant's App. Vol. II, p. 32).

[6] On January 27, 2017, Cincinnati Insurance filed a motion for summary judgment with respect to the coverage issues. The trial court granted the motion in the third party action and concluded that: (1) the American Access policy issued to Stewart provided primary coverage for Berfect and Advantage Home; (2) Berfect and Advantage Home were insureds under the American Access policy issued to Berfect; (3) as an insured under both the Stewart policy and the Berfect policy, American Access owed Advantage Home a defense of the claims brought by Hall; and (4) Berfect is not an insured under the Cincinnati Insurance policy issued to Advantage Home.

[7] On May 2, 2017, American Access filed its motion for summary judgment, together with a memorandum of law, and designation of evidence, contending that American Access owed no duty to provide coverage as the policy excludes coverage "if the insured vehicle in question is being used for business purposes." (Appellee's App. Vol. II, p. 3). On September 7, 2017, Cincinnati Insurance filed its response in opposition, memorandum of law, and designation of evidence. On October 30, 2017, after a hearing, the trial court issued its Order, denying American Access' motion for summary judgment. The trial court concluded, in pertinent part:

The American Access policy contains an exclusion from coverage if the insured vehicle was being used for business use at the time of a crash. The provision in question is as follows:
"This policy does not apply to and does not provide coverage under Part A-'Bodily Injury Liability and Property Damage Liability' Coverage for: ... (b) any automobile while used in the delivery, or any activity associated with delivery, of food, mail, newspapers, magazines, or packages for an employer or business or in any trade or business.
* * * * The [c]ourt finds the interpretation that harmonizes the terms of this exclusion is that the exclusion applies when the automobile is being used in delivery situations for a business. At the time of the accident, Berfect was not delivering anything in particular to her next customer. She was not using the vehicle for the delivery of food, mail, newspapers, magazines or packages. These are activities for which coverage would absolutely be excluded. Berfect was using the vehicle to travel between work locations for the benefit of her employer and herself. This fact is not disputed by the parties.
Further, the [c]ourt must also harmonize the final clause of the provision. In so doing, this [c]ourt interprets the final clause of the provision to be a reference back to the delivery of goods. Namely, the section that states "an employer or business or in any trade or business" references back to the delivery element of the provision, for which nothing was being physically delivered by Berfect to the subsequent location she was reporting to for work. Berfect was not being paid during her interim period between job assignments nor was she delivering goods.
This [c]ourt is not holding that American Access cannot have a business-use exception in a policy, just that such exception needs to be set forth more clearly and not be ambiguous.

(Appellant's App. Vol. II, pp. 23-25).

[8] American Access now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

I. Standard of Review

[9] In reviewing a trial court's ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley , 891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied . Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in the light most favorable to the non-moving party. Id. at 608. A fact is 'material' for summary judgment purposes if it helps to prove or disprove an essential element of the plaintiff's cause of action; a factual issue is 'genuine' if the trier of fact is required to resolve an opposing party's different version of the underlying facts. Ind. Farmers Mut. Ins. Group v. Blaskie , 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant of summary judgment has the burden of persuading this court that the trial court's ruling was improper. First Farmers Bank & Trust Co. , 891 N.E.2d at 607. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiff's cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiff's claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.

[10] We observe that, in the present case, the trial court entered findings of fact and conclusions of law in support of its judgment. Special findings are not required in summary judgment proceedings and are not binding on appeal. AutoXchange.com, Inc. v. Dreyer and Reinbold, Inc. , 816 N.E.2d 40, 48 (Ind. Ct. App. 2004). However, such findings offer this court valuable insight into the trial court's rationale for its review and facilitate appellate review. Id.

II. Designated Evidence

[11] Prior to turning to the merits of this case, we need to address a contention between both parties with respect to the evidence necessary to be included in the Appellant's Appendix. Contending that the sole issue before this court is the interpretation of the policy's exclusion clause and concerned about "overwhelming the Court of Appeals with extra items that are completely unnecessary to resolution of the issue," American Access provided in its Appendix only the chronological case summary, the trial court's Order, the third party Complaint, and American Access' insurance policy. (Appellant's Reply Br. p. 8). American Access maintains that no other evidence is necessary to decide the issue and therefore all other submissions are irrelevant. However, should other evidence be required, American Access maintains that "Cincinnati [Insurance] included all such material in their appendix." (Appellant's Reply Br. p. 10).

[12] The purpose of the appendix in civil appeals it to provide us "only those parts of the record on appeal that are necessary for the Court to decide the issues presented." Ind. Appellate Rule 50(A)(1). "The appellant's Appendix shall contain ... copies of the following documents ... (f) pleadings and other documents from the Clerk's Record in chronological order that are necessary for resolution of the issues raised on appeal." App. R. 50(A)(2)(f). When reviewing the grant of a motion for summary judgment, we may consider only those portions of the pleadings, depositions, and any other matter specifically designated to the trial court for purposes of the motion for summary judgment. SLR Plumbing & Sewer, Inc. v. Turk , 757 N.E.2d 193, 198 (Ind. Ct. App. 2001). Thus, when appealing the grant or denial of a motion for summary judgment, it is incumbent on the appellant to include "within their appellant's appendix all documents relating to the disposition of the motion for summary judgment, including any documents that [appellee] designated and filed with the trial court." Kelly v. Levandoski , 825 N.E.2d 850, 856 (Ind. Ct. App. 2005), trans. denied . In other words, American Access' Appendix falls woefully short as it omits the motion for summary judgment, the response thereto, the parties' respective memoranda, and the designated evidence. Even though Cincinnati Insurance submitted an Appellee's Appendix, which was complete and contained all designated materials necessary for this court's review, we caution American Access that it is the Appellant's obligation to present an adequate record on appeal to permit a fair and intelligent review of the issue before us. See Rausch v. Reinhold , 716 N.E.2d 993, 1002 (Ind. Ct. App. 1999), trans. denied .

III. Exclusion of Coverage

[13] Turning to the merits of American Access' argument, the insurance company contends that although Cincinnati Insurance is recognized as an insured under its policy, coverage is nevertheless precluded due to the business use exclusion. Insurance policies are governed by the same rules of construction as other contracts. Briles v. Wausau Ins. Companies , 858 N.E.2d 208, 213 (Ind. Ct. App. 2006). As with other contracts, the interpretation of an insurance policy is a question of law. Id. When interpreting an insurance policy, our goal is to ascertain and enforce the parties' intent as manifested in the insurance contract. Id. We construe the insurance policy as a whole and consider all of the provisions of the contract and not just the individual words, phrases or paragraphs. Id. If the language is clear and unambiguous, we give the language its plain and ordinary meaning. Id. An ambiguity exists where a provision is susceptible to more than one interpretation and reasonable persons would differ as to its meaning. Id. However, an ambiguity does not exist merely because the parties proffer differing interpretations of the policy language. Id. We must accept an interpretation of the contract language that harmonizes the provisions, rather than one that supports conflicting versions of the provisions. Id. Additionally, the power to interpret contracts does not extend to changing their terms and we will not give insurance policies an unreasonable construction to provide additional coverage. Id.

[14] In the case at bar, the insurance policy excludes from coverage:

Any automobile while used in the delivery, or any activity associated with delivery, of food, mail, newspapers, magazines, or packages for an employer or business or in any trade or business[.]

(Appellant's App. Vol. II, p. 41). Focusing on the language of the business use exclusion, American Access contends that "[t]he first few clauses of the exclusion are meant to identify specific instances the exclusion is meant to cover (i.e. delivery of food, mail, etc.) and then the last clause is meant as a catch all to cover all other non-listed trade or business activities (i.e. or in any trade or business)." (Appellant's Br. p. 7). Claiming that Berfect was using the vehicle for business at the time of the collision, American Access maintains that it can deny coverage. Like the trial court, we are not persuaded.

[15] If the exclusion, as American Access claims, bars coverage every time a vehicle is being used for business purposes, it logically includes the situation when the vehicle is being used for delivery for a business. Such interpretation would render the beginning of the exclusion superfluous and meaningless. Rather, in order to harmonize all the terms of the exclusion, we find that the final clause "any trade or business"-especially in the absence of a comma-references back to the initial part of the clause, "delivery, or any activity associated with delivery[.]" (Appellant's App. Vol. II, p. 41). As such, no coverage is offered when the vehicle is used in the delivery of items for an employer or business or in a trade or business-with 'business' qualifying 'employer' and 'trade.'

[16] Here, it is undisputed that Berfect was not delivering anything. At the time of the accident, she was driving from one patient to the next. Moreover, even if we were to interpret the exclusion as encouraged by American Access, the business use exclusion would still not bar coverage. Pursuant to her employment with Advantage Home, Berfect's traveling expenses are not reimbursed; instead, she is paid only for on-premises services performed at a patient's residence. Thus, her time and expense to drive from one patient to the next are not within her employment remuneration. Accordingly, in the situation before us, the business use exclusion of American Access' policy has no application. "It is well settled law that a condition or exclusion in an insurance policy must clearly and unmistakably bring within its scope the particular act or omission that will bring the condition or exclusion into play in order to be effective, and coverage will not be excluded or destroyed by an exclusion or condition unless such clarity exists." Asbury v. Indiana Union Mut. Ins. Co. , 441 N.E.2d 232, 241 (Ind. Ct. App. 1982). Therefore, we affirm the trial court's denial of American Access' motion for summary judgment.

CONCLUSION

[17] Based on the foregoing, we conclude that the business use exception in American Access' insurance policy is ambiguous and does not bar coverage to Cincinnati Insurance.

[18] Affirmed.

[19] May, J. and Mathias, J. concur

      The claims between Hall and Berfect were settled on April 18, 2017, and are not part of this appeal.

      An unpublished memorandum decision by the Appellate Court of Illinois in American Access Cas. Co. v. Rodriguez , 2014 WL 527307 (Ill Ct. App., Febr. 6, 2014), analyzed the same exclusion under nearly identical circumstances and rejected the same argument made by American Access in the instant case. Rodriguez was driving her personal vehicle from one meeting for her employer to another meeting when she struck a pedestrian. In affirming the trial court's conclusion that the exclusion was ambiguous, the Appellate Court of Illinois addressed the ambiguity in the exclusion as follows:
      At first glance, it appears the policy exclusion at issue here only encompasses a delivery-use exclusion to coverage, as each separate exclusion appears to be separated by subparagraphs and not combined within subparagraphs. However, a closer look at the language of subsection (b) reveals that it is unclear whether the phrase "or in any trade or business" is intended to be separate from the rest of the delivery-use exclusion encompassed in subsection (b), thereby acting as a broad business-use exclusion, or whether the "or in any trade or business" phrase modifies the language in subsection (b) to include exclusions on deliveries in "any trade or business." As such, we find that the language if the exclusion in subsection (B) of the [American Access] policy is susceptible to more than one reasonable interpretation and, therefore, is ambiguous.
      Id. at *3.


author: Sharpnack, Senior Judge

text:
    Lillian PARSLEY, as the Guardian, Grandparent, and Next Friend of Robert Parsley, Deceased, Appellant-Plaintiff, v. MGA FAMILY GROUP, INC., H Properties LLP, Mark Snedeker, and Video Tech/Direct Maytag HAC, Appellees-Defendants.
    Court of Appeals Case No. 19A01-1707-CT-1535
    Court of Appeals of Indiana.
    FILED May 16, 2018 Rehearing denied July 13, 2018
    Attorney for Appellant: Timothy F. Devereux, Ladendorf Law Indianapolis, Indiana
    Attorneys for Appellees: Thomas J. Jarzyniecki, Jr., Susan R. Shan, Kightlinger & Gray, LLP, Indianapolis, Indiana, Crystal G. Rowe, Kightlinger & Gray, LLP, New Albany, Indiana, Attorneys for MGA Family Group, Inc., and H Properties LLP
   Sharpnack, Senior Judge

Statement of the Case

[1] After a fire took the lives of Lillian Parsley's daughter and grandson, she sought wrongful death damages. She brings this interlocutory appeal from the trial court's order that granted MGA Family Group, Inc., H Properties LLP, and Mark Snedeker's (collectively, "the Defendants") motion to dismiss the wrongful death action that Lillian initiated as to her grandson. We affirm.

Issue

[2] The issue Lillian presents for our review (consolidated and restated) is whether the trial court erred in granting the Defendants' motion to dismiss her wrongful death action as to her grandson.

Facts and Procedural History

[3] Linsey Parsley had given birth to her son, Robert, while she was a sophomore in high school. On November 26, 2014, Linsey, then twenty years old, and her three-year-old son Robert were living in a Jasper, Indiana apartment with Alex Snedeker. On that day, Linsey, Robert, and Alex died as the result of an apartment fire. Following the deaths, Linsey's mother, Lillian was appointed personal representative of Linsey's estate.

[4] On October 21, 2016, Lillian brought an action against the Defendants to recover damages for Linsey's death, under the Indiana Adult Wrongful Death Statute, and for Robert's death under the Child Wrongful Death Statute (CWDS). Lillian brought the wrongful death claim as to Robert as his "Guardian, Grandparent and Next Friend." Appellant's App. Vol. II, p. 17.

[5] On December 14, 2016, the Defendants filed an Indiana Trial Rule 12(B)(6) motion to dismiss, claiming Lillian's complaint failed to state a claim upon which relief could be granted. The motion alleged specifically that she lacked standing to pursue a claim for Robert under the CWDS because she was neither Robert's parent nor guardian at the time of his death. Lillian filed a response that included supplemental material. Following a hearing, the trial court dismissed Lillian's wrongful death claim as to Robert.

[6] Lillian filed a motion to reconsider, and the trial court denied her motion. Upon Lillian's request, the trial court certified the order for interlocutory appeal, and Lillian then sought leave to pursue a discretionary interlocutory appeal of the trial court's order. We granted her motion, and this appeal ensued.

Discussion and Decision

Motion to Strike

[7] Initially, we must address MGA Family Group and H. Properties' motion to strike portions of Lillian's brief and appendix and portions of Appellee Mark Snedeker's appendix. MGA Family Group and H. Properties allege that the brief and appendices contain or refer to materials that are not part of the record for the motion to dismiss, i.e., an order from an unrelated case, pleadings that pertain to a separate motion filed by MGA Family Group and H.

Properties for judgment on the pleadings, a Marion County Superior Court decision from an unrelated case, a deposition, "Pew Research" statistics, a lease agreement, and an affidavit. By separate order issued contemporaneously with this opinion, we grant MGA Family Group and H. Properties' motion to strike.

Standard of Review

[8] A motion to dismiss for failure to state a claim tests the legal sufficiency of the claim, not the facts supporting it. Babes Showclub, Jaba, Inc. v. Lair , 918 N.E.2d 308, 310 (Ind. 2009). Review of a trial court's grant or denial of a motion based on a Trial Rule 12(B)(6) motion to dismiss is therefore de novo. Id. When reviewing a motion to dismiss, we view the pleadings in the light most favorable to the nonmoving party, with every reasonable inference construed in the nonmovant's favor. Id. In ruling on such a motion to dismiss, a court is required to take as true all allegations upon the face of the complaint and may only dismiss if the plaintiff would not be entitled to recover under any set of facts admissible under the allegations of the complaint. Meyers v. Meyers , 861 N.E.2d 704, 705 (Ind. 2007). In determining whether any facts will support the claim, we look only to the complaint and may not resort to any other evidence in the record. Burke v. Town of Schererville , 739 N.E.2d 1086, 1091 (Ind. Ct. App. 2000), trans. denied .

Dismissal of Wrongful Death Complaint

[9] At common law, a cause of action was extinguished by the death of the plaintiff. Durham ex rel. Estate of Wade v. U-Haul Int'l , 745 N.E.2d 755, 758 (Ind. 2001). Because the victim was viewed as the only person wronged by a negligent killing, even a defendant whose negligence caused the plaintiff's death was insulated from liability. Id. This inequity gave rise to wrongful death statutes, first in England and soon thereafter in every United States jurisdiction. Id. An action for wrongful death is therefore purely statutory and is strictly construed. Id. at 759.

[10] Our General Assembly has enacted a statute that provides an action for the wrongful death of a child and specifies who may maintain such an action as follows:

(c) An action may be maintained under this section against the person whose wrongful act or omission caused the injury or death of a child. The action may be maintained by:
(1) the father and mother jointly, or either of them by naming the other parent as a codefendant to answer as to his or her interest;
(2) in case of divorce or dissolution of marriage, the person to whom custody of the child was awarded; and
(3) a guardian, for the injury or death of a protected person.
(d) In case of death of the person to whom custody of a child was awarded, a personal representative shall be appointed to maintain the action for the injury or death of the child.
(e) In an action brought by a guardian for an injury to a protected person, the damages inure to the benefit of the protected person.

Ind. Code § 34-23-2-1. The only provision under which Lillian could maintain an action is (c)(3) as "a guardian, for the injury or death of a protected person." Id.

[11] Lillian argues she has standing to bring an action under the CWDS because at the time of Robert's death, she was Robert's " 'de facto custodian' " and "qualifie[d]" as his guardian, as contemplated by the CWDS, as she was "the person who provided all of the financial, housing, clothing and other physical needs of [Robert]." Appellant's Br. pp. 9, 16. Lillian contends that the trial court erred in dismissing her claim because it misinterpreted the meaning of the term "guardian." According to Lillian, the trial court interpreted the term in an overly narrow manner when it concluded that the term meant only a legal guardian or court-appointed guardian. Per Lillian, the court's interpretation is inconsistent with our General Assembly's intent to give phrases their plain and ordinary meaning, and that if the term is given its plain and ordinary meaning, she would qualify as Robert's guardian and have standing to bring her claim. She also argues the trial court's decision is contrary to Indiana's public policy and "results in an unjustly harsh outcome not intended by the Indiana Legislature." Id. at 10.

[12] The Defendants assert that the trial court properly dismissed Lillian's claim, "as [her claim] does not set forth the operative facts necessary to support her alleged 'guardian' status." Appellee's Br. p. 13. According to the Defendants, to qualify as a guardian, one must be appointed as such by the court. The Defendants contend that Lillian's interpretation of what constitutes a guardian under the CWDS improperly invites this court to expand the scope of meaning of the term, and that Lillian's claims that she qualifies as a "de facto" guardian under the CWDS fail.

[13] The interpretation of a statute is not a question of fact but one of law reserved for the courts. Robinson v. Zeedyk, 625 N.E.2d 1249, 1251 (Ind. Ct. App. 1993), trans. denied. If a statute is unambiguous, that is, susceptible to but one meaning, we must give the statute its clear and plain meaning. See Elmer Buchta Trucking, Inc. v. Stanley , 744 N.E.2d 939, 942 (Ind. 2001). If a statute is susceptible to multiple interpretations, however, we must try to ascertain the legislature's intent and interpret the statute so as to effectuate that intent. Id. We presume the legislature intended logical application of the language used in the statute, so as to avoid unjust or absurd results. Sales v. State , 723 N.E.2d 416, 420 (Ind. 2000).

[14] In construing a particular statute, related statutes are in pari materia and should also be considered to effectuate legislative intent. " 'Where statutes address the same subject, they are in pari materia, and we harmonize them if possible.' " Hall Drive Ins., Inc. v. City of Fort Wayne , 773 N.E.2d 255, 257 (Ind. 2002) (citation omitted).

[15] "When interpreting the words of a single section of a statute, this court must construe them with due regard for all other sections of the act and with regard for the legislative intent to carry out the spirit and purpose of the act." State v. CSX Transp., Inc. , 673 N.E.2d 517, 519 (Ind. Ct. App. 1996). There is a presumption that the legislature intended its language to be applied in a logical manner consistent with the statute's underlying policy and goals. Id.

[16] We give undefined words in statutes their plain, ordinary, and usual meaning. 600 Land, Inc. v. Metro. Bd. of Zoning Appeals of Marion Cty. , 889 N.E.2d 305, 309 (Ind. 2008) ; Ind. Code § 1-1-4-1(1) (1991). Courts may consult English language dictionaries to ascertain the plain and ordinary meaning of a statutory term.

State Bd. of Accounts v. Ind. Univ. Found. , 647 N.E.2d 342, 347 (Ind. Ct. App. 1995), trans. denied . The legislative definition of certain words in one statute, while not conclusive, is entitled to consideration in construing the same words in another statute. Id. at 347-48.

[17] Lillian cannot maintain an action under the CWDS unless she qualifies as Robert's guardian. See I.C. § 34-23-2-1. As such, at issue in this case is the meaning of the term "guardian" as used in the CWDS, which necessitates a determination of the statutory meaning of the term "guardian" to resolve the following: whether someone like Lillian, who without court intervention provides care and financial support to another, comes within the statutory definition of the term.

[18] The term "guardian" is not defined in title 34, article 23 of the Indiana Code; however, the term is defined in other parts of the code. In Title 29, Article 3 ("Guardianships and Protective Proceedings"), section 29-3-1-6 (1989) defines "guardian" as follows:

"Guardian" means a person who is a fiduciary and is appointed by a court to be a guardian or conservator responsible as the court may direct for the person or the property of an incapacitated person or a minor. The term includes a temporary guardian, a limited guardian, and a successor guardian but excludes one who is only a guardian ad litem. The terms guardian and conservator are interchangeable.

(Emphasis added.) Under title 31 (addressing family and juvenile law), article 9 defines "guardian" as follows: "for purposes of the juvenile law, means a person appointed by a court to have the care and custody of a child or the child's estate, or both." Ind. Code § 31-9-2-49 (2014) (emphasis added).

[19] The dictionary definitions of this term are similar to the statutory definitions. The American Heritage College Dictionary defines "guardian" as "1. One that guards, watches over, or protects. 2. Law. One who is legally responsible for the care and management of the person or property of an incompetent or a minor." 603 (3rd ed. 2000) (emphasis added). Black's Law Dictionary defines the term as "[s]omeone who has the legal authority and duty to care for another's person or property, esp. because of the other's infancy, incapacity, or disability." 822 (10th ed. 2014) (emphasis added).

[20] There is a common theme in the dictionary definitions and the statutory definitions, i.e., they consistently contemplate a relationship between two people with one person having the authority or responsibility to care for the other. In addition, the statutory and legal definitions of the term "guardian" anticipate the involvement of the court in appointing a person to that capacity. Also, the phrase "protected person" used in Indiana Code section 34-23-2-1(c)(3) is defined in Indiana Code section 29-3-1-13 (1989) as "an individual for whom a guardian has been appointed or with respect to whom a protective order has been issued."

[21] Examining the statutes that define the term "guardian" and "protected person" and applying those definitions to the CWDS, it is apparent that our General Assembly intended a guardian to be someone appointed by the court to be responsible for the care of a particular person or that person's property. Lillian was never appointed by a court to be Robert's guardian. Although it is clear Lillian has sustained a loss in the death of her grandson, she simply does not meet the statutory requirement to maintain an action. It is not for us to rewrite or amend the statute. As such, she does not fall within the meaning of "guardian" as contemplated by the CWDS, and she is not entitled to maintain an action under the CWDS as Robert's guardian.

[22] Lillian further asserts that the trial court's interpretation of the term "guardian" in the CWDS, i.e., allowing for only those individuals appointed guardians by a court, is contrary to public policy. According to Lillian:

Societal changes and the evolution of family and home structures have created situations, like here, where someone other than the parent is the person supporting the child in virtually every way. Despite providing for all of a child's financial and physical needs, such a narrow interpretation of the CWDS adopted by the Trial Court, denies those persons providing that full support of the child any interest in litigation when that child wrongfully dies.
*****
In a society where six percent (6%) of children live in a household maintained by grandparents, an overly narrow definition of guardian within the CWDS has the ability to affect family relationships by restricting rights from those who take on all the responsibility of a guardian and receive no benefit of that guardianship in the event of the child's wrongful death absent an official court-issued order declaring them as a "legal" guardian.

Appellant's Br. pp. 17-18.

[23] While we may review the power of our General Assembly to act, we must not evaluate the policies adopted by it. Kaser v. Barker , 811 N.E.2d 930, 932 (Ind. Ct. App. 2004), trans. denied . "The right and responsibility to determine these public policies, and to adopt, improve, refine, and perfect legislation directed thereto, falls to the legislature, not the courts." Id. at 932-33. Our role is to construe and apply enactments so as to carry out legislative intent. Id. at 933.

Conclusion

[24] Because Lillian was not Robert's guardian as contemplated by the CWDS, she lacked standing to bring her wrongful death claim. The trial court did not err in granting the Defendants' motion to dismiss. We affirm the decision of the trial court.

[25] Affirmed.

Barnes, J., and Brown, J., concur.

      Ind. Code § 34-23-2-1 (2009).

      Lillian supplemented her response to the Defendants' Indiana Trial Rule 12(B)(6) motion to dismiss with an affidavit and her tax returns. Per Dixon v. Siwy , 661 N.E.2d 600, 603 (Ind. Ct. App. 1996) :
      [W]hen examination of the face of a complaint alone reveals that the plaintiff will not be entitled to relief under any set of circumstances, consideration of external materials aimed at substantiating or contradicting the complaint's factual allegations is irrelevant, because a fortiori the complaint fails to state a claim upon which relief can be granted under any factual scenario. In that instance, the trial court should exclude material outside the pleadings which are submitted with a 12(B)(6) motion, rather than convert the motion into one for summary judgment, because the external materials are irrelevant to the motion.
      Although the trial court did not expressly exclude Lillian's supplemental material, there is no evidence that the trial court considered the material in making its determination to grant the Defendants' motion to dismiss. See, e.g., Trail v. Boys and Girls Clubs of Nw. Ind., 845 N.E.2d 130, 134, 140 (Ind. 2006) (affirming the trial court's grant of a motion to dismiss under Rule 12(B)(6) even after the parties "filed several affidavits, exhibits, and briefs").

      Since the filing of the motion to strike, the parties to this appeal agreed to a dismissal with prejudice of the underlying action as to Mark Snedeker only. By separate order, this court dismissed Snedeker's appeal with prejudice on January 4, 2018.

      Indiana Code section 34-6-2-121.4 (2002) defines "protected person" as "a petitioner or a family or household member of the petitioner who is protected by the terms of a civil protective order issued under IC 34-26-5." However, we believe the definition provided in Indiana Code section 29-3-1-13 is the appropriate definition to apply under the circumstances of this case.


author: Najam, Judge.

text:
    Anthony Wayne REED, Appellant-Plaintiff, v. Leann WHITE and Darrin Chaney, Appellees-Defendants.
    Court of Appeals Case No. 67A01-1708-MI-1768
    Court of Appeals of Indiana.
    FILED May 18, 2018
    Appellant Pro Se: Anthony W. Reed, Greencastle, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Abigail R. Recker, Deputy Attorney General, Indianapolis, Indiana
   Najam, Judge.

Statement of the Case

[1] Anthony Wayne Reed appeals the trial court's order dismissing his complaint against Leann White and Darrin Chaney. Reed presents a single issue for our review, namely, whether the trial court erred when it dismissed his complaint for a failure to state a claim upon which relief can be granted. We reverse and remand for further proceedings.

Facts and Procedural History

[2] On December 11, 2015, Reed, who was then incarcerated at the Putnamville Correctional Facility ("PCF"), mailed four handmade crosses to family members.

However, on December 30, two envelopes containing three of the crosses were returned to PCF for insufficient postage. Reed was notified of the problem, but the crosses were not returned to him, and he was not able to resend them to his family members. Reed later learned that White, who worked in the PCF mail room, had confiscated the crosses. White, in turn, gave the crosses to Chaney, an internal affairs officer for the PCF Security Threat Group ("STG").

[3] After Reed filed an informal grievance with PCF on January 20, 2016, he was informed that "STG policy 02-03-105 prohibits the possession, making or display of any handmade jewelry (rings, necklaces and bracelets) by [the] offender population as these items can be used to show STG [sic] affiliation by utilizing color and symbols." Appellant's App. at 13. Reed responded by stating that the colors used in making the crosses were "not in any way connected with any (known) Gang-memberships." Id. at 15. Reed then filed with the Indiana Department of Correction ("IDOC") a Grievance Appeal, which was denied.

[4] On June 13, Reed filed a tort claim notice with IDOC, and on October 26, Reed filed a complaint against White and Chaney with the trial court. In his complaint, Reed alleged that the reason given for White's confiscation of the crosses was invalid, White did not follow IDOC policies governing the seizure of items in the mail, and White and Chaney committed "criminal conversion" when they took the crosses. Id. at 20. The trial court dismissed Reed's complaint, stating that he had failed to state a claim upon which relief can be granted, "as the Defendants were following IDOC policies and procedures." Appellant's Br. at 12. This appeal ensued.

Discussion and Decision

[5] Indiana Code Section 34-58-1-2 provides that a trial court shall screen complaints filed by an offender to "determine if the claim may proceed." A claim may not proceed if the court determines that the claim is not a claim upon which relief may be granted. Id. We review de novo a trial court's dismissal of an offender's complaint under this statute. Guillen v. R.D.C. Mail Clerk , 922 N.E.2d 121, 122 (Ind. Ct. App. 2010). Like the trial court, we look only to the well-pleaded facts contained in the complaint. Id. The statute is akin to a legislative interpretation of Indiana Trial Rule 12(B)(6), a rule which has given judges in civil cases the authority "to consider a case in its early stages and, taking everything the plaintiff has alleged as true, determine whether it can proceed." Id. at 122-23 (quoting Peterson v. Lambert , 885 N.E.2d 719, 720 (Ind. Ct. App. 2008) ).

[6] Indiana Code Chapter 34-13-3 governs tort claims against governmental entities and employees. As relevant here, Indiana Code Section 34-13-3-5(c) provides as follows:

A lawsuit filed against an employee personally must allege that an act or omission of the employee that causes a loss is:
(1) criminal;
(2) clearly outside the scope of the employee's employment;
(3) malicious;
(4) willful and wanton; or
(5) calculated to benefit the employee personally.
The complaint must contain a reasonable factual basis supporting the allegations....

[7] Here, in his thirty-two-paragraph complaint, Reed alleged that White and Chaney had no valid reason to confiscate the paper crosses, that they did not follow IDOC policies regarding confiscation of personal property, and that their conduct constituted criminal conversion. In particular, Reed stated that, "for both defendants to [have] seized [Reed's] property items (his three Crosses) without following any of the set, [sic] IDOC policies (and/or Indiana I.C. Codes) set in place to protect against such seizure, amount[s] to the charge of: 'Criminal Conversion.' " Appellant's App. at 13. On its face, Reed's complaint satisfies Indiana Code Section 34-13-3-5(c).

[8] However, in its appellee's brief, the State, on behalf of White and Chaney, maintains that the trial court properly dismissed Reed's complaint because he "failed to provide a 'reasonable factual basis' to support his allegations." Appellee's Br. at 12. In particular, the State contends that, "as a matter of law, governmental employees may not be named for conduct that occurred within the scope of their employment." Id. at 10. And, the State avers that,

[t]aking Reed's facts as true, it appears that White and Chaney were following IDOC policies and procedures when they confiscated the paper crosses. According to the grievance response, the crosses were confiscated in violation of STG policy.... White and Chaney confiscated the property in furtherance of their job duties to protect the security of the facility. Their alleged failure to provide Reed with a notice of confiscation form does not amount to criminal conversion or "illegal seizure." Because Reed failed to support this claim with sufficient facts, he cannot now sue them individually.

Id. at 13.

[9] We cannot agree with the State for two reasons. First, the State is correct that a government employee is immune from liability if the alleged conduct occurred within the scope of his employment. But the assertion of immunity is an affirmative defense, and dismissal for failure to state a claim upon which relief can be granted is "rarely appropriate when the asserted ground for dismissal is an affirmative defense." Bellwether Prop., LLC v. Duke Energy Ind., Inc. , 87 N.E.3d 462, 464 (Ind. 2017). Here, if Reed had alleged in his complaint that White and Chaney were acting within the scope of their employment, dismissal under Indiana Code Section 34-58-1-2(a)(2) would have been appropriate. See Bushong v. Williamson , 790 N.E.2d 467, 472 n.4 (Ind. 2003). But Reed makes no such allegation. Accordingly, looking only at the face of Reed's complaint, there is no basis to dismiss the complaint because of White's and Chaney's possible immunity defenses.

[10] Second, taking the facts stated in Reed's complaint as true, as we must, there was no basis in any IDOC policy for White and Chaney to have confiscated the crosses. To the contrary, Reed alleges that the crosses did not violate the STG policy, and he maintains that White and Chaney's reliance on that stated policy was merely a "pretense" to obscure their alleged theft of Reed's personal property. Appellant's App. at 12. Reed's allegations may prove incorrect at a fact-finding hearing, but they state a claim.

[11] In sum, taking as true all allegations upon the face of Reed's complaint, we hold that the trial court erred when it dismissed the complaint for failure to state a claim upon which relief can be granted. The complaint is sufficient under Indiana Code Section 34-13-3-5(c) to require White and Chaney to respond thereto. See Guillen , 922 N.E.2d at 123 (reversing dismissal of offender's complaint alleging prison officials negligently or deliberately violated both the Indiana Constitution and prison mail rules).

[12] Reversed and remanded for further proceedings.

Robb, J., and Altice, J., concur.

      The crosses had been constructed with paper and glue.

      In May 2017, the trial court dismissed Reed's complaint for failure to state a claim upon which relief may be granted, and Reed appealed. By order dated July 5, we dismissed that appeal, but remanded to the trial court with instructions to docket the complaint, which the court had not done, and to otherwise comply with Indiana Code Section 34-58-1-3 in the event the court dismissed the complaint. On remand, the trial court complied with our instructions, dismissed the complaint by order dated July 21, and this appeal ensued.

      We note that Trial Rule 12(B)(6) refers to claims upon which relief can be granted, but the statute refers to claims upon which relief may be granted. For ease of discussion, we use "can" and "may" interchangeably.


author: Bradford, Judge.

text:
    Michael A. MULLETT and Patricia N. March, Appellants-Intervenors, v. DUKE ENERGY INDIANA, LLC, Nucor Steel-Indiana, Indiana Office of Utility Consumer Counselor, Appellees (Applicant/Petitioner, Intervenor, Statutory Party).
    Court of Appeals Case No. 93A02-1710-EX-2468
    Court of Appeals of Indiana.
    Filed May 21, 2018 Rehearing denied August 2, 2018
    Attorney for Appellants: Russell Ellis, Indianapolis, Indiana
    Attorneys for Appellees: Robert L. Hartley, Maggie L. Smith, Frost Brown Todd LLC, Indianapolis, Indiana
   Bradford, Judge.

Case Summary

[1] Appellee Duke Energy Indiana, LLC ("Duke") and Benton County Wind Farm (the "Wind Farm") entered into a contract under which Duke agreed to buy power from the Wind Farm. In 2013, a dispute arose after Duke failed to buy energy from the Wind Farm. The Wind Farm filed suit claiming that Duke owed it money for lost production under the parties' contract. The parties eventually settled and Duke went to the Indiana Utility Regulatory Commission (the "Commission") seeking to recover its costs from ratepayers. Appellants Michael A. Mullett and Patricia N. March (the "Appellants") intervened in the proceeding and objected to Duke's request. After a hearing on the matter, the Commission approved Duke's request to recover the costs from its ratepayers over a twelve-month period.

[2] Appellants now appeal arguing that the Commission's order is contrary to law because the damages are "liquidated" and "hypothetical" and it amounts to impermissible retroactive ratemaking. Finding that substantial evidence supports the Commission's order and no other error, we affirm.

Facts and Procedural History

[3] In 2006, Duke and the Wind Farm entered into a Renewable Wind Energy Power Purchase Agreement ("PPA") in which Duke agreed to purchase a portion of the energy generated by the Wind Farm. After purchasing the energy from the Wind Farm, Duke would immediately sell it into the Midcontinent Independent System Operator ("MISO") wholesale energy market. The Indiana Utility Regulatory Commission ("the Commission") approved the PPA in its entirety in 2006, concluding that "the terms of the Wind [PPA were] reasonable." Duke App. Vol. II, p. 17.

[4] The Commission also recognized that Duke would be incurring significant costs in connection with the PPA. Consequently, in order to further the Commission's policy of encouraging the development of renewable resources, the Commission authorized Duke to recover all of its PPA costs from ratepayers for the entire twenty-year term:

[T]he Commission finds that Duke Energy Indiana should be authorized to recover the Wind [PPA] costs provided for in the contract for the full 20 year term of that contract[.]

Duke App. Vol. II, p. 19.

[5] Following changes to certain rules and regulations in 2013, a dispute arose regarding the extent of Duke's contractual obligations to the Wind Farm. Duke believed that based upon the parties' contract, it was only required to accept and pay for energy that the Wind Farm generated and delivered to Duke. The Wind Farm, however, interpreted the contract to mean that Duke had to pay for lost production in addition to the power it delivered to Duke.

[6] The Wind Farm sued Duke in federal court to resolve the disputed contract interpretation. The federal district court agreed with Duke's interpretation and granted Duke's motion for summary judgement in 2015. The Wind Farm appealed to the Seventh Circuit, which agreed with the Wind Farm's interpretation, reversed the district court's ruling, and remanded with instructions for a determination of damages, i.e. how much Duke owed the Wind Farm for lost production.

[7] The Wind Farm and Duke entered into settlement negotiations. At the conclusion of the settlement negotiations, the parties agreed on $29 million, which Duke believed was approximately equal to what it would have cost Duke and its ratepayers had the parties agreed with the Wind Farm's contact interpretation at the outset.

[8] Duke reported to the Commission in its Fuel Cost Adjustment ("FAC") filing on July 27, 2017, that the dispute between Duke and the Wind Farm had settled. In its report, Duke also indicated its intention to recover the lost production costs from ratepayers over a six-month period. The Office of Utility Consumer Counselor (the "OUCC") had no objection to Duke's recovery of the $29 million as costs Duke incurred under the PPA, but requested that the recovery be spread over a twelve-month period rather than the six-month period Duke had proposed. Duke agreed to spreading the recovery out over a twelve-month period. On September 21, 2017, Duke filed its Proposed Form of Order in which it proposed to recover the $29 million through rates over a twelve-month period.

[9] Meanwhile, Appellants intervened in this proceeding as ratepayers and filed a Brief in Opposition to Approval of Liquidated Damages Payment as an Expense Recoverable through Rates as their legal objection to Duke's Proposed Order. Thereafter, Duke filed its Response to Appellant's Brief in Opposition. On September 27, 2017, the Commission entered its final order approving proposed Duke's rate recovery over a twelve-month period.

Discussion and Decision

[10] The Indiana Utility Regulatory Commission was created by the General Assembly "primarily as a fact-finding body with the technical expertise to administer the regulatory scheme devised by the legislature." Ind. Gas Co. v. Ind. Fin. Auth. , 999 N.E.2d 63, 65 (Ind. 2013) (internal quotation removed). The Commission's "goal is to ensure that public utilities provide constant, reliable, and efficient service to the citizens of Indiana." Citizens Action Coalition of Ind., Inc. v. S. Ind. Gas and Elec. Co. , 70 N.E.3d 429, 438 (Ind. Ct. App. 2017). An order issued by the Commission is presumed valid unless the contrary is clearly apparent. Id.

[11] The standard for our review of decisions of the Commission is governed by Indiana Code section 8-1-3-1, which the Indiana Supreme Court has interpreted as providing a tiered standard of review.

A multiple-tier standard of review is applicable to the IURC's orders. A court on review must inquire whether specific findings exist as to all factual determinations material to the ultimate conclusions; whether substantial evidence within the record as a whole supports the findings of fact; and whether the decision, ruling, or order is contrary to law.

Citizens Action Coal. of Ind., Inc. v. Pub. Serv. Co. of Ind. , 612 N.E.2d 199, 201 (Ind. Ct. App. 1993) (citations omitted). In applying this standard, "[w]e review the conclusions of ultimate facts, or mixed questions of fact and law, for their reasonableness, with greater deference to matters within the [Commission's] expertise and jurisdiction." Citizens Action Coal. of Ind., Inc. v. Duke Energy Ind., Inc. , 16 N.E.3d 449, 457 (Ind. Ct. App. 2014). Additionally, "[w]e neither reweigh the evidence nor assess the credibility of witnesses and consider only the evidence most favorable to the [Commission's] findings." Ind. Gas Co., Inc. v. Ind. Fin. Auth. , 999 N.E.2d 63, 66 (Ind. 2013). "On matters within its jurisdiction, the [Commission] enjoys wide discretion and its findings and decision will not be lightly overridden simply because we might reach a different decision on the same evidence." Citizens Action Coal. of Ind., Inc. v. S. Ind. Gas & Elec. Co. , 70 N.E.3d 429, 439 (Ind. Ct. App. 2017).

I. Recovery from Ratepayers

[12] Appellants make several arguments as to why the Commission's order is contrary to law which we have consolidated and restated. First, Appellants argue that the Commission's order was contrary to law because the damages were "liquidated" and "hypothetical." Appellants also argue that the Commission acted contrary to law when it approved Duke's recovery from ratepayers because it amounts to impermissible retroactive ratemaking.

A. Liquidated "Hypothetical" Damages

[13] The Commission approved the PPA between Duke and the Wind Farm in its entirety in 2006. The PPA detailed, among other things, procedures for the sale and purchase of energy and a calculation of damages if Duke failed to purchase energy from the Wind Farm. The Commission also approved full recovery from ratepayers of all costs that Duke incurred from the PPA over its entire twenty-year term.

[14] In early 2013, after Duke failed to purchase energy from the Wind Farm, it became apparent that the two parties differed on their interpretations of the contract. This disagreement over whether Duke owed the Wind Farm for lost production led to the Wind Farm filing suit in federal court. During the course of the litigation, Duke kept the Commission updated in each of its quarterly FAC filings. Duke also was clear that when the dispute was resolved, it would seek to recover from ratepayers any amount that Duke eventually paid to the Wind Farm.

[15] Once the dispute settled, Duke reported in a FAC filing on July 27, 2017, that the dispute had been resolved and it now sought to recover the costs it incurred under the PPA. The Commission was presented with evidence that the "settlement amount is no more than customers would have paid had a different offer been submitted to MISO from March 2013 through June 2017, and is less than what potentially could have been awarded has a settlement not been reached." Appellants' App. Vol. II, p. 13. The Commission subsequently found that "[t]he evidence of record demonstrates that the [Wind Farm] settlement is in the best interest of customers and the costs are reasonable for what is owed to [the Wind Farm] under the Commission-approved [PPA]". Appellants' App. Vol. II, p. 13. Due to the fact that the lost production costs arose from the PPA, the Commission found that Duke was permitted to recover the $29 million from its ratepayers.

[16] As for the term "liquidated damages," Appellants have not cited to any cases to support the proposition that the term "liquidated damages" in a contract precludes Duke's recovery from ratepayers. Furthermore, there is no authority to support Appellants' claim that the damages amount is purely hypothetical and therefore unrecoverable from ratepayers.

[17] The Seventh Circuit found that Duke was obligated under the PPA to "pay for power not taken." Benton Cty. Wind Farm LLC v. Duke Energy Ind., Inc. , 843 F.3d 298, 303 (7th Cir. 2016). The parties reached a "settlement amount [that] is no more than customers would have had had a different offer been submitted to MISO from March 2013 through June 2017, and is less than what potentially could have been awarded had a settlement not been reached." Appellants' App. Vol. II, p. 13. The Commission subsequently found that the "7th Circuit decision interpreting the terms of the contract does not affect our previous approval of this contract." Appellants' App. Vol. II, p. 13.

[18] The evidence of record demonstrates that the "[Wind Farm] settlement is in the best interest of customers and the costs are reasonable for what is owed to [the Wind Farm] under the Commission-approved [PPA]." Appellants' App. Vol. II, p. 13. There is also evidence in the record that the OUCC-which represents ratepayers, consumers, and members of the general public-appeared and had no objection to the proposed recovery except that it be spread out over a twelve-month period. Specifically, the representative for the OUCC testified that "the Commission has approved longer recovery times for similar settlements as an acceptable way to recover these costs while mitigating the impact on ratepayers." Appellants' App. Vol. II, p. 121. The Commission was also presented with evidence from Duke's Director of Fuels & Systems Optimization that the amount paid in the settlement is materially equivalent to what the ratepayers would have paid had Duke agreed with the Wind Farm's interpretation of the PPA at the outset. The evidence in the record readily supports the Commission's decision to authorize Duke's recovery from ratepayers.

B. Retroactive Ratemaking

[19] Appellants also argue that the Commission's order is contrary to law because allowing Duke to recover the costs amounts to impermissible retroactive ratemaking. The fact that the damages arose from a past dispute regarding a contract interpretation does not automatically make the Commission's order contrary to law. This appeal arose out of an FAC proceeding, not a rate case. Similar to a Gas Cost Adjustment proceeding, the prohibition against retroactive ratemaking does not apply because, in both, the rates that are set are subject to subsequent reconciliation after historical costs have become known. See Ind. Gas Co., Inc. v. Office of Utility Consumer Counselor , 575 N.E.2d 1044 (Ind. Ct. App. 1991).

[20] Moreover, the Commission's decision is consistent with its decisions in similar disputes involving Indianapolis Power and Light ("IPL") and Northern Indiana Public Service Company ("NIPSCO"). In both proceedings, IPL and NIPSCO were involved in disputes regarding their wind farm power purchase agreements and were seeking to recover lost production costs from ratepayers. Based on how these proceedings were handled by the Commission, it appears that the Commission prefers that utilities defer seeking recovery from their ratepayers until the dispute is resolved and the full amount is known.

[21] In accordance with the Commission's clear preference to defer payment until a dispute is settled, Duke kept the Commission updated throughout the course of the litigation. Specifically, Duke consistently advised the Commission and the parties throughout the litigation and settlement process that future reconciliation by Duke to recover the costs may be necessary. When the cost incurred became known and the dispute was resolved, Duke provided the Commission with the new information in an FAC filing.

[22] After reviewing the record, there is no indication that any of the parties or the Commission thought Duke would be forfeiting its right to recover the deferred costs in a future FAC proceeding nor is there any evidence that this deferral was improper. In fact, based on proceedings with other utilities, it appears that Duke acted in accordance with the Commission's preferences for such matters. The Commission has the expertise to analyze and weigh the evidence in this case, and, after our review of the record, we conclude that there is substantial evidence support its decision to approve Duke's recovery from ratepayers.

[23] The judgment of the Commission is affirmed.

Baker, J., and Kirsch, J., concur.

      Duke kept the Commission updated on the status of the dispute throughout the litigation and settlement process with quarterly FAC filings.

      Duke had repeatedly indicated that this was a possibility in its previous sixteen filings with the Commission.

      Duke repeatedly indicated in sixteen filings (FAC-97-FAC-112) that it would seek to recover costs under the PPA.