author: RUSH, Justice.

text:
    N.L. Appellant (Respondent below), v. STATE of Indiana, Appellee (Petitioner below).
    No. 47S01-1302-JV-126.
    Supreme Court of Indiana.
    July 1, 2013.

      Brent Westerfeld, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   RUSH, Justice.

Sex-offender registration aims to protect innocent members of society from repeat sex offenses by formerly convicted sex offenders, while our juvenile system aims to rehabilitate juvenile offenders. To balance these competing goals in light of registration’s serious social consequences and far-reaching effects, trial courts may place a child on the sex offender registry only if they first find by clear and convincing evidence that the child is likely to repeat a sex offense. But our trial courts have struggled with how to apply that statutory requirement. Today, we clarify that a juvenile may only be ordered to register as a sex offender if, after an evidentiary hearing, the trial court expressly finds by clear and convincing evidence that the juvenile is likely to commit another sex offense. Because the trial court’s order here placing N.L. on the registry was neither issued in connection with an evidentiary hearing, nor accompanied by any findings, we reverse and remand.

Facts and Procedural History

N.L. admitted to conduct that would constitute D-felony sexual battery if committed by an adult. He was placed in the Resolute Treatment Facility (Resolute), an inpatient program for sexually maladaptive youth, and after eight months successfully completed treatment there. Then in January 2012, he was moved to the Jackson County Juvenile Home (Group Home).

In February 2012, the trial court held a hearing to determine whether to place N.L. on the sex offender registry. N.L. was represented by counsel. The State introduced Resolute’s Risk Evaluation report, indicating N.L. had a “moderate level of risk to reoffend,” which would be reduced if he successfully transitioned into the group home, was involved in school activities, developed positive peer relationships, and participated in family therapy.

The co-authors of the Risk Evaluation report also testified at the registry hearing. First, Resolute’s Clinical Director explained that the ERASOR quantified N.L.’s “moderate” risk of sexual recidivism as four to six percent — reduced from his ten percent risk on that same instrument before treatment began, and well below the average recidivism rate of six to twelve percent for “any kid getting treatment for sexually maladaptive behavior.” In the Director’s experience, registration is typically only required for juveniles with a projected recidivism rate of 15 percent or more. The Director explained that N.L. was “at a really decreased risk” that could continue to fall still further with continued treatment. And in turn, Resolute’s Clinical Therapist testified that N.L. had successfully completed treatment at Resolute, and would continue treatment three times per week for another six to nine months.

Additionally, the Group Home’s Assistant Program Director testified that N.L. was successfully transitioning into the group home, involved in school activities, developing positive peer relationships, and participating in family therapy — all the steps the Risk Evaluation report said would reduce N.L.’s risk of reoffending.

At the conclusion of the February hearing, N.L.’s counsel argued in opposition to placing him on the registry. The trial court did not decide whether to require N.L. to register, and instead announced it would “take the Registry matter under advisement until” a subsequent review hearing. But the next review hearing, held in late March, apparently did not address the pending registry decision— there is no such indication in the “Review Hearing Update” filed that date, nor did N.L.’s Notice of Appeal request a transcript of that hearing.

The only other hearing thereafter was held in late May 2012. At that hearing, the only testimony was the victim’s mother’s request that N.L. be ordered to register. There was no updated evidence of N.L.’s likelihood to reoffend, nor further argument on that point. And this time, unlike the February hearing, N.L. was not represented by his attorney. At the conclusion of the May hearing, while reading the standard terms of probation to N.L., the court ordered N.L. to register. It did not make any written or oral findings of whether clear and convincing evidence supported that N.L. was likely to repeat a sex offense.

N.L. appealed, arguing there was insufficient evidence that he was likely to repeat a sex offense. The Court of Appeals affirmed the registration order in an unpublished decision, finding that N.L.’s “moderate” risk of reoffending supported registration. N.L. v. State, No. 47A01-1205-JV-245, 2012 WL 5899237 (Ind.Ct.App. Nov. 26, 2012). The Court of Appeals also found sufficient evidence to support registration, based on information gathered during N.L.’s treatment and presented during previous informal review hearings: (1) N.L.’s adoptive mother may not be able to properly supervise him upon his release; (2) N.L. viewed pornography twice while on a home visit during treatment at Resolute; and (3) N.L. had some behavior problems while at the Group Home, though the record does not reflect whether the problems were sexual in nature. The record also does not indicate that any information from the informal review hearings was introduced into evidence at either the February or May 2012 hearing.

Standard of Review

Whether the trial court’s registration order meets the requirements of the Sex Offender Registration Act is a matter of statutory interpretation. Statutory interpretation presents a pure question of law we review de novo. Nicoson v. State, 938 N.E.2d 660, 663 (Ind.2010). Our primary goal in interpreting any statute is to effectuate legislative intent. Walczak v. Labor Works-Ft. Wayne LLC, 983 N.E.2d 1146, 1154 (Ind.2013). “If a statute is clear and unambiguous, courts do not apply any rules of construction other than giving effect to the plain and ordinary meaning of the language.” Sloan v. State, 947 N.E.2d 917, 922 (Ind.2011).

Sex Offender Registration and Juvenile Justice

In the wake of a convicted sex offender molesting and murdering ten-year-old Zachary Snider, the Indiana General Assembly passed the Sex Offender Registration Act, known as “Zachary’s Law.” Act of March 2, 1994, Pub.L. No. 11-1994; Wallace v. State, 905 N.E.2d 371, 374-75 & n. 4 (Ind.2009). The Act requires sex offenders residing within Indiana to register with local law enforcement and have their photograph taken each year, among many other requirements. Ind.Code § 11 — 8—8— 7(b). This information is then published on the searchable sex offender registry website. I.C. § ll-8-8-7(i). One goal-of the Act is “to give the community notification necessary to protect its children from sex offenders.” Wallace, 905 N.E.2d at 383. But registration also undoubtedly “promote[s] community condemnation of the offender,” id. at 382 (internal quotation omitted), and subjects “offenders to ‘vigilante justice’ which may include lost emT ployment opportunities, housing discrimination, threats, and violence,” id. at 380. Still, courts generally hold that “[t]he purpose and the principal effect of notification are to inform the public for its own safety, ... and the [offender’s] attendant humiliation is but a collateral consequence of a valid regulation.” Smith v. Doe, 538 U.S. 84, 99, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); accord, e.g., Vickery v. State, 932 N.E.2d 678, 682 (Ind.Ct.App.2010) (quoting Smith).

Yet both the goals and practical effects of sex-offender registration are in tension with the juvenile justice system’s policy of treating juvenile delinquents “as persons in need of care, protection, treatment, and rehabilitation.” I.C. § 31-10-2-1(5). “[T]he State’s primary interest [is] rehabilitation, rather than the punishment of juvenile delinquents.” J.C.C. v. State, 897 N.E.2d 931, 935 (Ind.2008). For children, the effect of registration is particularly harsh because while some juvenile court records are confidential, I.C. § 31-39-1-2, registration reveals their delinquent acts to the world and exposes them “to [the] profound humiliation and community-wide ostracism” that registration entails. Wallace, 905 N.E.2d at 380. Indeed, requiring juveniles to register “may particularly hamper the[ir] rehabilitation ... because the public stigma and rejection they suffer will prevent them from developing normal social and interpersonal skills — the lack of [which] ha[s] been found to contribute to future sexual offenses.” Michele L. Earl-Hubbard, The Child Sex Offender Registration Laws: The Punishment, Liberty Deprivation, and Unintended Results Associated with the Scarlet Letter Laws of the 1990s, 90 Nw. U.L. Rev. 788, 855-56 (1996). The stakes of juvenile sex-offender registration, then, are significantly different than where adult offenders are involved.

Juvenile Sex Offender Registration Procedures

The Sex Offender Registration Act implicitly recognizes, and attempts to balance, the tension between registration’s harsh effects and the juvenile system’s rehabilitative aims. Unlike adult sex offenders, who must register “without regard to whether the individual poses any particular future risk,” Wallace, 905 N.E.2d at 384, placing a child on the registry requires an individual assessment of whether that child is likely to repeat a sex offense — specifically, that the child:

(A) is at least fourteen (14) years of age;
(B) is on probation, is on parole, is discharged from a facility by the department of correction, is discharged from a secure private facility (as defined in IC 31-9-2-115), or is discharged from a juvenile detention facility as a result of an adjudication as a delinquent child for an act that would be an offense described in subsection (a) if committed by an adult; and
(C) is found by a court by clear and convincing evidence to be likely to repeat an act that would be an offense described in subsection (a) if committed by an adult.

I.C. § ll-8-8-5(b)(2). This case implicates two issues under subpart (b)(2)(C): what sort of hearing a trial court must conduct before a juvenile is “found... to be likely to” reoffend, and what form of “finding” is required. We address each issue in turn.

I. What Does an “Evidentiary Hearing” Require?

A. Juvenile Hearings Generally.

Broadly speaking, juvenile delinquency hearings may take two forms. Many juvenile hearings are conducted informally, and are not strictly governed by the rules of evidence. First, by the terms of Indiana Evidence Rule 101(c)(2), the Rules do not apply to “preliminary juvenile matters” — for example, hearings to determine the reliability of a child’s hearsay testimony under the Protected Person Statute, L.H. v. State, 878 N.E.2d 425, 430 (Ind.Ct.App.2007). Similarly, hearsay is admissible in dispositional hearings, and subsequent hearings to modify a disposition, because “[excluding hearsay evidence ... would in many cases disserve the child by excluding relevant information that might support a less restrictive disposition.” In re L.J.M., 473 N.E.2d 637, 643 (Ind.Ct.App.1985). At these hearings, the court may also admit any predispositional report into evidence to the extent it is probative, “even if the report would otherwise be excluded.” I.C. § 31-37-18-2(a) (governing dispositional hearings); I.C. § 31-37-21-3(a) (governing reports prepared for review or modification hearings).

By contrast, other juvenile matters are of such gravity that formal eviden-tiary hearings are required. For example, “fact-finding hearings” under Indiana Code 31-37-13 are held to determine whether the allegations of a delinquency petition are true — analogous to a criminal trial. At evidentiary hearings, the rules of evidence apply to the same extent as in a criminal case, even though juvenile hearings are civil in nature. E.g., J.R.T. v. State, 783 N.E.2d 300, 306 (Ind.Ct.App.2003), trans. denied (barring polygraph evidence on hearsay grounds, unless parties have stipulated its admissibility); K.F. v. State, 961 N.E.2d 501, 514-15 (Ind.Ct.App.2012), trans. denied (finding error in admission of hearsay contrary to Indiana Evidence Rule 801). As discussed below, juvenile sex-offender registration hearings under Indiana Code section 11-8-8-5 fall into this latter category, in which formal hearings consistent with the Rules of Evidence are required. Z.H. v. State, 850 N.E.2d 933, 940 n. 2 (Ind.Ct.App.2006), trans. denied.

B. Sex-Offender Registration Hearings Specifically.

We explored some aspects of the hearing requirement in J.C.C., where we noted that the individualized assessment of whether the child is likely to reoffend “requires the court to hold an evidentiary hearing,” 897 N.E.2d at 934, which must await the child’s release from secure detention so the court can evaluate whether the child has been rehabilitated, id. We also emphasized that “clear and convincing” evidence is required because “the wisdom of experience has demonstrated the need for greater certainty” in view of the “serious social consequences” and “harsh or far reaching effects on individuals” of being on the registry. Id. at 934-35, quoting Estate ofReasor v. Putnam Cnty., 635 N.E.2d 153, 159 (Ind.1994).

But here, the trial court’s order to register was not issued in connection with the type of “evidentiary hearing” that J.C.C. requires. We recognize that at the February hearing, where N.L. was represented by counsel, the court did receive evidence that N.L. posed a “moderate risk” of reoffending — but the court chose not to issue a registration order at that time. Under the circumstances, it was well within its discretion to postpone the decision, since the evidence also suggested that N.L.’s risk of reoffending was likely to decrease as treatment continued. Yet when the hearing resumed three months later, the court received no evidence relevant to whether N.L.’s “moderate” risk had decreased as predicted, nor any other evidence of any kind apart from a victim-impact statement. Moreover, the May hearing was conducted as an informal “review hearing,” at which N.L. was not represented by his attorney who was present at the February hearing — thus giving him no meaningful opportunity to challenge the State’s evidence or present evidence of his own. An “evidentiary hearing” is a prerequisite to placing a child on the registry, and while the February hearing met that standard, its continuation in May did not. Again, it was well within the trial court’s discretion to continue the February registry hearing to develop further evidence of whether N.L. had rehabilitated — but once it had done so, each continuation of the hearing had to meet the same standard for an “evidentiary hearing” before issuing its decision on whether N.L. must register.

The Court of Appeals nevertheless found that “substantial evidence” supported registration, based on the evidence of N.L.’s “moderate” risk presented at the February hearing, plus evidence presented at previous review hearings early in N.L.’s treatment. But those earlier informal review hearings cannot substitute for the evidentiary hearing the statute requires, because N.L. had no opportunity to challenge that evidence or present opposing evidence at the time it was received. Without that basic safeguard, the right to an “evidentiary hearing” would ring hollow. Information or reports received at informal review hearings are not an appropriate substitute for deciding a matter as weighty as whether to require a juvenile to register as a sex offender.

In sum, an “evidentiary hearing” under J.C.C. requires at a minimum that juveniles have an opportunity to challenge the State’s evidence and present evidence of their own; that any continuation of the hearing meet these same requirements, including continued representation by counsel; and that the registration decision must be based solely on information admitted into evidence at such a hearing.

II. How Must a Juvenile Be “Found” Likely to Commit Another Sex Offense?

The other issue in this case presents an open question, because J.C.C. did not examine what form of “finding” is entailed by the requirement that a child must be “found” likely to reoffend before being placed on the registry. I.C. § 11 — 8—8— 5(b)(2)(C). But requiring a fact to be “found” would be meaningless, at least for purposes of appellate review, unless that finding is made expressly. In this context, that finding draws the key distinction between juvenile and adult offenders, and the statute underscores its importance by requiring “clear and convincing evidence.” But since the trial court did not make this “required finding,” State v. K.H., 860 N.E.2d 1284, 1288 (Ind.Ct.App.2007), it is impossible to determine on review whether the trial court properly applied the heightened evidentiary standard — or even whether it was making an individualized determination, as the statute requires. We therefore hold that a court must expressly find, by clear and convincing evidence, that a juvenile is likely to reoffend before it may place the juvenile on the sex offender registry.

III. What Is the Remedy for a Deficient Hearing and Inadequate Findings?

Since the hearing that preceded the trial court’s order to register was not “evidentiary,” nor did the court expressly find by clear and convincing evidence that N.L. was likely to reoffend, we reverse the registration order. But the closer question is whether we may remand to the trial court to reconsider whether to place N.L. on the registry. We believe that remand best serves both of the competing policies at issue — sex-offender registration and juvenile justice alike. As discussed above, even though sex-offender registration often has harsh effects on offenders, its primary intent is to protect the public. If an offender, even a juvenile, poses an individualized likelihood of reoffending, then registration is warranted to protect the public — and at least one reported decision has upheld a registration order that was, in part, based on a juvenile’s “moderate” risk of reoffending. B.W. v. State, 909 N.E.2d 471, 479 (Ind.Ct.App.2009). Conversely, if the predictions made at N.L.’s February hearing hold true, and his risk of sexual recidivism has continued to decrease, then the rehabilitative purposes of our juvenile system are best served by ensuring that the trial court has an opportunity to consider any such pattern. But again, in the absence of an express finding one way or the other, we are ill-equipped to review the trial court’s decision. We therefore remand this case to the trial court with the instructions set forth below.

Conclusion

It is well within a trial court’s discretion to hold more than one hearing to determine whether a juvenile’s risk of reoffend-ing warrants placing them on the sex offender registry. But when it does so, every hearing held for that purpose must be an “evidentiary hearing” as J.C.C. requires. That is, juveniles must have the opportunity to challenge the State’s evidence and present evidence of their own; and if an “evidentiary hearing” is continued, they must have continued representation by counsel at the subsequent hearings as well. Finally, the child may not be ordered to register unless the trial court expressly finds, by clear and convincing evidence, that the child is likely to commit another sex offense — based exclusively on evidence received at such a hearing. Here, the May hearing was not an “eviden-tiary hearing” as J.C.C. requires; N.L. did not have the benefit of counsel in May, even though he did for the February hearing; and the trial court made no findings about N.L.’s likelihood to reoffend.

We therefore reverse the order requiring N.L. to register as a sex offender, and remand to the trial court with instructions to conduct a new “evidentiary hearing” as J.C.C. requires to determine whether N.L. is likely to commit another sex offense, and thereafter to make an express finding of whether the State has made that showing by clear and convincing evidence.

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

      . ERASOR is the Estimate of Risk of Adolescent Sexual Offense Recidivism, a structured risk-assessment testing instrument for adolescent sex offenders.


source: Caselaw Access Project

author: BARNES, Judge.

license: Public Domain

text:
    Ruben PAZMINO, Appellant-Defendant, v. BOSE McKINNEY & EVANS, LLP, Appellee-Plaintiff.
    No. 49A02-1206-CC-499.
    Court of Appeals of Indiana.
    April 30, 2013.

      Abraham Murphy, Indianapolis, IN, Attorney for Appellant.
    Bryan H. Babb, Emily M. Slaten, Bose McKinney & Evans, LLP, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Ruben Pazmino appeals the trial court’s grant of summary judgment in favor of Bose McKinney & Evans, LLP, (“Bose”) in the amount of $11,174.20. We reverse and remand.

Issue

Pazmino raises one issue, which we restate as whether the trial court properly entered summary judgment in favor of Bose.

Facts

From February 2008 through July 2008, Bose did legal work for Buena Vista Realty Group, LLC, (“Buena Vista”) at the request of Pazmino. On April 24, 2008, Buena Vista was administratively dissolved. Neither Buena Vista nor Pazmino paid Bose for its services.

On May 5, 2010, Bose filed a complaint against Buena Vista and Pazmino alleging they had failed to pay for services rendered and seeking $12,580.09 plus interest from Buena Vista and $9,618.39 plus interest from Pazmino.

In August 2010, default judgment was entered against Buena Vista in the amount of $13,048.83. On December 22, 2011, Bose moved for summary judgment against Pazmino. On February 22, 2012, Pazmino responded and filed a cross-motion for summary judgment. On February 29, 2012, Bose responded to Pazmino’s cross-motion. On May 24, 2012, the trial court entered summary judgment in favor of Bose and against Pazmino in the amount of $9,618.39 plus $1,555.81 in interest for a total judgment of $11,174.20. Pazmino now appeals.

Analysis

Pazmino argues that he, not Bose, is entitled to summary judgment. “We review an appeal of a trial court’s ruling on a motion for summary judgment using the same standard applicable to the trial court.” Perdue v. Gargano, 964 N.E.2d 825, 831 (Ind.2012). “Therefore, summary judgment is appropriate only if the designated evidence reveals ‘no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting Ind. Trial Rule 56(C)). Our review of summary judgment is limited to evidence designated to the trial court. Id. (citing T.R. 56(H)). All facts and reasonable inferences drawn from the evidence designated by the parties is construed in a light most favorable to the non-moving party, and we do not defer to the trial court’s legal determinations. Id. “The fact that the parties have filed cross-motions for summary judgment does not alter our standard for review, as we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law.” Reed v. Reid, 980 N.E.2d 277, 285 (Ind.2012).

I. On Whose Behalf Was Pazmino Acting?

Pazmino asserts that he is not personally liable for Buena Vista’s obligations because he was only an employee of Buena Vista, a limited liability company (“LLC”). Bose responds that, even if Pazmino was an employee of Buena Vista, it is seeking to hold Pazmino liable for his own act of personally requesting Bose’s services after Buena Vista was dissolved.

“The purpose of a limited liability company is to provide individuals the same protection enjoyed by shareholders of a corporation through creation of a distinct legal entity, while at the same time featuring pass-through taxation similar to that enjoyed by partners.” Troutwine Estates Dev. Co., LLC v. Comsub Design & Eng’g, Inc., 854 N.E.2d 890, 898 (Ind.Ct.App. 2006), trans. denied. The Indiana Business Flexibility Act (“the Act”) controls the creation and operation of LLCs in Indiana. Id. In terms of personal liability, the Act provides:

A member, a manager, an agent, or an employee of a limited liability company is not personally hable for the debts, obligations, or liabilities of the limited liability company, whether arising in contract, tort, or otherwise, or for the acts or omissions of any other member, manager, agent, or employee of the limited liability company. A member, a manager, an agent, or an employee of a limited liability company may be personally liable for the person’s own acts or omissions.

Ind.Code § 23-18-3-3(a).

Based on the plain language of Indiana Code Section 23-18-3-3(a), if the designated evidence establishes that Pazmino requested Bose’s services on his own behalf, he is personally liable for that obligation, and our inquiry ends there. If the designated evidence establishes that Pazmino requested Bose’s services on behalf of Buena Vista, Bose argues that Pazmino is personally liable because he was acting as an agent of a non-existent principal and that Pazmino is personally liable because he exceeded the scope of his authority. Accordingly, we begin our inquiry with whether the designated evidence establishes that Pazmino requested Bose’s services on his own behalf or on behalf of Buena Vista.

Bose argues that Pazmino personally requested and directed Bose regarding the rezoning of certain property, which had nothing to do with •winding up Buena Vista after it was administratively dissolved. See I.C. § 23-18-10-8(a) (explaining that an administratively dissolved LLC may not carry on any business except to wind up and liquidate). Bose designated the affidavit of Joseph Calderon, the primary attorney at Bose who provided legal services to Pazmino and Buena Vista, who stated that Pazmino “personally requested plaintiff’s services and directed or coordinated the work performed by” Bose. App. p. 11. Bose also designated billing records from March 28, 2008 to July 8, 2008. Many of the entries specifically reference Pazmino, and a June 17, 2008 entry, which states, “Teleconference with R. Pazmino regarding strategy to deal with appeal to MDC[,]” suggests that Pazmino was integral in directing Bose. Id. at 19.

Nevertheless, the billing records appear to refer to Buena Vista as the client and the designated invoice suggests that Buena Vista was the party being billed for Bose’s work. Further, the billing records include only a cursory description of the work performed and do not establish that the services provided by Bose were outside the scope of winding up Buena Vista. Thus, Bose has not established as a matter of law that Pazmino secured Bose’s services on his own behalf and, therefore, Bose is not entitled to summary judgment on this issue.

As for whether Pazmino is entitled to summary judgment on this issue, in his affidavit, the only evidence designated by Pazmino, he stated that he was an employee of Buena Vista, that he was not an interested party in Buena Vista, that Bose did not inform him of Buena Vista’s dissolution, and that had he known of the dissolution he would have reported it “to the management of the entity.” Id. at 37. Pazmino’s affidavit does not include any information regarding the work performed by Bose or regarding the purpose of requesting Bose’s services. In the absence of such information, he has not established as a matter of law that he requested the legal services on behalf of Buena Vista and, therefore, Pazmino is not entitled to summary judgment on this basis.

Thus, this genuine issue of material fact precludes the entry of summary judgment for either party. In the event that the evidence presented on remand establishes that Pazmino secured Bose’s legal services on behalf of Buena Vista, we address the additional legal arguments raised by Bose.

II. Non-Existent Principal

Bose argues that, after April 24, 2008, Pazmino could not act as an agent on behalf of Buena Vista because Buena Vista did not exist post-dissolution except to wind up business. See 8 Am.Jur.2d Agency § 295 (“Generally, one who contracts as an agent in the name of a nonexistent or fictitious principal, or a principal without legal status or existence, is personally liable on the contract so made.”). According to Bose, Pazmino is personally liable for requesting services not associated with winding up Buena Vista.

In an attempt to establish that Buena Vista did not exist post-dissolution, Bose cites Chicago Title & Trust Co. v. Forty-One Thirty-Six Wilcox Bldg. Corp., 302 U.S. 120, 125, 58 S.Ct. 125, 127, 82 L.Ed. 147 (1937), for the proposition that the dissolution of a corporation “puts an end to its existence, the result of which may be likened to the death of a natural person.” However, that case goes on to state, “[t]here must be some statutory authority for the prolongation of its life, even for litigation purposes.” Id., 58 S.Ct. at 127. The Act specifically contemplates the continued existence of an LLC post-dissolution and provides, “[a] limited liability company that is administratively dissolved continues in existence but may not carry on any business except business necessary to wind up and liquidate its business and affairs under IC 23-18-9-4[] and notify claimants under IC 23-18-9-8 and IC 23-18-9-9.” I.C. § 23-18-10-3(a).

Although Bose acknowledges this provision, it argues, an “LLC does not ‘exist’ for any business outside the ‘winding up’ of affairs_” Appellant’s Br. p. 8. In support of this argument, Bose relies on KeyBank National Association v. Michael, 737 N.E.2d 834, 845 (Ind.Ct.App.2000), in which we concluded that a dissolved corporation’s obtaining another corporation’s assets and merging to become an existing corporation was not contemplated as an activity appropriate to winding up and liquidating a business. We stated, “New Friction’s petition for a receiver necessarily fails because New Friction did not exist, in a form other than to wind up and liquidate, at the time the receiver was appointed.” Id. at 846.

To the extent Key Bank supports the proposition that a dissolved LLC may exist for one purpose but not another, we respectfully disagree. We think it is more accurate to say, based on the plain language of Indiana Code Section 23-18-10-3, that an administratively dissolved LLC continues in existence but may not carry on any business except necessary to wind up and liquidate. Thus, regardless of the nature of the work performed by Bose, Buena Vista continued to exist as a principal that could be bound by the acts of its agents.

III. Post-Dissolution Authority

Bose argues that Pazmino was not statutorily authorized to wind up or bind Buena Vista post-dissolution. See I.C. § 23-18-9-4 (explaining that generally members or managers may wind up a LLC); I.C. § 23-18-9-5 (explaining when members and/or managers may bind an LLC post-dissolution). Bose also asserts that the limitation on liability in Indiana Code Section 23-18-3-3(a) does not extend to employees post-dissolution because Indiana Code Section § 23-18-9-3(b)(2) provides that dissolution of a LLC does not “[ajlter the personal liability of members under I.C. § 23-18-3-3[.]”

We generally agree that these statutory provisions authorize members to wind up LLCs and to bind LLCs post-dissolution while shielding them from liability. After all, it is the members who “have the right and authority to manage the affairs and make all decisions of the limited liability company.” I.C. § 23-18-4-l(a). However, we do not agree with the notion that an employee who continues to act on behalf of a dissolved LLC is always personally liable for that conduct.

When we construe a statute, our goal is to determine and give effect to the intent of the legislature. Cooper Indus., LLC v. City of S. Bend, 899 N.E.2d 1274, 1283 (Ind.2009). We look first to the language of the statute itself and strive to give the words their plain and ordinary meaning. Id. “We examine the statute as a whole and try to avoid excessive reliance on a strict literal meaning or the selective reading of individual words.” Id. ‘We presume the legislature intended the language used in the statute to be applied logically, consistent with the statute’s underlying policy and goals, and not in a manner that would bring about an unjust or absurd result.” Id.

Although there is little case law interpreting the Act, we are guided by cases interpreting other business forms in determining whether an employee is personally liable for post-dissolution obligations an LLC. See Troutwine, 854 N.E.2d at 899 (applying an analysis similar to that for piercing the corporate veil to determine the personal liability of a LLC’s managers); Purcell v. S. Hills Investments, LLC, 847 N.E.2d 991, 997 (Ind.Ct.App.2006) (holding that common law fiduciary duties, similar to the ones imposed on partnerships and closely-held corporations, are applicable to Indiana LLCs); Brant v. Krilich, 835 N.E.2d 582, 590 (Ind.Ct.App.2005) (observing that LLCs and Limited Liability Partnerships provide protections similar to those for corporations). In the corporate setting, our supreme court has observed, “[ajlthough a corporation acts only through its agents, officers, shareholders, and employees, it is the corporate entity that is legally responsible for those acts.” Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d 1228, 1232 (Ind.1994). “It is a matter of black-letter law that where the agent acted within the scope of the agent’s authority in signing a contract on behalf of the principal, the remedy of one seeking to enforce the contract is against the principal and not the agent.” Id. at 1231. “As a result, corporate officers and shareholders are generally not personally liable for the contractual obligations of the corporation.” Id.

Bose argues that Pazmino is personally liable because he exceeded the scope of his authority under the Act when he, an employee, requested Bose’s services post-dissolution. Bose cites Terwilliger v. Murphy, 104 Ind. 32, 34, 3 N.E. 404, 406 (1885), for the proposition that “it is a well-recognized general rule that where one person assumes to act as agent of another, but without authority to do so, he makes himself personally liable as a principal in the transaction.... ” Bose, however, conflates the concepts of the authority a principal gives his or her agent with the statutory authority controlling the operation of LLCs. In the context of a principal/agent relationship, it is the principal, not a statute, that confers authority on the agent to act on his or her behalf. See Demming v. Underwood, 943 N.E.2d 878, 884 (Ind.Ct.App.2011) (“To establish an actual agency relationship, three elements must be shown: (1) manifestation of consent by the principal, (2) acceptance of authority by the agent, and (3) control exerted by the principal over the agent.”), trans. denied; see also Koval v. Simon Telelect, Inc., 693 N.E.2d 1299, 1302 (Ind.1998) (“The agent is authorized if the agent is reasonable in drawing an inference from the principal’s actions that the principal intended to confer authority.”). Thus, because the rule stated in Terwilliger relates to personal liability of an agent who acts in a manner not authorized by his or her principal, it does not support Bose’s assertion that Paz-mino is personally liable because he was not statutorily authorized to wind up Bue-na Vista.

In fact, none of the cases cited by Bose suggest that an employee properly acting on behalf of a dissolved LLC is personally liable for such acts, and nothing in the Act suggests that the Legislature intended to expose employees of a dissolved LLC acting on behalf of the LLC to personal liability while protecting members from personal liability. Instead, we believe the reference to the personal liability of members in Indiana Code Section 23-18-9-3(b)(2) is intended to clarify that, even upon dissolution, an LLC, not its members, remains responsible for the LLCs obligations.

Further, if the Legislature intended the limitation on personal liability in Indiana Code Section 23-18-3-3(a) to terminate upon the dissolution of an LLC, it could have said so. In the absence of such language, we decline to deviate from the black-letter law that, where the agent acted within the scope of the agenfls authority, the remedy of one seeking to enforce the contract is against the principal and not the agent. Winkler, 638 N.E.2d at 1231. Thus, where Pazmino acted within the scope of the authority conferred by Buena Vista, Bose’s remedy is with Buena Vista, not Pazmino. See id.

Conclusion

There is a genuine issue of material fact regarding whether Pazmino was acting on his own behalf or on behalf of Buena Vista when he sought Bose’s services. Accordingly, neither party is entitled to summary judgment at this stage of the proceedings. We reverse and remand.

Reversed and remanded.

BAKER, J., and RILEY, J., concur.

      . The exhibit attached to Bose's complaint shows a total amount due of $12,580.09. It appears that the $9,618.39 is for services performed after April 24, 2008.

      . Both parties’ legal arguments in support of summary judgment are based on the premise that Pazmino was an employee of Buena Vista. Bose argues, however, that, if it is not entitled to summary judgment, there is a question of fact regarding Pazmino's role in Buena Vista. In his affidavit, Pazmino asserted that he was an employee of Buena Vista and that he “was never an investor, partner, or otherwise an interested party in Buena Vista Realty Group, L.L.C.” App. p. 37. Bose points out that Pazmino does not specifically claim that he was not a member or manager of Buena Vista. Bose's designated evidence shows that Pazmino "personally requested plaintiff's services and directed or coordinated the work performed by” Bose and that Pazmino had extensive involvement in the legal services provided by Bose post-dissolution. Id. at 11. Based on tins evidence, we are not convinced that Pazmino's self-serving affidavit is sufficient to establish that he was only an employee of Buena Vista as a matter of law. We decline to address the legal implications of Pazmino’s liability if he was a member or manager of Buena Vista at this stage of the proceedings.

      . To the extent Pazmino’s knowledge of the dissolution impacts whether he secured Bose's services to wind up Buena Vista or whether he was acting on his own behalf or on Buena Vista's behalf, there is a genuine issue of material fact regarding whether Paz-mino had notice of the dissolution. Even if we were to take Pazmino's self-serving assertion as establishing that he did not have actual express notice of the dissolution, it does not establish as a matter of law whether he had implied notice or constructive notice of the dissolution. See Crown Coin Meter Co. v. Park P, LLC, 934 N.E.2d 142, 148 (Ind.Ct.App.2010) (describing the difference between actual and constructive notice and the two categories — express and implied — of actual notice). Thus, we are not convinced the designated evidence establishes as a matter of law that Pazmino did not have knowledge of Buena Vista’s dissolution.

      . Pazmino also argues that he is not liable as a guarantor of Buena Vista’s debts because the statute of frauds is not satisfied. Bose responds by asserting that it is not seeking to enforce a guaranty. Because Bose is seeking to hold Pazmino personally liable based on contract and agency law, not as a guarantor of Buena Vista's debts, we need not address Pazmino’s statute of frauds argument.
      As for Bose's implied contract argument, this argument was not made to the trial court and is waived. See Dunaway v. Allstate Ins. Co., 813 N.E.2d 376, 387 (Ind.Ct.App.2004) ("Issues not raised before the trial court on summary judgment cannot be argued for the first time on appeal and are waived.”). Further, Bose acknowledges there are issues of fact regarding the application of this doctrine. Thus, it is not a basis for affirming the entry of summary judgment in Bose’s favor.

      . Again, neither party's designated evidence establishes as a matter of law whether the work performed by Bose was associated with winding up Buena Vista.

      . There is some question regarding whether Indiana Code Section 23-18-10-3 correctly refers to Indiana Code Section 23-18-9-4, which describes who may wind up an LLC, as opposed to Indiana Code Section 23-18-9-3, which describes the process of winding up an LLC. Because this issue does not alter the outcome, we need not resolve it today.

      . Although Bose suggests that this provision does not apply with equal force to administrative dissolutions, its passing reference to Bernstein v. Bankert, 698 F.Supp.2d 1042, 1052 (S.D.Ind.2010), is not enough to convince us that the provisions of Indiana Code Chapter 23-18-9 do not apply to administrative disso-lutions.

      . Bose does not make an argument regarding piercing the corporate veil.


author: RILEY, Judge.

text:
    Lydia LANNI, Appellant-Plaintiff, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al., Appellees-Defendants.
    No. 49A05-1208-CT-392.
    Court of Appeals of Indiana.
    May 22, 2013.

      J. Kevin King, Peter Campbell King, Cline King & King, P.C., Columbus, IN, Attorneys for Appellant.
    Marc T. Quigley, Libby Y. Goodknight, Catherine E. Sabatine, Krieg DeVault, LLP, Indianapolis, IN, Attorneys for Ap-pellees.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Plaintiff, Lydia Lanni (Lan-ni), appeals the trial court’s grant of Ap-pellees-Respondents’, the National Collegiate Athletic Association, et at, (NCAA), combined alternative Motion to Dismiss Lanni’s Complaint and/or Motion for Summary Judgment.

We reverse in part, affirm in part, and remand for further proceedings.

ISSUES

Lanni raises three issues on appeal, which we consolidate and restate as the following two issues:

(1) Whether the trial court erred when it converted the NCAA’s combined alternative Motion to Dismiss Lan-ni’s Complaint and/or Motion for Summary Judgment into a motion for summary judgment; and
(2) Whether the trial court abused its discretion by denying Lanni’s motion to strike an affidavit designated by the NCAA.

FACTS AND PROCEDURAL HISTORY

This cause comes before us as a result of a civil tort action filed by Lanni against the NCAA, the University of Notre Dame Du Lac (Notre Dame), and the United States Fencing Association (USFA). Lan-ni, a spectator, was struck in the left eye by a fencing sabre causing a severe injury while at an allegedly NCAA sanctioned fencing match at Notre Dame. On February 8, 2012, Lanni filed her Complaint, alleging that the NCAA was negligent by (1) failing to undertake a hazard and risk analysis prior to commencing the fencing match, (2) failing to select and/or supervise qualified officials, and (3) failing to supervise the competition to insure hazards and risks were consistently monitored to prevent injuries.

On April 3, 2012, after requesting two extensions of time to file a responsive pleading, the NCAA filed its Motion to Dismiss Lanni’s Complaint and/or Motion for Summary Judgment (the Motion). In its Motion, the NCAA asserted that Lan-ni’s Complaint should be dismissed pursuant to Indiana Trial Rule 12(B)(6) and “additionally,” it was entitled to summary judgment as a matter of law pursuant to Indiana Trial Rule 56 because the undisputed evidence established that the NCAA was not negligent or at fault for Lanni’s injuries. (Appellant’s App. p. 18). Attached to the Motion was the NCAA’s brief in support and the affidavit of Kelly Whitaker Shaul (Shaul), the NCAA’s Fencing Championships Manager.

On April 20, 2012, Lanni filed a motion for stay of briefing with respect to NCAA’s Motion, requesting, in pertinent part:

4. As litigation has just commenced, discovery is in the early stages. [Lanni] is in the process of drafting and issuing discovery to all Defendants, which is expected to be sent out within the month.
5. Until the appointment of a new judge, [Lanni’s] response to [NCAA’s] Motion should be stayed.
6. Technically, [NCAA] has requested two forms of relief. A motion pursuant to [T.R. 12(B)(6) ] and a motion pursuant to [T.R. 56(C)]. [Lanni] will file the appropriate responses separately to the two motions, as procedurally, the two motions have different standards for analysis. [Lanni] does not concede the Affidavit filed by [NCAA] should be allowed relative to the [T.R. 12(B)(6) ] motion.
7.Alternatively, it is premature to file a summary judgment given the fact the discovery regarding factual matters relative to [Lanni’s] Complaint will be issued. “Moreover, we have frequently emphasized the critical importance of discovery in the summary judgment context ... As we have stressed, however, summary judgment should not be granted while the party opposing judgment timely seeks discovery of potentially favorable information.” Schering Corp. v. Homes [Home ] Ins. Co., 712 F.2d 4, 10 (2nd Cir.1983).

(Appellant’s App. p. 37). On April 24, 2012, the trial court granted Lanni’s request for a change of judge and on May 23, 2012, the appointment of a special judge was entered. On May 4, the NCAA opposed Lanni’s request to stay the briefing schedule and on May 29, 2012, after the special judge was appointed, the trial court issued its order denying Lanni’s motion for stay and set the NCAA’s Motion for a hearing on July 9, 2012. On May 31, 2012, Lanni served the NCAA with her first set of interrogatories.

On June 13, 2012, Lanni filed a motion for extension of time to respond to the NCAA’s Motion, asserting that discovery is still on-going “regarding factual matters relative to [Lanni’s] Complaint.” (Appellant’s App. p. 56). Two days later, on June 15, 2012, the NCAA filed its motion to stay discovery pending the trial court’s ruling on its motion for summary judgment, as well as a brief in opposition to Lanni’s motion for extension of time and in support of its own motion to stay discovery. On July 2, 2012, Lanni filed a response to NCAA’s opposition to extend time and to NCAA’s motion to stay discovery, as well as a separate motion to strike Shaul’s affidavit. Also, that same day, the NCAA filed a motion for enlargement of time to respond to Lanni’s discovery request pending a ruling on the NCAA’s motion to stay discovery, which was granted by the trial court.

On July 5, 2012, the trial court entered an order granting NCAA’s motion to stay discovery pending a ruling on its motion for summary judgment; yet, the trial court struck the following language from the NCAA’s proposed order: “[Lanni] is prohibited from filing any response or submitting any evidence in response to the [mjotion for [sjummary [¡Judgment.” (Appellant’s App. p. 136). At the same time, the trial court denied Lanni’s motion for extension of time to respond to the NCAA’s Motion. On July 6, 2012, the NCAA responded to Lanni’s motion to strike Shaul’s affidavit.

On July 9, 2012, prior to the trial court’s hearing on the NCAA’s Motion, Lanni filed her designation of materials. At the hearing, Lanni objected to the trial court’s conversion of NCAA’s Motion to a motion for summary judgment because she had not received any notice that the trial court would treat the combined Motion as a summary judgment motion and because of her lack of opportunity to conduct discovery. Later that same day, the trial court issued an Order granting NCAA’s Motion, entering summary judgment in favor of NCAA, as well as an Order denying Lan-ni’s motion to strike Shaul’s affidavit.

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

DISCUSSION AND DECISION I. NCAA’s Motion

Lanni’s main argument focuses on the trial court’s treatment of the NCAA’s Motion which combined a motion based on T.R. 12(B)(6) with a motion based on T.R. 56. Specifically, she claims that pursuant to the language of T.R. 12(B)(6), the trial court was required to notify her prior to considering the NCAA’s Motion as a motion for summary judgment and the trial court was mandated to award her a reasonable time to conduct discovery.

Indiana Trial Rule 12(B)(6) (emphasis added) provides, in pertinent part, that:

(6) Failure to state a claim upon which relief can be granted, which shall include failure to name the real party in interest under Rule 17;
If, on a motion, asserting the defense number (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. In such case, all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

We have previously analyzed the interplay between a T.R. 12(B)(6) motion and a T.R. 56 motion in Azhar v. Town of Fishers, 744 N.E.2d 947, 949 (Ind.Ct.App.2001). In Azhar, this court was asked to evaluate whether the trial court caused prejudice to Azhar when it converted the Town’s motion to dismiss into a motion for summary judgment without specific prior notice to Azhar. Azhar contended that she was surprised by the trial court’s action and that the surprise resulted in a lack of reasonable opportunity to put forth evidence to show the existence of genuine issues of material fact. Id. at 950. Upon review, we stated:

Ind. Trial Rule 12(B) provides that a motion to dismiss for failure to state a claim shall be treated as a motion for summary judgment when “matters outside the pleading are presented to and not excluded by the trial court.” Where a trial court treats a motion to dismiss as one for summary judgment, the court must grant the parties a reasonable opportunity to present T.R. 56 materials. See T.R. 12(B); Biberstine v. New York Blower Co., 625 N.E.2d 1308, 1313 (Ind.Ct.App.1993), tram, dismissed. The trial court’s failure to give explicit notice of its intended conversion of a motion to dismiss to one for summary judgment is reversible error only if a reasonable opportunity to respond is not afforded a party and the party is thereby prejudiced. Ayres v. Indian Heights Volunteer Fire Department, 493 N.E.2d 1229, 1233 (Ind.1986).
Our review of the relevant cases discloses at least [three] considerations pertinent to a determination of whether a trial court’s failure to give express notice deprives the nonmovant of a reasonable opportunity to respond with T.R. 56 materials. First, we consider whether the movant’s reliance on evidence outside the pleadings should have been so readily apparent that there is no question that the conversion is mandated by T.R. 12(B). See Duran v. Komyatte, 490 N.E.2d 388, 391 (Ind.Ct.App.1986), trans. denied (noting that the operation of T.R. 12(B) is “well known” and a “clear mandate” of which counsel should be cognizant). Second, we consider whether there was ample time after the filing of the motion for the non-movant to move to exclude the evidence relied upon by the movant in support of its motion or to submit T.R. 56 materials in response thereto. See Biberstine, 625 N.E.2d at 1314. Third, we consider whether the nonmovant presented “substantiated argument” setting forth how she “would have submitted specific controverted material factual issues to the trial court if [she] had been given the opportunity.” Ayres, 493 N.E.2d at 1233 (citing Macklin v. Butler, 553 F.2d 525, 528 (7th Cir.1977)).

Id. at 950-51 (Emphasis added, internal footnote omitted). Although not explicitly stated, Lanni’s argument mainly focuses on the second element of the Azhar test: she claims that she was never allowed the opportunity to conduct any discovery. In Azhar, we referenced the approximate three month time period between the filing of the motion to dismiss and the hearing as “ample” time to allow Azhar to (1) move to exclude the to ascertain the evidence in opposition to the motion; and/or (3) submit materials in opposition thereto. Id.

We reached a different result in two older cases where trial courts considered matters outside the pleadings and converted the T.R. 12(B)(6) motions into motions for summary judgment without holding hearings or giving the parties notice that they were doing so. In both instances, this was held to be reversible error because the trial court did not allow the opposing parties a reasonable opportunity to present all material made pertinent to such a motion by T.R. 56.

Specifically, in Carrell v. Ellingwood, 423 N.E.2d 630, 632 (Ind.Ct.App.1981), trans. denied, Ellingwood filed a motion to dismiss Carrell’s complaint to contest a will. Carrell filed objections to the motion, accompanied by an affidavit. Id. That same day, the trial court, without notice, hearing, or any other proceeding, granted Ellingwood’s motion. Id. Carrell appealed, asserting that the trial court erred in not scheduling a hearing on Ellingwood’s motion and not treating the motion as one for summary judgment. Id. at 638. On appeal, the Carrell court, after finding that the trial court had properly converted the motion to dismiss into a motion for summary judgment, nevertheless concluded that “in such circumstances, [the trial court is required] to grant the parties a reasonable opportunity to present all material made pertinent to a T.R. 56 motion.” Id. at 634. Holding that no reasonable time to present additional materials had been granted to the parties, we reversed the trial court’s summary judgment. Id.

Likewise, in Foster v. Littell, 155 Ind.App. 627, 293 N.E.2d 790, 791 (1973), Lit-tell filed a motion to dismiss based on T.R. 12(B)(6). Foster filed an opposition, together with an affidavit. Id. At the hearing on the motion to dismiss, Foster’s counsel requested to be informed whether or not the motion would be treated as a motion for summary judgment. Id. That request was made so that there would be ample time, if needed, to prepare materials in accordance with the summary judgment standards. Id. Foster, however, was never informed that the motion to dismiss had become one for summary judgment until later when he learned by surprise that a judgment had been entered against him. Id. at 791. Foster appealed. We concluded that:

[i]nasmueh as [Foster] had filed an affidavit and [Littell] had filed a memorandum with his motion and the affidavit and memorandum are part of the record in the cause before the trial judge ruled on the respective motions and were not excluded by the record of the trial court, it is our opinion that the affidavit being matter outside the pleadings, falls with the guidelines of [T.R.] 12(B)(6), and ultimately came under [T.R.] 56. The court should have given reasonable opportunity to both parties to present all material made pertinent to such a motion by [T.R.] 56.

Id. at 792 (internal citations omitted).

Here, the evidence reflects that the NCAA’s Motion, together with Shaul’s affidavit, was filed on April 3, 2012. Because evidence outside the pleading was presented and not excluded by the trial court, we find that the trial court’s treatment of the NCAA’s Motion as a motion for summary judgment was proper. However, due to this conversion from a T.R. 12(B)(6) motion to a T.R. 56 motion, the trial court was required to give “all parties reasonable opportunity” to present all pertinent material. See also Ayres, 493 N.E.2d at 1233 (the trial court’s failure to give explicit notice of its intended conversion is reversible error only if a reasonable opportunity to respond is not afforded to a party and a party is thereby prejudiced).

Eighteen days after the NCAA’s Motion, on April 20, 2012, Lanni filed a motion for stay of briefing schedule, asserting that discovery was still in the early stages and that discovery to all parties would be sent out within the month. Additionally, Lanni objected to the inclusion of Shaul’s affidavit in NCAA’s Motion and the NCAA’s early request for summary judgment. The NCAA opposed Lanni’s motion for stay and, on May 29, 2012, the trial court denied Lanni’s motion to stay the briefing. Two days later, on May 31, 2012, Lanni served the NCAA with her first set of interrogatories.

On June 13, 2012, Lanni filed a motion for extension of time to respond to NCAA’s Motion. Two days later, the NCAA moved to stay discovery pending the trial court’s ruling on its Motion, to which Lanni objected. On July 5, 2012, the trial court granted the NCAA’s motion to stay discovery, and on July 9, 2012, the trial court conducted its hearing on the Motion.

Although Lanni self-characterizes her initial motion as a motion for stay of briefing, a review of the reasons set forth in Lanni’s April 20, 2012 motion establishes that it is more properly treated as a motion for alteration of time, pursuant to T.R. 56(I). Having filed her motion well within the thirty-day response time to a motion for summary judgment, Lanni clearly objected to the premature nature of the NCAA’s Motion, informing the trial court that litigation has just begun and discovery is being drafted. We are mindful that at the time the NCAA filed its Motion, litigation was barely two months old and the NCAA had yet to file a responsive pleading to Lanni’s Complaint. As such, Lanni had just cause to request an alteration of the regular time limits for briefing and designating materials to respond to a motion for summary judgment as Lanni was not yet apprised of NCAA’s expected defense and had yet to conduct any discovery. Moreover, in its rush to judgment, the NCAA then picked up its speed by not only objecting to all motions Lanni filed but also by successfully staying all discovery requests.

Disputing the existence of any “cause” for Lanni’s motion for alteration of time, the NCAA argues that Lanni’s discovery requests did not bear “on issues material to the [M]otion.” (Appellee’s Br. p. 14). “As a general proposition, it is improper for a court to grant summary judgment while reasonable discovery requests that bear on issues material to the motion are still pending.” Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 698 (Ind.2000). In this light, the NCAA argues that Lanni’s discovery requests “are nothing more than generic form requests” without focusing on the main issue raised in NCAA’s Motion, i.e., that the NCAA had no involvement in the Notre Dame fencing match. (Appellee’s Br. p. 15). However, the NCAA’s self-serving interpretation of what issues are “material” to the cause should not be prevailing; rather, the reasonableness of the request should be the initial predominant factor where discovery is in its early stages. Here, the NCAA’s motions, granted by the trial court, effectively prevented Lanni from conducting any discovery, let alone any reasonable discovery.

Based on the circumstances before us, it is clear that the trial court abused its discretion when it denied Lanni’s April 20, 2012 motion for alteration of time. By its denial, the trial court effectively deprived Lanni of a reasonable opportunity to present any material made pertinent to a T.R. 56 motion. See Carrell v. Ellingwood, 423 N.E.2d at 634. By its subsequent grant of the NCAA’s motion to stay discovery, the trial court further negated any opportunity to present relevant materials in opposition to the motion for summary judgment. Therefore, because the trial court did not follow the directives for converting a T.R. 12(B)(6) motion to a T.R. 56 motion, we reverse the trial court’s summary judgment in favor of the NCAA.

II. Shaul’s Affidavit

Lastly, Lanni contends that the trial court abused its discretion when it refused to strike Shaul’s affidavit, which was attached to the NCAA’s Motion. A trial court has broad discretion in ruling on a motion to strike. Norfolk Southern Ry. Co. v. Estate of Wagers, 833 N.E.2d 93, 100 (Ind.Ct.App.2005), trans. denied. Generally, we review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Id. We reverse a trial court’s decision to admit or exclude evidence only if that decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Id. at 101. Further, the trial court’s decision will not be reversed unless prejudicial error is shown. Id.

Pursuant to Indiana Trial Rule 56(E) “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Lanni now asserts that Shaul’s “self-serving” affidavit should be stricken because it lacks foundation, is incomplete, and is based on speculation. She specifically focuses her attention on paragraphs 4, 6, 8, 9, and 10, which state as follows:

4. I have read [Lanni’s] Complaint for Damages. In her Complaint, Lanni alleges that the NCAA, through its agents, including but not limited to the NCAA Men’s and Women’s Fencing Committee and Regional Advisory Committees, was responsible for operating the Midwest Regional Fencing Competition on March 7, 2010 at the University of Notre Dame Du Lac. These facts alleged by Lanni are incorrect.
* * *
6. The NCAA did not have any involvement in any fencing competition that may have occurred on March 7, 2010, including any fencing competition at No-tre Dame. To the extent a fencing competition was held at Notre Dame on March 7, 2010, the NCAA did not sanction any such event. The NCAA did not participate in any such event. The NCAA did not supervise any such event. The NCAA did not select the officials for any such event. The NCAA had no other involvement with any such event.
8. The only other fencing competitions in which the NCAA has limited involvement in a given year are the NCAA Regional fencing competitions. There currently are four NCAA Regional fencing competitions (Midwest, Mid-Atlantic/South, Northeast, and West). The NCAA Regional fencing competitions take place two weeks before the National Collegiate Men’s and Women’s Fencing Championships. The NCAA’s involvement in the NCAA Regional fencing competitions is through its four Regional Advisory Committees, one for each region. The Regional Advisory Committees may serve on the bout committees at the NCAA Regional fencing competitions if the bout committees convene. The Regional Advisory Committees answer questions that the host institutions may have, work with the national head official to secure a regional head official, address protests that arise in bouts and tabulate the scores to determine which student athletes will move on to compete in the National Collegiate Men’s and Women’s Fencing Championships.
9. The NCAA uses set rotations (as recommended by the institutions in each region) as to where the NCAA Regional fencing competitions will take place. The institutions hosting the NCAA Regional fencing competitions are responsible for organizing, running and supervising the events. In 2010, the NCAA’s Regional fencing competitions took place at the following institutions:
(a) Midwest Region: Northwestern University on March 13-14, 2010;
(b) Mid-Atlantic/South Region: Drew University on March 13, 2010;
(c) Northeast Region: Brown University on March 14, 2010; and
(d) West Region: University of California, San Diego on March 13, 2010.
10. If a school, group of schools or conference put on competitions prior to the NCAA’s fencing Regional fencing competitions, the NCAA would have no involvement with such competitions.

(Appellant’s App. pp. 28-30).

Contrary to Lanni’s portrayal, we cannot conclude that the statements contained in Shaul’s affidavit amount to conclusory lay opinions premised on speculation. In her affidavit, Shaul avers that she is the championships manager for fencing at the NCAA and verifies that her testimony is based upon personal knowledge. She attests to factual matters with respect to the NCAA’s involvement and participation in fencing competitions. The affidavit does not contain any internal inconsistencies or evasive language. While the affidavit might contain some generalized statements, these statements are nevertheless credible and clearly based on her personal knowledge due to the position she holds and as such, are admissible evidence.

However, although Lanni complains that Shaul’s affidavit is incomplete and that the “NCAA was under an affirmative obligation to tell the entire story,” she fails to present us with any references to case law establishing this affirmative obligation. We remind Lanni that “a party opposing the motion [for summary judgment] shall also designate to the court each material issue of fact which that party asserts precludes entry of summary judgment!.]” See T.R. 56(C). Therefore, if there was a more complete story to tell, Lanni should have presented it to the court pursuant to the rules for summary judgment and thereby create an issue of material fact. We conclude that the trial court did not abuse its discretion when it admitted Shaul’s affidavit.

CONCLUSION

Based on the foregoing, we conclude that the trial court erred when it converted the NCAA’s Motion into a motion for summary judgment without awarding Lan-ni a reasonable opportunity to present relevant materials in opposition to the motion for summary judgment; and the trial court did not abuse its discretion by denying Lanni’s motion to strike Shaul’s affidavit, designated by the NCAA.

Reversed in part, affirmed in part, and remanded for further proceedings.

BRADFORD, J. and BROWN, J., concur.

      . This appeal strictly concerns a procedural question instigated by the NCAA. The other parties in this case, the University of Notre Dame Du Lac and the United States Fencing Association, Inc., are not part of this appeal.

      . We held oral argument in this cause on May 1, 2013 at the Indiana Court of Appeals Courtroom in Indianapolis, Indiana. We thank counsel for their eloquent advocacy.

      . On April 11, 2012, Lanni had filed two separate motions pursuant to Ind. T.R. 79(C)(3) and pursuant to T.R. 76(B)-(C) requesting the recusal of the trial judge.

      . However, during oral argument, Lanni’s counsel asserted to be no longer concerned about the "notice requirement.”

      . Indiana Trial Rule 56(1) provides that "For cause found, the [c]ourt may alter any time limit set forth in this rule upon motion made within the applicable time limit.”


author: CRONE, Judge.

text:
    Joseph D. HARDIMAN and Jaketa L. Patterson, as Co-Administrators of the Estate of Britney R. Meux, Deceased, Appellants-Plaintiffs/Cross-Appellees, v. Jason R. COZMANOFF, Appellee-Defendant/Cross-Appellant.
    No. 45A03-1210-CT-437.
    Court of Appeals of Indiana.
    May 23, 2013.
    Ordered Published June 10, 2013.

      Adam J. Sedia, Rubino, Ruman, Cros-mer & Polen, Dyer, IN, Attorney for Appellant.

      Edward W. Hearn, Johnson & Bell, P.C., Crown Point, IN, Attorney for Ap-pellee.
   OPINION

CRONE, Judge.

Case Summary

Britney R. Meux was hit by a car while she was jogging. She subsequently died from her injuries. The State charged the alleged driver of the vehicle, Jason R. Coz-manoff, with thirteen crimes including class C felony reckless homicide. Joseph E. Hardiman and Jaketa L. Patterson, as co-administrators of Meux’s estate (“the Estate”), filed a civil wrongful-death complaint against Cozmanoff. Rather than filing an answer to the civil complaint or responding to the initial discovery requests, Cozmanoff filed a motion to stay all civil proceedings pending resolution of his criminal case. Cozmanoff asserted that a stay of proceedings was necessary to protect his Fifth Amendment privilege against self-incrimination. Following a hearing, the trial court entered an order granting a stay of discovery with respect to Cozma-noff but also ordered Cozmanoff to file an answer to the complaint within thirty days. Both parties requested certification for interlocutory appeal.

On appeal, the Estate asserts that the trial court abused its discretion in staying all discovery with respect to Cozmanoff. On cross-appeal, Cozmanoff asserts that the trial court abused its discretion in failing to stay the civil proceedings in their entirety by ordering him to file an answer to the complaint. Concluding that the trial court abused its discretion in staying discovery but did not abuse its discretion in ordering Cozmanoff to file an answer to the complaint, we affirm in part, reverse in part, and remand.

Facts and Procedural History

On March 6, 2012, Meux, a correctional officer with the Lake County Sheriffs Department, was jogging with three fellow officers along 93rd Avenue in Crown Point when she was struck by a car. The driver of the car allegedly fled the scene. Meux was critically injured and subsequently died from her injuries. On March 9, 2012, the State charged the alleged driver of the car, Cozmanoff, with thirteen counts, including one count of class C felony reckless homicide and three counts of class D felony criminal recklessness resulting in serious bodily injury. Thereafter, on March 22, 2012, the Estate filed a civil suit for wrongful death against Cozmanoff alleging that Cozmanoff negligently operated the vehicle that struck Meux, and then fled the scene. On April 27, 2012, the Estate served Cozmanoff with its first set of interrogatories and requests for production. The Estate also contacted defense counsel to inquire about taking Cozma-noff s deposition.

On May 29, 2012, Cozmanoff filed a motion to stay all proceedings pending resolution of his criminal case. Specifically, Cozmanoff argued that responding to the complaint, providing answers to interrogatories, or answering deposition questions would violate his Fifth Amendment “right not to testify against himself in both his criminal and civil proceedings.” Appellant’s App. at 17. He further argued that even if he were to invoke his Fifth Amendment privilege against self-incrimination regarding only certain questions or allegations, he would be prejudiced due to certain inferences that “can be ascertained by his choice of which allegations and questions he would choose to respond to or answer and which he would not.” Id. The Estate filed its response in opposition to the stay arguing that Cozmanoff, as a defendant in a civil proceeding, may refuse to answer certain questions by asserting his Fifth Amendment privilege but that a stay is inappropriate and would cause prejudice to the Estate. Following a hearing on July 17, 2012, the trial court entered an order staying all discovery with respect to Cozmanoff but also ordered him to file a responsive pleading to the complaint within thirty days of the order.

On August 16, 2012, Cozmanoff requested the trial court to certify for interlocutory appeal that portion of its order requiring him to file a responsive pleading to the complaint. The Estate responded with a belated cross-motion to certify that portion of the order staying all discovery with respect to Cozmanoff. Concluding that both motions for interlocutory appeal involved substantial questions of law that relate to constitutional rights, the trial court granted both motions for certification. This interlocutory appeal and cross-appeal followed.

Discussion and Decision

I. Motion for Stay

We first address the Estate’s appeal of the trial court’s decision to stay all discovery with respect to Cozmanoff pending the outcome of his criminal proceeding. We review the trial court’s grant or denial of a motion to stay pursuant to an abuse of discretion standard. In re A.D., 737 N.E.2d 1214, 1216 (Ind.Ct.App.2000). A trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances before the court. Alsheik v. Guerrero, 979 N.E.2d 151, 155 (Ind.2012). In reviewing a trial court’s ruling on a discretionary motion such as the one at issue here, we will affirm if there is any rational basis for the trial court’s action. Drexel Burnham Lambert, Inc. v. Merchs. Inv. Counseling, Inc., 451 N.E.2d 346, 349 (Ind.Ct.App.1983).

Cozmanoff s motion to stay was based upon his assertion that allowing his civil case to proceed while his criminal case is pending violates his Fifth Amendment privilege against self-incrimination. The Fifth Amendment to the United States Constitution provides in relevant part that no person “shall be compelled in any criminal case to be a witness against himself.” The Indiana Constitution makes the same fundamental guarantee by providing that “[n]o person, in any criminal prosecution, shall be compelled to testify against himself.” Ind. Const, art. 1 § 14. The privilege against self-incrimination “not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). However, it is well settled that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). In other words, although the refusal to testify in a civil case cannot be used against one asserting the privilege in a subsequent criminal proceeding, the privilege against self-incrimination does not prohibit the trier of fact in a civil case from drawing adverse inferences from a witness’s refusal to testify. Gash v. Kohm, 476 N.E.2d 910, 913 (Ind.Ct.App.1985), trans. denied.

The Estate argues that the trial court abused its discretion in staying all discovery with respect to Cozmanoff based merely upon his general assertion that a stay is constitutionally mandated to protect his Fifth Amendment privilege against self-incrimination. Specifically, the Estate contends that a stay of civil proceedings pending the outcome of criminal proceedings is not constitutionally mandated and that before a court can exercise its discretion in determining whether a stay is required in the interests of justice, the court should consider several relevant factors regarding the propriety of a stay in a particular case. We agree with the Estate.

Even where a privilege as important as the Fifth Amendment privilege against self-incrimination is implicated in civil proceedings, trial courts have taken steps to ensure that the litigation proceeds in a manner consistent with the interests of justice. State v. Int’l Bus. Machs. Corp., 964 N.E.2d 206, 211-12 (Ind.2012). In a proeedurally and factually analogous case, this Court recently reviewed a trial court’s consideration of the factors relevant in determining whether a stay of discovery in civil proceedings pending outcome of criminal proceedings is warranted in the interests of justice based upon the Fifth Amendment privilege. Fry v. Schroder, 986 N.E.2d 821 (Ind.Ct.App.2013) (publication ordered Apr. 16, 2013), trans. pending. In Fry, we noted that while a trial court has the inherent power to stay its proceedings, a stay of civil proceedings pending the outcome of criminal proceedings is not constitutionally required. Id., 986 N.E.2d at 823. (citing Jones v. City of Indianapolis, 216 F.R.D. 440, 450 (S.D.Ind.2003)). The ultimate question is whether the court should exercise its discretion in order to avoid placing the defendant in the position of having to choose between risking a loss in his civil case by invoking his Fifth Amendment rights, or risking conviction in his criminal case by waiving his Fifth Amendment rights and testifying in the civil proceedings. Id.

To answer that ultimate question, we determined in Fry that:

In deciding whether to stay civil proceedings where a similar criminal action is brought before the completion of the civil proceedings, a court may consider a variety of factors. They include: (1) the interest of the plaintiff in proceeding expeditiously with the litigation or any particular aspect of it, and the potential prejudice to the plaintiff of a delay; (2) the burden which any particular aspect of the proceedings may impose on the defendant; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interests of persons not parties to the civil litigation; and (5) the interest of the public in pending civil and criminal litigation.

Id. (internal citations omitted). The trial court in Fry considered and balanced these five factors before ultimately denying the defendant’s motion to stay, specifically noting that “ ‘it is not unconstitutional to force a litigant to choose between invoking the Fifth Amendment in a civil case and risk the negative inference permitted in that situation, or answering questions in the civil context and risking the potential negative effects on the criminal prosecution.’” Id., 986 N.E.2d at 824 (citation omitted). Upon appellate review of the trial court’s consideration and balancing of the relevant factors in Fry, we affirmed the trial court’s denial of the motion for stay. Id., 986 N.E.2d at 824.

Consideration of the five factors in the instant case leads to a result opposite that reached by the trial court here when it granted a stay. First, the Estate clearly has an interest in the expeditious resolution of the wrongful-death proceedings, and that interest would be severely hampered by a stay of all discovery with respect to Cozmanoff. This is especially so in light of the procedural posture of the case being in its initial stage. It is only through the discovery process that a plaintiff can determine the merit or lack thereof in his case and develop his strategy. By refusing to even respond to the complaint, Cozmanoff has prevented the Estate from conducting any discovery regarding the circumstances surrounding the accident that claimed Meux’s life, and the current indefinite stay presents a legitimate concern that evidence may be lost and that potential witnesses cannot be discovered or may become unavailable.

Regarding the burden to which any particular aspect of the proceedings may impose on Cozmanoff, we recognize that because the civil and criminal actions arise out of many of the same facts and circumstances, absent a stay, Cozmanoff will likely be faced with the difficult decision to either invoke his Fifth Amendment privilege as to certain questions and risk the negative inference permitted in that situation, or to risk the use of any statement against him in his criminal case. As stated above, however, placing a defendant in a position to make this unsavory choice is neither unconstitutional nor necessarily inconsistent with the “interests of justice.” See id., 986 N.E.2d at 823. Mindful of these concerns, we note again the early procedural stage of this case and that, at least at this juncture, there are methods much less drastic than the current broad and indefinite stay that would promote the interests of justice. See Ind. Trial Rule 26(C) (providing various options for limiting discovery through imposition of a protective order). Thus, although this factor perhaps weighs in favor of some protection for Cozmanoff, it does not weigh in favor of the broad and indefinite protection provided by the current stay of discovery.

As to the efficient use of judicial resources, neither the parties nor the claims are the same in both the civil and criminal proceedings, so we are not faced with a situation where allowing both cases to proceed simultaneously would result in a duplication of efforts, discovery or otherwise. Staying the civil proceedings, however, leaves much uncertainty to the civil court in the management of its cases. Although a criminal trial date has apparently been set within the next year, it is mere speculation on Cozmanoff s part that it will proceed as scheduled. An indefinite stay of discovery imposed at the outset of the civil case brings the case essentially to a standstill while awaiting the outcome of the pending criminal proceeding. The civil court is rendered helpless by issues relating to the criminal court calendar, not to mention issues relating to the appellate court calendar in the event of any criminal appeals, issues over which it has no control. This factor weighs against the current stay.

Persons not parties to the civil litigation also have an interest in allowing the civil case to proceed. Although Cozmanoff is currently the only named defendant, our review of the limited record before us indicates that there could be third parties not currently parties to the litigation who the Estate may consider adding as additional parties after further discovery. A stay of discovery with respect to Cozmanoff inhibits the Estate’s ability to discover the identity of those parties. Those third parties have an interest in being named expeditiously and being prepared to defend against potential liability. A stay of discovery negatively affects the interests of those parties.

Finally, there is a general public interest in the swift resolution of both civil and criminal matters, and this factor weighs against the grant of the current stay. Under the circumstances presented, the relevant factors to be considered weigh against a stay of proceedings and/or all discovery with respect to Cozmanoff. We conclude that the trial court abused its discretion in entering its order staying discovery with respect to Cozmanoff. Therefore, the stay should be lifted and the civil litigation permitted to proceed. As we similarly acknowledged in Fry, nothing in our determination today prevents the parties from raising or the trial court from revisiting the propriety of a more limited stay in the interests of justice pending future developments. See Fry, 986 N.E.2d at 824.

II. Cross-Appeal

On cross-appeal, Cozmanoff contends that the trial court abused its discretion when it failed to stay the civil proceeding in its entirety by ordering him to file an answer to the complaint. In light of our foregoing discussion and decision, the cross-appeal issue is now moot. We affirm that portion of the trial court’s order requiring Cozmanoff to file an answer to the complaint. We reverse the trial court’s order staying all discovery with respect to Cozmanoff and remand for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

ROBB, C.J., and FRIEDLANDER, J., concur.

      . We note that the motion for stay was granted by a different Lake County trial judge prior to the Honorable Diane Kavadias Schneider assuming jurisdiction as Special Judge on August 30, 2012.

      . Although Cozmanoff requested a stay of "all civil proceedings” pending resolution of his criminal case based upon his Fifth Amendment privilege against self-incrimination, the trial court entered an order staying "discovery” with respect to Cozmanoff coupled with a seemingly conflicting additional order for Cozmanoff to file an answer to the complaint. Appellant's App. at 5, 16.

      . Despite the absence of authority from our supreme court doing so, Cozmanoff invites this Court to construe the Indiana self-incrimination provision independently of Fifth Amendment jurisprudence and to determine that the Indiana provision provides greater protection. We decline his invitation.