author: DARDEN, Senior Judge.

text:
    Antrooine A. MANNING, Jr., Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 45A05-1302-PC-83.
    Court of Appeals of Indiana.
    Sept. 23, 2013.

      Stephen T. Owens, Public Defender of Indiana, Deidre R. Eltzroth, Assistant Chief Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

DARDEN, Senior Judge.

STATEMENT OF THE CASE

Antrooine Manning, Jr., appeals the denial of his petition for post-conviction relief. We affirm.

ISSUE

Manning raises several issues, which we consolidate and restate as whether the post-conviction court erred by denying relief.

FACTS AND PROCEDURAL HISTORY

The underlying facts of this case, taken from this Court’s memorandum decision in Manning’s direct appeal, are as follows:

At approximately 1:00 p.m. on May 29, 2009, Cheryl Blondeel took a break from her job at Fresenius Munster Dialysis in Munster. She walked to the parking lot and telephoned her husband on her cell phone. While she was talking on the phone, thirty-three-year-old Manning approached her and attempted to take her purse. Blondeel struggled with Manning over the purse. When the purse strap broke, Manning grabbed the purse and took off running. Blondeel pursued Manning and saw him get into the passenger seat of a white car parked in a nearby driveway. The car was driven by Manning’s girlfriend, twenty-two-year-old Domi[ni]que Wood[s]. (State’s Exhibit 45).
Blondeel wanted to reach into the car to get her purse before Wood[s] drove away, but the window was rolled up. Instead, Blondeel threw herself across the hood of the car. Woods put the car in reverse, rapidly backed out of the driveway with Blondeel still on the hood, and slammed on the brakes. Woods continued to accelerate, swerve, and brake until Blondeel was thrown from the hood of the car. As a result of being thrown from the car’s hood, Blondeel scraped her chin and knees, bit the inside of her mouth, and had road rash and several bruises.
Gary Diederich, a Munster Fire Department employee, witnessed Blon-deel’s attempt to stop the white vehicle and stopped to assist her. Diederich observed the car’s license plate number and called 911 to report the crime. Police officers and an ambulance arrived at the scene, and Blondeel gave a statement to the officers.
Shortly thereafter, Munster Police Department Officer Kevin Cooley observed the white vehicle. Officer Cooley radioed for assistance and followed the car. When other officers arrived, Officer Cooley activated his emergency lights and siren, and initiated a traffic stop at the traffic light where the white vehicle had stopped. [Officer Tricia Fichter] parked her vehicle near the front driver’s side of the white vehicle. Both officers ordered Manning and Woods to exit the vehicle.- Manning told Woods to “take.off,” and Woods accelerated the vehicle. State’s Exhibit 45. In response, Officer Cooley fired two shots at the vehicle’s rear tire, and Woods stopped.
Woods and Manning were both arrested. Manning gave a police statement wherein he explained that he decided to rob Blondeel because “she was gullible and wasn’t paying attention.” State’s Exhibit 45. Manning admitted taking Blondeel’s purse and telling Woods to “take off’ when the police stopped them. State’s Exhibit 45.

Manning v. State, No. 45A03-1002-CR-65, slip op. at 2-3, 2010 WL 4108898 (Ind.Ct.App. Oct. 20, 2010), trans. denied. The State charged Manning with Class B felony robbery, Class C felony robbery, Class C felony battery, Class D felony resisting law enforcement, and being a habitual offender.

The charge relevant to our consideration here, that of resisting law enforcement, was alleged to have been committed by fleeing with the use of a vehicle. See Direct Appeal Amended App. p: 24; Ind. Code § 35-44-3-3 (2006) (enhancing resisting’law enforcement by fleeing to a Class D felony if the person uses a vehicle to commit the offense) (currently codified at Ind.Code § 35-44.1-3-1 (2013)). The State proceeded on a theory of accomplice liability for that charge at Manning’s jury trial.

Video footage of the alleged fleeing, one taken from Officer Cooley’s vehicle and another taken from Officer Fichter’s vehicle, was admitted and viewed by the jury. That footage showed that Woods’s car was initially boxed in at a traffic light by other vehicles and police cars with their sirens and emergency lights activated. Woods first moved the car closer to the vehicle stopped in front of her. Despite officers yelling at her with their guns drawn, she then rolled the car forward as traffic began to proceéd. Officer Cooley shot at the driver’s side rear tire, and Woods stopped the car several feet from where it began. She then moved forward one more time before Officer Cooley opened her door and ordered her out of the car.

Also admitted into evidence was Manning’s statement to the police, in which he said, “We were stopped in traffic and we saw the police around us, We had the evidence right in.front of us in the car, so.I told [Woods] to take off.” State’s Trial Ex. 45, p. 2.

Manning’s trial counsel moved for a directed verdict, • arguing that Woods had total control of the vehicle and that any resisting was thus attributable only to her. The trial court denied the motion, noting Manning’s statement that he instructed Woods to “take off.” Trial Tr. pp. 295-96.

The jury found Manning - guilty as charged, and he pleaded guilty to being a habitual offender. The trial court entered judgments of conviction for Class B felony robbery, Class D felony resisting law enforcement, and being a habitual offender. At the close of a sentencing hearing, the trial court sentenced Manning to an aggregate term of thirty years: sixteen years for robbery, twelve years for the habitual offender, enhancement, and two years for resisting law enforcement.

On . appeal, Manning’s counsel argued that the trial court erred in refusing to give a tendered jury instruction, that the evidence was insufficient to support ,the robbery and resisting law enforcement convictions, and that the manner in which the trial court imposed the habitual offender enhancement was improper. As to the resisting law enforcement conviction, appellate counsel argued that the evidence was insufficient because .Manning was not driving the car. This Court found the evidence sufficient to convict Manning as an accomplice, noting that he was in the car with his girlfriend Woods and that he told her to “take off’ when officers ordered her to stop. Manning, slip op. at 10. Finding no error, we affirmed his convictions and sentence.

In May 2011, four months after the opinion in Manning’s direct appeal was certified, Woods had her jury trial on several charges, including Class D felony resisting law enforcement, for her part in the crimes. As to the resisting charge, the State’s evidence was similar, to the evidence presented at Manning’s trial: Officer Cooley and Officer Fichter yelled at Woods to stop and turn off the car, their commands were ignored, Officer Cooley fired two shots at the driver’s side rear tire, and Woods stopped the car. The same two videos played for the jury in Manning’s trial were admitted and viewed by the jury in Woods’s trial.

Woods’s trial counsel moved for a directed verdict on the resisting charge, arguing that the short distance the ear rolled forward did not constitute fleeing under the resisting statute. The trial court noted the evidence showed the car’s movement, determined that it did not constitute fleeing, and granted the motion.

In March 2012, Manning filed a pro se petition for postconviction relief. Counsel subsequently appeared on his behalf and amended the petition. The amended petition claimed in relevant part that: (1) trial counsel was ineffective by failing to argue, either to the trial court when seeking a directed verdict or to the jury during closing arguments, that the short distance the car moved did not constitute resisting law enforcement and (2) appellate counsel was ineffective by failing to argue that the evidence was insufficient because the short distance the car moved did not constitute resisting law enforcement.

After a hearing, the post-conviction court determined that Manning’s ineffective assistance claims were barred by res judicata and denied the petition. Manning now appeals.

DISCUSSION AND DECISION

In a post-conviction proceeding, the petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Henley v. State, 881 N.E.2d 689, 643 (Ind.2008). When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Henley, 881 N.E.2d at 643. The reviewing court will not reverse the judgment unless the petitioner shows that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. at 643-44. Further, the post-conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). We will reverse a post-conviction court’s findings and judgment only upon a showing of clear error, which is that which leaves us with a definite and firm conviction that a mistake has been made. Id. at 644. The post-conviction court is the sole judge of the weight of the evidence and the credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). We accept findings of fact unless clearly erroneous, but we accord no deference to conclusions of law. Id.

As an initial matter, the State notes that a challenge to the sufficiency of the evidence to sustain Manning’s resisting law enforcement conviction was already raised and decided against him in his direct appeal. Thus, the State continues, because Manning’s post-conviction claims are nothing more than a sufficiency argument couched in terms of ineffective assistance, they are barred by res judicata.

When an issue is decided on direct appeal, the doctrine of res judicata generally applies to preclude its review in post-conviction proceedings. Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.2000). The doctrine of res judicata prevents the repetitious litigation of that which is essentially the same dispute. Id. A petitioner for post-conviction relief cannot escape the effect of claim preclusion merely by using different language to phrase an issue and define an alleged error. Id.

However, despite a claim of res judicata, a court may correct an error in its prior holding. Arthur v. State, 663 N.E.2d 529, 531 (Ind.1996). Although a court may revisit a prior decision, it should do so only in extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice. Id. We thus look to the merits of Manning’s claims to determine whether they present such an extraordinary circumstance.

Manning contends that trial and appellate counsel were ineffective by failing to argue that the short distance Woods moved the car did not constitute fleeing from law enforcement officers. To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his counsel’s performance was deficient and that the petitioner was prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

The State sought to prove at trial that Manning was guilty as an accomplice of resisting law enforcement by using a vehicle to “flee[ ] from a law. enforcement officer after the officer has,’ by visible or audible means, including operation of the law enforcement officer’s siren or emergency lights, identified himself or herself and ordered the person to stop.” Ind. Code § 35-44-3-3.

Manning argues there was no evidence of flight by Woods, and thus there could be no resisting on his part as an accomplice. “Flight” in the context of resisting law enforcement is “a knowing attempt to escape law enforcement when the defendant is aware that a law enforcement officer has ordered him to stop or remain in place once there.” Wellman v. State, 703 N.E.2d 1061, 1063 (Ind.Ct.App.1998).

The evidence at Manning’s trial included testimony from Officer Fichter, who stated that as she approached the scene, she saw Woods’s car stopped at a red light with Officer Cooley’s squad car behind her. Woods’s car “was just slowly kept [sic] trying to move forward, even though the vehicle in front of it was still stopped for the red light.” Trial Tr. p. 133. Officer Fichter and Officer Cooley got out of their vehicles and drew their guns, and Officer Cooley fired two shots toward the street or the tires of Woods’s car when Woods failed to comply with orders to turn the car off.

Officer Cooley testified that he pulled up behind Woods’s car at a traffic light, exited his car, and ordered Woods to stop and turn off the car. Woods did not comply, and as traffic began to proceed, Woods’s car “started to proceed” as well. Id. at 160. Upon seeing the car start to move forward, he fired two shots at the driver’s side rear tire. Woods stopped the car.

Additionally, videos of the incident, admitted and viewed by the jury, showed police cars with their sirens and lights activated both behind and at the front left side of Woods’s car. As officers were getting out of their vehicles, Woods’s car moved closer to the vehicle stopped in front of her. Ignoring officers yelling at her with their guns drawn, she then rolled the car forward as traffic began to proceed. Woods stopped the car only when Officer Cooley shot at the driver’s side rear tire, then moved forward one more time before Officer Cooley opened her door and ordered her out of the car.

This evidence was sufficient for a jury to determine that Woods knowingly, with the behest and/or encouragement of Manning, attempted to escape law enforcement while being aware of officers’ commands for her to stop and that she thus fled within the context of the resisting law enforcement statute. See, e.g., Jones v. State, 938 N.E.2d 1248, 1251, 1253 (Ind.Ct.App.2010) (evidence of flight sufficient where officers ordered defendant to stop, but defendant put car in reverse, accelerated, and crashed into marked police car); Woodward v. State, 770 N.E.2d 897, 901-02 (Ind.Ct.App.2002) (evidence of flight sufficient where officer activated lights and sirens to pull over defendant, but defendant continued driving and did not stop until he reached his apartment approximately a mile away), trans. denied.

As the evidence also included Manning’s statement to the police that he told Woods to “take off’ when they saw the police around them, State’s Ex. 45, p. 2, we agree with the opinion in Manning’s direct appeal that the evidence was likewise sufficient to show he resisted law enforcement as an accomplice. See Manning, slip op. at 10 (citing Jones v. State, 536 N.E.2d 267, 271 (Ind.1989) (evidence sufficient to support defendant’s resisting conviction where he was passenger in car that fled from police and where he told driver not to stop)).

Manning nonetheless argues that the trial court’s grant of Woods’s motion for a directed verdict on the resisting charge in her trial somehow requires Manning’s resisting conviction to be vacated. See Appellant’s Br. p. 7 (“Manning’s resisting arrest conviction fails because the offense alleged to have been committed by the principal was determined to have never occurred.”). However, the accomplice liability statute provides:

A person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense, even if the other person:
(1) has not been prosecuted for the offense;
(2) has not been convicted of the offense; or
(3) has been acquitted of the offense.

Ind.Code § 35-41-2-4 (1977). Thus, the resolution of Woods’s resisting charge is irrelevant to whether Manning may be convicted of resisting as an accomplice. Instead, what is important is the evidence presented in Manning’s trial. That evidence was sufficient for a jury to determine that Woods committed the offense of resisting law enforcement and that Manning knowingly or intentionally aided, induced, or caused her to do so.

Because the evidence was sufficient to convict Manning of resisting as an accomplice, trial and appellate counsel did not perform deficiently by failing to argue that the short distance Woods moved the car did not constitute fleeing from law enforcement officers. Moreover, had they made such an argument, there is not a reasonable probability that the result would be different. Manning has thus failed to show that he received ineffective assistance of counsel.

Manning’s post-conviction claims do not provide any basis for relief, much less present an extraordinary circumstance such as where this Court’s decision in his direct appeal was clearly erroneous and would work a manifest injustice. The post-conviction court therefore properly found his claims barred by res judicata.

CONCLUSION

We affirm the post-conviction court’s denial of relief.

Affirmed.

BAKER, J., and CRONE, J., concur.

      . The records of the proceedings in the direct appeals of both Manning and Woods were admitted into evidence at the post-conviction hearing and transmitted to us for this appeal. All record citations in this opinion refer to Manning's proceedings.

      . The records of the proceedings in the direct appeals of both Manning and Woods indicated that the videos, taken from different angles, were in the custody of the Lake County Superior Court. Manning included only Officer Cooley's video in the Appellant's Appendix. After this appeal was fully briefed, we ordered Officer Fichter’s video to be transmitted to us in a supplemental exhibit volume. We have viewed both videos in resolving this appeal.

      . Manning states that "[i]t is reasonably probable to assume that the same court, faced with the same argument, would have reached the same conclusion in Manning’s case as it reached in Woods'." Appellant's Reply Br. p. 3. Although the trials were held in the same courtroom, we note that Woods's trial was before Judge Salvador Vasquez while Manning's trial was before Judge Pro Tempore Susan Severtson.


source: Caselaw Access Project

author: CRONE, Judge. BAILEY, Judge,

license: Public Domain

text:
    Amy PALMER, Appellant-Defendant, v. Margaret SALES and Unique Insurance Company, Appellees-Defendants.
    No. 45A03-1302-SC-31.
    Court of Appeals of Indiana.
    Sept. 30, 2013.

      Annica M. Downing, Swope Law Offices, LLC, Schererville, IN, Attorney for Appellant.
   OPINION

CRONE, Judge.

Case Summary

Amy Palmer lost control of a vehicle that she was driving and swerved into Margaret Sales’s yard, causing damage. Sales filed a small claims action against Palmer. Palmer filed a request for a change of judge and a request for a jury trial, both of which were denied. Palmer conceded liability, and a bench trial was held on damages. The small claims court entered a monetary judgment for Sales in an amount equal to an estimate for repairs that she submitted into evidence.

On appeal, Palmer argues that the small claims court erred by denying her request for a change of judge and request for a jury trial. She also argues that the amount of damages was excessive. We agree that the small claims court erred by finding that her request for a change of judge was untimely. The small claims court had relied on McClure v. Cooper, 893 N.E.2d 337 (Ind.Ct.App.2008). We disagree with the majority opinion in McClure, which gives the defendant only three days after receiving the notice of claim to request a change of judge. In any event, McClure is distinguishable because the notice of claim sent to Palmer did not properly notify her of the trial date. Because the request for a change of judge should have been granted, the small claims court was deprived of jurisdiction, and the judgment must be reversed. Therefore, we will not address Palmer’s claim that the amount of damages was excessive. However, because the issue will recur on remand, we will address Palmer’s arguments concerning her request for a jury trial. We conclude that the affidavit that Palmer submitted in support of her request met the level of specificity required by the applicable statute. Therefore, we reverse and remand with instructions to grant Palmer’s request for a change of judge, to implement the procedure for selection of a new judge, and to transfer the case to the plenary docket.

Facts and Procedural History

On June 25, 2012, Palmer was driving a vehicle when she got into an argument with her ex-boyfriend. Palmer lost control of the vehicle and swerved onto Sales’s property, causing damage. On October 26, 2012, Sales filed a small claims action against Palmer. A bench trial was scheduled for January 2, 2013; however, the notice of claim erroneously stated that the trial was set for January 2, 2012.

On November 19, 2012, counsel entered an appearance for Palmer, filed an answer, and requested a change of judge and a jury trial. A supporting affidavit states:

2. Defendant Amy Palmer was served November 7, 2012, making her demand .for a jury and for a change of judge due November 17, 2012; per Rule, as November 17, 2012 fell on a Saturday, Sunday or holiday when the court was not open to conduct business, the responsive pleadings are not due until the next court business day, which is Monday, November 19, 2012.
8. That there are questions of fact in this matter requiring a trial by jury, to wit: This case will rely heavily upon a determination of credibility, causation and even the actual existence of damages incurred, as opposed to claimed without merit or evidence, which has been shown in matters past to be best determined by a jury of the Defendant’s peers as opposed to a single trier of fact, and which requires the application of the rules of law and evidence not available or enforced in small claims matters by this court. Causation and liability in this matter will rely heavily upon a determination of credibility and the weighing of conflicting testimony, as well as the probability that multiple conclusions can and will be arrived at given the same fact pattern; as such, it will require more than a single fact finder in order to properly evaluate this case so that all of the varying conclusions can be weighed and disposed of, rather than a single fact finder who will invariabl[y] arrive at a single conclusion, and/or have difficulty weighing multiple conclusions from the same fact pattern. On information and belief, a jury of the Defendants’ peers will arrive at a different conclusion and resolution, and these issues that will be available by bench trial, and a jury demand is hereby made accordingly, and in good faith.

Appellant’s App. at 10-11.

On November 26, 2012, the small claims court issued an order denying the request for change of judge as untimely, citing McClure v. Cooper, 893 N.E.2d 337 (Ind.Ct.App.2008). The order further indicated that the request for jury trial would be considered on January 2, 2013.

On January 2, Palmer filed a motion to reconsider the ruling on the change of judge, which was denied. The small claims court then heard arguments on the request for jury trial, during which the court stated:

[Indiana Code Section] 33-29-2-7, it specifically says the defendant may not later than ten days, et cetera, et cetera. The affidavit must state that the — specifies those questions of fact.
Those questions of fact are not specified. It just merely says that we want a jury trial on the issues. It does not say what facts need to go to a jury which leads me to believe that this may not be made in good faith but is primarily for a delay, especially since liability is not being contested.

Tr. at 20. The court ultimately denied the motion on the following grounds:

I’m gonna rule on two ... points here. One, pursuant to 33-29-2-7(b)(2), there’s insufficient specificity as to what those questions of fact would be that need to be sent to a jury.
And, two, given the global things of what I’ve heard here, I’m not satisfied that.it was made in good faith.

Id. at 23-24.

The case then proceeded to a bench trial. Sales testified concerning the damages caused by the accident, and in support, she submitted photographs and estimates for repairs from two different contractors. Palmer conceded liability, but gave a somewhat different account of the extent of the damage caused by the accident. The court entered judgment for Sales in the amount of $2375, which corresponded to one of the estimates. Palmer now appeals.

Discussion and Decision

Sales has not filed a brief; therefore, Palmer need only establish prima facie error. State Farm Ins. v. Freeman, 847 N.E.2d 1047, 1048 (Ind.Ct.App.2006). Prima facie is defined in this context as “at first sight, on first appearance, or on the face of it.” Id. (quoting AmRhein v. Eden, 779 N.E.2d 1197, 1205 (Ind.Ct.App.2002)). Palmer argues that: (1) the small claims court erred by finding her request for a change of judge untimely; (2) the small claims court erred by finding that her motion for a jury trial was unsupported and not made in good faith; and (3) the award of damages was excessive. Because we agree with Palmer that the judgment must be reversed and the case transferred to a new judge on the plenary docket, we will not address the issue of damages.

I. Change of Judge

The Indiana Trial Rules govern small claims proceedings to the extent that they do not conflict with the Indiana Small Claims Rules. McClure v. Cooper, 893 N.E.2d 337, 339 (Ind.Ct.App.2008). There is no Small Claims Rule regarding changes of judge; therefore, Trial Rule 76 applies. Kalwitz v. Kalwitz, 934 N.E.2d 741, 749 (Ind.Ct.App.2010). Trial Rule 76(C) sets forth the following deadline for a motion for change of judge:

(C) In any action except criminal no change of judge or change of venue from the county shall be granted except within the time herein provided. Any such application for change of judge (or change of venue) shall be filed not later than ten [10] days after the issues are first closed on the merits. Except:
(1) in those cases where no pleading or answer may be required to be filed by the defending party to close issues (or no responsive pleading is required under a statute), each party shall have thirty [30] days from the date the case is placed and entered on the chronological case summary of the court as having been filed;
(5) where a party has appeared at or received advance notice of a hearing prior to the expiration of the date within which a party may ask for a change of judge or county, and also where at said hearing a trial date is set which setting is promptly entered on the Chronological Case Summary, a party shall be deemed to have waived a request for change of judge or county unless within three days of the oral setting the party files a written objection to the trial setting and a written motion for change of judge or county....

In McClure, another panel of the Court of Appeals interpreted Trial Rule 76(C) in the context of small claims proceedings. In that case, Jackie Cooper filed a claim against Alfred McClure in small claims court. The notice of claim contained a notice of hearing. McClure later filed a motion for change of judge, which was denied. On appeal, McClure argued that Trial Rule 76(C)(1) applied because a responsive pleading is not required in small claims proceedings and that his motion was filed within the time allowed by that subsection. A majority disagreed, concluding that Subsection (C)(5) applied because a trial date had been set:

Here, as in most small claims proceedings, the hearing and trial date are one in the same and are set forth in the notice which is a part of the small claims form. Thus, unlike most civil proceedings, a small claims litigant automatically has a hearing date upon the filing of a claim. Accordingly, we conclude that a timely motion for change of judge within the context of a small claims action would have required McClure to file his motion within three days of receiving the notice of claim. We therefore agree with the trial court that McClure’s Motion for Change of Judge was untimely.

McClure, 893 N.E.2d at 340.

Judge Kirsch dissented, stating:

To me the rule applies very narrowly. It requires (1) that a party appear at or have notice of a hearing, (2) that the court at that hearing sets the matter for trial, and (3) that the trial date is promptly entered into the CCS. Here, because the trial setting was not made in course of conducting a hearing, I do not believe the Rule applies, and, accordingly, I respectfully dissent.

Id. at 342 (Kirsch, J., dissenting).

In this case, Palmer received the notice of claim on November 7, 2012, which erroneously indicated that the trial was set for January 2, 2012. Clearly, the trial could not be held on January 2, 2012, as that predated the filing of the claim by several months. Palmer argues that setting an impossible trial date is functionally the same as not setting a'trial date; therefore, we should apply Trial Rule 76(C)(1) rather than follow McClure and apply Trial Rule 76(C)(5). Alternatively, Palmer argues that McClure was wrongly decided and that we should follow Judge Kirsch’s dissent.

We believe that Judge Kirsch’s dissent represents the better approach, as it relies on the explicit language of Trial Rule 76. Furthermore, the policy concerns relied on by the majority opinion have since been eroded. At the time McClure was decided, Small Claims Rule 2(B)(3) required the small claims court to set a trial date between ten and forty days after service of the notice of the claim. The McClure majority was concerned that- allowing a party thirty days to request a change of judge would interfere with the schedule set forth in Small Claims Rule 2(B)(3). In 2008, Small Claims Rule 2(B)(3) was amended to omit any reference to a specific deadline for scheduling a trial date and now states that the trial date “shall be set by the court with the objective of dispensing speedy justice between the parties and according to the rules of substantive law.”

While' speedy resolution is one of the aims of small claims proceedings, they are also meant to be accessible to pro se parties. While we often tell pro se parties that ignorance of the law is not an excuse, pro se parties in a small claims case should be given a reasonable opportunity to discover what the applicable rules are or to decide to hire an attorney. We think that few non-attorneys would be prepared to request a change of judge, within three days of receiving the notice of claim, especially because Trial Rule 76(C)(5) on its face would not appear to apply; one would have to know to look beyond the text of the rule and search case law. We also note that the notice of claim is required to notify the defendant that a jury trial must be requested within ten days, Small Claims Rule 2(B)(10), but is not required to provide any information about requesting a change of judge. The unreasonableness of the three-day rule is highlighted by the facts of this case. Palmer was apparently provided with counsel by her insurer, but counsel did not enter an appearance until twelve days (eight business days) after the notice of claim was served. ' Counsel promptly requested a Change of judge, well in advance of the January 2, 2013 trial date. The practical effect of the McClure rule is to foreclose the right to request a change of judge. While the Small Claims Rules might benefit from a specific rule for changes of judge that better balances the aims of speedy resolution and accommodation of pro se parties, in the meantime, we must apply the Trial Rules promulgated by our supreme court as written.

Furthermore, even if we agreed with the holding in McClure, we find that it is distinguishable in this case. In denying Palmer’s request for a change of judge, the small claims court focused on the fact that Palmer could not have reasonably believed that the trial was set for January 2, 2012; the court felt that Palmer should have assumed that the year was filled out incorrectly. While the trial date of January 2, 2012, was obviously a mistake, we cannot agree that the notice adequately informed Palmer that a trial was set for January 2, 2013. The holding in McClure would only come into play when a trial date is set and the defendant is given notice of the date. It is not enough that the notice provide information from which the defendant might guess or proactively discover the actual trial date.

We conclude that Trial Rule 76(C)(5) does not apply, and the request for a change of judge was timely pursuant to Trial Rule 76(C)(1) and should have been granted. See Kalwitz, 934 N.E.2d at 749 (granting of a motion to change judge is automatic if made within the time limit). Therefore, we reverse the judgment of the trial court and remand with instructions that the court grant Palmer’s request for a change of judge and that the procedures for the selection of a new judge be implemented. See A.T. v. G.T., 960 N.E.2d 878, 882 (Ind.Ct.App.2012) (holding that trial court erred in denying motion for change of judge, reversing ruling on petition for modification of custody because trial court was deprived of jurisdiction, and remanding with instructions to grant change of judge and implement selection of new judge).

II. Request for Jury Trial

Because the issue will recur on remand, we will also address Palmer’s request for a jury trial. Indiana Code Section 33-29-2-7 provides: •

(a) The filing of a claim on the small claims docket is considered a waiver of trial by jury.
(b) A defendant may-, not later than ten (10) days following service of the complaint in a small claims case, demand a trial by jury by filing an affidavit that:
(1) states that there are questions of fact requiring a trial by jury;
(2) specifies those questions of fact; and
(3) states that the demand is in good faith.
(c) Notice of the defendant’s right to a jury trial, and the ten (10) day period in which to file for a jury trial, shall be clearly stated on the notice of claim or on an additional sheet to be served with the notice of claim on the defendant.
(d) Upon the deposit of seventy dollars ($70) in the small claims docket by the defendant, the court shall transfer the claim to the plenary docket. Upon transfer, the claim then loses its status as a small claim.

There is a lack of authority interpreting this statute; however, we interpreted a similar statute in Freeman. On April 5, 2004, the Freemans filed a small claims action in Warrick Superior Court against State Farm and two other individuals who apparently were insured by State Farm. State Farm was served on April 15, 2004. On April 20, 2004, an attorney entered an appearance for State Farm and filed a request for jury trial and affidavit in support. After a hearing, the court denied State Farm’s request for jury trial. State Farm appealed. We concluded that Indiana Code Section 33-33-87-17, which specifically applies to the Warrick County courts, governed State Farm’s request for jury trial. That statute states:

The defendant may, not later than ten (10) days after being served, make demand for a trial by jury by affidavit stating that there are questions of fact requiring a trial by jury, specifying them, and stating that the demand is intended in good faith. The court shall then cause the claim to be transferred to the regular docket and the defendant shall pay the filing fee charged for filing civil actions in circuit court. Upon transfer a claim loses its status as a small claim and is subject to all ordinary rules and procedure.

Ind.Code § 33-33-87-17. The affidavit submitted by State Farm averred that State Farm and the other defendants “specifically request that they be allowed to present their defense to a jury and to undertake discovery in order to verify Plaintiffs’ allegations of lost wages and medical bills as no such evidence has been provided to substantiate the Plaintiffs’ claims.” Freeman, 847 N.E.2d at 1049. The affidavit also averred that the demand for-jury trial was made in good faith. We held that the affidavit met the requirements of Indiana Code Section 33-33-87-17 and therefore transfer to the plenary docket was mandatory. Id.

Similar to Indiana Code Section 33-33-87-17, Indiana Code Section 33-29-2-7 requires the defendant to submit an affidavit that specifies questions of fact and states that the demand is made in good faith. Palmer’s affidavit states that there are factual issues concerning credibility, causation, and the extent or existence of damages. This request is not unlike the one made in Freeman, where the .defendant called into question the plaintiffs’ ability to substantiate their damages. Freeman did not require the defendant to identify specific facts that would be asserted by the plaintiffs or specific evidence that would be used to controvert the plaintiffs’ contentions.

Indiana Code Section 33-29-2-7 insures that a defendant’s right to a jury is not involuntarily curtailed by the plaintiffs choice to file the claim on the small claims docket. The defendant is given ten days from the date that the complaint is served to request a jury. Discovery typically could not be completed in such a short time, if it is allowed at all. See Ind. Small Claims Rule 6 (permitting discovery upon notice and good cause shown and limiting discovery “to the necessities of the case”). The level of detail required to make a request for jury trial should reflect the fact that the defendant often will lack detailed information about the evidence that the plaintiff intends to present. The affidavit should be specific enough to reflect that there are disputed factual issues of a sort that are appropriate for determination for a jury. Palmer’s affidavit meets this requirement.

Palmer’s affidavit also states that the request was made in good faith. Palmer argues that Indiana Code Section 33-29-2-7 only requires an averment that the request is made in good faith and does not require a finding by the trial court. We do not agree that the trial court must invariably take the defendant’s assertion of good faith at face value. In this case, however, there appears to be no evidence of bad faith. Although the small claims court felt that the level of specificity did not comply with the statute and therefore was indicative that the request was not made in good faith, we have concluded that the affidavit meets the requirements of the statute. Because Palmer’s affidavit was timely filed and complies with the statute, transfer to the plenary docket for a jury trial is mandatory. See Freeman, 847 N.E.2d at 1049 (noting that the word “shall” in a statute is presumptively treated as mandatory).

Conclusion

The judgment of the small claims court is reversed, and the case is remanded with the following instructions: (1) Palmer’s request for a change of judge shall be granted; (2) the procedures for choosing a new judge shall be implemented; and (3) the case shall be transferred to the plenary docket.

Reversed and remanded.

RILEY, J., concurs.

BAILEY, J., concurs in part and dissents in part with opinion.

BAILEY, Judge,

concurring in part and dissenting in part.

The majority orders that Palmer’s change of judge motion be granted, that the process provided in the Trial Rules for a change of judge be followed, and that Palmer’s motion for a jury trial be granted and the case transferred to the plenary docket. I concur in the result of the majority’s opinion to the extent it concludes that Palmer properly moved for a jury trial, and thus orders the trial court on remand to transfer the case to the plenary docket. In light of that instruction, however, I think it is unnecessary even to address Palmer’s motion for a change of judge, and I do not think we should do so. Yet because of the criticism by the majority of the opinion I authored in McClure v. Cooper, 893 N.E.2d 337 (Ind.Ct.App.2008), I write separately to explain my disagreement.

I concur in the majority’s reasoning and Holding on Palmer’s request for a jury trial under Indiana Code section 33-29-2-7, which relies upon this Court’s prior decision in State Farm Ins. v. Freeman, 847 N.E.2d 1047 (Ind.Ct.App.2006). The statute interpreted in the majority’s opinion provides that a defendant in small claims court may seek a jury trial within ten days of service of the small claims complaint. This serves to balance the defendant’s due process rights, in particular the constitutionally-provided right to a jury trial, with the expressed goal of speedy adjudication of claims in small claims court.

I note, however, that at trial Palmer represented to the trial court that she sought a jury trial only on the matter of damages and not on liability. After Sales identified Palmer as the driver of the vehicle that struck her home, the following exchange between Palmer and the trial court occurred regarding Palmer’s motion for a jury trial:

[COURT]: Okay. Are you going to be disputing liability?
[PALMER]: No. This is an issue of damages.

(Tr. at 17.)

Thus, on remand, I would limit the jury proceedings to consideration of the amount of damages associated with Sales’s claim, leaving undisturbed Palmer’s stipulation to liability.

I think this conclusion renders unnecessary any further discussion of the change of judge rules as they apply to the small claims courts. In recognition of our judicial role and as a matter of policy,- it seems wise to me not to reach matters beyond those necessary for resolution of a case. Because we can resolve this appeal without disturbing existing precedent, based upon the trial court’s erroneous denial of a jury trial, we ought not to address McClure.

First, reaching McClure seems to me contrary to the rule of stare decisis and to the purposes served by the establishment of the Rules Committee in our Trial Rules. Stare decisis stands for the proposition that “a rule which has been deliberately declared should not be disturbed by the same court absent urgent reasons and a clear manifestation of error.” Snyder v. King, 958 N.E.2d 764, 776 (Ind.2011). And while this Court does not recognize lateral stare decisis, nevertheless, the doctrine’s underlying policy purposes apply here.

So,, too, we should avoid reaching McClure because it has stood for five years without a contrary declaration by our supreme court or referral of the question to the Rules Committee, which our supreme court established for the purpose of reviewing, recommending, and making available for public comment proposed changes to court rules. See T.R. 80(A), (C), (D) & (E). We should be particularly reticent about revisiting McClure because, upon remand and transfer to the plenary docket, Palmer will have available to her the full scope of procedural mechanisms set forth by our Trial -Rules. That includes, upon transfer to the plenary docket, the change-of-judge provisions of Trial Rule 76. Palmer will'not be harmed by leaving undisturbed the small claims court’s denial of the motion for a change of judge, and we should do through dicta as little mischief as possible to standing interpretations of court rules. See Snyder, 958 N.E.2d at 776.

I recognize, however, that the majority’s opinion, as well as that of another panel of this Court, find fault with the holding in McClttre, upon which the trial court based its order denying a change of judge in this case. See A.T. v. C.T., 960 N.E.2d 878, 881 (Ind.Ct.App.2012) (noting Kirsch, J.’s, dissent in McClure, but distinguishing based upon application of the Trial Rules in a court of general jurisdiction). And upon reflection, I agree that McClure may have been wrongly decided, though I reach that conclusion on a different basis from the majority. Simply put, even though the opinion I authored in McClure narrowly construed the time limits in Trial Rules 76(B) and (C) (providing for change of judge as a matter of right and without cause), on reflection I do not think the provisions of those rules properly apply in the small claims dockets of our state. Therefore, I think McClure likely reached the wrong conclusion.

To the extent they do not conflict with the Small Claims Rules, our Trial Rules are applicable in small claims court. Niksich v. Cotton, 810 N.E.2d 1003, 1005 (Ind.2004). The small claims courts were established “with the objective of dispensing speedy justice between the parties according to the rules of substantive law.” I.C. § 33-28-3-5(d) (providing, with respect to circuit courts sitting as small claims courts, that small claims trials “shall be conducted informally ... not bound by the statutes or rules of governing practice, procedure, pleadings, or evidence”); I.C. § 33-29-2-5(d) (applying the rule to superior courts). Trial Rules 76(B) and (C) find no basis in constitutional principles of due process; rather, they afford litigants in the plenary dockets of our circuit and superior courts an additional tool for managing the course of litigation before proceeding to trial.

But Trial Rules 76(B) and (C) work at cross-purposes to the operation of the small claims courts. Based upon the goals of small claims adjudication, the Small Claims Rules strictly limit discovery, Ind. Small Claims Rule 6, and except for cause, there is no county-based change of venue available in Small Claims Courts. I.C. § 33-28-3-6; I.C. § 33-29-2-6; S.C.R. 12. Further, in small claims eases, a trial date is set at the time of the filing of the complaint — not, as in plenary courts, by the pleading practices and pre-trial hearings of the type contemplated by Trial Rule 76(C). S.C.R. 2(B). Also serving the goal of speedy adjudication, the Small Claims Rules restrict continuances to situations of good cause and require that only the shortest delay possible be allowed. S.C.R. 9(A). Initiating the lengthy, often complex process associated with obtaining a special judge can scarcely be said to serve those interests.

What is consonant with the Small Claims Rules is the unavailability of any change-of-judge procedure except for cause — that is, as is necessary to protect the due process rights of litigants. See, e.g., Ind. Judicial Conduct Rule 2.11(A) (requiring a judge to disqualify him — or herself “in any proceeding in which the judge’s impartiality might reasonably be questioned”). To hold otherwise would be to open the door to the application in small claims court of such procedural mechanisms as the class action provisions of Trial Rule 23 that, because of their complexity operate at cross-purposes to small claims adjudication — and we would do so simply because the Small Claims Rules are themselves silent on the matter.

The better approach, I think, is to recognize that though the Small Claims Rules may be silent on a matter provided for by the Trial Rules, such silence does not call for application of the Trial Rules as a matter of course. Rather, when the Small Claims Rules are silent on a particular procedural matter, I think the inquiry must instead center on whether application of the Trial Rules militates against the purposes of our small claims courts and, if so, whether failure to apply the Trial Rules in such a situation would deprive a litigant of her or his due process rights. Where, as here, there is no evidence that application of Trial Rules 76(B) and (C) would serve any role in assuring either litigant due process of law, those rules should not apply. Or, put another way, since the due process rights of litigants in small claims courts include a right to seek a new judge on the basis of good cause shown, the change-of-judge rules in the Trial Rules would serve only to frustrate the small claims courts’ purpose of speedy, efficient adjudication of relatively small dollar-value claims. Therefore, those Trial Rules should have no application in small claims court, and thus I conclude that the majority opinion I authored in McClure, even though it narrowly construed Rules 76(B) and (C), was likely wrongly decided.

I recognize, too, the majority’s concern about the interpretation of the Trial Rules by pro se litigants. Though we hold pro se litigants to the same pleading and practice standards as we do parties represented by counsel, Smith v. Ind. Dept. of Correction, 871 N.E.2d 975, 986 (Ind.Ct.App.2007), trans. denied, it is fitting that we are necessarily concerned with whether and how court procedures are capable of being understood by individuals without legal training. But deferring to the perceived needs of pro se litigants in interpreting the timelines of Rule 76(C) seems to me no less problematic than deferring to those needs when pro se litigants pursue the complex process for seeking a change of judge.

And all of these concerns lose their impact in this case because here — as in McClure — the appealing party was represented by counsel. As much as we are concerned with interpreting the rules in a manner that does not stretch their plain construction, we must also be wary of allowing the small claims courts to be stripped of their purpose — swift, efficient resolution of disputes — to benefit the type of procedural gamesmanship Indiana courts reject. See Outback Steakhouse of Fla., Inc. v. Markley, 856 N.E.2d 65, 77 (Ind.2006) (citing numerous state and federal cases the use of discovery and motions for default judgments as traps for unwary litigants). Yet, I recognize that the request for a jury trial in this case included the required representation of good faith. See I.C. 38-29-2-7 (applying to small claims proceedings in superior courts); I.C. § 33-28-3-7 (applying to small claims proceedings in circuit courts).

Therefore, for the foregoing reasons, I respectfully concur in part and dissent in part.

      . Sales also sued Palmer’s insurance company, Unique Insurance Company. The insurance company was dismissed with prejudice due to lack of privity between Sales and the insurance company. The insurance company does not participate in this appeal, but is a party of record. See Ind. Appellate Rule 17(A) ("A party of record in the trial court ... shall be a party on appeal.”).

      . Palmer cites Indiana Code Section 33-28-3-7, which contains identical language, but applies to the small claims division of a circuit court. Indiana Code Section 33-29-2-7 applies to the small claims division of a superior court.

      . The majority points to Kalwitz v. Kalwitz, 934 N.E.2d 741 (Ind.Ct.App.2010), for the proposition that Trial Rules 76(B) and (C) apply without distinction in small claims cases. The Kalwitz case does not address the majority opinion in McClure. Yet it was unnecessary for the Kalwitz Court to decide what amount of time was available to the defendants to submit their motion for a change of judge, because the defendants submitted their motion more than six months after even the thirty-day period the Kalwitz Court applied in that case and the majority would apply here. Id. at 749-50. Thus, the result in Kalwitz would survive any reading of Trial Rules 76(B) and (C) in the small claims context.

      . The majority’s opinion expresses concern with the trial court’s apparent conclusion that Palmer's motion for a jury trial was not made in good faith. While I do not share that concern, I recognize that the standard of review applicable in appeals presented in the absence of an appellee's brief requires only a demonstration of prima facie error, and thus I concur in the majority’s conclusion that Palmer is entitled to a jury trial as to the matter of damages.


author: CRONE, Judge.

text:
    Dustin Jack GIFFORD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 40A05-1304-CR-197.
    Court of Appeals of Indiana.
    Oct. 10, 2013.

      Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Dustin Jack Gifford appeals his conviction for class D felony possession of chemical reagents or precursors with the intent to manufacture a controlled substance. The sole issue presented for our review is whether the State presented sufficient evidence to sustain the conviction. Finding the evidence insufficient, we reverse.

Facts and Procedural History

The facts most favorable to the conviction indicate that, on June 2, 2012, Katrina Roush and her boyfriend, Jared Bonds, were hanging out with Gifford and Gif-ford’s father, Denver, at Gifford’s house in Jennings County. Gifford suggested that the group travel to Jefferson County to “get boxes” of pseudoephedrme. Tr. at 119. The plan was to eventually sell the boxes to someone who manufactured methamphetamine, but they didn’t yet “have a purchaser or nothing.” Id. at 121.

Denver drove the group to Madison in his van. Gifford gave Roush and Bonds money to buy pseudoephedrme. Denver and Gifford waited in the van while Roush and Bonds went into a CVS pharmacy and each bought a ninety-six-count package of nasal decongestant which contained pseu-doephedrme. A CVS employee was suspicious regarding the purchases because Roush and Bonds had driven from a different county just to buy nasal decongestant. The employee contacted Madison City Police Officer Jonathan Simpson.

Officer Simpson, who was in plain clothes and in an unmarked vehicle, followed the van from the CVS to the Madison Walmart. He watched as Gifford and another man went into the store and saw them purchase lithium batteries. The group left Walmart and drove into Jennings County, where the van was stopped by uniformed officers for a traffic infraction. Denver, who was driving, consented to a search of the vehicle. Officers found one box of pseudoephedrme in Roush’s purse and one box of pseudoephedrme in the driver’s side rear door. Gifford, who had been sitting in the front passenger seat, told officers that the batteries he had purchased were “hidden in the dash” on the passenger side of the vehicle. Id. at 145. Officers discovered lithium batteries “shoved up” behind the door of a fuse box. Id. Gifford claimed that the batteries were for his camera and that he hid them because “he knew that it did not look good to have [pseudoephedrme] and lithium batteries in the same vehicle.” Id. at 146. Bonds revealed to officers that the plan was to “make some calls and line up a buyer or trade” the pseudoephedrme for “a half a gram of meth.” Id. at 151.

On July 31, 2012, the State charged Gifford with class D felony possession of chemical reagents or precursors with the intent to manufacture a controlled substance. Following a trial, the jury found Gifford guilty as charged. This appeal ensued.

Discussion and Decision

Gifford challenges the sufficiency of the evidence to support his conviction. When reviewing insufficiency of the evidence claims, we neither reweigh evidence nor judge witness credibility. Mathews v. State, 978 N.E.2d 438, 443 (Ind.Ct.App.2012), trans. denied (2013). Instead, we examine the evidence and reasonable inferences most favorable to the verdict. Id. If there is evidence of probative value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt, we will affirm. Id. Reversal is appropriate only when reasonable persons would not be able to form inferences as to each material element of the offense. Perez v. State, 872 N.E.2d 208, 213 (Ind.Ct.App.2007), trans. denied.

To prove that Gifford committed class D felony possession of chemical reagents or precursors with the intent to manufacture a controlled substance, the State was required to prove beyond a reasonable doubt that Gifford possessed two or more chemical reagents or precursors, specifically pseudoephedrine and lithium metal, “with the intent to manufacture” methamphe-tamme. See Ind.Code § 35-48-4-14.5(e). On appeal, Gifford claims that the State presented insufficient evidence regarding both his possession and his intent. Because we find the lack of evidence regarding intent to be dispositive, we need not address the sufficiency of the evidence regarding possession.

The State concedes that the evidence establishes that Gifford’s undisputed intent was to eventually sell the pseudoephedrine to someone else who would use it to manufacture methamphetamme. There was no evidence presented that Gifford personally intended to manufacture methamphe-tamme. The State recognizes that another panel of this Court has interpreted the identical language “with the intent to manufacture” methamphetamme in an analogous provision of Indiana Code Section 35-48^1-14.5 to require proof that the person charged with possession must personally have the intent to manufacture metham-phetamme. Specifically, in State v. Prater, 922 N.E.2d 746, 749 (Ind.Ct.App.2010), trans. denied, we analyzed that portion of the statute providing that “[a] person who possesses anhydrous ammonia ... with the intent to manufacture methamphetamine” commits a class D felony. Ind. Code § 35-48-4-14.5(c). We concluded that the plain language used by the legislature, namely “with the intent to manufacture,” requires that the person who possesses anhydrous ammonia must also have the personal intent to manufacture methamphetamine. Prater, 922 N.E.2d at 750.

Acknowledging the clear applicability of our decision in Prater, the State urges that Prater was decided erroneously and that we should reexamine the language “with the intent to manufacture” and determine that our legislature intended to criminalize mere possession of chemical reagents or precursors even absent personal intent to manufacture a controlled substance. We believe that the plain language of the statute is clear, and we decline the State’s invitation to revisit the issue. As the State presented no evidence to the jury that Gifford personally intended to manufacture a controlled substance as required by Indiana Code Section 35-48-4-14.5(e), we reverse his conviction.

Reversed.

BARNES, J., and PYLE, J., concur.

      .Pseudoephedrine and lithium metal are both listed as chemical reagents or precursors. See Ind.Code § 35-48-4-14.5(a)(2) and -(a)(8).

      . The State acknowledges that this was the only theory of intent argued by the deputy prosecutor at trial.

      . The State maintains that the jury was free to disregard the deputy prosecutor's argument that Gifford’s undisputed intent was to eventually sell the precursors and that the jury could have instead reasonably inferred that Gifford intended to' personally manufacture methamphetamine. However, as stated above, there was no evidence presented that Gifford intended to personally manufacture methamphetamine.


author: BAILEY, Judge.

text:
    ANONYMOUS HOSPITAL, INC., Appellant-Defendant, v. Jane DOE, et al., Appellees-Plaintiffs, Indiana Department of Insurance, Appellee-Defendant.
    No. 20A03-1210-CT-426.
    Court of Appeals of Indiana.
    July 30, 2013.
    Ordered Published Oct. 18, 2013.

      Heidi K. Koeneman, Edward L. Murphy, Jr., Murphy Ice & Koeneman LLP, Fort Wayne, IN, Attorneys for Appellant.
    Richard W. Morgan, Jerome W. McKeever, Pfeifer Morgan & Stesiak, South Bend, IN, Attorneys for Appellees, Jane Doe et al.
    Matthew W. Conner, Bose McKinney & Evans, LLP, Indianapolis, IN, Attorney for Appelee, Indiana Department of Insurance.
   OPINION

BAILEY, Judge.

Case Summary

Jane Doe (“Doe”) filed a complaint for damages against Anonymous Hospital, Inc. (“Anonymous Hospital”) and sought a preliminary determination that her claim is one of common law negligence, and thus the provisions of the Indiana Medical Malpractice Act (“MMA”) are inapplicable. Doe was granted partial summary judgment and we accepted jurisdiction of a discretionary interlocutory appeal challenging that order. We reverse and remand for further proceedings.

Issue

Anonymous Hospital presents the sole issue of whether the trial court erred in making its preliminary determination that Doe’s complaint states a claim that is outside the purview of the MMA.

Facts and Procedural History

On December 31, 2007, Doe was en route to a gathering of friends when she heard voices and became convinced that a “rapture” of Christians was occurring. (App. 15.) She then jumped from her boyfriend’s moving vehicle. Doe’s friends contacted her parents, who took her to their South Bend home. Doe jumped out a window and ran down the road in blizzard-like conditions, eventually seeking refuge in a stranger’s home. There, she falsely accused her father of being a child molester.

Doe’s parents took her to the psychiatric ward of Anonymous Hospital. She was evaluated by a staff psychiatrist, who diagnosed her as “psychotic not otherwise specified.” (App. 15.) It was noted that Doe was suffering from delusions, suicidal ideation, religious delusions, and auditory hallucinations. She was admitted for inpatient psychiatric care.

At some point, Doe encountered Marcus, a middle-aged patient who had been admitted for alcohol detoxification. Marcus was wrapped in a bed sheet, and Doe formed the belief that he was Jesus Christ. She expressed a desire to wash Marcus’s feet. Later, Doe threw ice on her psychiatrist because she believed that he was trying to harm Marcus. Doe was placed in five-point restraints and provided with one-on-one monitoring. She was also prescribed several medications.

On January 7, 2008, Doe was placed on less intensive monitoring. Staff members were to make a notation of her whereabouts each fifteen minutes. On the morning of January 9, 2008, Doe’s psychiatrist met with Doe’s parents in a conference room five doors down from Doe’s room. Doe walked down the hallway and into the conference room but was told to go back to her room.

On the way back to her room, Doe passed by Marcus. He motioned to Doe to come into his room; when she approached, he pulled her into the room and they began kissing. Marcus unbuttoned his pants, pulled out his penis, and pushed Doe’s head toward it. After they engaged in oral sex, Marcus told Doe to leave and come back later. Doe returned as requested. Marcus then took Doe into the bathroom and attempted anal sex but could not achieve penetration. He moved Doe to the bed, where they engaged in vaginal intercourse.

Following this incident, Doe’s parents ended the meeting and came to Doe’s room to visit with her. Doe was on her bed, curled into a ball and trembling. She recoiled from her mother’s kiss and told her parents this would be the last time they would see her. Later, she told fellow patients that she wanted to die. Doe found a hospital social worker in the hallway and reported that she had been “lured” into a patient’s room, “fooled around” with him, and “went all the way.” (App. 137.)

Doe’s psychiatrist initially informed Doe’s parents of his belief that Doe had experienced another delusion. However, Doe underwent a physical examination and a vaginal swab tested positive for semen. As a result, Marcus was immediately discharged from Anonymous Hospital and Doe was discharged under the full-time supervision of a nurse.

On October 14, 2009, Doe filed her “Complaint for Damages and Declaratory Judgment.” (App. 22.) In the second count, she sought a declaration that “the case is not subject to the Indiana Medical Malpractice Act but, rather, is a common law tort claim for negligence on the part of the Defendant, Anonymous Hospital, Inc.” (App. 23.) She filed a Proposed Complaint with the Indiana Department of Insurance on December 29, 2009.

On November 15, 2012, Anonymous Hospital filed a Motion for Preliminary Determination, Motion for Declaratory Judgment, and a supporting memorandum. Doe moved for partial summary judgment and also filed a Motion for Declaratory Judgment. The Indiana Department of Insurance joined in Doe’s motion for partial summary judgment. The trial court heard arguments on March 15, 2012. On May 16, 2012, the trial court entered partial summary judgment in favor of Doe, concluding that her claim “sounds in ordinary negligence.” (App. 20.)

Anonymous Hospital petitioned the trial court to certify the summary judgment order for an interlocutory appeal. On September 4, 2012, following a hearing at which the petition was not contested, the trial court entered an order certifying its interlocutory order for appeal. On November 14, 2012, this Court accepted jurisdiction.

Discussion and Decision

I. Standard of Review

“The entry of summary judgment on a motion for a preliminary determination is subject to the same standard of appellate review as any other entry of summary judgment.” Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 695 (Ind.2000). Summary judgment is appropriate only where the evidence shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C).

The propriety of the trial court’s grant of partial summary judgment ultimately turns on whether Doe stated a claim in negligence or medical malpractice. Whether a case is one of medical malpractice as defined by the MMA is a question for the court. Weldon v. Universal Reagents, Inc., 714 N.E.2d 1104, 1107 (Ind.Ct.App.1999). Accordingly, our review is de novo.

II. Analysis

The MMA provides that malpractice is “a tort or breach of contract based on health care or professional services that were provided, or that should have been provided, by a health care provider, to a patient.” Ind.Code § 34-18-2-18. Health care is “an act or treatment performed or furnished, or that should have been performed or furnished, by a health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” Ind.Code § 34-18-2-13. A “patient” is “an individual who receives or should have received health care from a health care provider, under a contract, express or implied, and includes a person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice on the part of a health care provider.” Ind.Code § 34-18-2-22.

The MMA is not all-inclusive as to claims against medical providers, and a claim against a medical provider sounding in general negligence or premises liability rather than medical malpractice falls outside the procedural and substantive provisions of the MMA. Peters v. Cummins Mental Health, Inc., 790 N.E.2d 572, 576 (Ind.Ct.App.2003), trans. denied. We look to the substance of a claim to determine the applicability of the MMA. Doe by Roe v. Madison Ctr. Hosp., 652 N.E.2d 101, 104 (Ind.Ct.App.1995), trans. dismissed.

Neither the occurrence of an injury at a place that can generally be described as a healthcare facility nor the plaintiff’s status as a patient are disposi-tive in determining whether the claim sounds in medical malpractice. Estate of O’Neal ex rel. Newkirk v. Bethlehem Woods Nursing & Rehab. Ctr., 878 N.E.2d 303, 311 (Ind.Ct.App.2007). A contrary rule would result in an unreasonably broad inclusion of claims that were not intended to fall within the scope of the MMA. Id. Accordingly, the test to determine whether a claim sounds in medical malpractice is “whether the claim is based on the provider’s behavior or practices while ‘acting in his professional capacity as a provider of medical services.’ ” Madison Ctr., Inc. v. R.R.K., 853 N.E.2d 1286, 1288 (Ind.Ct.App.2006), trans. denied, quoting Collins v. Thakkar, 552 N.E.2d 507, 511 (Ind.Ct.App.1990), trans. denied. “Applying this test has resulted in hairline distinctions between claims that sound in medical negligence and those that sound in ordinary negligence.” Estate of O’Neal, 878 N.E.2d at 311.

A case sounds in ordinary negligence where the factual issues are capable of resolution by a jury without application of the standard of care prevalent in the local medical community. See Murphy v. Mortell, 684 N.E.2d 1185, 1188 (Ind.Ct.App.1997) (claim of sexual battery during hospitalization outside the MMA), trans. denied; Doe by Roe, 652 N.E.2d at 103 (claim of sexual assault causing patient to contract chlamydia outside the MMA); Winona Mem’l Found., of Indianapolis v. Lomax, 465 N.E.2d 731, 732 (Ind.Ct.App.1984) (complaint for negligence arising from fall of patient on loose floorboard as she prepared to receive physical therapy stated a claim for premises liability not within the scope of the MMA); Harts v. Caylor-Nickel Hosp., Inc., 553 N.E.2d 874, 879 (Ind.Ct.App.1990), (the tenor of a complaint for injury upon fall from hospital bed after the bedrail collapsed sounded in ordinary negligence), trans. denied.

Similarly, in Pluard v. Patients Comp. Fund, 705 N.E.2d 1035, (Ind.Ct.App.1999), trans. denied, a negligence claim was presented by allegations arising after a surgical lamp became detached from the wall and fell on a newborn’s head. Although a nurse had positioned the light at the direction of a doctor, it was not the positioning of the light — but its detachment — that caused the injury. Id. at 1038. A juror’s common knowledge and experience would enable them to understand these circumstances; accordingly, the case did not sound in medical malpractice. Id.

By contrast, the MMA applies where there is a causal connection between the conduct complained of and the nature of the patient-health care provider relationship. See Putnam Cnty. Hosp. v. Sells, 619 N.E.2d 968, 971 (Ind.Ct.App.1993) (a complaint for injury to a plaintiff who fell following surgery and was still under the effects of anesthesia fell “squarely within the scope of the [MMA]”).

Moreover, a physician-patient relationship is necessary to bring claims under the procedures of the MMA. See Weldon, 714 N.E.2d at 1110 (a participant in a red blood cell donor program was not a patient for purposes of the MMA when the procedure performed on her body, the injection of antigens to produce antibodies for manufacture of RhoGam for pregnant women, was not performed for the participant’s benefit).

In R.R.K., a seventeen-year-old psychiatric hospital in-patient and another resident began arguing; while the staff restrained R.R.K., the other resident (who was unrestrained) kicked R.R.K. in the face causing significant injury. R.R.K., 853 N.E.2d at 1287. After R.R.K. and his parents brought suit under premises liability, the hospital contended that the claim was one of medical malpractice. A panel of this Court concluded that R.R.K.’s claim was not subject to the MMA, observing:

Here, R.R.K.’s injuries were not caused by any services which the Center as the health care provider provided or failed to provide to him as a patient. Rather, they were caused by another resident whom the Center failed to medicate, restrain, or confine. As such, they arise not from the Center’s medical treatment of R.R.K., but from his presence on the Center’s premises. Indeed, a visitor upon the premises could have as easily sustained R.R.K.’s injuries.

853 N.E.2d at 1288. In reaching its decision, the R.R.K. Court relied upon Webb v. Jarvis, 575 N.E.2d 992, 996 (Ind.1991). In Webb, the plaintiff, who was a shooting victim, sued the physician who prescribed anabolic steroids for the third-party contending that, by doing so, the physician committed malpractice. 575 N.E.2d at 992. Our Supreme Court concluded that the plaintiffs action against the physician sounded in negligence. Id. at 995.

In sum, the appropriate analysis involves first, the nature of the conduct alleged in the complaint — whether or not the alleged negligence involves provision of medical services — and, second, whether the rendering of medical services is to the plaintiff for the plaintiffs benefit. Ultimately, if the alleged harm would have occurred independent of medical services provided to the plaintiff, it sounds in common law negligence. This is so even if the actor who caused the harm is himself receiving medical care. See id.; see also Midtown Cmty. Mental Health Ctr. v. Estate of Gahl, 540 N.E.2d 1259, 1262 (Ind.Ct.App.1989) (observing that, assuming a duty existed, a breach of the duty to properly medicate and supervise Jackson — who killed a probation officer — could constitute malpractice as to Jackson but not as to third parties with whom he might come in contact), trails, denied.

We now turn to the specific allegations of Doe’s Complaint for Damages and Declaratory Judgment to determine whether she states a common law negligence claim or alleges that the defendant committed medical malpractice as to her. In particular, the Complaint states that Doe was a patient of Anonymous Hospital and further alleges:

Due to Plaintiffs medical condition and the psychotropic drugs that were administered to her, she was not fully aware of her surroundings, nor was she competent to make informed decisions on her behalf.
Due to the negligence of employees and agents of Anonymous Hospital, Plaintiff was sexually assaulted by another patient on two separate occasions on January 9, 2008.

(App. 23.) In her deposition, Doe explained the circumstances of her encounters with Marcus as follows. Marcus “was motioning for [Doe] to come into his room and pulled [her] in and then he started kissing [Doe].” (App. 76.) He “kind of grabbed” her arm and she did not resist. (App. 76.) Marcus pulled out his penis and pushed Doe’s head down, but she did not “remember him like keeping [her] down there.” (App. 77.) Marcus told Doe to leave and come back; she did so. After Doe returned to Marcus’s room, he took her into the bathroom and attempted anal sex. Marcus then “led [Doe] back to the bed” where he removed Doe’s jeans and underwear and they engaged in intercourse. (App. 79.) Doe agreed that she “did not resist in any way.” (App. 81.)

Doe returned to Marcus’s room of her own volition, in the physical sense. Her participation in sexual acts with Marcus was not accomplished by force or threat of force, and he was not charged with criminal conduct. Rather, the gravamen of Doe’s complaint is that she was rendered incompetent to make an informed decision regarding sexual conduct because of psychotropic drugs prescribed for her by the employee of Anonymous Hospital. In other words, she was allegedly placed in a position of undue vulnerability because of decisions made by her treating physician, that is, which medications and what dosage were appropriate for her care while she was confined in close proximity to other patients.

Doe directs our attention to the language of R.R.K.: “[t]he duty the Center owed to R.R.K. to prevent his being subject to attack by one of the other patients was the same as the duty owed to any invitee upon the premises.” R.R.K., 853 N.E.2d at 1289. She characterizes the encounter with Marcus as an “attack” and argues that “the Hospital failed to physically restrain Marcus and failed to monitor his whereabouts and activities.” (Appel-lee’s Brief at 9.)

Doe did not allege in her Complaint that she was injured as a result of the hospital’s failure to restrain Marcus. Nonetheless, she claims that she “broadly alleges negligence” in the Complaint and that “Paragraph 5 (relating to her condition and psychotropic drugs) goes to a separate issue, one to be decided by the trier of fact, whether Jane Doe had capacity to consent to sex.” (Appellee’s Br. at 15.) Ultimately, however, a jury cannot decide whether Doe was indeed “attacked” absent a determination that she was or was not able to give consent given her pharmacological regimen. Her expert witness opined that she was unable to give consent while her treating psychiatrist opined that she was able to do so.

As Doe observes, the question of sufficient mental capacity to consent to sexual activity is a question of fact to be decided by the fact-finder. Hall v. State, 504 N.E.2d 298, 300 (Ind.Ct.App.1987). However, in the face of an allegation that a mental deficiency was pharmacologically induced, the trier of fact would need expert assistance in reaching its determination. Doe appeared to her parents to be significantly under the influence of drugs but was aware of her surroundings and able to convey her wishes, such as asking to go home. A layman’s typical life experience cannot be expected to provide a basis for assessment of the propriety of a particular pharmacological regimen. In these circumstances, the fact-finder cannot be expected to determine whether there has been a breach of a particular standard of care absent expert medical testimony.

Unlike the plaintiff in R.R.K., whose “injuries were not caused by any services which the Center as the health care provider provided or failed to provide to him as a patient,” 853 N.E.2d at 1288 (emphasis added), Doe alleges that she was subject to attack because her prescribed medications rendered her vulnerable. She has called into question the degree of skill exercised by her health care provider. With reference to the allegations of Doe’s Complaint, the fact-finder will be asked to determine whether Doe was pharmacologi-cally rendered unable to give consent such that she could be subjected to an “attack” in the sense that she was unable to consent.

To prevail upon her claim, Doe must show that employees of Anonymous Hospital deviated from the applicable standard of medical care as to her. The fact-finder should be presented with evidence on the applicable standard of care for a physician prescribing psychotropic drugs in a confined setting. Accordingly, the Complaint falls within the purview of the MMA. Partial summary judgment was improvidently granted to Doe on this issue.

Reversed and remanded for further proceedings.

NAJAM, J., and RILEY, J., concur.

      . Ind.Code § 34-18-1-1.

      . In her deposition, Doe explained that she believed people were disappearing from earth because Christ had returned for his followers. She became angry and confused at the prospect of being left behind.

      .Doe also expressed beliefs at various times that one of her parents was Satan, one parent was divine, and her psychiatrist was God.

      . The R.R.K. Court acknowledged that a separate panel of this Court had previously determined, in Ogle v. St. John's Hickey Mem’l Hosp., 473 N.E.2d 1055 (Ind.Ct.App.1985), that the rape of a psychiatric patient by another patient did not present a claim of ordinary negligence. In so doing, the Ogle Court found "confinement” to be an act of medical care, noting that the definition of healthcare in the MMA specifically included "the patient's medical care, treatment or confinement.” Id. at 1059. The R.R.K. Court observed that Ogle predated our Supreme Court’s opinion in Webb and declined to follow it. Id. at 1289. Anonymous Hospital urges that we follow the holding of Ogle to conclude that an act occurring during confinement arises from medical care while Doe urges that we find this case to be like R.R.K., as did the trial court.

      . At the time of her deposition, Doe could not specifically recall whether she had told the investigating police officer that she had "consented to give [Marcus] oral sex.” (App. 77.)

      . At the same time, the R.R.K. Court recognized that "[t]he Center’s failure to properly medicate, restrain, or confine the resident who struck and injured R.R.K. may have constituted malpractice as to that resident[J” R.R.K., 853 N.E.2d at 1289.

      . Medical malpractice cases are like other negligence actions regarding what must be proven. Ziobron v. Squires, 907 N.E.2d 118, 123 (Ind.Ct.App.2008). Generally, the fact that an injury occurred will not give rise to a presumption of negligence. Ross v. Olson, 825 N.E.2d 890, 892 (Ind.Ct.App.2005), trans. denied. The plaintiff must show (1) a duty owed to the plaintiff by the defendant; (2) a breach of duty by allowing conduct to fall below the applicable standard of care; and (3) a compensable injury proximately caused by the defendant’s breach of duty. Ziobron, 907 N.E.2d at 123. Health care providers must exercise the degree of skill and care ordinarily possessed and exercised by a reasonably skillful and careful practitioner under the same or similar circumstances. Syfu v. Quinn, 826 N.E.2d 699, 703 (Ind.Ct.App.2005).


author: VAIDIK, Judge.

text:
    EVERGREEN SHIPPING AGENCY CORP., Appellant/Plaintiff v. DJURIC TRUCKING, INC., Appellee/Defendant.
    No. 45A03-1302-CC-40.
    Court of Appeals of Indiana.
    Sept. 17, 2013.

      Fred Pfenninger, Andrew Huber, Pfen-ninger & Associates, Indianapolis, IN, Attorneys for Appellant.
    David J. Beach, Brian R. Dehem, Eich-horn & Eichhorn, LLP, Hammond, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Evergreen Shipping Agency Corp. (“Evergreen”) appeals the award of attorney’s fees to Djuric Trucking, Inc. (“Djuric”). Evergreén contends that the award is barred by res judicata and that Djuric waived its claim to attorney’s fees. Because we conclude that the award is not barred by res judicata and Djuric has not waived its claim, we affirm.

Facts and Procedural History

This is the second appeal in a dispute between two freight companies. The first chapter in this case was set forth by this Court in August 2012:

Evergreen is the owner of certain freight storage containers, and Djuric is a freight transport company. Both are parties to the Uniform Intermodal Interchange and Facilities Access Agreement (“UIIA”). Djuric has on occasion been hired by Hub City Terminals, Inc. (“Hub”) to transport freight. As relevant here, in 2010 and 2011, Hub hired Djuric to transport freight one-way from Chicago to Indianapolis on behalf of Target Corporation (“Target”). Pursuant to Hub’s request, Djuric transported the freight to Indianapolis using Evergreen’s containers and received an authorized signature from Target. Target, in turn, agreed with Djuric to be responsible for any and all charges and/or fees assessed for the containers.
On June 9, 2011, Evergreen filed a complaint on account against Djuric. According to Evergreen, Djuric was responsible for the failure to return the containers owned by Evergreen. Evergreen alleged damages in excess of $34,000 for per diem charges.
Between August and October 2011, Evergreen and Djuric filed cross motions for summary judgment. In support of its motion, Evergreen designated the UIIA, on which it had based its claim. The UIIA defines “[p]er [djiem” charges as “[cjharges to be paid when intermo-dal [ejquipment is not returned by the end of the allowable free time to its origin or another location, as previously agreed to by the Parties.” Further, a “[pjrovider may permit some period of uncompensated use and thereafter impose use charges,” but any such charges must be “set forth in [an] Addendum.” The UIIA defines “Addendum/Addenda” as the “[pjroviders’ schedule of economic and commercial terms not appropriate for inclusion in the [UIIA] and other terms and conditions of [equipment use,” that is, a separate collateral agreement. And the UIIA requires that any agreement, including an addendum, be in writing and signed by the parties. Along with the UIIA, Evergreen designated the affidavit of Ted Dost, one of its managers, who stated that the UIIA required Djuric to pay per diem charges to Evergreen. But Evergreen did not designate a separate written agreement with Djuric, and, in support of its own motion for summary judgment, Djuric designated the affidavit of Jim Djuric, president of Djuric. According to Jim’s affidavit, Djuric had no separate agreements with Evergreen. And, when pressed by the trial court at the summary judgment hearing, Evergreen’s counsel was unable to confirm that any agreement other than the UIIA existed between Evergreen and Djuric. In any event, no separate written agreement was designated.
On November 16, the trial court entered summary judgment for Djuric on the basis that Evergreen’s “designated evidence fails to establish any agreement by which [Djuric] is liable for any per diem [charges]. [Djuric’s] designated evidence establishes that no such agreement exists.” At the same time, the court denied Evergreen’s motion for summary judgment.

Evergreen Shipping Agency Corp. v. Djuric Trucking, Inc., No. 45A03-1112-CC-575, 2012 WL 3129130 (Ind.Ct.App. Aug. 2, 2012) (citations omitted). In its summary-judgment motion, Djuric had argued that Evergreen’s breach-of-contract claim was frivolous, and sought attorney’s fees pursuant to Indiana Code section 34-52-1-1. The trial court denied Djuric’s request for attorney’s fees under Section 34-52-1-1. This Court affirmed the trial court’s grant of summary judgment. The opinion was certified on September 3, 2012.

Two weeks later, Djuric filed a request for attorney’s fees pursuant to the UIIA. In an action for breach or enforcement of the UIIA, the UIIA entitles the prevailing party to recover reasonable attorney’s fees. See Appellee’s App. p. 19. After a hearing, the trial court granted Djuric’s motion and awarded it approximately $12,000 in attorney’s fees.

Evergreen now appeals.

Discussion and Decision

On appeal, Evergreen contends that Djuric’s claim for attorney’s fees is barred by res judicata. It also claims that Djuric has waived its right to seek attorney’s fees under the UIIA.

Evergreen raises this res judicata argument for the first time on appeal; thus, it has waived this argument. See Mid-States Gen. & Mech. Contracting Corp. v. Town of Goodland, 811 N.E.2d 425, 438 n. 2 (Ind.Ct.App.2004) (“An appellant who presents an issue for the first time on appeal waives the issue for purposes of appellate review.”). Waiver notwithstanding, this argument is not persuasive.

Res judicata serves to prevent repetitious litigation of disputes that are essentially the same. Hilliard v. Jacobs, 957 N.E.2d 1043, 1046 (Ind.Ct.App.2011) (citing MicroVote General Corp. v. Ind. Election Comm’n, 924 N.E.2d 184, 191 (Ind.Ct.App.2010)), trans. denied. The doctrine of res judicata has two distinct components: claim preclusion and issue preclusion. Id. (citing Dawson v. Estate of Ott, 796 N.E.2d 1190, 1195 (Ind.Ct.App.2003)). Claim preclusion applies when a final judgment on the merits has been rendered in a prior action, and it acts to bar a subsequent action on the same claim between the same parties. Id. (citing MicroVote, 924 N.E.2d at 191). Claim preclusion applies when the following four factors are satisfied:

1) the former judgment must have been rendered by a court of competent jurisdiction; 2) the former judgment must have been rendered on the merits; 3) the matter now in issue was, or could have been, determined in the prior action; and 4) the controversy adjudicated in the former action must have been ' between the parties to the present suit or their privies.

Id. Djuric based its first request for attorney’s fees on Indiana Code section 34-52-1-1, arguing that Evergreen’s breach-of-contract claim was frivolous. The trial court denied this request for attorney’s fees. Evergreen claims that the trial court erred in later awarding Djuric attorney’s fees because “the trial court had previously entered a final judgment denying Djuric attorney[’s] fees and [] the Court of Appeals affirmed the trial court’s judgment.” Appellant’s Br. p. 7.

But Djuric’s second request for attorney’s fees was based on the UIIA, not Section 34-52-1-1. And Djuric’s ability to recover under the UIIA could not have been determined in the prior action. The UIIA allows the prevailing party to recover reasonable attorney’s fees. In the prior action, the trial court had to determine who the prevailing party would be. Only after Djuric was found to be the prevailing party could it seek attorney’s fees pursuant to the UIIA. Evergreen acknowledges as much in its reply brief: “Djuric’s right to attorney[’s] fees as a prevailing party accrued as soon as the Court entered its order on summary judgment.” Appellant’s Reply Br. p. 3. We cannot agree that the doctrine of res judicata bars Djuric’s request for attorney’s fees pursuant to the UIIA.

Even if Djuric’s claim for fees under the UIIA is not barred by res judicata, Evergreen argues that Djuric waived the claim. Evergreen contends that once the trial court ruled on the parties’ summary-judgment motions, “Djuric had an opportunity to file a motion to correct errors arguing that as a prevailing party the Court should have awarded attorney[’s] fees.” Id. at 4. But a motion to correct errors is not the appropriate place to assert a claim against a defendant for the first time. See Allstate Ins. Co. v. Hammond, 759 N.E.2d 1162, 1167 (Ind.Ct.App.2001) (citing Noblesville Redev. Comm’n v. Noblesville Assoc. Ltd. P’ship, 674 N.E.2d 558, 565 n. 7 (Ind.1996)). And Djuric could not have reasonably argued that the trial court erred by failing to award it attorney’s fees based on a theory Djuric had not yet asserted. We cannot say that Djuric waived its claim for attorney’s fees under the UIIA. We affirm the trial court’s award of attorney’s fees to Djuric.

Affirmed.

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

      . A party responding to a complaint is not required to file a claim for attorney’s fees pursuant to Indiana Code section 34-52-1-1 before a final adjudication. See Davidson v. Boone Cnty., 745 N.E.2d 895, 900 (Ind.Ct.App.2001) (citing Kintzele v. Przybylinski, 670 N.E.2d 101, 103 (Ind.Ct.App.1996)).

      . Djuric did not appeal the trial court's denial of its request for attorney’s fees under Section 34-52-1-1.

      .Evergreen also claims that Djuric’s motion for attorney’s fees under the UIIA should have been denied because it surprised and prejudiced Evergreen. See Appellant's Br. p. 9-10 (citing R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453 (Ind.2012)). But Djuric’s motion for attorney's fees under the UIIA could not have been entirely unexpected — the UIIA contract contained a provision stating that in the event of litigation, the prevailing party shall be entitled to recover reasonable attorney’s fees. And Evergreen had notice of and an opportunity to defend against Djuric’s motion. Evergreen asked for, and received, a continuance on the hearing on Djuric’s motion. Evergreen then argued at the hearing and submitted a written response to Djuric’s motion. Evergreen’s prejudice argument is not persuasive.

      . Evergreen asks this Court to adopt a new rule divesting trial courts of jurisdiction to award attorney's fees in circumstances like this. See Appellant’s Br. p. 11. We decline to do so.