author: ROBB, Chief Judge.

text:
    George A. NUNLEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 10A04-1212-CR-630.
    Court of Appeals of Indiana.
    Oct. 2, 2013.

      Jeffrey D. Stonebraker, Clark County Chief Public Defender, Jeffersonville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Katherine Modesitt Cooper, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issues

George A. Nunley appeals his conviction for robbery as a Class C felony and adjudication as an habitual offender. Nunley presents two issues on appeal: 1) whether there is sufficient evidence to support his robbery conviction; and 2) whether the trial court erred in allowing the State to amend the. habitual offender allegation. Concluding that sufficient evidence supports Nunley’s robbery conviction but that the trial court erred in allowing the State to amend the habitual offender allegation, we affirm in part, reverse in part, and remand.

Facts and Procedural History

In April 2010, Nunley and his girlfriend Debe Mueller went to a Rite Aid Pharmacy store. The manager on duty at the time was Norman Judd. Judd greeted Nunley and Mueller and asked them if they needed any assistance; they replied that they did not. A few minutes later, Judd again asked them if they needed any help, to which they replied no. Soon thereafter, Judd went into the store’s restroom and checked the trash and baby-changer, per store policy, to see whether there was any empty packaging or other trash suggesting that someone had tried to steal merchandise from the store. Judd found nothing of concern at that time.

As Judd left the restroom, Nunley passed him and did not make eye contact or respond to Judd’s greeting. Judd found that suspicious and stayed in that area of the store until Nunley left the bathroom. When Nunley left the bathroom, Judd went back into the restroom and found several empty DVD packages and wrapping. Judd ran out of the bathroom, and asked Nunley where the product was. At this point, Nunley was nearly running to the front of the store. Nunley turned around and asked Judd, “are you accusing me of stealing, bitch?” Transcript at 195. Judd told Nunley that he would let the police handle the situation. Nunley and Mueller were making their way out of the store as Judd picked up his phone and neared the front of the store. Nunley had gone through the interior set of doors and was in a breezeway and not yet through the exterior set of doors when he turned around and walked over to Judd. Judd testified that Nunley came over to him, shoved him, and said, “don’t you call the police on me, bitch.” Tr. at 196. Nun-ley then left the store. Judd then walked outside to get Nunley’s license plate number. When the police arrived, Judd gave the officer Nunley’s license plate number and provided a copy of the store’s surveillance camera footage and the DVD packaging found in the restroom. Before he left that night, Judd looked through the store to see if he could find any of the missing DVDs, but he did not find any.

In May 2010, the State charged. Nunley with robbery as a Class C felony and alleged that he was an habitual offender. A jury trial was scheduled to begin on October 9, 2012, and a jury was empaneled that day but no testimony was heard. On October 10, 2012, the State requested leave to amend the habitual offender charge; the trial court granted the request over Nunley’s objection and continued the trial to six days later. The trial then resumed on October 16, 2012, and the following day the jury found Nunley guilty of the robbery charge and found him to be an habitual offender. In November 2012, the court sentenced Nunley to eight years executed for the robbery conviction and enhanced his sentence by twelve years based on the habitual offender finding. This appeal followed. Additional facts will be supplied as necessary.

Discussion and Decision

I. Sufficiency of the Evidence

A. Standard of Review

The standard for reviewing sufficiency of the evidence claims is well settled. We do not reweigh the evidence or assess the credibility of the witnesses. West v. State, 755 N.E.2d 173, 185 (Ind.2001). Rather, we look to the evidence and reasonable inferences drawn therefrom that support the verdict and will affirm the conviction if there is probative evidence from which a reasonable trier-of-fact could have found the defendant guilty beyond a reasonable doubt. Id.

B. Nunley’s Robbery Conviction

Our robbery statute provides that a Class C felony robbery is committed when:

A person ... knowingly or intentionally takes property from another person or from the presence of another person:
(1) by using or threatening the use of force on any person; or
(2) by putting any person in fear[.]

Ind.Code § 35-42-5-1. Nunley acknowledges that a conviction may rest upon the uncorroborated testimony of the victim. Ludy v. State, 784 N.E.2d 459, 461 (Ind.2003). Nunley argues, in essence, that the evidence indicates that once he exited through the first set of doors at the store, a theft had been completed and that when he turned around to shove Judd and tell Judd not to call the police, that confrontation was not necessary to complete the taking and thus does not support a conviction for robbery. See Ind.Code § 35-43-4-2(a) (“A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft.... ”).

On the contrary, the record supplies sufficient evidence from which the jury could have concluded that the confrontation was not a separate incident but was directly linked to Judd’s questioning of Nunley, and was integral to Nunley’s attempt to complete the taking. Judd testified that Nunley “kind of angled to the door but he came back to me when he saw me on the phone when I said I would let the police handle it.” Tr. at 243. Our review of the record and the surveillance video leads us to conclude that the situation was more fluid and less delineated than Nunley suggests. Judd also testified that not only did Nunley shove him, but that Nunley caused him to fear for his safety and for that of his co-workers. Further, Judd testified that he has to call the police at least four or five times each month due to shoplifting, but that none of those other shoplifters had caused him to be scared. Nunley is essentially asking us to reweigh the evidence, which we cannot do.

Nunley also argues that there was insufficient evidence to support a determination that he actually took property from the store. Again, this is a request for us to reweigh the evidence. The recovery of stolen property is not essential to prove that a robbery was committed or that the accused committed it. Leavell v. State, 455 N.E.2d 1110, 1115 (Ind.1983). Judd testified that he checked the restroom just before Nunley went into it and there was no inventory packaging in the restroom at that time, but that the DVD wrappers and packaging were in there right after Nunley exited the restroom. Because it is common for shoplifters to leave packaging in the restroom in order to discard security tags and make items more portable, Judd was specifically looking for such packaging each time he inspected the restroom — both before and after Nunley used it. Judd also testified that, while he did not check the computer inventory following the incident with Nunley, he did look through the rest of the store to see if any of the missing DVDs had been placed somewhere else in the store, and he found no such evidence. We conclude that there was sufficient evidence from which a jury could have determined that the State proved the elements of robbery beyond a reasonable doubt.

II. Amendment of Habitual Offender Allegation

Nunley also argues that the trial court erred in allowing the State to amend the habitual offender allegation portion of the information after the jury was empaneled. We agree.

The original information listed two prior convictions for Nunley to support the habitual offender count: a theft and possession of cocaine. However, the parties agree that the conviction for possession of cocaine was not a predicate offense under the habitual offender statute. The State requested leave to amend the habitual offender charge the day after the jury was empaneled in order to remove the possession of cocaine charge and add additional theft charges that would go to an habitual offender allegation. Nunley objected to the amendment, noting that he had recognized that the State could not establish that Nunley was an habitual offender based on the information, and he had prepared to go forward on that basis. The court recessed for an hour, and upon resuming, both parties gave their arguments regarding the proposed amendment. Ultimately, the court allowed the amendment but continued the trial for six days so that Nunley could prepare his defense.

Indiana Code section 35-34-1-5 deals with amendments to an information and has four subsections — (a), (b), (c), and (e) — that, at first blush, could potentially apply to the amendment here. We conclude below that none of these subsections allows the amendment in this case.

Subsection (a) provides that “[a]n indictment or information which charges the commission of an offense may not be dismissed but may be amended on motion by the prosecuting attorney at any time because of any immaterial defect.... ” Ind.Code § 35-34-1-5(a). The subsection lists eight examples of immaterial defects, none of which apply to the amendment at hand, and then allows a ninth catch-all category for “any other defect which does not prejudice the substantial rights of the defendant.” Id. While the habitual offender charge is not a separate “offense” under Indiana law, our supreme court has held that it is subject to the rules. governing charging of criminal offenses, such as Indiana Code section 35-34-1-5. Murphy v. State, 499 N.E.2d 1077, 1083 (Ind.1986). The statute also allows for an amendment “at any time.” Ind.Code § 35-34-l-5(a). However, we doubt that the proposed amendment was “immaterial,” and moreover, we conclude that Nunley’s substantial rights were prejudiced by the amendment.

A defendant’s substantial rights include a right to sufficient notice and an opportunity to be heard regarding the charge; and, if the amendment does not affect any particular defense or change the positions of either of the parties, it does not violate these rights. Ultimately, the question is whether the defendant had a reasonable opportunity to prepare for and defend against the charges.

Gomez v. State, 907 N.E.2d 607, 611 (Ind.Ct.App.2009) (citations and internal quotations omitted), trans. denied. The State argues that the amendment did not affect any defense that Nunley may have had because he “does not argue that he was unaware of his four prior theft convictions,” and he had “ample time — six days — to determine if any valid defenses applied.” Brief of Appellee at 17. We disagree with the State and conclude that the amendment drastically changed Nun-ley’s available defense and his position because under the original information he planned to use the viable defense that the State had not alleged convictions that would support an habitual offender finding. That defense was not available to him under . the amended information. The amendment therefore violated Nunley’s substantial rights and was not allowed under subsection (a).

Subsection (b) provides:

The indictment or information may be amended in matters of substance and the names of material witnesses may be added, by the prosecuting attorney, upon giving written notice to the defendant at any time:
(1) up to:
(A) thirty (30) days if the defendant is charged with a felony; or
(B) fifteen (15) days if the defendant is charged only with one (1) or more misdemeanors;
before the omnibus date; or
(2) before the commencement of trial; if the amendment does not prejudice the substantial rights of the defendant. When the information or indictment is amended, 'it shall be signed by the prosecuting attorney or a deputy prosecuting attorney.

Ind.Code § 35-34-1-5(b). This subsection then allows amendments of substance, but only before trial and only if the amendment does not prejudice the substantial rights of the defendant. As noted above, the amendment did prejudice Nunley’s substantial rights. In addition, the amendment was made after the commencement of trial. See Gibbs v. State, 952 N.E.2d 214, 221-22 (Ind.Ct.App.2011) (concluding that a jury trial commences with voir dire), tram, denied. The amendment was therefore not allowed under subsection (b).

Subsection (c) provides that, “[ujpon motion of the prosecuting attorney, the court may, at any time before, during, or after the trial, permit an amendment to the indictment or information in respect to any defect, imperfection, or omission in form which does not prejudice the substantial rights of the defendant.” Ind.Code § 35-34-l-5(c). This subsection explicitly allows amendments during trial, but only amendments of form and only where the defendant’s substantial rights are not prejudiced. Again, we note that Nunley’s substantial rights were prejudiced. In addition, we conclude that the amendment was one of substance. “Whether an amendment is a matter of substance or form is a question of law, which we review de novo.” Gibbs, 952 N.E.2d at 221.

[A]n amendment is one of form, not substance, if both (a) a defense under the original information would be equally available after the amendment, and (b) the accused’s evidence would apply equally to the information in either form. And an amendment is one of substance only if it is essential to making a valid charge of the crime.

Fields v. State, 888 N.E.2d 304, 310 (Ind.Ct.App.2008) (quoting Fajardo v. State, 859 N.E.2d 1201, 1207 (Ind.2007)). Because the amendment was essential to the allegation of Nunley being an habitual offender, and because Nunley’s defense under the original information evaporated under the amendment, the amendment was one of substance rather than form and was not allowed under subsection (c). See id. (concluding that a defense was not equally available after an amendment in which the State proposed to change the class of a prior, offense, and the class was an essential element in the habitual offender charge).

Finally, subsection (e) specifically references habitual offender charges and provides that:

An amendment of an indictment or information to include a habitual offender charge ... must be made at least thirty (30) days before the commencement of trial. However, upon a showing of good cause, the court may permit the filing of a habitual offender charge at any time before the commencement of the trial if the amendment does not prejudice the substantial rights of the defendant. If the court permits the filing of a habitual offender charge less than thirty (30) days before the commencement of trial, the court shall grant a continuance at the request of the:
(1) state, for good cause shown; or
(2) defendant, for any reason.

Ind.Code § 35-34-1-5(e). First, this subsection applies to amendments “to include” an habitual offender charge, whereas here, the amendment was to an existing habitual offender charge. Haymaker v. State, 667 N.E.2d 1113, 1114 (Ind.1996) (“The challenged amendment is merely an amendment to the already existing habitual offender information, rather than an addition of an habitual offender charge, as contemplated by I.C. § 35-34-1-5(e).”). The subsection does allow an amendment “at any time” but only if certain requirements are met, and those requirements were not met here. As discussed above, the amendment here was proposed after the commencement of trial and it prejudiced Nunley’s substantial rights. Additionally, the State, eommendably, admitted at the time of the proposed amendment that there was no good cause for the amendment. The convictions that were proposed to be added were all from that same court, and so were available to the State long before trial began and it was apparently simple oversight that led to the listing of the wrong convictions on the original information and a failure to catch the mistake before trial began. We therefore conclude that no part of Indiana Code section 35-34-1-5 allowed the amendment that was proposed by the State here.

One final issue to deal with is the fact that Nunley did not request a continuance when the amendment was allowed. The court stated that it would grant his motion to continue and restart the trial in six days, but no such motion is in the i’eeord. The State argues that Nunley’s challenge to the amendment has been waived by his failure to request a continuance. The State cites to several cases in support of its proposition, none of which we find persuasive. In Haymaker, our supreme court concluded that the defendant’s substantial rights had not been prejudiced, that the amendment was made before trial, and that even if subsection (e) had applied, the defendant had waived the issue for appeal because he failed to request a continuance for fear that it would conflict with his speedy trial request. 667 N.E.2d at 1114. In Wilson v. State, the issue again revolved around a pre-trial amendment, and a defendant who argued that he did not have time to prepare for the amendment but had not requested a continuance. 931 N.E.2d 914, 918 (Ind.Ct.App.2010) (“[A] defendant’s failure to request a continuance after a trial court allows a pre-trial substantive amendment to the charging information over defendant’s objection results in waiver. Here, Wilson had the opportunity to request a continu-anee for the purpose of giving himself the opportunity to prepare his defense after the trial court allowed the State to amend the charging information over his objection but chose not to pursue that course.”) (emphasis added), trans. denied. The State also argues that Nunley reads Gibbs, 952 N.E.2d 214, too broadly because in that case, the information had been read to the jury by the time the amendment was requested, and “[i]n any event, Gibbs applies to amendments that are substantive.” Br. of Appellee at 14. Not only have we concluded here that the amendment at issue was one of substance, but our analysis in Gibbs was broader than the State implies. In Gibbs, we concluded that

[w]ith respect to amendments made after the commencement of trial, we find the reasoning in Fajardo and Fuller more persuasive. When the General Assembly amended I.C. § 35-34-1-5, it authorized a specific time frame in which the State could substantively amend a charging Information. As we concluded in Fuller, overlooking this pre-requisite by upholding an untimely amendment where a defendant has failed to move for a continuance would ignore the intent of the statute.

Gibbs, 952 N.E.2d at 224.

Also we note that after resuming court, following a recess to allow the parties to research the law regarding amendments, the court here allowed each side to present its argument about the proposed amendment. The judge then said, “[hjere’s what we’re going to do, okay, I’m going to allow the amendment, but I’m going to grant your motion to continue ...” Tr. at 112. While no such actual motion is in the record, it does not appear that the court gave Nunley a chance to request such a continuance, following the court’s grant of the motion to amend, before granting a continuance. In effect, Nunley never had a chance to request a continuance and should not be penalized for the court’s decision to give the parties more time to prepare in light of the amendment.

In sum, we conclude that Nunley has not waived this issue on appeal, and that the trial court erred in allowing the State’s amendment. Because we conclude that the requested amendment to the information was not allowed, and all parties agree that Nunley was not an habitual offender as originally charged, we reverse habitual offender enhancement to Nunley’s sentence.

Conclusion

Concluding that sufficient evidence supports Nunley’s robbery conviction but that the trial court erred in allowing the State to amend the habitual offender allegation, we affirm in part, reverse in part, and remand for the trial court to correct Nun-ley’s sentence accordingly.

Affirmed in part, reversed in part, and remanded.

RILEY, J., and KIRSCH, J„ concur.

      . Indiana Code section 35 — 50—2—8(d)(3) provides that. a conviction does not count for purposes of the habitual offender statute if it is an offense under Indiana Code section 35-48-4; it is not listed in Indiana Code section 35 — 50—2—2(b)(4); and the offender has no more than one unrelated conviction for drug dealing. Nunley and his conviction for possession of cocaine met these requirements, and thus the conviction did not count for purposes of the habitual offender statute.

      . Subsection (d) does not relate to the timing of a request to amend the information or considerations in determining whether to grant such a request.


source: Caselaw Access Project

author: FISHER, Senior Judge.

license: Public Domain

text:
    MILLER PIPELINE CORPORATION, Petitioner, v. INDIANA DEPARTMENT OF STATE REVENUE, Respondent.
    No. 49T10-1012-TA-64.
    Tax Court of Indiana.
    Aug. 9, 2013.
    Robert A. Romack, Dan R. Dunbar, Dunbar & Romack, Franklin, IN, Attorneys for Petitioner.
    Gregory F. Zoeller, Attorney General of Indiana, Jessica E. Reagan, Deputy Attorney General, Indianapolis, IN, Attorneys for Respondent.
   ORDER ON PETITIONER’S MOTION FOR PARTIAL SUMMARY JUDGMENT

FISHER, Senior Judge.

Miller Pipeline Corporation appeals the Indiana Department of State Revenue’s final determination denying its claim for refund of gross retail (sales) and use tax paid between 2005 and 2007. The matter is currently before the Court on Miller Pipeline’s motion for partial summary judgment (Motion), which the Court denies.

FACTS AND PROCEDURAL HISTORY

The following facts are not in dispute. On September 10, 2009, the Department completed an audit of Miller Pipeline for tax years 2005 through 2007. On September 21, 2009, the Department issued proposed assessments against Miller Pipeline for tax years 2006 and 2007. Miller Pipeline paid the proposed assessments in their entirety on October 23, 2009.

On March 24, 2010, Miller Pipeline filed a claim with the Department seeking a refund of sales and use taxes it paid between 2005 and 2007. The Department subsequently denied Miller Pipeline’s refund claim.

Miller Pipeline initiated this original tax appeal on December 21, 2010. On April 25, 2013, Miller Pipeline filed its Motion. The Court conducted a hearing on the Motion on July 9, 2013.

STANDARD OF REVIEW

Summary judgment is designed to provide speedy resolution to those cases — or those parts of cases — that may be determined as a matter of law because there are no factual disputes. Matonovich v. State Bd. of Tax Comm’rs, 705 N.E.2d 1093, 1096 (Ind. Tax Ct.1999), review denied. See also Ind. Trial Rule 56(C) (explaining that summary judgment is proper only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law). Stated differently, a case is appropriate for summary judgment if the parties present evidence that obviates the need for a trial (whether by jury or bench) to resolve differing versions of “the truth” (ie., of the facts). See Stuteville v. Downing, 181 Ind. App. 197, 391 N.E.2d 629, 631 (1979) (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).

The party moving for summary judgment bears the burden of establishing its propriety; thus, it must make a prima facie showing (1) that there are no genuine issues of material fact, and (2) that it is entitled to judgment as a matter of law. T.R. 56(C); Babinchak v. Town of Chesterton, 598 N.E.2d 1099, 1101 (Ind.Ct.App.1992). As part of that prima facie showing, the moving party is required to refer the court to the specific evidentiary matter that demonstrates that there are no genuine issues of material fact; indeed, at the time of filing its motion for summary judgment, the moving party “shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion.” T.R. 56(C). Only after the moving party makes its prima facie showing does the burden then shift to the non-moving party to show, through the designated evidence, that specific facts do indeed indicate a genuine issue of material fact. Babinchak, 598 N.E.2d at 1101 (citations omitted).

ANALYSIS AND ORDER

Miller Pipeline’s Motion presents the Court with ten different issues, each asserting one reason or another as to why it believes the Department erroneously denied its refund claim. (See Pet’r Br. Supp. Mot. Partial Summ. J. (“Pet’r Br.”) at 6-20.) Pursuant to Trial Rule 56(C), Miller Pipeline also designated the evidence upon which it premised each of its issues. Specifically, Miller Pipeline provided the Court with 15 documents — labeled Exhibits 13 through 27 — to show that there were no genuine issues of material fact". (See Pet’r Des’g Evid.; Pet’r Br., Exs. 13-27.) Given the numerous infirmities with that designated evidence, however, the Court will not be granting Miller Pipeline’s Motion. .

In order to address the infirmities with Miller Pipeline’s designated evidence — yet conserve judicial resources — the Court’s opinion today will speak only to two of Miller Pipeline’s issues. Indeed, the exhibits specifically designated by Miller Pipeline with respect to those two issues suffer from particular problems that permeate all of Miller Pipeline’s 'designated evidence.

I.

In its first issue, Miller Pipeline asserts that it is entitled to a refund of the use tax it erroneously remitted on a casual sale transaction. (See Pet’r Br. at 6.) Specifically, Miller Pipeline explains:

A casual sale is defined as an isolated or occasional sale by the owner of tangible personal property where the owner is not regularly engaged’ in the business of making such sales. 45 I.A.C. 2.2-l-l(d). Here, [Miller Pipeline] purchased rolling stock, equipment, and tools in the amount of $949,006.00 from United Utilities Construction Company. [Miller Pipeline] self-assessed and remitted Indiana use tax in the amount of $36,687.36 for equipment and tools. United Utilities Construction Company was not engaged in the business of selling its rolling stock, equipment, . and tools in the ordinary course of its business. Because the underlying transaction was a casual sale ... [the Department] erred in denying the portion of [Miller Pipeline’s] refund claim related [thereto].

(Pet’r Br. at 6 (citing Pet’r Br., Exs. 13-15).)

As previously mentioned, Trial Rule 56(C) requires that at the time it files a motion for summary judgment, “a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion.” T.R. 56(C). Because the Rule compels a party to identify the “parts” of any document upon which it relies, it may not designate various pleadings, discovery material, and affidavits in their entirety. See Filip v. Block, 879 N.E.2d 1076, 1081 (Ind.2008) (citation omitted); O’Connor v. Stewart, 668 N.E.2d 720, 722 (Ind.Ct.App.1996). Rather, “regardless of how concise or short the document is, in order to be properly designated, specific reference to the relevant portion of the document [ie., the specific portion of the document that contains the material fact or facts upon which the moving party relies] must be made.” O’Connor, 668 N.E.2d at 722 (footnote added). A proper designation should also include an explanation as to why those specifically designated facts are material. Kissell v. Vanes, 629 N.E.2d 878, 880 (Ind.Ct.App.1994) (citation omitted).

Moreover, when ruling on a motion for summary judgment, this Court will only consider properly designated evidence that would be admissible at trial. See Kronmiller v. Wangberg, 665 N.E.2d 624, 627 (Ind.Ct.App.1996) (citations omitted), trans. denied. See also In re Belanger’s Estate, 433 N.E.2d 39, 42-43 (Ind.Ct.App.1982) (stating that before a court can determine whether summary judgment is appropriate, it must make certain threshold decisions pertaining to the evidential worth of the designated evidence presented). Thus, unsworn statements or unverified exhibits will not be considered. See Kronmiller, 665 N.E.2d at 627 (citation omitted) (explaining that because medical records were neither authenticated nor shown to be true and accurate copies of the material they purported to be, they carried no indi-cia of reliability and trustworthiness). Similarly, portions of affidavits that merely set forth conclusory facts or conclusions of law will not be considered. Coghill v. Badger, 430 N.E.2d 405, 406 (Ind.Ct.App.1982) (citations omitted).

In designating Exhibits 13, 14, and 15 as its evidence with respect to the casual sale” issue, Miller Pipeline has not identified the specific paHs of those exhibits that contain the material fact or facts upon which it relies. (See Pet’r Br. at 6 (merely citing to those exhibits in toto).) Moreover, none of the exhibits has been paginated, despite the fact that each is between six and eleven pages long. (See Pet’r Br., Exs. 13-15.) Furthermore, while all three exhibits appear to contain multiple documents, Miller Pipeline has not, apart from the first document within each exhibit, identified any of those documents. (See Pet’r Des’g Evid.; Br., Exs. 13-15 (footnote added).) Finally, none of the exhibits — or any of the documents within each of the exhibits — has been sworn to in any way. (See Pet’r Br., Exs. 13-15.) Given these infirmities, Miller Pipeline’s Designated Exhibits 13, 14, and 15 are inadmissible and must be stricken., See Kronmiller, 665 N.E.2d at 627-28 (footnotes added).

II.

Miller Pipeline’s eighth issue claims that it is entitled to a refund of use tax it erroneously remitted on a “lump-sum” contract. Indeed:

[Miller Pipeline] contracted with Hession Farms, Inc. to replace field tile at a particular location. Per Anthony Hession, President, the underlying contract involved a “lump-sum” contract for improvement to realty and, as such, Hession Farms, Inc. paid sales/use tax on the materials used to complete the project. Under 45 I.A.C. 2.2^1-22 and 45 I.A.C. 2.2-4-26, the contractor in a “lump-sum” contract is liable for the payment of sales/use tax on the purchase price of all material used. Because Hession Farms, Inc. properly paid sales/use tax on the material portion of the “lump-sum” contract, [the Department] ... erred in denying the portion of [Miller Pipeline’s] refund claim related to use tax paid [thereto].

(Pet’r Br. at 12-13 (citing Pet’r Br., Ex. 26).)

Miller Pipeline’s Designated Exhibit 26 is a photocopy of a one page form letter on “Dunbar & Romack” letterhead. (See Pet’r Br., Ex. 26 at 1.) The letter, dated November 24, 2009, and addressed to Hession Farms, Inc., reads:

Dear Sir or Madam:
My client was recently audited by the Indiana Department of State Revenue. During the course of the audit, the auditor questioned your invoice(s) below. See attached
In order to respond to the auditor’s questions, please provide the information below.
1. I hold valid Indiana retail merchant-certificate. RRMC:_
2. I am engaged in the business of selling the following type of property:
[ ] Hession Farms, Inc. has been audited by the Indiana Department of State Revenue for the period: _to
[] The questioned invoice involved a “lump-sum” contract for improvement to realty. As such, Hession Farms, Inc. paid sales/use tax on the materials used to complete the project.
[ ] Other
Explanation:

(Pet’r Br., Ex. 26 at 1.) The letter has a handwritten “x” in the box next to the statement “[t]he questioned invoice involved a “lump-sum” contract for improvement to realty. As such, Hession Farms, Inc. paid salesAise tax on the materials used to complete the project.” (See Pet’r Br., Ex. 26 at 1.) At the bottom of the letter is an affirmation and the signature of “Anthony Hession, Pres.” (Pet’r Br., Ex. 26 at 1 (footnote added).) Attached to the letter is a material and labor invoice from Hession Farms, Inc. to Miller Pipeline for field tile replacement. (Pet’r Br., Ex. 26 at 2.)

Hession has not provided any facts in this letter which would support the legal conclusion that the subject transaction involved a “lump-sum” contract nor has he provided any facts to show that Hession Farms, Inc. paid the tax “on the materials used to complete the project.” (See Pet’r Br., Ex. 26 at 1.) Moreover, the mere fact that the letter was signed and affirmed does not make it an affidavit. Cf. Coghill, 430 N.E.2d at 406 (explaining that an affidavit “ ‘should follow substantially the same form as though the affiant were giving testimony in court’ ”) with T.R. 56(E) (stating that an affidavit for summary judgment purposes “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” (emphasis added)). Given these infirmities, Exhibit 26 is inadmissible and must be stricken.

CONCLUSION

The evidence Miller Pipeline submitted to support its Motion has not been properly designated and is inadmissible. Accordingly, Miller Pipeline’s motion for partial summary judgment is hereby DENIED in its entirety. The Court will, by separate order, schedule a case management conference with the parties to discuss pre-trial matters and scheduling.

SO ORDERED.

      . A genuine issue of material fact exists when a fact concerning an issue that would dispose of the case is in dispute or when an undisputed fact supports conflicting inferences as to the resolution of such an issue. See Gaboury v. Ireland. Rd. Grace Brethren, Inc., 446 N.E.2d 1310, 1313 (Ind.1983) (citation omitted); Scott Oil Co. v. Indiana Dep't of State Revenue, 584 N.E.2d 1127, 1129 (Ind. Tax Ct.1992).

      . While page numbers are usually sufficient, sometimes a more detailed specification may be necessary. See Filip v. Block, 879 N.E.2d 1076, 1081 (Ind.2008). The purpose for requiring this level of specificity is to decrease the amount of evidentiary material a court must sift through when ruling on a summary judgment motion. See O'Connor v. Stewart, 668 N.E.2d 720, 721-22 (Ind.Ct.App.1996) (citation omitted); Kissell v. Vanes, 629 N.E.2d 878, 880 (Ind.Ct.App.1994) (explaining that it is not a court's responsibility to search the record and piece together a party’s summary judgment argument for it (citation omitted)).

      . For instance, in its "Designation of Evidence,” Miller Pipeline "identifies” Exhibits 13, 14, and 15 as:
      13.Miller Pipeline Corporation voucher 320918 dated March 23, 2006 in the amount of $949,006.00 and all supporting documents attached thereto.

      14. Miller Pipeline Corporation voucher 0462056 dated May 19, 2006 in the amount of $42,759.51 and all supporting documents attached thereto.

      15. Miller Pipeline Corporation voucher 05053989 dated August 20, 2007 in the amount of $7,608.16 and all supporting documents attached thereto.

      (Pet’r Des’g Evid. (emphases added).) While some of the documents are identifiable, most are not. (Cf. Pet’r Br. Supp. Mot. Partial Summ. J. ("Pet’r Br.”), Ex. 14 at 2 (a portion of the Department's ST-103 form) with 3-11 (three distinct spreadsheets, none of which indicate who prepared them, when, and, most importantly, for what purpose).)

      .Miller Pipeline's Exhibits 16, 17, and 18 are in similar form: none of the exhibits is paginated, the facts within each exhibit are not identified with specificity, and none of the exhibits (or documents therein) has been sworn to in any way. (See Pet'r Br., Exs. 16-18.) Although Miller Pipeline's Exhibits 19, 20, and 24 are only one page each, none of those exhibits has been sworn to in any way. (See Pet’r Br., Exs. 19-20, 24.)

      . By not properly identifying, designating, and verifying the exhibits, Miller Pipeline and its attorneys have not only frustrated the purpose of Trial Rule 56(C), but the Court as well. Indeed, their lack of specificity essentially has the effect of placing a stack of paperwork before the Court and leaving it to figure out for itself the identity of the documents contained in each of the exhibits, what the relevant portions of each document are ’and why, and whether those documents are reliable and trustworthy. This task, however, does not belong with the Court and, as a result, the Court will not do the work that Miller Pipeline’s attorneys should have done.

      . The affirmation states that "I acknowledge that the above statements are true to the best of my knowledge and made under the penalties of perjury.” (Pet'r Br., Ex. 26 at 1.)

      . Indeed, as Miller Pipeline alluded to in its brief, determining whether a contract is a "lump-sum” contract for purposes of sales/ use tax imposition involves a legal analysis. (See Pet’r Br. at 12 (citing to various regulations of the Department relating to the taxa-bility of "lump-sum” contracts).)

      . Miller Pipeline’s Exhibits 21, 22, 23, 25, and 27 are in similar form. (See Pet'r Br., Exs. 21-23, 25, 27.)

      . The Court notes that unlike the first nine issues presented in Miller Pipeline’s Motion, the tenth issue does not cite to or rely on Exhibits 13 through 27. (Cf. Pet'r Br. at 6-13 with 13-20.) Rather, with respect to this issue, Miller Pipeline has designated as its evidence various pleadings in this cause as well as the Department's audit report, which was submitted to the Court by the Department with its previously-filed motion to dismiss. (See, e.g., Pet'r Des’g Evid.; Pet’r Br. at 13-14, nn. 70-73.) While Miller Pipeline uses this evidence in an attempt to show there are no genuine issues of material fact with respect to its tenth issue, it cites to "Sampling for Sales and Use Tax Compliance Task Force on EDI Audit and Legal Issues for Tax Administration,” the “California State Board of Equalization Sales and Use Tax Department Audit Manual Chapter 13 Statistical Sampling,” and "Texas Comptroller of Public Accounts Audit Division Sampling Manual” to show that it is entitled to judgment as matter of law (i.e., as its purported legal authority). (See Pet’r Br. at 13-20, nn. 77, 84, 91, 98, 105, 112, 119, 126.) Nevertheless, Miller Pipeline has not provided the Court with copies of those documents, with the relevant excerpts from those documents, or with an explanation as to how California and Texas audil/sampling manuals apply in Indiana. Consequently, the Court declines to "figure it out” for itself. See supra, note 5.

      .The Department has invited the Court to grant summary judgment in its favor because: 1) it has designated as evidence the proposed assessments; 2) those assessments are prima

        facie evidence that its claim for the unpaid tax is valid; and 3) Miller Pipeline has failed to rebut that evidence. (See Resp’t Br. at 3-5 (citations omitted); Hr'g Tr. at 26-27, 40, 48.) The Court declines that invitation, given that Miller Pipeline is appealing the Department’s denial of a refund claim,


author: RILEY, Judge.

text:
    Dianne M. ROSS, William L. Ross, Martha Jane Milhouse and Paul David Milhouse, Appellants-Petitioners, v. BARTHOLOMEW COUNTY DRAINAGE BOARD and Stephen A. Hoevener, Jim Pence, Ron Speaker, Jeff Schroer, and Carl Lienhoop in their capacity as Members of the Bartholomew County Drainage Board, Appellees-Respondents.
    No. 03A01-1210-PL-489.
    Court of Appeals of Indiana.
    Aug. 22, 2013.
    Rehearing Denied Nov. 15, 2013.

      Joseph A. Miller, Seymour, IN, Tally Lykins, North Vernon, IN, Attorneys for Appellants.
    J. Grant Tucker, Jones Patterson & Tucker, Columbus, IN, Attorney for Ap-pellees.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellants-Plaintiffs, Dianne M. Ross, William L. Ross, Martha Jane Milhouse and Paul David Milhouse (collectively, Appellants), appeal the trial court’s order in favor of Appellees-Defendants, Bartholomew County Drainage Board and Stephen A. Hoevener, Jim Pence, Ron Speaker, Jeff Schroer, and Carl Lienhoop, in their capacity as members of the Bartholomew County Drainage Board (collectively, the Drainage Board).

We affirm.

ISSUES

The Appellants raise four issues on appeal, which we consolidate and restate as the following two:

(1) Whether the trial court abused its discretion when it found that an obstruction existed on Appellants’ property which impeded the drainage of a natural surface watercourse; and
(2) Whether the trial court abused its discretion in calculating the attorney fees it awarded to Appellants for the Drainage Board’s violation of Indiana’s Open Door Law.

FACTS AND PROCEDURAL HISTORY

Bartholomew County Road 650 South runs east to west in Bartholomew County, Indiana. The County Road comes off U.S. Highway 31, which runs north to south. Going from U.S. Highway 31 onto County Road 650, the road follows the lay of the land and gradually drops in elevation to a certain point along the road, where it begins to rise again. Alongside County Road 650, a ditch runs east to west. An earthen berm or levee has been erected alongside the ditch on private property, separating the ditch from the farm field owned by Appellants.

Occasionally, after heavy rains, water floods County Road 650. At some point, the County Highway Department trespassed onto Appellants’ private property and dug the berm out in spots. However, the berm was filled up again with sandbags by Appellants to prevent the water from the ditch from flooding the field.

On May 13, 2011, the County Highway Department filed a petition with the Drainage Board pursuant to Ind.Code § 36-9-27.4-4, alleging that an obstruction in a drain or surface watercourse existed on property owned by Appellants and that this obstruction was impeding the drainage of water from County Road 650 and the adjacent road right-of-way, causing water to back up onto County Road 650 thereby creating a traffic hazard. The Drainage Board scheduled a hearing on the petition for August 8, 2011. However, when the Drainage Board’s regular meeting of July 18, 2011 ended early, the board members decided to go on a site visit to visually acquaint themselves with the physical characteristics of the area around Appellants’ property and County Road 650. On July 29, 2011, Appellants’ filed a Complaint with the Indiana Public Access Counselor, claiming that by convening on site on July 18, 2011 without providing prior public notice of their intent to do so, the Drainage Board violated the Indiana Open Door Law. In August 2011, the Public Access Counselor issued an advisory opinion asserting that the Drainage Board violated the Open Door Law.

At the August 8, 2011 Drainage Board meeting, the Drainage Board continued the hearing on the obstruction petition and rescheduled it for September 12, 2011. Also at the meeting, the Drainage Board announced that board members would conduct a site visit to the area around Appellants’ property and County Road 650 on August 22, 2011. This site visit occurred as scheduled.

On September 12, 2011, the Drainage Board conducted a hearing on the County Highway Department’s petition. At the conclusion of the hearing, the Drainage Board found the existence of a natural surface watercourse which was obstructed at Appellants’ property. The Drainage Board also found that this obstruction was not intentionally created by Appellants and that the removal of the obstruction would promote better drainage of County Road 650 South at the right-of-way and would not cause unreasonable damage to Appellants’ property.

Appellants petitioned for review of the Drainage Board’s decision. Besides challenging the Drainage Board’s determination of a natural surface watercourse, the petition also alleged that the Drainage Board had twice violated the Open Door Law. First, Appellants contended that the Drainage Board failed to give public notice of their August 22 site visit. According to Appellants, pursuant to Indiana Code section 5-14-1.5-5, the Drainage Board was required to post a notice of the site visit meeting in its principal office at least 48 hours before the meeting. Secondly, Appellants also alleged that the Drainage Board committed another Open Door violation by conducting an improper executive session at the September 12, 2011 hearing. The Drainage Board denied all- allegations.

On June 5, 2012, the trial court issued an order scheduling an evidentiary hearing on the issue of whether an executive session was conducted on September 12, 2011. The Appellants subsequently withdrew their allegation that the Drainage Board held an improper executive session. On October 4, 2012, the trial court issued an order, affirming the Drainage Board’s decision and awarding Appellants $3,766 in attorney fees for the Drainage Board’s violation of Indiana’s Open Door Law.

Appellants now appeal. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Natural Surface Watercourse

Appellants contend that the trial court erred in affirming the Drainage Board’s finding that a natural surface watercourse was obstructed by the earthen berm or levee which had been erected on Appellants’ property.

Indiana Code section 36-9-27-107 governs judicial review of a drainage board decision, providing that “[i]n affirming or setting aside a decision or determination of the board, the court shall enter its findings and order or judgment on the record.” In addition, Indiana Trial Rule 52(A)(3) states in relevant part that the trial court shall make special findings of fact without request “in any ... case provided by these rules or by statute.” Accordingly, the trial court was required to enter special findings of fact. See Ind. T.R. 52(A)(3).

We apply a two-tiered standard of review to special findings entered under Trial Rule 52(A). Clouse v. Noble Co. Drainage Bd., 809 N.E.2d 849, 857 (Ind.Ct.App.2004), trans. denied. First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. Id. We will set aside the trial court’s findings and conclusions only if they are clearly erroneous. Id. In reviewing the trial court’s entry of special findings, we neither reweigh the evidence nor reassess the credibility of the witnesses. Id. Rather, we must accept the ultimate facts as stated by the trial court if there is evidence to sustain them. Id. Findings are clearly erroneous where a review of the record leaves us firmly convinced that a mistake has been made. Id. While we defer to the trial court’s findings of fact, we do not defer to its conclusions of law. Schrader v. Porter Co. Drainage Bd., 880 N.E.2d 304, 307 (Ind.Ct.App.2008), trans. denied.

Contesting the Drainage Board’s conclusion of the existence of a natural surface watercourse, Appellants characterize the nature of the water flow as diffuse surface water flowing in an undefined direction and in an undefined manner. By defining the water flow as diffuse surface water, Appellants focus on the common enemy doctrine which allows a landowner to deal with diffuse surface water in accordance with his own convenience. On the other hand, the Drainage Board maintains that while Appellants correctly cite the tenets of the common enemy doctrine, it is simply not applicable to the disputed watercourse.

The broad issue of whether Appellants should prevail on appeal is thus dependent upon the qualification of the watercourse causing the road to flood. Surface water is defined as water which is diffused over the natural slope of the ground, not following a defined course or channel. Gasway v. Lalen, 526 N.E.2d 1199, 1201 (Ind.Ct.App.1988), reh’g denied. Pursuant to the common enemy doctrine, this surface water is the common enemy of both upper and lower tenants. Argyelan v. Haviland, 435 N.E.2d 973, 975 (Ind.1982). Each tenant may protect himself from the flow of surface water as best he can, including walling it out, walling it in, and diverting or accelerating its flow. Id.

On the other hand, a natural surface watercourse is defined as “an area of the surface of the ground over which water from falling rain or melting snow occasionally and temporarily flows in a definable direction and channel.” I.C. § 36-9-27.4-3. It is characterized by well-defined banks and a bottom through which water flows in a definite direction for a substantial period each year. Gasway, 526 N.E.2d, at 1201. The size of the watercourse is immaterial as is the necessity of a constant water flow. Id. It is sufficient that water from heavy rains is regularly discharged through a well-defined channel in order to constitute a natural watercourse. Id. The law pertaining to natural watercourses prohibits a lower landowner from blocking or obstructing the natural flow of the water through the watercourse and as such, the common enemy doctrine is inapplicable. Id.

In the present case, the evidence established the presence of a natural surface watercourse. Tom Finke (Finke), Head of Hydrology at the County Surveyor’s Office, testified that the side ditch, which runs in between County Road 650 and the earthen berm, is a defined channel. Similarly, Martin Mann (Mann), Appellants’ expert, stated on cross-examination that “a roadside ditch [ ] directs the water to the west.” (Transcript p. 73). Agreeing that this ditch represented a channel, Mann added that “at some point along that channel the berm begins and the water flows between the berm and the road ... in the ditch.” (Tr. pp. 73-74). Mann conceded that the roadside ditch, which is “a defined directional channel where water flows” could be termed a “water course.” (Tr. p. 83). The exhibits submitted by both parties clearly indicate that this ditch consists of well-defined banks and a bottom through which water flows in an east-west direction after rainfall or snow. Therefore, the evidence permits a • reasonable conclusion that water runs through a natural surface watercourse that is characterized by a shallow ditch.

It is generally accepted that a landowner may improve his land in any way to combat surface' water, but that “owners of lands may not obstruct watercourses to the injury of others.” Schlichter v. Phillipy, 67 Ind. 201, 205 (1879). A property owner who receives water by way of a natural watercourse may not obstruct the natural flow of the watercourse to cast the water back on the upper proprietor. Birdwell v. Moore, 439 N.E.2d 718, 721 (Ind.Ct.App.1982). In this light, an obstruction is defined as a condition that:

(1) exists within or near a drain; and
(2) prevents or significantly impedes the flow of water through the drain.
(b) The term includes the following:
(1) The presence of:
(A) one (l) or more objects inside or near a drain;
(B) a quantity of materials inside or near a drain; or
(C) damage to a drain;
that prevents or significantly impedes the flow of water through the drain.

I.C. § 36-9-27.4-4.

The testimony reflects that the earthen berm or levee has been erected alongside the ditch on Appellants’ property. At some point, the levee “that took the water to a low point of the field” was extended “past the low point so the water could no longer flow.” (Tr. p. 8). Because the berm is higher than the road, the water backs up over the road, resulting in an icy road in winter. Finke clarified that the berm is obstructing the flow of water through the ditch because “when [the] water fills that side ditch up, it had to get on the road before it can bypass the berm[.]” (Tr. p. 44). “The berm is the highest point, and then the road would be the next highest.” (Tr. p. 44). “The field [] is lower than the road[.]” (Tr. p. 44). Therefore, we agree with the trial court that the berm amounts to an obstruction which impedes the natural flow of the watercourse. Thus, the trial court did not commit clear error in affirming the Drainage Board’s conclusion that the removal of the obstruction would promote better drainage of County Road 650.

II. Attorney Fees for Violation of Indiana’s Open Door Law

The parties do not dispute that a violation of Indiana’s Open Door Law occurred when the Drainage Board conducted a site visit on August 22, 2011 without posting the statutorily required notice. Both parties, however, argue that the trial court erred in the amount of attorney fees it awarded to Appellants.

The legislature passed the Open Door Law, codified at Indiana Code section 5-14-1.5 et seq., in 1977 with the intention that the business of the State of Indiana and its political subdivisions be conducted openly so that the general public may be fully informed. Gary/Chicago Airport Board of Authority v. Maclin, 772 N.E.2d 463, 468 (Ind.Ct.App.2002). Indiana Code section 5-14-1.5-7 provides in relevant part:

In any action filed under this section, a court shall award reasonable attorney’s fees, court costs, and other reasonable expenses of litigation to the prevailing party if:
(1) the plaintiff prevails; or
(2) the defendant prevails and the court finds that the action is frivolous and vexatious.

We review the trial court’s decision regarding attorney fees under an abuse of discretion standard. Id. at 470. We will not reverse the trial court’s decision unless the award is clearly against the logic and effect of the facts and circumstances. Id. In reviewing an award of fees and costs, we will not substitute our judgment for that or the trial court, nor will we reweigh the evidence presented on appeal. Id. at 472-73.

Here, the trial court explained its award of attorney fees to the Appellants as follows:

5.Pursuant to I.C. 5 — 14—1.5—7(f), “a court shall award reasonable attorney’s fees, court costs, and other reasonable expenses of litigation” to the Petitioners [Appellants on appeal] for the claim on which they prevailed under the Open Door Law. This award of reasonable attorney fees is mandatory.
6. The Petitioners request attorney fees in the sum of $8,586.25.
7. The court finds that only a portion of the requested fees is recoverable. Some of the requested fees include work beyond the claim on which the Petitioners prevailed. For instance, the court finds that the Petitioners should not be entitled to full recovery of'fees for drafting the complaint and scheduling conferences with the court because the complaint and scheduling conferences included the petition for judicial review and the subsequently dismissed executive session claim. Similarly, the research on de novo hearings related to the petition for judicial review, not the violation of the Open Door Law. Moreover, those fees that relate solely to alleged violations of the Open Door Law include fees not only for the violation on which the Petitioners prevailed, but also on the executive session claim that was dismissed by the Petitioners. Taking these factors into consideration, the court awards reasonable attorney fees to the Petitioners in the sum of $3,766.00.

(Appellant’s App. p. 10).

Our review of the evidence reveals that Appellants submitted two affidavits in support of their request for attorney fees. The first affidavit listed fees from September 2011 through January 2013 and included the preparation of the complaint, a review of the Drainage Board meeting notes, a review of Open Door Law, and scheduling a conference with the trial court. The second affidavit requested an additional $531.25 for researching the Open Door Law, checking for the Drainage Board Meeting Notice, working on the Open Door Law brief, and preparation for and attending the hearing on the Open Door Law.

This evidence supports the trial court’s findings that some of the Appellants’ requested fees included work beyond the claim on which the Appellants prevailed. The evidence further supports the trial court’s findings that the fees related solely to alleged Open Door Law violations included fees for not only the violation on which Appellants prevailed, but also the executive session claim, which the Appellants dismissed. Based on this evidence, the trial court did not abuse its discretion in awarding Appellants $3,766.00 in attorney fees. The Drainage Board’s arguments that the fees should be reduced to a nominal amount because the violations were unintentional, a good-faith effort to cure was made, and the violation had no or only minimal impact in preventing or impairing public knowledge amounts to a request to reweigh the evidence, which we cannot do. See Maclin, 772 N.E.2d at 472-73. Therefore, we conclude that the trial court did not abuse its discretion.

CONCLUSION

Based on the foregoing, we conclude that the trial court properly found that an obstruction existed on Appellants’ property which impeded the drainage of a natural surface watercourse; and the trial court did not abuse its discretion in calculating the amount of attorney fees it awarded Appellants for the Drainage Board’s violation of Indiana’s Open Door Law.

Affirmed.

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

      . The Drainage Board raises the same issue on cross-appeal.

      . The purpose of special findings is to provide the parties and the reviewing court with the theory upon which the trial court decided the case in order that the right of review for error may be effectively preserved. McGinley-Ellis v. Ellis, 638 N.E.2d 1249, 1252 (Ind.1994). Here, the trial court made one specific finding stating that:
      the Drainage Board had credible, conflicting evidence as to whether the berm in question constituted an obstruction to a natural surface watercourse, and, indeed whether there existed a natural surface watercourse. The court cannot say that the Board was clearly in error in making its findings, nor was there any allegation or evidence that the Board exceeded its. authority or discretion.
      (Appellants’ Br. p. 29). Although the trial court’s sole special finding is brief, it directs us to the Drainage Board’s order which is sufficiently detailed in the reason for its decision and as such, we are able to ascertain the trial court’s theory to decide the case.

      . Although Appellants state "natural” as an additional requirement to establish a natural surface watercourse, the statutory definition does not include this element and we have found no case law indicating that "natural” is intended to be a magic word in this context. Rather, it appears that "natural” refers to the natural stream of water that flows along an identifiable course. See Romine v. Gagle, 782 N.E.2d 369, 381 (Ind.Ct.App.2003) (referring to a natural surface watercourse as one through which water regularly', though not constantly, flows along and through an identifiable and more or less permanent course, which includes among its features a bed where a natural stream of water runs.)


author: VAIDIK, Judge.

text:
    TP ORTHODONTICS, INC., Appellant-Intervenor, Christopher K. Kesling, DDS, MS, Adam Kesling, and Emily Kesling, Individually and derivatively on behalf of TP Orthodontics, Inc., Plaintiffs-Appellees, v. Andrew C. Kesling, individually and as Trustee of the Andrew C. Kesling Trust Dated March 28, 2001, and The Andrew C. Kesling Trust Dated March 28, 2001, Defendants-Appellees.
    No. 46A03-1207-MI-324.
    Court of Appeals of Indiana.
    Sept. 3, 2013.

      Sean M. Clapp, Elizabeth M. Ellis, Clapp Ferrucci, Fishers, IN, Attorneys for Appellant/Intervenor, TP Orthodontics.
    Thomas G. Burroughs, Michael W. Hile, Katz & Korin, PC, Indianapolis, IN, Attorneys for Appellee, Andrew C. Kesling.
    Robert W. Wright, Dean-Webster Wright LLP, Indianapolis, IN, Shaw R. Friedman, Friedman & Associates, P.C., LaPorte, IN, John A. Conway, John A. Drake, Ladue Curran & Kuehn LLC, South Bend, IN, Attorneys for Joint Ap-pellees, Christopher K. Kesling, DDS, MS, Adam Kesling and Emily Kesling.
   OPINION

VAIDIK, Judge.

Case Summary

In 2010, three sibling shareholders, Christopher, Adam, and Emily Kesling (“the siblings”), filed suit against their brother, Andrew Kesling, on behalf of the family business, TP Orthodontics (“TPO”). In response, TPO’s board of directors established a special litigation committee to determine whether to pursue the siblings’ derivative claims against Andrew, the president of TPO. After an investigation, the committee issued a written report in which it recommended pursuing some of the siblings’ claims but not others. If a special litigation committee rejects derivative plaintiffs’ claims, Indiana law requires that those claims be dismissed, provided that the committee was disinterested and acted in good faith in reaching its decision. In accordance with Indiana law, TPO filed a motion to dismiss the rejected claims and attached a heavily redacted copy of the committee’s report. The siblings demanded access to the unredacted report, but TPO refused to produce it. The trial court ultimately ordered TPO to produce the report, and this interlocutory appeal followed.

The issue before us is whether a corporation must give derivative plaintiffs access to the report that the corporation relies on when seeking dismissal of the plaintiffs’ claims. We conclude that the corporation’s arguments against production are outweighed by basic considerations of necessity and fairness. Derivative plaintiffs must show that the special litigation committee was not disinterested or did not act in good faith in order to survive a corporation’s motion to dismiss. The best evidence of whether the committee acted in good faith is the committee’s report explaining how it so acted. Not only do derivative plaintiffs need the report in order to challenge the committee’s good faith, our trial-court judges need this report to make informed decisions.

We acknowledge that attorney-client privilege will undoubtedly infiltrate many of these reports; indeed, it is entirely conceivable that part of any special litigation committee’s reasoning for rejecting a claim will be based on counsel’s advice that a claim is unlikely to succeed on the merits or too costly given the prospects of success. And in such a case, the very reason that the committee acted in good faith is because of an attorney’s advice. Thus, we find that where a corporation forms a special litigation committee, and the corporation later requests dismissal of derivative plaintiffs’ claims based on the findings of that committee, privilege as to the committee’s report is waived. We affirm the trial court’s order compelling production of the special litigation committee report and remand for further proceedings.

Facts and Procedural History

. In 2010, the siblings filed a complaint against their brother Andrew in LaPorte Superior Court on behalf of the family business, TPO. Although TPO is based in Indiana, the privately held company manufactures and distributes orthodontic products around the world. Collectively, the siblings own 11% of TPO voting stock and Andrew owns 51%. Andrew is the president of TPO.

In their complaint, the siblings alleged that Andrew had acted wrongfully in a number of ways, such as exchanging currency at a loss to the company, failing in corporate governance — specifically, failing to implement counseling or sensitivity training at TPO, which resulted in several sexual-harassment claims and litigation— improperly charging travel and entertainment expenses to TPO, taking improper advances on royalty and patent payments, and using TPO funds for personal expenses. The siblings claimed that Andrew’s actions caused economic loss to the company and its shareholders.

Andrew sought to stay the litigation and appoint a committee to determine whether litigation on- behalf of TPO was in the corporation’s best interests, and TPO filed a motion to intervene. The trial court granted both motions. In July, TPO’s board of directors established a special litigation committee (“the committee”) to investigate the siblings’ allegations. TPO also retained the Indianapolis-based law firm of Wooden & McLaughlin LLP to assist the committee with its investigation. Over the next year, the three-member committee met thirty times, reviewed approximately 10,000 pages of categorized documents, and conducted over forty interviews with employees and others involved with TPO. In August 2011, the committee completed its Special Litigation Committee Report (“the report”), which is the subject of this litigation. See Appellant’s App. p. 357-86. The report was authored by the committee members, none of whom are attorneys, with assistance from Wooden & McLaughlin counsel. Id. at 357.

Only TPO directors were allowed to see the report. In the report, the committee concluded that TPO should pursue only a few of the siblings’ claims against Andrew; specifically, the claims related to patent and royalty payments and corporate governance. The committee concluded that it was not in TPO’s best interests to pursue the other claims.

Shortly after the report was completed, TPO filed a motion to dismiss the rejected claims and filed a copy of the report, along with related exhibits, under seal. The entire report consists of a cover page, four table-of-contents pages, a 139-page report, and a signature page. But. in the copy TPO attached to its motion, more than 100 pages were redacted. An affirmation attached to the report, signed by James Hutton, TPO’s secretary, states that the report was redacted to “prevent disclosure of attorney-client privileged information and attorney work product prepared in anticipation of litigation....” Id. at 181-83. The unredacted pages describe TPO’s creation and operation, id. at 361-66, the professional background of each committee member, id. at 366-68, and investigation procedure, id. at 369-73. The report also identifies the claims that the committee approved and those it rejected. Id. at 374-77, 381-83, 385.

A few days later, the siblings filed a motion to compel TPO to produce the entire, unredacted report, and the trial court heard arguments on the motion. The siblings argued that in practice, a special litigation committee’s report is regularly provided to plaintiffs, citing two Indiana cases, Cutshall v. Barker, 733 N.E.2d 973 (Ind.Ct.App.2000), and Marcuccilli v. Ken Corp., 766 N.E.2d 444 (Ind.Ct.App.2002), reh’g denied, for support. Tr. p. 8. The siblings claimed that without the unredact-ed report, they were “dealing with a blank slate,” making it impossible to respond to TPO’s motion to dismiss. Id. They said that they were unable to challenge the committee’s good-faith investigation or its disinterestedness — the sole grounds for challenging a special litigation committee’s conclusions under Indiana law. In support of their claim that TPO should be required to produce the unredacted report, the siblings relied on a federal case interpreting Michigan law, In re Perrigo, 128 F.3d 430 (6th Cir.1997). Finally, the siblings argued that TPO had not shown that production of the report would violate any privilege.

In response, TPO pointed out that Cuts-hall and Marcuccilli only mentioned special litigation committee reports in passing; whether a report must be produced was not at issue in either case. More importantly, TPO argued that the business-judgment rule prohibits inquiry into the substance of a committee’s decision; courts may only inquire into a committee’s investigative procedures and methodologies. Id. at 25. By requesting the unredacted report, the siblings sought to go beyond the bounds of permissible access under the business-judgment rule. TPO agreed, however, to engage in limited additional discovery relevant to the committee’s investigation. See Appellant’s App. p. 225. Finally, TPO stood firm in its position that the report contained privileged material. Counsel told the trial court the corporation would not object if the court wished to review the unredacted report in camera to evaluate its privilege claims. Tr. p. 89. The trial court did not review the unre-dacted report.

After the hearing, the trial court granted the siblings’ motion and ordered TPO to file the unredacted report under seal and produce copies to the parties. The court also issued a protective order preventing any party from disclosing the report’s contents to third parties. In the order, Judge Richard , Stalbrink interpreted Indiana Code section 23-1-32-4 and Indiana’s business-judgment rule, but said he found no Indiana case law “directly on' point.” Appellant’s App. p. 9-13. He went on to adopt the reasoning of the federal court in Perrigo, 128 F.3d at 430. In Perrigo, the federal court concluded that “as a matter of fairness and practicality, the derivative plaintiffs ... will need the [committee’s] report in order to ‘rebut the presumption that [the corporation] acted in good faith and made a reasonable investigation.’ ” Id. at 438 (emphasis added); Judge Stalbrink reached a similar conclusion, saying “it would only seem fair that the parties involved should be provided an opportunity to adequately conduct a review of the [ ] report to determine if they did, in fact, conduct their investigation in good faith-” Appellant’s App. p. 11. He also explained that if he did not have access to the entire report, “all that is before the court is the assertion that the investigation was extensive and expensive and therefore must have been in good faith.” Id. at 12. The ruling made no mention of privilege.

In March 2012, TPO filed a motion to certify the trial court’s order for interlocutory appeal, which the trial court granted. This Court subsequently accepted jurisdiction over this appeal.

Discussion and Decision

The question posed in this appeal is whether a corporation must provide the report of its. special litigation committee to derivative plaintiffs. We begin our analysis by setting forth Indiana law regarding shareholder derivative suits and special litigation committees.

Indiana Code section 23-1-32-4 sets forth all the requirements for a special litigation committee. The Section allows a corporation’s board of directors to establish a committee of three or more disinterested directors — or other disinterested persons — to determine whether “the corporation has a legal or equitable right or remedy” and “whether it is in the best interests of the corporation to pursue that right or remedy, if any, or to dismiss a proceeding that seeks to assert that right or remedy on behalf of the corporation.” Ind.Code § 23-l-32-4(a)(I), (2). A committee is independent in that it is not subject to the direction or control of the board of directors, and the board may not terminate it. I.C. § 23-l-32-4(b).

If a special litigation committee determines that a derivative proceeding on the corporation’s behalf is not in the corporation’s best interests, that determination is “presumed to be conclusive against any shareholder making a demand or bringing a derivative proceeding-” I.C. § 23-1-32-4(c). A plaintiff may only challenge this determination by arguing that the committee was not “disinterested” or the committee’s determination “was not made after an investigation conducted in good faith.” I.C. § 23-l-32-4(c)(l), (2). What constitutes a good-faith investigation will depend in part on the adequacy and' appropriateness of a committee’s investigatory procedures, which depends on the nature and complexity of the claim. I.C. § 23-1-32-4 cmt. (c). A director or other committee member is “disinterested” if that person:

(1) has not been made a party to a derivative proceeding seeking to assert the right or remedy in question, or has been made a party but only on the basis of a frivolous or insubstantial claim or for the sole purpose of seeking to disqualify the director or other person from serving on the committee;
(2) is able under the circumstances to render a determination in the best interests of the corporation; and
(3) is not an officer, employee, or agent of the corporation or of a related corporation. However, an officer, employee, or agent of the corporation or a related corporation who meets the standards of subdivisions (1) and (2) shall be considered disinterested in any case in which the right or remedy under scrutiny is not assertable against a director or officer of the corporation or the related corporation.

I.C. § 23-1-32-4(d)(1)-(3).

Section 23-1-32-4 creates a presumption in favor of Indiana corporations; specifically, the presumption that the decisions made by corporations’ special litigation committees is conclusive against shareholders. Shareholders, may only overcome that presumption by - challenging the committee’s disinterestedness or good-faith investigation. The statute codifies the business-judgment rule, which has long been recognized in Indiana. The rule describes the basic principle of judicial reluctance to interfere in corporate matters and the presumption that corporate directors act in an informed, good faith, and honest manner when managing corporate affairs. See In re Guidant S’holders Derivative Litig., 841 N.E.2d 571, 575 (Ind.2006); see also G & N Aircraft, Inc. v. Boehm, 743 N.E.2d 227, 238 (Ind.2001); Lees Inns of Am., Inc. v. William R. Lee Irrevocable Trust, 924 N.E.2d 143, 157 (Ind.Ct.App.2010), trans. denied. Over time, two formulations of. the business-judgment rule have emerged: the restrained and deferential Auerbach approach, which puts corporate decision-making largely outside judicial review, and the more aggressive Zapata approach, which allows a court to exercise its own business judgment in evaluating a special litigation committee’s decisions. Indiana has adopted the Auerbach approach. See I.C. § 23-1-32-4 cmt. (c) (expressly rejecting Zapata v. Maldonado, 430 A.2d 779 (Del.1981), and following Auerbach v. Ben nett, 47 N.Y.2d 619, 419 N.Y.S.2d 920, 393 N.E.2d 994 (1979)).

In practice, Indiana’s application of the business-judgment rule limits the scope of inquiry into a committee’s investigation. In Cutshall, we explained it this way:

While the court may properly inquire as to the adequacy and appropriateness of the committee’s investigative procedures and methodologies, it may not under the guise of consideration of such factors . trespass in the domain of business judgment.
Thus, the courts cannot inquire as to which factors were considered by that committee or the relative weight accorded them in reaching that substantive decision ... inquiry into such matters would go to the very core of the business judgment made by the committee. To permit judicial probing of such issues would be to emasculate the business judgment doctrine as applied to the actions and determinations of the special litigation committee. Its substantive evaluation of the problems posed and its judgment in their resolution are beyond our reach.

738 N.E.2d at 978 n. 6 (citing Auerbach, 419 N.Y.S.2d 920, 893 N.E.2d at 1002) (formatting altered).

Although there are many cases applying the business-judgment rule in the derivative-claim setting, there are no Indiana cases addressing the precise issue before us; that is, whether a plaintiff may compel production of a special litigation committee’s report.

I. Motion to Dismiss

Before reaching the substantive issues in this case, the siblings ask us to dismiss this appeal due to TPO’s failure to comply with the requirements of Appellate Rule 10. The siblings made this argument to the motions panel, and the panel rejected it. See Order on State’s Motion to Dismiss, Cause No. 46A03-1207-MI-324 (Ind. Ct.App. Jan. 11, 2013). According to the siblings, notice of completion was issued and served but not filed with the Court of Appeals, and TPO never filed a motion to compel the trial-court clerk to file the notice in accordance, with Rule 10(F). In the event that notice of completion is not filed, Rule. 10(F) requires an appellant to seek an order from this Court compelling the clerk to complete the record and file such notice. Failure to do so subjects the appellant’s appeal to dismissal.

But as TPO explains, the trial-court clerk certified that she timely prepared the notice of completion and sent copies to the parties and the Court of Appeals clerk (as well as our Supreme Court and Tax Court) by United States mail, postage prepaid. This certification entitled TPO to the, presumption that the trial-court clerk had done her duty. See INB Trust No. 337 v. Veljanoski, 593 N.E.2d 1263, 1266 (Ind.Ct.App.1992) (citation omitted), reh’g denied, trans. denied. For some reason, this notice was not immediately reflected on the appellate docket. However, after the siblings filed their motion to dismiss, the docket was updated to reflect the notice, with the certificate-of-service date listed as October 1, 2012, which was timely.

Based on these facts, we see no basis for overruling the motions panel. See In re Estate of Eguia, 917 N.E.2d 166, 169 (Ind.Ct.App.2009) (this Court is reluctant to overrule orders decided by the motions panel).

II. Standard of Review

TPO argues that this ease poses a legal question requiring interpretation of the special litigation committee statute, Section 23-1-32-4. But the statute makes no mention of a committee report; thus, we cannot agree that this is a matter of statutory interpretation.

Rather, this is a discovery dispute, albeit a complex one. Our trial courts are vested with broad discretion with respect to discovery issues. “Decisions regarding discovery matters will be reversed only if there has been an abuse of that discretion.” Fifth Third Bank v. PNC Bank, 885 N.E.2d 52, 54 (Ind.Ct.App.2008) (citing Hartford Fin. Servs. Group, Inc. v. Lake Cnty. Park and Recreation Bd., 717 N.E.2d 1232, 1234 (Ind.Ct.App.1999) (citations omitted)). An abuse of discretion occurs when a trial court’s conclusion is against logic and the natural inferences that can be drawn from the facts and circumstances before the trial court, and where there is no rational basis for the trial court’s decision. Id.

III. Relevancy

The siblings contend that the entire report is relevant to the issue of whether the committee conducted a good-faith investigation of their claims. TPO argues that only the unredacted portions are relevant to good faith. Relevancy as it relates to disinterestedness is not at issue; the parties agree that disinterestedness is a straightforward issue and that the committee members in this case were disinterested.

Under Indiana Evidence Rule 401, relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” TPO defines relevance in terms of procedures and methodologies. The corporation claims it produced all the relevant information here (committee.-member profiles, the number of meetings, interviews, documents, etc.), and any information beyond that is irrelevant. Because it has never produced the entire report, TPO essentially asks this Court — as well as the siblings and trial court — to trust that it has provided all the relevant information.

But the unredacted report paints a partial picture, at best. It describes what the committee did — not what it may have failed to do or may have done incorrectly or incompletely. The committee may have failed to investigate all of the siblings’ complaints or theories of relief. The committee may have failed to interview a key employee, or may have interviewed that employee for less than five minutes. See Peller v. The S. Co., 707 F.Supp. 525, 529 (N.D.Ga.1988) (“The conduct of the interviews is a most important factor in determining whether the [committee] pursued its charge with diligence and zeal, or whether it played softball with critical players.”). The committee may have investigated the wrong issues as well. See Boland v. Boland, 423 Md. 296, 31 A.3d 529, 566 (2011) (“The [committee] cannot arrive at a reasonable answer if it addresses the wrong issues. Thus, addressing the wrong issues is an example of unreasonable methodology.”). Any of these failures may give rise to a material question about the good faith of the committee’s investigation. But the siblings would not know of these issues unless they had access to the entire report. We conclude that the entire report is relevant to the issue of good faith.

IV. Access to the Report

Having determined that a committee’s entire report is relevant, we now consider whether a corporation may refuse to produce it. Judge Stalbrink said no. We agree.

TPO refused to produce the entire report in part because it claimed the redacted material is privileged. This Court has yet to consider privilege in the context of a special litigation committee’s report. But other courts have held that a special litigation committee’s report may contain privileged material. See Perrigo, 128 F.3d at 438; In re Cont’l Ill. Secs. Litig., 732 F.2d 1302, 1314 (7th Cir.1984); Joy v. North, 692 F.2d 880, 893-94 (2d Cir.1982); Hollinger Int’l. Inc. v. Hollinger Inc., 230 F.R.D. 508, 514 (N.D.Ill.2005); In re Dayco Corp. Derivative Secs. Litig., 99 F.R.D. 616, 620-22 (S.D.Ohio 1983). Certainly attorney-client communications will infiltrate many special litigation committee reports, particularly where reports contain attorney advice as to how a committee should proceed on particular claims. Indeed, the committees’ reasoning for rejecting claim may well be based on counsel’s advice that a claim is unlikely to succeed on the merits. And in such a case, the very reason that the committee acted in good faith is because of an attorney’s advice.

But privilege can be waived, such ás in as in malpractice or ineffective-assistance claims. See Canfield v. Sandock, 563 N.E.2d 526, 529 (Ind.1990) (by bringing personal-injury claim, plaintiff waived physician-patient privilege as to matters causally and historically related to the condition at issue and directly medically relevant to claim, counterclaim, or defense), reh’g denied; Carter v. State, 738 N.E.2d 665, 674 n. 6 (Ind.2000) (“Carter sought to have trial counsel’s testimony excluded from the postconviction court on the basis of the attorney-client privilege and now asks us to ignore the testimony as well. However, as the post-conviction court correctly noted, a defendant waives the attorney-client privilege when he files a petition for post-conviction relief on the grounds of ineffective assistance of counsel.”). We hold that this is another instance where privilege is waived because the report is necessary to the litigation and requiring its production comports with fairness. Our holding is limited to the committee’s report only — the written report, or in the case a written report does not exist, an oral report to the' corporation’s board of directors. Any other claims of privilege are not affected by our holding.

We allow access to the committee report because Indiana law permits the siblings to make two challenges to the committee’s determination — they can argue that the committee was not disinterested or that their investigation was not made in good faith. The most relevant source of that information is undoubtedly the committee’s report. The siblings cannot make their statutorily allowed challenges, particularly their good-faith challenge, without access to the entire report.

This reality is reflected in ease law. In the two Indiana cases that mention a special litigation committee’s report, Cutshall and Barker, the plaintiffs had access to the committees’ reports. And we can find no case outside of our state in which derivative plaintiffs have been denied access to a committee’s report. Indeed, in two cases where corporations tried to deny the plaintiffs access to the report, their attempts were flatly rejected. See Perrigo, 128 F.3d at 438 (“As a matter of fairness and practicality, the derivative plaintiffs ... will need the Report in order to rebut the presumption that [the corporation] acted in good faith and made a reasonable investigation.”) (quotation omitted); Joy, 692 F.2d at 893 (“[I]f the ... committee recommends termination and a motion for judgment follows, the committee must disclose to the court and the parties not only its report but all underlying data.”).

Importantly, not just derivative plaintiffs need access to the entire report. Our trial judges need access to the report as well. Without access to these reports, they cannot properly evaluate the parties’ claims. See Perrigo, 128 F.3d at 438 (“[T]he court must have the report before it can properly rule on Perrigo’s motion and perform its judicial function.”). Judge Stalbrink acknowledged that reality in this case: “[Without the report] all that is before the court is an assertion that the investigation was extensive and expensive and therefore must have been in good faith.” Appellant’s App. p. 12. Providing these reports to trial courts will put critically relevant information in the hands of our trial judges, allowing them to make informed decisions regarding the future of derivative plaintiffs’ claims.

In closing, we acknowledge TPO’s concerns about the potential implications of our holding on the business-judgment rule, but we do not share them. There is no reason to believe that simply allowing derivative plaintiffs access to committee reports will lead to trespass into the domain of business judgment. We are confident in the ability of our trial courts to interpret Indiana’s business-judgment rule and reject claims that threaten to emasculate that rule.

We therefore affirm the trial court’s order compelling TPO to file a copy of the entire report under seal and produce a copy to the siblings and their counsel, and we remand for further proceedings.

Affirmed.

KIRSCH, J., and PYLE, J., concur.

      . The report spans only twenty-nine pages in the record because the redacted pages are reflected on a single page. See Appellant's App. p. 387 (page reads "Pages 25 through 107 Redacted”).

      . TPO states that only the board of directors received the report, with the exception of Andrew, who was not permitted to see the document. The siblings argue that there is no proof of either fact, but we need not belabor this point. What matters is that the siblings do not have access to the report.

      . Although Andrew’s counsel also participated at the hearing, his arguments aligned with TPO’s; for the sake of brevity, we discuss TPO’s arguments here. We treat Andrew’s arguments on appeal in the same fashion.

      . We held oral argument in this case on August 6, 2013. We commend counsel for their astute and spirited advocacy throughout this case.

      . Indiana Code section 23-1-17-5 provides that published official comments "may be consulted by the courts to determine the underlying reasons, purposes, and policies of this article and may be used as a guide in its construction and application."

      . We use the term "privileged” to encompass attorney-client communications and attorney work product.

      . These cases did not limit derivative plaintiffs’ access to the report based on privilege.

      . The trial court did not rule on the issue of privilege. Supra, p. 1061. For the purposes of our analysis in this case, we assume that the report contains privileged material.

      . We do not address the issue of whether a report must be disclosed to the public; we hold only that the report must be produced to derivative plaintiffs.

      .We are unmoved by TPO’s argument that the siblings can obtain this information through traditional discovery methods. The report is the best, most comprehensive evidence of the committee’s good faith. ■ Other methods of discovering this information will be cumbersome and expensive and will require frequent trial-court intervention.