author: BARNES, Judge.

text:
    MEDTRONIC, INC., Appellant-Defendant, v. Lori A. MALANDER, Individually and as Personal Representative of the Estate of David M. Malander, Sr., Deceased and Kathleen Malander, Appellees-Plaintiffs.
    No. 49A02-1211-CT-925.
    Court of Appeals of Indiana.
    Oct. 11, 2013.

      Kevin R. Knight, Ice Miller, LLP, Indianapolis, IN, Lori G. Cohen, R. Clifton Mer-rell, Greenberg Traurig, LLP, Atlanta, GA, Daniel I.A. Smulian, Greenberg Trau-rig, LLP, New York, NY, Attorneys for Appellant.
    William E. Winingham, D. Bruce Kehoe, Wilson Kehoe Winingham, LLC, Indianapolis, IN, Attorneys for Appellees.
   OPINION

BARNES, Judge.

Case Summary

Medtronic, Inc., (“Medtronic”) appeals the trial court’s denial of its motion for summary judgment in an action against it by Lori Malander, individually and as the personal representative of the Estate of David Malander, deceased, and Kathleen Malander (collectively, the “Malanders”). We affirm.

Issues

Medtronic raises two issues, which we restate as:

I. whether the trial court properly found that the Malanders’ claim was not preempted by federal law; and
II. whether the trial court properly denied summary judgment regarding whether Medtronic voluntarily assumed a duty to David.

Facts

We first note that many of the facts of this case are subject to a stipulated protective order. As such, portions of the briefs and appendices are excluded from public access. See Ind. Admin. R. 9(G)(4)(c). Indiana Administrative Rule 9(G)(4)(d) provides:

Orders, decisions, and opinions issued by the court on appeal shall be publicly accessible, but each court on appeal should endeavor to exclude the names of the parties and affected persons, and any other matters excluded from public access, except as essential to the resolution of litigation or appropriate to further the establishment of precedent or the development of the law.

We have attempted to exclude matters covered by the protective order from this opinion. However, to the extent such matters are included in this opinion, we deem such information to be essential to the resolution of the litigation or appropriate to further the establishment of precedent or the development of the law. See, e.g., Recker v. Review Bd. of Ind. Dep’t of Workforce Dev., 958 N.E.2d 1136, 1139 (Ind.2011) (“As to the facts of the case that derive from the records of the Department and are discussed in this opinion, we deem such information to be public as essential to the resolution of the litigation and appropriate to further the establishment of precedent and the development of the law.”).

Due to heart problems, Dr. Lawrence Klein implanted a Medtronic defibrillator and a Medtronic Transvene Model 6936 right ventricular lead (“Lead”) in David Malander in 1997. The Lead was a Class III medical device subject to premarket Pood and Drug Administration (“FDA”) approval. Dr. Klein upgraded the defibrillator in 2004, but left the Lead in place.

During a follow-up appointment, Dr. Klein learned that the device had experienced nine episodes of random short V-V intervals. A short V-V interval is “an interval where the device is sensing electrical activity ... in the heart or perhaps in the lead, that has a very ... short interval.” Appellant’s App. p. 402. The Malanders describe a short V-V interval as when the defibrillator “incorrectly senses electrical activity in the heart, or in the lead, at a much faster rate than the heart is capable of.” Appellees’ Br. p. 7. Medtronic describes a short V-V interval as “a false-positive; in more technical terms, it is an abbreviated sensing interval in which the [defibrillator] senses electrical activity that is not actually related to the heart’s rhythm.” Appellant’s Br. p. 9. In 2006, Dr. Klein scheduled David for another surgery to upgrade the defibrillator and possibly replace the Lead. Dr. Klein was aware that the Lead had a high failure rate of 34.6% and was concerned about the short V-V intervals.

During the December 7, 2006 surgery, Joseph von Weigandt, a Medtronic Clinical Specialist, was present and assisted Dr. Klein with testing the Lead. The testing did not reveal any problems with the Lead. Dr. Klein also called Medtronic during the surgery and talked to Peter Choukalas and Don Ruzin of Medtronic’s technical services department. Dr. Klein requested all of the information they possessed on short V-V intervals. Dr. Klein asked, “Did we test it properly, is this lead functioning normally ... is there any information about the short V-V intervals that I need to know about. Are they okay, do they indicate a lead failure?” Id. at 681. Ruzin responded, “Don’t worry about that; it doesn’t mean anything.... I don’t think that’s a problem-” Id at 685. Dr. Klein chose not to replace the Lead.

David died on January 2, 2007, following an incident of ventricular tachycardia on December 31, 2006. Testing revealed 361 short V-V intervals of his defibrillator between December 14, 2006, and December 31, 2006.

The Malanders filed a complaint against Medtronic and Dr. Klein. As to Medtronic, the Malanders alleged in Count 7 that Medtronic was negligent by:

a. Failing in its design of the 6936 lead, failing to properly warn and instruct as to the hazards of use of that model lead, and failing to recall that lead, in that the 6936 lead had an usually [sic] high incidence of fracture and failure of the lead;
b. Failing to recall this lead, and further failing to give adequate warnings to purchasers and users of the 6936 Transvene lead about the unreasonably dangerous and defective condition of the lead and of the dangerous propensity of the lead to fail without warning; and,
c. Failing to recommend that the 6936 lead be removed or capped off during David Malander’s December 7, 2006 surgery.

Id. at 10. The Malanders claim that internal Medtronic memorandums distributed to their technicians prior to David’s surgery indicated that short V-V intervals were indicative of lead failure and that the technicians should have recommended replacement of the Lead.

In October 2011, Medtronic filed a motion for summary judgment. Medtronic alleged that the Malanders’ claims were preempted by federal law pursuant to the Medical Device Amendments (“MDA”) to the Federal Food, Drug, and Cosmetics Act, 21 U.S.C. Section 360k(a), and Riegel v. Medtronic, 552 U.S. 312, 128 S.Ct. 999, 169 L.Ed.2d 892 (2008). In the Malanders’ response to Medtronic’s motion for summary judgment, they acknowledged that Count 7(a) and 7(b) of their complaint were preempted by federal law. However, the Malanders argued that Count 7(c) was based on Medtronic’s negligence during the December 2006 surgery and was not preempted. The Malanders argued that Medtronic assumed a duty to David when its technicians advised Dr. Klein regarding the Lead but did not advise him to replace the Lead. Medtronic filed a response, and after a hearing, the trial court denied Med-tronic’s motion for summary judgment. The trial court certified the order for interlocutory appeal, and we accepted jurisdiction over the appeal pursuant to Indiana Appellate Rule 14(B).

Analysis

Medtronic argues that the trial court erred by denying its motion for summary judgment. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56. We liberally construe all designated evidentiary material in a light most favorable to the non-moving party to determine whether there is a genuine issue of material fact. Bradshaw v. Chandler, 916 N.E.2d 163, 166 (Ind.2009). The party that lost in the trial court has the burden of persuading the appellate court that the trial court erred. Id. Our review of a summary judgment motion is limited to those materials designated to the trial court. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind.2001).

I. Preemption

Medtronic argues that the Malanders’ claim in paragraph 7(c) of the complaint is preempted by federal law. The federal law at issue is part of the MDA, which “swept back some state obligations and imposed a regime of detailed federal oversight” on medical devices. Riegel, 552 U.S. at 316, 128 S.Ct. at 1003. The regulatory scheme “established various levels of oversight for medical devices, depending on the risks they present.” Id. at 316, 128 S.Ct. at 1003. At issue here are Class III devices, which receive the most federal oversight. Id. at 317, 128 S.Ct. at 1003.

Class III devices are subject to “a rigorous regime of premarket approval,” which includes review of the device’s proposed labeling. Id. at 317, 128 S.Ct. at 1004. “The FDA evaluates safety and effectiveness under the conditions of use set forth on the label, [21 U.S.C] § 360c(a)(2)(B), and must determine that the proposed labeling is neither false nor misleading, [21 U.S.C] § 360e(d)(l)(A).” Id. at 318, 128 S.Ct. at 1004. “Once a device has received premarket approval, the MDA forbids the manufacturer to make, without FDA permission, changes in design specifications, manufacturing processes, labeling, or any other attribute, that would affect safety or effectiveness.” Id. at 319, 128 S.Ct. at 1005 (citing 21 U.S.C. § 360e(d)(6)(A)(i)). “If the applicant wishes to make such a change, it must submit, and the FDA must approve, an application for supplemental premarket approval, to be evaluated under largely the same criteria as an initial application.” Id. at 319, 128 S.Ct. at 1005 (citing 21 U.S.C. § 360e(d)(6); 21 CFR § 814.39(c)).

After premarket approval, the devices are also subject to reporting requirements. Id. at 319, 128 S.Ct. at 1005 (citing 21 U.S.C. § 360i). The reporting requirements include “the obligation to inform the FDA of new clinical investigations or scientific studies concerning the device which the applicant knows of or reasonably should know of, 21 CFR § 814.84(b)(2),” and the obligation “to report incidents in which the device may have caused or contributed to death or serious injury, or malfunctioned in a manner that would likely cause or contribute to death or serious injury if it recurred, [21 CFR] § 803.50(a).” Id. at 319, 128 S.Ct. at 1005.

Additionally, the MDA provides:

Except as provided in subsection (b) of this section, no State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement—
(1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and
(2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter.

21 U.S.C.A. § 360k(a).

The Supreme Court analyzed this preemption clause in Riegel. There, the plaintiffs brought an action against the manufacturer of a heart catheter after the catheter ruptured in his coronary artery during heart surgery. The complaint alleged that the catheter “was designed, labeled, and manufactured in a manner that violated New York common law.” Riegel, 552 U.S. at 321, 128 S.Ct. at 1005. The Riegel court held that the preemption clause establishes a two-pronged test for determining if state law claims are preempted. First, we must determine whether the Federal Government has imposed “requirements” on the device. Id. at 321-22, 128 S.Ct. at 1006. If so, we must then determine whether the state law claims impose requirements “different from, or in addition to” the federal ones and whether the requirements relate to “safety and effectiveness” or to “any other matter included in a requirement applicable to the device.” Id. at 321-22, 128 S.Ct. at 1006 (citing 21 U.S.C. § 360k(a)).

The Court answered the first prong in the affirmative. The Court found that premarket approval imposes “requirements” in the case of Class III devices. Id. at 322, 128 S.Ct. at 1007. In considering the second prong, the Court concluded that common law causes of action for negligence and strict liability impose “requirements” and are preempted by the MDA. Id. at 323-25, 128 S.Ct. at 1007-08. The Court explained:

State tort law that requires a manufacturer’s catheters to be safer, but hence less effective, than the model the FDA has approved disrupts the federal scheme no less than state regulatory law to the same effect. Indeed, one would think that tort law, applied by juries under a negligence or strict-liability standard, is less deserving of preservation. A state statute, or a regulation adopted by a state agency, could at least be expected to apply cost-benefit analysis similar to that applied by the experts at the FDA: How many more lives will be saved by a device which, along with its greater effectiveness, brings a greater risk of harm? A jury, on the other hand, sees only the cost of a more dangerous design, and is not concerned with its benefits; the patients who reaped those benefits are not represented in court.

Id. at 325, 128 S.Ct. at 1008.

The Court noted that “[s]tate requirements are pre-empted under the MDA only to the extent that they are ‘different from, or in addition to’ the requirements imposed by federal law.” Id. at 330, 128 S.Ct. at 1011 (quoting 21 U.S.C. § 360k(a)(1)). The preemption clause “does not prevent a State from providing a damages remedy for claims premised on a violation of FDA regulations; the state duties in such a case ‘parallel,’ rather than add to, federal requirements.” Id. (quoting Medtronic v. Lohr, 518 U.S. 470, 495, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996)). “Parallel” claims would not be preempted. Id. Ultimately, the Court held that the plaintiffs’ claims were preempted because they asserted that the device violated state tort law notwithstanding compliance with the relevant federal requirements.

Medtronic argues that the Malanders have not alleged a parallel claim and that it is entitled to summary judgment as a matter of law. According to Medtronic, this action involves a claim that their technicians should have provided additional warnings above and beyond the warnings on the device’s label, and the MDA preempts such claims. The Malanders counter that their claim is not preempted because it involves negligent oral representations by Medtronic’s technicians, not the device’s labeling.

Indiana courts have only addressed the MDA’s preemption clause once. In McGookin v. Guidant Corp., 942 N.E.2d 831 (Ind.Ct.App.2011), a child died after receiving a pacemaker. The parents brought an action against the manufacturer of the pacemaker for wrongful death, product liability, breach of express and implied warranties, actual fraud, constructive fraud, negligence, violation of the Indiana Deceptive Consumer Sales Act, and intentional and negligence infliction of emotional distress. The basis of their claim was that “the labeling for [their daughter’s] pacemaker was inadequate because it failed to warn of a lack of testing of the Automatic Capture feature with small children, unipolar epicardial leads, and abdominal implantation.” McGookin, 942 N.E.2d at 833. “In other words, their complaint challenge[d] labeling expressly approved by the FDA.” Id.

Based on the MDA’s preemption clause and the United States Supreme Court’s opinion in Riegel, we concluded that the plaintiffs’ claims were preempted. We noted that the plaintiffs did not allege that the manufacturer violated federal requirements. Rather, the plaintiffs contended that the manufacturer “should be liable for its failure to add warnings that are permitted, but not required, by federal law.” Id. at 838. We concluded that this allegation was “an attempt to impose a standard of care in addition to the FDA’s specific federal requirements” and that the claim was preempted. Id.

The facts of this case, however, are distinguishable from Riegel and McGookin. The Malanders’ claim here relates to oral representations made by a manufacturer’s representatives during a surgical procedure regarding a specific device’s performance, not general allegations regarding the labeling, design, or manufacture of the device. Few courts have considered this issue.

Medtronic relies on Baker v. Medtronic, Inc., No. 2:99-CV-1355, 2002 WL 485013 (S.D.Ohio, Eastern Div. Mar. 28, 2002). In Baker, the battery on the plaintiffs anti-spasm medication pump failed. The physician had noted that the low battery alarm was occurring, scheduled a surgery for three weeks later, and contacted Medtronic’s representative, who informed the physician’s nurse that the pump would continue working for approximately four weeks. Four days before the surgery, the battery failed. The plaintiff brought an action against Medtronic and argued, in part, that the technician’s representations were “off label representations” that were not regulated by the FDA. Baker, 2002 WL 485013, *8. The court noted that the labeling information contained detailed graphs regarding the pump’s battery life, and the information given to the physician’s nurse was consistent with the information in the labeling. The court concluded that the information was not an “off label” representation, and the claim was preempted. Id.

Medtronic also relies on Wolicki-Gables v. Arrow Intern., Inc., 641 F.Supp.2d 1270 (M.D.Fla.2009). There, the plaintiff was implanted with a drug delivery pump and catheter for the treatment of chronic pain. The device manufacturer’s independent contractor sales representative, Nelson, was present during surgery to replace the allegedly malfunctioning pump. More complications ensued, and the plaintiffs filed an action against the device’s manufacturer, Nelson, and others. The plaintiffs alleged Nelson, “as a sales representative, owed a duty to Plaintiffs to instruct and educate [the plaintiffs] operating surgeon to ensure that the pain pump was functioning properly, to verify Plaintiffs consent to Defendant Nelson’s presence in the operating room, and to not dispose of any devices removed from Plaintiff.” Wolicki-Gables, 641 F.Supp.2d at 1291.

The district court granted summary judgment to Nelson. The court first noted that, because it had granted the manufacturer’s motion for summary judgment based on preemption, it also granted summary judgment to Nelson, who had joined in the manufacturer’s motion. The court did not differentiate the claim against Nelson and the claim against the manufacturer and gave no analysis of the preemption of the claim against Nelson. The court then noted that, even if the plaintiffs’ negligence claim against Nelson was not preempted, the claim still failed. In particular, the court noted that Nelson did not participate in the surgery, did not advise the doctor or interact with him, and did not improperly dispose of the removed device. The Eleventh Circuit affirmed the district court’s decision but likewise gave no analysis of the preemption of the claim against Nelson. Wolicki-Gables v. Arrow Intern., Inc., 634 F.3d 1296 (11th Cir.2011).

Given the lack of analysis in Wolicki-Gables, we find Adkins v. Cytyc Corp. No. 4:06CV00053, 2008 WL 2680474 (W.D.Va. July 3, 2008), more persuasive. There, the plaintiff suffered thermal burns to her sigmoid colon and a perforated uterus during an endometrial ablation procedure. The procedure was performed with a NovaSure device, and the manufacturer’s representative was in the operating room “and advised and directed [the doctor] on the proper way” to use the device. Adkins, 2008 WL 2680474, *1. The plaintiff brought an action against the manufacturer “alleging breach of implied warranty of merchantability, breach of express warranty, negligence through inadequate design and negligent warnings or instruction of the surgeon by defendants’ corporate representative.” Id.

The manufacturer filed a motion to dismiss based on preemption. The district court agreed that the plaintiffs common law claims for negligence and breach of warranty were preempted under the MDA. However, the court concluded that the Plaintiffs cause of action regarding the representative’s direct actions “during the surgery in negligently instructing the operating physician” were not governed by RiegeVs preemption holding. Id. at *2. The court noted:

The FDA does not regulate interactions between corporate representatives and physicians on-site at a particular surgery, and where it does not mandate special physician training for a drug, it does not specify how such an interaction at surgery must be performed. These localized situations are traditional matters for the common law, not the FDA’s regulatory approval process. Such a claim does not challenge the design, manufacture, and labeling of the NovaS-ure device so as to implicate Riegel preemption, but rather challenges negligence by a corporate agent acting as a de facto physician’s assistant during a surgical procedure.

Id. at *3. The district court ultimately dismissed the claim because of the lack of specific allegations in the complaint but allowed the plaintiff to amend the complaint.

Likewise, we conclude that the Ma-landers’ claim concerns the allegedly negligent interaction between the physician and Medtronic’s technicians. Unlike Baker, the Malanders’ claim does not involve the mere restatement of information given in the labeling. As in Adkins, their claim does not concern the design, manufacture, or labeling of the lead. Rather, the Ma-landers’ challenge involves negligence of Medtronic’s technicians in giving David’s physician allegedly faulty advice regarding the performance of one specific lead. As such, we conclude that the Malanders’ claim is not preempted by the MDA, and the trial court properly denied Medtronic’s motion for summary judgment on this issue.

II. Assumed Duty

On appeal, Medtronic also argues that it did not assume a duty to the Malan-ders. To prevail on a claim of negligence, the plaintiff must show: (1) a duty owed to the plaintiff by defendant; (2) breach of duty because of conduct falling below the applicable standard of care; and (3) com-pensable injury proximately caused by defendant’s breach of duty. Kroger Co. v. Plonski, 930 N.E.2d 1, 6 (Ind.2010). The parties here argue only regarding whether Medtronic had a voluntarily assumed duty.

“A duty of care may ... arise where one party assumes such a duty, either gratuitously or voluntarily.” Planu-Tec, Inc. v. Wiggins, 443 N.E.2d 1212, 1219 (Ind.Ct.App.1983). “The assumption of such a duty creates a special relationship between the parties and a corresponding duty to act in the manner of a reasonably prudent person.” Id. Failure to act in a reasonable manner will give rise to an action for negligence. Id. “The existence and extent of such a duty are ordinarily questions for the trier of fact.” Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1270 (Ind.Ct.App.2002), trans. denied. However, the court will decide the issue as a matter of law when the record contains insufficient evidence to establish such a duty. Id.

Section 324A of the Restatement (Second) of Torts parallels Indiana’s doctrine of assumed duty. Ward v. First Indiana Plaza Joint Venture, 725 N.E.2d 134, 136 (Ind.Ct.App.2000), trans. denied. Section 324A provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm re-suiting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Id.

Medtronic argues that it did not assume a duty to make a medical recommendation regarding the removal of the Lead, that it did not control the “instrumentality” or assume a duty owed by Dr. Klein, that it did not have superior knowledge to Dr. Klein, and that its internal documents did not give rise to a duty to make medical recommendations. Appellant’s Br. p. 31. According to Medtronic, Dr. Klein was in charge of the surgical procedure regardless of any advice given by the technicians, Dr. Klein had the same information that the technicians had, and its technicians are prohibited from practicing medicine.

The Malanders, however, argue not that Medtronic had a duty to make medical recommendations, but rather that it assumed a duty to make “technical” recommendations to Dr. Klein regarding the Lead. Appellee’s Br. p. 17. The Malan-ders do not allege that Medtronic should have participated in the surgery, was responsible for deciding whether to remove the Lead, or was involved with the physician/patient relationship. Rather, the Ma-landers argue that, having voluntarily agreed to give technical support, the technical support should have been made in a “reasonable and prudent manner.” Id. at 21.

We agree with the Malanders. In fact, Medtronic concedes that, “[hjaving volunteered to provide technical support, Medtronic at most assumed a duty to provide that support in a reasonable and prudent manner.” Appellant’s Br. p. 32. Medtronic’s failure to exercise reasonable care in giving technical support would clearly increase the risk of harm to a patient. Medtronic voluntarily undertakes to perform the technical support for physicians to assist the physician in using their devices. The Malanders designated evidence that Medtronic’s technician was present in the operating room and that Dr. Klein talked on the telephone to additional technicians regarding the short V-V intervals experienced by David’s Lead. The Malanders also designated evidence that Medtronic’s technicians failed to follow the recommendations of its own internal mem-oranda regarding the short V-V intervals associated with this particular lead. Appellant’s App. p. 508. Although Medtronic designated deposition testimony that the small number of short V-V intervals associated with David’s lead would not have been concerning, the designated evidence creates a genuine issue of material fact. Because “[t]he existence and extent of such a duty are ordinarily questions for the trier of fact,” Merrill, 771 N.E.2d at 1270, and genuine issues of material fact exist regarding whether Medtronic assumed a duty here, summary judgment on this argument would have been improper.

Conclusion

We conclude that the MDA does not preempt the Malanders’ claim against Medtronic and that genuine issues of material fact exist regarding whether Med-tronic assumed a duty to David. Consequently, the trial court properly denied Medtronic’s motion for summary judgment. We affirm.

Affirmed.

CRONE, J., and PYLE, J., concur.

      . Medtronic also relies on Franklin v. Medtronic, No. 09-CV-02301, 2010 WL 2543579 (D.Col. May 12, 2010). In Franklin, the plaintiff alleged, in part, that Medtronic should have recalled its defibrillators or warned physicians and users of defects. The district court concluded that Medtronic was not required to issue a recall or warning under the FDA regulations and that the plaintiff’s claim would establish requirements different from or in addition to the federal requirements. Thus, the plaintiffs claim was preempted. Here, however, the plaintiffs’ claim relates to oral representations given to David’s physician during his surgery, not the failure to issue a recall or the failure to give a warning.

      . We note that Medtronic did not request summary judgment on the assumption of a duty issue. Rather, in responding to Med-tronic’s preemption agreement, the Malan-ders discussed Medtronic’s assumption of a duty to David, and Medtronic addressed the issue in its reply brief. On appeal, Medtronic argues that it did not assume a duty to David. It is unclear why the Malanders argued the assumption of duty issue in response to Med-tronic’s motion for summary judgment on preemption. It is also unclear why Medtronic is now requesting summary judgment on the issue not raised in its summary judgment motion. Regardless, as neither party raises the issue of waiver, we will address Medtronic’s assumption of a duty.


source: Caselaw Access Project

author: BARNES, Judge. NAJAM, Judge,

license: Public Domain

text:
    Matthew FIANDT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 32A01-1211-CR-496.
    Court of Appeals of Indiana.
    Oct. 11, 2013.

      Cynthia P. Helfrieh, Helfrich Law Offices, Brownsburg, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Matthew Fiandt appeals his convictions for two counts of Class A misdemeanor intimidation and one count of Class B misdemeanor harassment. We affirm.

Issue

The issue before the court is whether Fiandt was improperly denied his right to a jury trial.

Facts

On February 27, 2012, Fiandt was charged with two counts of Class A misdemeanor intimidation and two counts of Class B misdemeanor harassment in the Plainfield Town Court. His initial hearing was held on March 15, 2012, via video, where he indicated he was going to hire a private attorney and was given ten days to do so. His bench trial was scheduled for June 12, 2012, and he was released on his own recognizance. On March 30, 2012, a warrant for Fiandt’s arrest was issued when he failed to obtain an attorney. He was arrested on June 12, 2012. At that time the court appointed him counsel, Annie Fierek, and continued his bench trial to August 14, 2012.

On July 31, 2012, Fierek filed a request for a jury trial, which the Plainfield Town Court granted, and the case was transferred to Hendricks Superior Court for purposes of holding a jury trial. On August 15, 2012, Fierek withdrew her appearance, and Tom Lee was appointed by the court as new counsel on August 30, 2012. Lee submitted a request on September 20, 2012, for a bench trial instead of a jury trial. The Hendricks Superior Court did not hold a hearing on this request. On October 5, 2012, that court conducted a bench trial and found Fiandt guilty of two counts of Class A misdemeanor intimidation and one count of Class B misdemeanor harassment and not guilty of one count of Class B misdemeanor harassment. Fiandt now appeals.

Analysis

Fiandt claims he was improperly denied his right to a jury trial because the trial court did not personally secure a jury trial waiver from him on the record. The right to a jury trial is guaranteed by the Indiana and United States Constitutions. Young v. State, 973 N.E.2d 643, 645 (Ind.Ct.App.2012). The right to a jury trial in misdemeanor cases is not self-executing, but is controlled by Indiana Rule of Criminal Procedure 22. Id. at 645. Criminal Rule 22 provides:

A defendant charged with a misdemean- or may demand trial by jury by filing a written demand therefor not later than ten (10) days before his first scheduled trial date. The failure of a defendant to demand a trial by jury as required by this rule shall constitute a waiver by him of trial by jury unless the defendant has not had at least fifteen (15) days advance notice of his scheduled trial date and of the consequences of his failure to demand a trial by jury.
The trial court shall not grant a demand for a trial by jury filed after the time fixed has elapsed except upon the written agreement of the state and defendant, which agreement shall be filed with the court and made a part of the record. If such agreement is filed, then the trial court may, in its discretion, grant a trial by jury.

“Thus, when charged with a misdemeanor, a defendant can waive [his or] her right to a jury trial by failing to make a timely demand for trial by jury.” Young, 973 N.E.2d at 645. Fiandt argues that he affirmatively demanded his right to be tried by a jury when he submitted his request for jury trial on July 31, 2012, prior to his bench trial scheduled for August 14, 2012. However, in order to assert the right to a jury trial in accordance with Criminal Rule 22, Fiandt was required to file his request ten days prior to his first scheduled trial date, which was June 12, 2012. Fiandt’s jury trial request filed on July 31, 2012, was far too late to secure his right to a jury trial. By that time, Fiandt had already waived his right to a jury trial by operation of law, no later than June 2, 2012. Fiandt did not have to make a personal, express, on-the-record statement that he was knowingly, intelligently, and voluntarily waiving his right to a jury trial. See Hutchins v. State, 493 N.E.2d 444, 445 (Ind.1986) (stating that alleged misde-meanant can waive jury trial right solely by failing to timely request jury trial by Criminal Rule 22 deadline).

It is true, as asserted by the dissent, that a waiver of jury trial in misdemeanor cases under Criminal Rule 22 is ineffective if the trial court did not adequately advise the defendant of the consequences of a failure to demand a jury trial no later than ten days prior to the first trial date. See Levels v. State, 972 N.E.2d 972, 973-74 (Ind.Ct.App.2012). Fiandt makes no argument that the trial court failed to make the proper advisements or that there is any reason for considering this first waiver of his jury trial right to be invalid. Also, this is not a case in which the record is “silent” or “missing” as to whether proper constitutional advisements were given. Cf. Hall v. State, 849 N.E.2d 466, 472 (Ind.2006) (stating that “silent” record is one in which an existing transcript fails to reveal that defendant was advised of constitutional rights, while “missing” record is one in which transcript and other documents are unavailable and cannot be reconstructed) (quoting Parke v. Raley, 506 U.S. 20, 30, 113 S.Ct. 517, 523-24, 121 L.Ed.2d 391 (1992)). Rather, Fiandt simply has not provided this court with any records related to what he was told at the time of his initial hearing, nor has he claimed that such records are unavailable, nor did he request a transcript of his initial hearing. Given Fiandt’s failure to make any argument that he was inadequately advised regarding his jury trial rights at the time of his initial hearing and his failure to provide this court with any documentation that would support such a claim, it is inappropriate to speculate that he was inadequately advised.

Having waived his right to a jury trial by failing to timely request one, Fiandt did not have any constitutional entitlement to withdraw that waiver. See Hutchins, 493 N.E.2d at 445. Rather, any subsequent decision to grant a jury trial to Fiandt was purely discretionary and not constitutionally required. See id. Moreover, Criminal Rule 22 constrains the discretion of trial courts to grant a jury trial after a previous waiver to situations in which the defendant and the State expressly agree in writing to the request. There is no indication of any such written agreement in the record; rather, on July 31, 2012, Fiandt simply filed a unilateral jury trial request without the State’s agreement. Thus, not only was the Plain-field Town Court here not required to grant Fiandt’s untimely jury trial request, it arguably was required to deny that request.

At best, the Plainfield Town Court’s granting of Fiandt’s untimely jury trial request was a discretionary ruling that could later be reversed or, at worst, was a legal nullity that needed to be reversed. See In re Estate of Hammar, 847 N.E.2d 960, 962 (Ind.2006) (holding trial courts have authority to change previous discretionary rulings as long as a case remains in fieri, or pending resolution). Here, when the Hendricks Superior Court was faced with Fiandt’s request for a bench trial after having requested a jury trial, there was no obstacle to the granting of that request because Fiandt had already waived his right to a jury trial. Nor did it have to observe any constitutional requirements for obtaining a jury trial waiver from Fiandt personally because the holding of a jury trial was not constitutionally mandated at that point. It is therefore unnecessary to delve into whether Fiandt’s attorney’s request for a bench trial would have been sufficient to waive Fiandt’s right to a jury trial.

Conclusion

Fiandt failed to make a timely demand for a trial by jury as required by Criminal Rule 22, and, therefore, he was not entitled to have one. We affirm.

Affirmed.

BAILEY, J., concurs.

NAJAM, J., dissents with opinion.

NAJAM, Judge,

dissenting.

I respectfully dissent and would vote to vacate Fiandt’s convictions and remand for a jury trial.

Fiandt was charged with two Class A misdemeanors and one Class B misdemeanor. A Class A misdemeanor carries a potential maximum term of one year imprisonment. Ind.Code § 35-50-3-2. The Sixth Amendment right to a jury trial applies to all “serious infractions.” Duncan v. Louisiana, 391 U.S. 145, 159-61, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The Supreme Court of the United States has held that “serious infractions” are crimes “where imprisonment for more than six months is authorized.” Baldwin v. New York, 399 U.S. 66, 69, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); see also Holly v. State, 681 N.E.2d 1176, 1177-78 (Ind.Ct.App.1997) (Rucker, J.) (“[Sentences up to six months may be imposed ... without guilt ... being determined by a jury. Sentences exceeding six months may not be imposed absent a jury trial or waiver thereof’) (citations omitted). Thus, as a matter of constitutional law, Fiandt’s alleged Class A misdemeanors entitled him to a trial by jury.

Of course, one may waive his or her right to a trial by jury. But, when the constitutional right to a jury applies, to be effective

[a] waiver of this right must be made in a knowing, intelligent, and voluntary manner, with sufficient awareness of the surrounding circumstances and the consequences. The record must reflect that such a ivaiver was made .... This court has held that ... the defendant’s assent must mean an assent by the defendant personally .... The record reflection must be direct and not merely implied. It must show the personal communication of the defendant to the court that he chooses to relinquish the right.

Doughty v. State, 470 N.E.2d 69, 70 (Ind.1984) (emphases added); see also Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854 (1930) (holding that, before the constitutional right to a jury may be waived, the “express and intelligent consent of the defendant” must be obtained).

The majority holds that “[t]he right to a jury trial in misdemeanor cases is not self-executing, but is controlled by Indiana Rule of Criminal Procedure 22.” Op. at 423. Rule 22 provides as follows:

A defendant charged with a misdemean- or may demand trial by jury by filing a written demand therefor not later than ten (10) days before his first scheduled trial date. The failure of a defendant to demand a trial by jury as required by this rule shall constitute a waiver by him of trial by jury unless the defendant has not had at least fifteen (15) days advance notice of his scheduled trial date and of the consequences of his failure to demand a trial by jury.
The trial court shall not grant a demand for a trial by jury filed.after the time fixed has elapsed except upon the written agreement of the state and defendant, which agreement shall be filed with the court and made a part of the record. If such agreement is filed, then the trial court may, in its discretion, grant a trial by jury.

According to the majority, “Fiandt failed to make a timely demand for a trial by jury as required by Criminal Rule 22, and, therefore, he was not entitled to have one.” Op. at 424-25. Thus, the majority concludes that the Town Court erred as a matter of law when it granted Fiandt’s request and transferred the cause to the Superior Court.

The majority’s reasoning does not take into account how Criminal Rule 22 and the Sixth Amendment work together. Our Criminal Rules cannot supersede constitutional principles or diminish a defendant’s fundamental rights. For example, this court has held that, under Rule 22:

a defendant charged with a misdemean- or who fails to make a timely request waives the right to a trial by jury if he has been advised in a timely manner of both the right to jury trial and the consequences of failing to make a timely demand. The defendant’s waiver, however, must be voluntary, knowing, intelligent, and personal.

Greene v. State, 670 N.E.2d 38, 39 (Ind.Ct.App.1996) (citations omitted), trans. denied; see also Levels v. State, 972 N.E.2d 972, 973-74 (Ind.Ct.App.2012). We have also held that “ ‘[a] valid waiver cannot be made pursuant to C.R. 22 in the absence of an advisement by the trial court of the consequences of a failure to demand a trial by jury not later than ten days prior to the trial date.’ ” Hanna-Womack v. State, 623 N.E.2d 439, 440 (Ind.Ct.App.1993) (quoting Vukadinovich v. State, 529 N.E.2d 837, 839 (Ind.Ct.App.1988)). And we have long recognized, in the context of the defendant’s constitutional jury trial right under Criminal Rule 22, that “waiver of such a fundamental right cannot be presumed from a silent record” and that the State’s argument to the contrary “is specious.” Casselman v. State, 472 N.E.2d 1310, 1311 n. 1 (Ind.Ct.App.1985).

Because Class A misdemeanors are, as a matter of constitutional law, “serious infractions,” a waiver under Rule 22 is effective only if it is personally made by the defendant and made knowingly, intelligently, and voluntarily. While the trial court may obtain the defendant’s waiver under Rule 22 more than ten days before the defendant’s trial, when the constitutional right applies it cannot be waived by mere inaction or silence on the part of the defendant. Duncan v. State, 975 N.E.2d 838, 843 (Ind.Ct.App.2012). In other words, Fiandt’s waiver of his right to a jury trial for a “serious infraction” is not “self-executing.” See Baldwin, 399 U.S. at 69, 90 S.Ct. 1886.

The majority asserts that Fiandt “failfed] to make any argument that he was inadequately advised regarding his jury trial rights at the time of his initial hearing and [he] fail[ed] to provide this court with any documentation that would support such a claim.... ” Op. at 424. The majority continues by claiming that Fiandt’s appeal must fail as he “simply has not provided this court with any records related to what he was told at the time of his initial hearing, nor has he claimed that such records are unavailable, nor did he request a transcript of his initial hearing.” Id. at 424. Thus, the majority concludes that Fiandt failed to meet his burden on appeal of demonstrating reversible error.

The majority’s analysis does not recognize Fiandt’s argument on appeal and his burden as the appellant. Fiandt’s argument on appeal is that the Superior Court denied him his jury trial right when it granted his attorney’s minute sheet entry without first making a constitutionally required record that showed Fiandt had received the proper advisements and then had personally, knowingly, intelligently, and voluntarily waived his right to a jury trial. There is no question at all on this record that Fiandt met his burden.

In response to Fiandt’s clear showing of the Superior Court’s reversible error, the State responds by focusing not on the Superior Court’s decision but on whether Fiandt timely filed his jury trial request with the Town Court. However, the State does not — presumably because it cannot— support its argument with citations to the record showing that the Town Court properly advised Fiandt of his jury trial right and that Fiandt then personally, knowingly, intelligently, and voluntarily waived that right. It is the State’s burden to support its argument with citations to the record, not Fiandt’s burden to disprove the State’s argument. See Ind. Appellate Rule 46(A)(8)(a). The majority’s holding to the contrary places Fiandt in the unreasonable position of having to prove a negative, and it is a conclusion rejected by well-established constitutional law that the defendant’s waiver of his constitutional right to a jury trial “cannot be presumed from a silent record.” Casselman, 472 N.E.2d at 1311 n. 1.

Moreover, there is no dispute that the State did not contest Fiandt’s jury trial request to the Town Court. As such, it should not be permitted to assert after the fact and for the first time on appeal that the Town Court erred in granting Fiandt’s request. Without any objection from the State, the Town Court entered its order that caused Fiandt’s case to be transferred to the jury trial docket of the Superior Court.

The Town Court apparently recognized when it granted Fiandt’s request for a jury trial that it had never secured a constitutionally effective waiver from him. Because the Town Court had not obtained an effective waiver from Fiandt, the Town Court was constitutionally required to grant Fiandt’s request. As our supreme court has stated: “When a defendant in a criminal case, before the beginning of his trial, asks for a jury, the trial judge is not called upon to exercise a discretion in the matter. He has an imperative duty to grant the request.” State ex rel. Rose v. Hoffman, 227 Ind. 256, 262, 85 N.E.2d 486, 488 (1949). The Town Court did not err when it granted Fiandt’s request.

Further, the majority’s rationale implies that the Town Court’s order granting Fiandt’s jury trial request was void ab initio. But the Town Court clearly had subject matter jurisdiction to rule on Fiandt’s jury trial request, and, as such, its order cannot be void. As we have explained:

an order is “void” only when the action or subject matter it describes is of no effect whatsoever, and is incapable of confirmation or ratification. “Voidable,” however, describes an action or subject matter which nonetheless operates to accomplish the thing sought to be accomplished, until the fatal flaw is judicially ascertained and declared.

Kitchen v. Kitchen, 953 N.E.2d 646, 650 (Ind.Ct.App.2011) (quotations omitted). For example, had the Town Court granted Fiandt’s untimely request after having secured his timely and constitutionally effective waiver, the State could have asked the Town Court to reconsider its order in light of the record, which would render the order not void but voidable. But that hypothetical is a far cry from the record here.

Having properly granted Fiandt’s request for a jury trial, the Town Court transferred the matter to the Superior Court. There, Fiandt’s attorney filed a minute sheet entry with the court that simply stated: “Defendant respectfully declines State’s offer & requests a bench trial.” Appellant’s App. at 30. The minute sheet entry was not signed by Fiandt, and the court approved the request without obtaining any evidence from Fiandt that he knowingly, intelligently, and voluntarily waived his jury trial right. This was not a constitutionally effective waiver. See, e.g., Duncan, 975 N.E.2d at 843.

In sum, I cannot agree with the majority that a defendant charged with a Class A misdemeanor can waive his right to a jury trial by default. It is a trial court’s obligation to make a record that shows the defendant received the proper advisements before allowing the defendant to waive a fundamental, constitutional right. As Judge Bailey recently stated in Levels, “[tjhere can be no waiver absent the trial court’s affirmative advisement to a defendant that he waives his right to a jury trial unless he demands it no later than ten days prior to the scheduled trial date.” 972 N.E.2d at 973-74. Fiandt met his burden on appeal when he demonstrated that the Town Court granted his jury trial request only to have the Superior Court take it away without having first established, on the record, that Fiandt had received the necessary and proper advise-ments.

Finally, the label attached to the alleged crime does not control our analysis. The fact that the alleged crime is designated as a misdemeanor is a starting point but our review must go beyond the “misdemeanor” label. The waiver-by-default provision in Criminal Rule 22 does not apply where, as here, the misdemeanor is a “serious infraction” as defined by the United States Supreme Court. See Baldwin, 399 U.S. at 69, 90 S.Ct. 1886. In such cases, a waiver by default does not satisfy the constitutional requirement that the defendant can waive his jury trial right only through a personal, knowing, intelligent, and voluntary waiver. Moreover, as a practical matter, this requirement is hardly difficult to satisfy. The defendant may orally waive his right in court or sign a written form acknowledging his right and his waiver of that right. But nothing in the record in this appeal demonstrates such a waiver.

Accordingly, I would hold that the Town Court properly granted Fiandt’s request for a jury trial and that the Superior Court erred when it accepted the proposed waiver of that right submitted by Fiandt’s counsel. I would reverse Fiandt’s convictions and remand for a jury trial.

      . Indeed, it is well established that the right to a jury trial is a fundamental right. See Duncan, 975 N.E.2d at 842. As such, the denial of that right entitles the defendant to relief on appeal even in the absence of a proper objection from the defendant to the trial court. See, e.g., Taylor v. State, 922 N.E.2d 710, 718-19 (Ind.Ct.App.2010), trans. denied.


author: CRONE, Judge. FRIEDLANDER, Judge,

text:
    Martha FERGUSON, Anthony W. Schmitt, Rebecca Schmitt, Mary Meadows, Christopher Schmitt, Rosemary Schmitt, Jerry W. Shillington, Christina Aleman, Steven Shillington, Michael Joseph Schmitt, and Ken Jolly, Appellants-Plaintiffs, v. Berton O’BRYAN, Appellee-Defendant.
    No. 49A02-1211-CT-917.
    Court of Appeals of Indiana.
    Oct. 15, 2013.

      Jon R. Pactor, Indianapolis, IN, Attorney for Appellants.
    Abigail L. Seif, Epstein Cohen Seif & Flora, Indianapolis, IN, Attorney for Ap-pellee.
   OPINION

CRONE, Judge.

Case Summary

In Walker v. Lawson, our supreme court held that “an action will lie by a beneficiary under a will against the attorney who drafted that will on the basis that the beneficiary is a known third party.” 526 N.E.2d 968, 968 (Ind.1988). Following Mary Linder’s death, a group of her relatives (“the Relatives”) brought a legal malpractice action against the drafter of her will, attorney Berton O’Bryan. The Relatives were not specifically named in the will, but were listed on a form that O’Bryan had given Linder for the purpose of making bequests to her intended beneficiaries. The list was referenced in the will, but was not signed, dated, or witnessed. The Relatives assert that as a result of O’Bryan’s professional negligence in drafting the will, the bequests that Lin-der intended to make to them failed. O’Bryan claims that he never saw the list before Linder’s death. He successfully moved for summary judgment on the basis that he owed the Relatives no legal duty with respect to drafting the will because they were not known third-party beneficiaries.

On appeal, the Relatives argue that the trial court erred in granting O’Bryan’s summary judgment motion. We conclude that regardless of whether O’Bryan saw the list, he knew that Linder intended to benefit anyone named on the list; therefore, the Relatives are known third-party beneficiaries for purposes of Walker and are thus entitled to bring a legal malpractice action against O’Bryan. Consequently, we reverse and remand for further proceedings.

Facts and Procedural History

In 2005, the seventy-eight-year-old Lin-der wished to change her will. Linder contacted Marian College, her alma mater, for a referral to an attorney. The school referred her to O’Bryan, who is also a Marian graduate. Linder hired O’Bryan to draft a new will, a power of attorney, a health care representative form, a living will, and other documents. Before O’Bryan drafted the will, Linder informed him that she had a list of items that she wanted to leave to various individuals. O’Bryan informed Linder that he would bring her a separate form that she could use to make these and other specific bequests and told her that she would need to fill out the form and sign and date it. In accordance with Linder’s wishes, the will contained a residuary clause in favor of Marian College. The will also referenced the list that Linder had discussed with O’Bryan. Specifically, Article II of the will provided as follows:

I hereby give and bequeath each described item of cash or personalty set out on a certain list which I will from time to time update and keep with this Will. Said list will set out the name of the person and the item or items I bequeath to each such person.
I direct that my Personal Representative honor the list the same as if it had been set out herein. Should any questions arise regarding said list, the decision of my personal representative shall be conclusive. Any modifications I may choose to make to said list shall each be dated and initialed.

Appellants’ App. at 20-21.

The form O’Bryan provided to Linder for the purpose of making the list referred to in her will was titled “Specific Bequests of Cash and/or Personalty” and included the following statement:

This list is the one I, Mary Helen Linder, referred to in my Last Will & Testament dated February 19, 2005. I direct that my Personal Representative honor this list and see to it that each such listed item be given to the named donee. I intend to make changes to this list from time to time by additions or deletions by lining through any deletions and initialing and dating all such changes. I will try to keep this list with or near a copy of the above-mentioned Will.

Id. at 24. The form did not contain designated spots for the bequests to be signed, dated, or witnessed.

Linder filled in the form indicating that she wished to make a number of cash bequests, including bequests to the Relatives ranging from $5000 to $50,000 apiece. Linder did not sign and date the list as instructed, nor was the list witnessed. Following the execution of the will, O’Bryan stayed in regular contact with Linder, but he denies ever seeing the filled-in form or even knowing whether Linder ever filled out the form at all. At Linder’s request, O’Bryan drafted a codicil and assisted Linder in its execution on December 5, 2007. Linder passed away just twelve days later.

Within hours of Linder’s death, Ken Jolly, Linder’s nephew and the named personal representative of her estate, located the will, codicil, and list. Jolly notified O’Bryan, who filed the will and codicil with the probate court, but not the list. Sometime later, O’Bryan informed the probate court of the list’s existence. The probate court appointed special counsel to investigate the list’s validity and held a hearing on the matter. Before the probate court issued a ruling, it approved a settlement agreement between Linder’s estate and the Relatives providing that the list was invalid and that $25,000 would be divided among the Relatives.

In April 2010, the Relatives filed a legal malpractice action against O’Bryan. In August 2011, O’Bryan filed a motion for summary judgment, asserting that he did not owe the Relatives a duty because “there is absolutely no evidence that [he] had actual knowledge that they were on the List or were intended beneficiaries of Ms. Linder or her Estate.” Appellants’ App. at 34. After a hearing, the trial court denied the motion in March 2012. O’Bryan filed a motion to correct error, and, after a hearing, the trial court granted the motion and entered summary judgment for O’Bryan in June 2012. The Relatives then filed a motion to correct error, and the trial court held yet another hearing. In October 2012, the trial court entered an order denying the Relatives’ motion to correct error and clarifying the basis for its entry of summary judgment in O’Bryan’s favor. The Relatives now appeal.

Discussion and Decision

On appeal, the Relatives argue that the trial court erred in granting summary judgment in O’Bryan’s favor. When reviewing a trial court’s ruling on a motion for summary judgment, this Court stands in the shoes of the trial court and applies the same standards in deciding whether to affirm or reverse the ruling. Ritchhart v. Indianapolis Pub. Sch., 812 N.E.2d 189, 191 (Ind.Ct.App.2004), trans. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind.2009). This standard requires us to construe all factual inferences in favor of the nonmoving party, and all doubts as to the existence of an issue of material fact must be resolved against the moving party. Id. The party moving for summary judgment bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that judgment as a matter of law is appropriate. Id. “[Ojnce the movant satisfies the burden, the burden then shifts to the non-moving party to designate and produce evidence of facts showing the existence of a genuine issue of material fact.” Id. at 1270.

“A trial court’s ruling on a motion for summary judgment comes before this Court clothed with a presumption of validity.” Ford v. Culp Custom Homes, Inc., 731 N.E.2d 468, 471 (Ind.Ct.App.2000) (quotation marks omitted). Accordingly, the party appealing the grant of summary judgment bears the burden of persuading us that the trial court’s ruling was improper. Reel v. Clarian Health Partners, Inc., 873 N.E.2d 75, 78 (Ind.Ct.App.2007), trans. denied (2008). Nevertheless, we “must carefully review a decision on summary judgment to ensure that a party was not improperly denied its day in court.” Id. “Where, as here, the trial court makes findings and conclusions in support of its entry of summary judgment, we are not bound by such findings and conclusions, but they aid our review by providing reasons for the trial court’s decision.” In re Estate of Lee, 954 N.E.2d 1042, 1045 (Ind.Ct.App.2011), trans. denied (2012).

The Relatives argue that the trial court erred in granting summary judgment in O’Bryan’s favor on their legal malpractice claims. In Indiana, “the elements of legal malpractice are: (1) employment of an attorney, which creates a duty to the client; (2) failure of the attorney to exercise ordinary skill and knowledge (breach of the duty); and (3) that such negligence was the proximate cause of (4) damage to the plaintiff.” Clary v. Lite Mach. Corp., 850 N.E.2d 423, 430 (Ind.Ct.App.2006). “A defendant is entitled to summary judgment by demonstrating that the undisputed material facts negate at least one element of the plaintiffs claim.” Rider v. McCamment, 938 N.E.2d 262, 266 (Ind.Ct.App.2010). Summary judgment is “rarely appropriate” in negligence cases, including legal malpractice actions, because such claims “are particularly fact sensitive and are governed by a standard of the objective reasonable person — one best applied by a jury after hearing all of the evidence.” Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind.2004); see also Oxley v. Lenn, 819 N.E.2d 851, 856-57 (Ind.Ct.App.2004). The existence of a duty, however, is a legal question for the court’s determination and may therefore be appropriate for disposition by summary judgment. Keybank Nat’l Ass’n v. Shipley, 846 N.E.2d 290, 295 (Ind.Ct.App.2006), trans. denied. In this case, we are asked to address a question of duty.

It is well settled that attorneys owe their clients a duty to exercise ordinary skill and knowledge in performing professional functions. Estate of Lee, 954 N.E.2d at 1047. It is undisputed that O’Bryan was employed as Linder’s attorney and therefore owed her a duty to exercise ordinary skill and knowledge in drafting the will. But to the extent that O’Bryan breached any duty owed to Lin-der, the claim belongs to her estate. It is well settled that a personal representative has exclusive authority to bring such claims on behalf of the estate. Inlow v. Henderson, Daily, Withrow & DeVoe, 787 N.E.2d 385, 394 (Ind.Ct.App.2003), trans. denied. Although one of the Relatives, Ken Jolly, is also personal representative of Linder’s estate, he has not brought this suit in that capacity or on behalf of the estate. Instead, he and the other Relatives have brought suit against O’Bryan in their own right as intended beneficiaries. As such, the pertinent question in this appeal is whether O’Bryan’s duty to exercise ordinary care and skill in the preparation of the will extended to the Relatives.

In Walker v. Lawson, our supreme court held that “an action will lie by a beneficiary under a will against the attorney who drafted that will on the basis that the beneficiary is a known third party.” 526 N.E.2d at 968. Thus, because a beneficiary named in the will clearly satisfied the “known” requirement, he was permitted to proceed with a malpractice suit against the drafting attorney. On appeal, the Relatives contend that Walker controls here. They acknowledge, however, that “[t]he Walker court did not discuss what ‘know1 or ‘known’ means in the context of the drafting attorney” and argue that

[l]egal malpractice law does not require that the drafting attorneys have the actual names of the intended beneficiaries when they draft wills in order to be liable to persons who were intended to be beneficiaries. After all, Indiana probate law does not require that a will must include actual names of beneficiaries in order to make valid bequests to them in the first place. For example, the probate code explicitly sanctions drafters of wills to utilize words such as “heirs,” “family,” “next of kin,” and “relatives” without having to know the specific names of the people within those classes. I.C. § 29 — 1—6—1 (c). As there is no prohibition against drafters from making valid wills for unnamed intended beneficiaries, it thus cannot be a defense to a legal malpractice claim that a negligent attorney did not know the specific names of the intended beneficiaries of the client’s will.
For purposes of the “know” or “known” elements, it was enough that Mr. O’Bryan knew that [Linder] wanted to name specific people.

Appellants’ Br. at 17-18.

We find this argument persuasive. Article II of Linder’s will conclusively establishes that O’Bryan knew that she intended to benefit third parties, whom she would list on a separate form that he provided to her. To hold that O’Bryan did not owe the Relatives a duty in this situation would immunize and thus encourage even more egregious acts of malpractice, to the detriment of innocent third-party beneficiaries. O’Bryan knew that the third parties to be named on Linder’s list would rely on his professional skill and judgment to reap any benefits under the will, and the fact that he may not have known their names when he drafted the will cannot insulate him from liability. Cf. Webb v. Jarvis, 575 N.E.2d 992, 996 (Ind.1991) (recognizing Walker and other cases as holding that “a professional is not liable to third persons who rely on his conclusions or opinions unless the professional had actual knowledge that those third persons would have such reliance”). Based on the foregoing, we reverse the trial court’s grant of O’Bryan’s summary judgment motion and remand for further proceedings consistent with this opinion.

Reversed and remanded

ROBB, C.J., concurs.

FRIEDLANDER, J., dissents with opinion.

FRIEDLANDER, Judge,

dissenting.

In Walker v. Lawson, our Supreme Court held that a will-drafting attorney owed a duty to a listed beneficiary of the will “on the basis that the beneficiary is a known third party.” 526 N.E.2d 968, 968 (Ind.1988). We are now called upon to consider more precisely what an attorney is required to know in order to create a duty to a beneficiary. The Majority holds that it is sufficient if the attorney knows that the testator intends, at some future point, to create a list naming a group of unidentified individuals as beneficiaries. Because I believe more is required, I respectfully dissent.

A brief review of the evolution of the law surrounding an attorney’s duty to a known third-party beneficiary of a will is helpful in this analysis. Privity was traditionally a prerequisite to the imposition of a duty in professional negligence cases. Nat’l Sav. Bank of Dist. of Columbia v. Ward, 100 U.S. 195, 200, 25 L.Ed. 621 (1879) (noting that “the general rule is that the obligation of the attorney is to his client and not to a third party”); see also Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991) (noting that “[djuring the nineteenth century, the common law required privity in order to impose a duty of reasonable care”). Accordingly, the lack of privity between will-drafting attorneys and intended beneficiaries traditionally acted as a bar to the type of suit before us. In the oft-cited case of Ultramares Corp. v. Touche, 255 N.Y. 170, 179-80, 174 N.E. 441 (1931), Justice Cardozo described the rationale behind the privity rule thusly:

If liability for negligence exists, a thoughtless slip or blunder ... may expose [professionals] to a liability in an indeterminate amount for an indeterminate time to an indeterminate class. The hazards of business conducted on these terms are so extreme as to enkin-dle doubt whether a flaw may exist in the implication of a duty that exposes to these consequences.

Justice Cardozo went on to note, however, that “[t]he assault upon the citadel of privity is proceeding these days apace. How far the inroads shall extend is now a favorite subject of juridical discussion.” Id. at 180, 174 N.E. 441; see also Webb v. Jarvis, 575 N.E.2d at 995 (noting that the privity rule “has vanished evolutionarily during the twentieth century” and now “it is well-established that privity is not always required”).

In Walker v. Lawson, our Supreme Court did not entirely scuttle the traditional privity rule in the context of negligent will-drafting; rather, the Court articulated a limited exception to the rule based on the drafting attorney’s actual knowledge. See Beckom v. Quigley, 824 N.E.2d 420 (Ind.Ct.App.2005) (holding that Walker v. Lawson requires a will-drafting attorney to have actual knowledge of a third-party beneficiary). I believe this exception is consistent with the rationale supporting the traditional privity rule because it incorporates its own limitations on liability. Specifically, in the will-drafting context, a known beneficiary does not belong to an undetermined class; the potential plaintiffs are, by definition, known at the time the will is drafted. The attorney is aware of the potential plaintiffs and their potential injuries because the attorney has listed the beneficiaries, along with the testator’s intended bequests, in the will. Thus, the attorney is not exposed “to a liability in an indeterminate amount for an indeterminate time to an indeterminate class.” See Ultramares Corp. v. Touche, 255 N.Y. at 179, 174 N.E. 441.

But here, the Relatives were not listed in the will. Instead, they were included on a list created by Linder after the execution of the will, and Linder could have added a potentially limitless number of unknown individuals to the list. Under these circumstances, the rationale underlying the exception for known beneficiaries disappears, and imposing a duty would expose the drafting attorney to precisely the type of unlimited liability the privity rule and the exception set forth in Walker v. Lawson were designed to prevent. Accordingly, I do not believe the Relatives fall within the category of known third parties contemplated by our Supreme Court in Walker v. Lawson.

Moreover, I believe that there are additional reasons to be wary of any further relaxation of the privity rule in the context of attorney malpractice cases. This court has noted that if attorneys were required “to consider the risk of harm to unknown third persons before drafting a will in accordance with his client’s wishes, we would be forcing the attorney to weigh the welfare of unknown persons against the duty of care to his client.” Beckom v. Quigley, 824 N.E.2d at 428. We also noted in Beckom v. Quigley that an attorney must be able to identify the persons directly affected by his or her services in order to undertake a proper duty of care toward them. Moreover, imposing a duty in favor of unidentified third parties would make it impossible for attorneys to identify potential conflicts of interest.

Accordingly, I would hold, and indeed we have always held, that in order to qualify as a known third party, an intended beneficiary must be known and identified at the time the will is drafted. Because the list on which the Relatives were identified was not created until after the will was drafted, they clearly do not fall within this category. For the same reason, I would reject the Relatives’ argument that O’Bryan owed them a duty because he ostensibly learned that they had been named on the list at some point after the will was drafted. The Relatives essentially argue that we should retroactively expand the class of individuals to whom a will-drafting attorney owes a duty based upon knowledge the attorney might subsequently obtain. But to do so would have the same effect as allowing liability even in the absence of such knowledge — O’Bryan would be exposed to liability to a potentially unlimited number of plaintiffs unidentified to him at the time he drafted the will. For all of these reasons, I would affirm the trial court’s summary judgment order.

      . The Relatives are Martha Ferguson, Anthony W. Schmitt, Rebecca Schmitt, Mary Meadows, Christopher Schmitt, Rosemary Schmitt, Jerry W. Shillington, Christina Aleman, Steven Shillington, Michael Joseph Schmitt, and Ken Jolly.

      . We held oral argument on July 24, 2013, in Indianapolis. We thank the parties for their presentations.

      . Anthony W. Schmitt and Rebecca Schmitt are not included on the list, but they sought to recover as heirs of their father, Anthony Dominic Schmitt, who was included on the list.

      . The settlement agreement was not designated to the trial court, and the details of the agreement are unclear from the record before us. No party has suggested that O’Bryan was a party to the settlement or that it released him from liability to the Relatives.

      . Because it is undisputed that O’Bryan knew that Linder wanted to name specific beneficiaries, we are unpersuaded by O’Bryan's (and the trial court's) reliance on Beckom v. Quigley, 824 N.E.2d 420 (Ind.Ct.App.2005), in which there was no evidence that the defendant attorney actually knew that the testator wanted to amend his will to name the plaintiffs as beneficiaries.

      . As Judge Buchanan observed in this Court’s opinion in Walker v. Lawson,

      The sole purpose of retaining the attorney [to draft a will] is to benefit known third parties. This is the objective of the transaction. The rationale voiced by the courts [in extending liability to third-party beneficiaries] is that if the beneficiaries are not permitted to recover for the loss resulting from the negligence, no one is able to do so. The estate is not harmed, except to the extent of attorney’s fees paid. Unless the beneficiary can recover against the attorney, the social policy of preventing future harm is frustrated.
      514 N.E.2d 629, 633-34 (Ind.Ct.App.1987), opinion vacated by 526 N.E.2d 968 (Ind.1988).

      .We agree with the Relatives that a genuine issue of fact exists regarding whether O'Bryan actually knew the names of the intended beneficiaries on the list. O’Bryan’s self-serving claim that he never saw the list would be insufficient to resolve that issue in his favor as a matter of law. See Insuremax Ins. Co. v. Bice, 879 N.E.2d 1187, 1190 (Ind.Ct.App.2008) ("When the facts are peculiarly in the knowledge of the movant’s witnesses, there should be an opportunity to impeach them at trial, and their demeanor may be the most effective impeachment."), trans. denied. Because we hold that O'Bryan owed the Relatives a duty regardless of whether he knew their names, this factual issue is not material for purposes of summary judgment.

      . Because the question is not presented in this appeal, I would not reach the question of whether a duty would lie when beneficiaries are identified not by name, but by a class designation, for example, “next of kin.”


author: VAIDIK, Judge.

text:
    Carl GROOM, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1304-CR-144.
    Court of Appeals of Indiana.
    Oct. 16, 2013.
    Rehearing Denied Dec. 23, 2013.

      Valerie K. Boots, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarieh, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Indianapolis Metropolitan Police Department Officer Bryan Zotz stopped Carl Croom after a search of his interim dealer license plate revealed that there was no registration information in the database. When the officer stopped Croom, the officer discovered that Croom’s driving privileges had been forfeited for life and arrested him. Croom had a bench trial and was convicted. Croom appeals his conviction for Class C felony operating a motor vehicle after his driving privileges had been forfeited for life. He argues that the officer did not have reasonable suspicion under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution that his interim dealer license plate was unregistered. Finding that the officer had reasonable suspicion to conduct an investigatory traffic stop because the officer mistakenly believed that all of the old interim dealer license plates had expired, we affirm.

Facts and Procedural History

On August 13, 2012, Officer Zotz was routinely patrolling 30th Street in Indianapolis. A white Chevrolet Impala was stopped at a red light in front of the officer with an Indiana interim dealer license plate. The officer performed a check of the license plate in the police’s electronic database. According to Officer Zotz, “a temporary plate raises more red flags than usual. A lot of times temporary plates may be stolen off of properly registered or purchased cars and placed on a stolen vehicles [sic] or people who don’t want to register their cars.” Tr. p. 31. He performed the check of the license plate because he “was stopped behind the car and it was a car in front of [the officer].” Id. at 29.

Although the search of the license-plate number revealed that the car was not stolen, it showed that the interim license plate was not on file with the Indiana Bureau of Motor Vehicles (BMV). According to Officer Zotz:

[T]here can be several reasons a plate will come back not on file. It could be that the BMV has just failed to enter the plate properly into the system, it could be that the plate is no longer a valid plate. It could be a counterfeit plate, it could be a plate that’s been stolen. It could be that the plate never actually existed. There’s a bunch of reasons.

Id. at 30.

Croom had a valid interim dealer license plate. Two and one-half months before the stop, the State linked newly issued interim dealer plates to the National Law Enforcement Telecommunications System, which placed the new interim dealer plates in the BMV system and allowed road officers to have access to the information. Croom’s plate was not linked to the new system. Dealers had maintained a stockpile of old interim plates and were permitted to continue to issue the old plates to new car buyers. Croom had such a validly issued old plate that would not have been on file in the new system.

Because Officer Zotz needed more information to determine why Croom’s registration information was not in the system, he stopped Croom. When he approached the car, Croom gave him an Indiana identification card. Officer Zotz returned to his car and checked Croom’s information in the database, revealing that Croom’s driving privileges had been forfeited for life. Officer Zotz then arrested Croom and took him to jail.

The State charged Croom with Class C felony operating a motor vehicle after his driving privileges had been forfeited for life. Before trial, Croom filed a motion to suppress the evidence obtained from the traffic stop, because, he argued, Officer Zotz had no reasonable suspicion to stop him. Appellant’s App. p. 30-31. The trial court denied the motion to suppress.

A bench trial was conducted before a different judge. At trial, the parties stipulated that Croom’s license plate was an interim dealer plate validly issued by Amber Motors and still valid at the time of the traffic stop. Ex. 1. When Officer Zotz was asked about Croom’s identification card, defense counsel objected and showed a standing objection based upon the invalid stop. At the conclusion of trial, defense counsel objected again based on his previous motion to suppress. The trial court stated that it assumed that the motion to suppress was denied “based on a good faith exception. Given that, I’m not going to overrule the presiding judge’s ruling in this case.” Tr. p. 60. The trial court found Croom guilty of Class C felony operating a motor vehicle after his driving privileges had been forfeited for life.

Croom now appeals.

Discussion and Decision

Croom contends that his traffic stop violated the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. This Court reviews admission of evidence for an abuse of discretion. Peters v. State, 888 N.E.2d 274, 277 (Ind.Ct.App.2008), trans. denied. We will reverse a trial court’s decision when it “is clearly against the logic and effect of the facts and circumstances before it.” Id. We do not reweigh evidence, and we consider conflicting evidence most favorable to the trial court’s ruling. Id. However, the question of whether an officer had reasonable suspicion to conduct an investigatory stop is reviewed de novo. Ornelas v. United States, 517 U.S. 690, 691, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Yanez v. State, 963 N.E.2d 530, 532 (Ind.Ct.App.2012).

I. Fourth Amendment

Croom argues that the trial court erred in denying his motion to suppress under the Fourth Amendment of the United States Constitution. The Fourth Amendment provides protection against unreasonable searches and seizures of a person. Clark v. State, 994 N.E.2d 252, 260 (Ind.2013). A traffic stop of a vehicle is also a “seizure” within the meaning of the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). For a search or seizure to be reasonable under the Fourth Amendment, a warrant is required unless an exception to the warrant requirement applies. Taylor v. State, 842 N.E.2d 327, 330 (Ind.2006). The State bears the burden of proof of showing that a warrantless search or seizure is within an exception to the warrant requirement. Id.

A brief investigatory stop may occur when justified by a reasonable suspicion that the person stopped is involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In determining reasonable suspicion, we must examine “the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). The reasonable-suspicion requirement is met “where the facts known to the officer, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe criminal activity has occurred or is about to occur.” L.W. v. State, 926 N.E.2d 52, 55 (Ind.Ct.App.2010), reh’g denied. In the context of an investigatory stop, an officer’s decision to stop a vehicle is valid so long as his on-the-spot evaluation reasonably suggests lawbreaking occurred. Gunn v. State, 956 N.E.2d 136, 139 (Ind.Ct.App.2011). Reasonable suspicion must be more substantial than an officer’s un-particularized suspicion or “hunches.” Clark, 994 N.E.2d at 263-64.

At the time of Croom’s arrest there were two types of interim dealer plates. New plates were linked to the National Law Enforcement Telecommunications System and old plates were not linked to any system. The old plates continued not to be on file with the National Law Enforcement Telecommunications System, whereas new plates would return registration information.

However, Officer Zotz believed that the interim dealer plate in question could only be one of the newer plates because the old plates would have already expired since they are only valid for thirty days and the new system had been in effect for over two months. As he testified at trial:

Q: Officer, prior to the recent law change in 2012, weren’t all temporary plates[] not on file with the BMV?
A: Yes.
Q: Okay, and so only, it was only recently in 2012 that you were able to get a registration from those plates.
A: Yes.
Q: And in this case could you tell if this was an old plate or a new — or one of the new ones?
A: BMV only issues temporary plates for 30 days. Looking at the plate I could not tell whether or not it was current or valid or anything like that. The only way to know is to run it and find out.
Q: So you weren’t — you weren’t sure if this was one of the old plates they used to issue or one—
A: There’s, there’s no way to know, no.

Tr. p. 32 (emphasis added).

Given what Officer Zotz knew at the time, there are two possible alternatives. The first alternative is that the interim dealer plate was new and should have been in the database. In this case, Croom was committing an infraction and Officer Zotz would be justified in stopping him. The second alternative is that the interim dealer plate was old and therefore was not in the database. In this case, Croom was not doing anything wrong and Officer Zotz would not be justified in stopping him.

But because the officer believed all interim dealer plate information was linked to the system, he thought the registration information should have been in the database.

It is well-settled that “a police officer may briefly detain a person whom the officer believes has committed an infraction or ordinance violation.” State v. Lynch, 961 N.E.2d 534, 536 (Ind.Ct.App.2012). In Sanders, the Indiana Supreme Court held that a police officer’s mistaken belief that the defendant had violated the window-tint statute was sufficient to establish reasonable suspicion to detain the defendant even if the defendant later proved that he did not violate the statute. Sanders v. State, 989 N.E.2d 332, 336 (Ind.2013), reh’g denied. In that case, our Supreme Court held that the officer had reasonable suspicion to detain the defendant because the officer could not clearly recognize the occupants inside the car. Although the defendant’s expert proved that the tint complied with the statute, the Court concluded that the officer had reasonable suspicion to stop the car. The Court reasoned that the inability to see the occupants inside coupled with the fact that the tint was close to the statutory limit was enough to establish a good-faith belief that a violation occurred.

Similarly, Officer Zotz had reasonable suspicion to initiate the traffic stop. Officer Zotz performed a search in a database where registration information was stored. A search of the database for Croom’s interim dealer license plate yielded no registration information, which ordinarily indicates that the car is not properly registered. Because Officer Zotz believed that interim dealer license plates expire after thirty days, he did not think any of the old dealer plates still existed and reasonably expected Croom’s registration information to appear in his search of the database. This was a mistaken belief. Indeed, he testified that after no registration information was found in the database, he could not “determine anything else without initiating a traffic stop and determining whether or not there’s any paperwork or anything associated.” Tr. p. 45-46.

Like the police officer in Sanders, Officer Zotz was concerned that Croom was breaking the law and reasonably stopped Croom in order to get more information. The only way for Officer Zotz to determine whether Croom was compliant with the law was to initiate a traffic stop. Because Officer Zotz believed that an interim dealer license plate would only be valid if it was in the newly searchable system, the lack of registration information established reasonable suspicion for the traffic stop. The Supreme Court’s decision in Sanders compels us to find that Officer Zotz’s good-faith reasonable belief that a violation occurred was sufficient to establish reasonable suspicion under the Fourth Amendment.

II. Article 1, Section 11 of the Indiana Constitution

Croom also argues that the trial court erred in denying his motion to suppress under Article 1, Section 11 of the Indiana Constitution. Article 1, Section 11 of the Indiana Constitution is identical to the Fourth Amendment, but is analyzed differently. Indiana Constitutional analysis focuses on the reasonableness of police conduct under the totality of circumstances. Litchfield v. State, 824 N.E.2d 356, 359 (Ind.2005). We determine reasonableness under the Indiana Constitution by balancing “1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of search or seizure imposes on the citizen’s ordinary activities, and 3) the extent of law enforcement needs.” Id. at 361. The protection against unreasonable searches and seizures includes seizure of a person. State v. Atkins, 834 N.E.2d 1028, 1034 (Ind.Ct.App.2005), trans. denied. The State has the burden of proving that the search was reasonable under the totality of the circumstances. State v. Bulington, 802 N.E.2d 435, 438 (Ind.2004).

A brief investigatory stop may be justified by reasonable suspicion that the person detained is involved in criminal activity. Id; see also State v. Renzulli, 958 N.E.2d 1143, 1146 (Ind.2011). Such suspicion “exists where the facts known to the officer, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe that criminal activity is or is about to occur.” Id.

Officer Zotz’s stop was reasonable under the Indiana Constitution. The degree of concern, suspicion, or knowledge that a violation occurred was high in this case. Officer Zotz’s search of the database revealed no registration information. He had searched for and received registration information in the database previously. Moreover, he believed all old interim dealer license plates already expired because they are only valid for thirty days and the new system had been in effect for over two months. The lack of registration information made him suspicious that Croom’s car was not validly registered. Second, the degree of intrusion was slight. Officer Zotz only stopped Croom briefly to ask him about the registration status of his vehicle. See, e.g., Mitchell v. State, 745 N.E.2d 775, 787 (Ind.2001) (stating that Article 1, Section 11 does not prohibit police from conducting a justified traffic stop). Finally, the needs of law enforcement were reasonable. Officer Zotz stated that the only way to determine the validity of the plate was to stop Croom, ask questions, and examine the associated paperwork. Tr. p. 46. The stop was an appropriate manner of enforcing traffic laws. See State v. Washington, 898 N.E.2d 1200, 1206 (Ind.2008). Balancing the high degree of concern, suspicion, or knowledge that a violation occurred and the needs of law enforcement against the low degree of intrusion, we conclude that Officer Zotz had reasonable suspicion under Article 1, Section 11. Therefore, we affirm the trial court’s decision to admit the evidence obtained from the traffic stop.

Affirmed.

BAKER, J., and FRIEDLANDER, J., concur.

      . Under Indiana law, car dealers are issued interim dealer license plates by the Secretary of State. Ind.Code Ann. § 9-18-26-10 (West 2012). The legislature repealed this statute effective July 1, 2013. Interim dealer plates are now governed by Indiana Code section 9-32-6-11.

      . The new system "greatly reduc[ed] the appeal of Indiana plates for illegal purposes." Auto dealer plates now linked to national law enforcement database, IN.gov, http://www.in. gov/activecalendar/EventList.aspx?fromdate= 5/24/2012&todate=5/24/2012&display=Day& type=public&eventidn=56885&view=Event Details&information_id=114231 (last visited Sept. 24, 2013).

      . At the hearing on the motion to suppress, there was considerable confusion about which statute applied to this case and the type of plate on Croom’s car. In Indiana, there are three types of paper license plates: temporary registration permits, temporary license plates, and interim dealer plates. Failure to properly register a car results in a Class C infraction. Ind.Code § 9-18—2—40(b). The State incorrectly referred to the statute governing a registration permit. A temporary registration permit may be requested if one of five conditions exist, none of which were satisfied here. Id. § 9-18-7—1(b). However, on appeal, the State agrees with defense counsel that the State applied the incorrect statute at the trial level. Appellee’s Br. p. 10-11.

      . Although Zotz is referring to "temporary plates” here, it is clear based upon the discussion and applicable law that he was actually referring to interim dealer plates.