text:
    LOCAL 1963 OF THE UNITED AUTOMOBILE, AEROSPACE, and AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, Appellant-Plaintiff, v. MADISON COUNTY, Indiana, Madison County Assessor, and Madison County Recorder, Appellees-Defendants.
    No. 27A05-1301-CC-40.
    Court of Appeals of Indiana.
    Dec. 18, 2013.

      Barry A. Macey, Robert A. Hicks, Ma-cey Swanson & Allman, Indianapolis, IN, Attorneys for Appellant.
    Wayne E. Uhl, Stephenson Morow & Semler, Indianapolis, IN, James W. Wilson, Bingham Farrer & Wilson, Elwood, IN, Attorneys for Appellees.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Plaintiff, Local 1963 of the United Automobile, Aerospace and Agricultural Implement Workers of America, UAW (UAW), appeals the trial court's summary judgment in favor of Appellees, Defendants, Madison County, Indiana (County), the Madison County Assessor (Assessor), and the Madison County Recorder (Recorder) (collectively, County Group).

We affirm.

ISSUES

UAW raises two issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court erred in concluding, as a matter of law, that the Board of County Commissioners (Commissioners) and County Council (Council) had no authority to en-eroach upon the rights of the Assessor and Recorder to appoint and discharge deputies.

FACTS AND PROCEDURAL HISTORY

On January 1, 2009, the County, through the Commissioners and Council, entered into a Collective Bargaining Agreement (CBA) with UAW. The CBA was to remain in effect until December 31, 2011, at which point it would automatically renew for another year and will continue to renew each year until either party elects to terminate by providing sixty days' notice. The CBA provides that UAW is "the exelusive bargaining agent with respect to rates of pay, wages, hours of employment and other conditions of employment for all employees who are covered by this Agreement." (Appellant's App. p. 23). Among other provisions, the CBA mandates that covered employees pay dues to UAW as a eondition of their continued employment; sets forth a detailed grievance procedure that includes binding arbitration; imposes a progressive disciplinary action regimen favoring corrective rather than punitive measures; and creates a hierarchy of employees whereby hiring, layoffs, and promotions are based on seniority.

In November of 2010, the voters of Madison County elected a new Assessor, Larry Davis, and a new Recorder, Angela Shelton (collectively, Officials) Shortly after the election, in mid-November, the County's human resources director provided the Assessor-Elect and Recorder-Elect with copies of the County Personnel Handbook, the CBA, and various other documents. The human resources director informed the Officials that the employees in their offices were subject to the CBA. On January 1, 2011, the newly-elected Officials assumed office. The Assessor learned that his office had one first deputy and fourteen other deputies and employees, and the Recorder learned that her office had one first deputy and six additional deputies. As the Officials transitioned into their positions, both became aware of severe deficiencies in their offices, including substantial backlogs, non-compliance with State-mandated reports and other deadlines, outdated and unorganized systems, and failed audits by the State Board of Accounts.

Prior to beginning his term, on December 27, 2010, the Assessor-Elect notified five deputies and employees "that they would be relieved of their duties upon [his] taking office." (Appellant's Supp.App. p. 67). On December 30, 2011, UAW delivered a grievance to the Assessor on behalf of two of the discharged individuals, longtime deputy assessors Lelia Kelley (Kelley) and Linda Stephens (Stephens), charging that the Assessor had violated the CBA's provisions for progressive disciplinary action and non-diserimination, and had "wrongfully and illegally discharged" Kelley and Stephens (Appellant's Supp. App. pp. 26-27). UAW demanded the issue be immediately resolved through binding arbitration pursuant to the terms of the CBA. The Assessor requested a certification from UAW of the positions covered by the CBA, which UAW did not provide. On January 18, 2011, the Commissioners requested that the Assessor reinstate Kelley and Stephens. The Assessor refused, explaining that, under Indiana law, he may appoint his own deputies and employees.

Less than two months into the new term, on February 17, 2011, UAW filed two more grievances with the Assessor, asserting that any employees who had not paid their union dues must be terminated and requiring the Assessor to recognize UAW as the exclusive bargaining agent because the "Assessor's office is an entity of Madison County and hereby deemed as the employer in accordance with the CBA." (Appellant's Supp.App. pp. 31-82). In three more grievances filed the same day, UAW claimed that the Assessor had breached the CBA by disciplining Theresa Newman (Newman) without the presence of UAW representation, and had discriminated against her on the basis of her political affiliation. The Assessor explained that he had addressed Newman's failure to timely submit a report but did not discipline her and, believing his office was not subject to the CBA, took no action to comply with the CBA's grievance process.

When the Recorder assumed her office on January 1, 2011, with the exception of a part-time deputy whose salary was not included in the budget, she retained and swore in all of the incumbent deputies. On March 18, 2011, having observed her staff's performance, the Recorder terminated a deputy recorder, Jodi Fesler (Fes-ler), for continuing to do "substandard work" despite being given several opportunities to improve. (Appellee's Br. p. 10). Thereafter, on March 21, 2011, UAW filed a grievance with the Recorder, claiming that she had violated the progressive disciplinary system and non-discerimination provisions outlined in the CBA and requesting Fesler's reinstatement. On March 30, 2011, the Recorder notified UAW, as well as the Commissioners and Council, that she believed the CBA did not bind her office, and she declined to reinstate Fes-ler On November 21, 2011, the Officials each submitted a letter to the Commissioners and the Council that stated it was their understanding that they were not governed by the CBA and would not authorize the Commissioners and Council to negotiate a new CBA to govern their deputies and employees.

On June 27, 2011, UAW filed its Complaint, alleging the County had breached the CBA. UAW sought an injunction for the reinstatement of the two deputy assessors, Kelley and Stephens, and further sought recognition from the County that UAW is the exclusive bargaining representative for the Officials' deputies. On July 18, 2011, UAW amended its Complaint to include the Officials as defendants.

On April 16, 2012, the Officials moved for summary judgment, contending the Commissioners and Council lacked the "authority to unilaterally bind non-consenting, independently elected officials" to the CBA, which "restricted the elected officials in their appointment, removal and supervision of deputies and employees." (Appellant's Supp.App. pp. 59-60). On October 25, 2012, the trial court held a hearing on the Officials' summary judgment motion, at which the County adopted the Officials' motion. On January 1, 2018, the trial court entered Findings of Fact and Conclusions of Law and entered summary judgment in favor of the County Group.

UAW now appeals. Additional facts will be provided as necessary. ‘

DISCUSSION AND DECISION

UAW challenges the trial court's summary judgment because "it is based on an erroneous interpretation and application of the statutory provisions governing the respective authority and duties of the Commissioners and the elected officials." (Appellant's Br. p. 8). Specifically, UAW claims reversal is warranted based on three errors: (1) the trial court's misinterpretation of statutes that expressly state that the Commissioners employ the deputies in the offices of the Officials; (2) the trial court's conclusion that the Officials have statutory authority to independently control the employment decisions in their offices; and (8) the trial court's determination that the Commissioners and Council lack authority to bind the Officials to the CBA.

I. Standard of Revieiu

In reviewing a trial court's entry of summary judgment, our court applies the same standard relied upon by the trial court: pursuant to Indiana Trial Rule 56(C), a motion for summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Wright v. City of Gary, 963 N.E.2d 637, 643 (Ind.Ct.App.2012), trans. denied. Considering only the evidence designated by the parties, we construe all facts and the reasonable inferences derived therefrom in favor of the non-moving party. Bellows v. Bd. of Comm'rs of Cnty. of Elkhart, 926 N.E.2d 96, 113 (Ind.Ct.App.2010). In this case, the parties have agreed that there are no disputes regarding the material facts; thus, the issues are pure questions of law, so our review is de movo. Id. at 114. As such, UAW bears the burden of persuading this court that the trial court erroneously granted summary judgment. Shaffer v. State, 795 N.E.2d 1072, 1075 (Ind.Ct.App.2008).

II. Employed by County or Elected Official

UAW first asserts that the trial court erred in concluding that the deputies working in the Officials' offices are employees of the Officials. Specifically, the trial court determined "that the Commissioners [do] not have general employment authority over all of the elected officers' deputies and employees." (Appellant's App. p. 18). UAW argues that, taken together, Indiana Code section 36-2-2-13 (Section 13) and Indiana Code section 5-4-1-1 (Section 1) "conclusively establish that the General Assembly considers the deputies and employees who work [for the Officials] to be employed by the Commissioners on behalf of [the] County." (Appellant's Br. p. 28).

A. Indiana Code § 36-2-2-18

UAW has presented an apparent issue of first impression regarding the interpretation of Section 18, which states, in part:

(a) The executive may employ a person:
(1) to perform a duty required of a county officer by statute; or
(2) on a commission or percentage basis; only if the employment is expressly authorized by statute or is found by the executive to be necessary to the public interest.

1.C. § 36-22-18. 'When a statute is unambiguous on its face, this court applies its clear and plain meaning. Ind. Mun. Power Agency v. Town of Edinburgh, 769 N.E.2d 222, 226-27 (Ind.Ct.App.2002). Where a statute is reasonably susceptible to multiple interpretations, we endeavor to effectuate the legislative intent and give credence to the statute as a whole. Id. We presume the General Assembly knows "of existing statutes in the same area" and will construe statutes relating to the same general subject matter "so as to produce a harmonious result." Schafer v. Sellersburg Town Council, 714 N.E.2d 212, 217 (Ind.Ct.App.1999), trans. denied. We further presume that the General Assembly intends statutory "language to be applied in a logical manner consistent with the underlying policy and goals of the statute." Public Employees' Retirement Fund v. Shepherd, 733 N.E.2d 987, 990 (Ind.Ct.App.2000).

UAW focuses on the phrase "only if the employment is expressly authorized by statute" and posits that, because statutes expressly authorize the Officials to appoint deputies and employees, the actual "authority to employ these deputies and employees is conferred on the Commissioners by [Section 18]." (Appellant's Br. p. 21). We disagree with UAW's reading of the statute and decline to find that such an interpretation is reasonable. See Ind. Pub. Emp. Ret. Fund v. Bryson, N.E.2d 374, 377-78 (Ind.Ct.App.2012), aff'd on reh'g, trans. demied. Finding no ambiguity, without enlarging or restricting its plain and obvious meaning, Section 18 clearly states that, in the absence of public necessity, a statute must explicitly authorize the Commissioners to employ a person.

If, as UAW claims, Section 13 afforded the Commissioners carte blancke power to fill any statutorily created position, other statutes in the same article and chapter-which identify specific jobs that the Commissioners may employ-would be superfluous. See, eg., .C. § 36-2-2-14 (county administrator); IC. § 36-2-2-80 (attorney); IC. § 36-2-16-10 (county animal disease control emergency coordinator). Also, a myriad of statutes that grant appointment power to other officers would be meaningless if, under Section 13, the Commissioners could usurp their hiring and firing authority. See I1.C. Ch. 836-2-16 (listing elected officials who may appoint deputies and other employees), Moreover, UAW's interpretation of Section 18 fails to contemplate the overall structure of the County government. The role of the Commissioners is to act as "a general overseer or manager." Roberts v. State ex rel. Jackson Cnty. Bd. of Comm'rs, 151 Ind.App. 83, 278 N.E.2d 285, 292 (1972). In this capacity, the Commissioners may exercise only the power "expressly conferred ... by the Constitution and the statutes of the state, or such powers as arise by necessary implication from those expressly granted, or such as are requisite to the performance of the duties which are imposed on it by law." Bd. of Comm'rs of Vanderburgh Cnty. v. Sanders, 218 Ind. 43, 30 N.E.2d 7183, 716 (1940). Accordingly, the Commissioners may employ personnel to manage the County's operation, but if a position statutorily reserved for a County officer's performance is not explicitly designated as employable by the Commissioners, Section 13 curtails the Commissioners' employment authority unless justified by public necessity.

B. Indiana Code § 5-)-1-1

UAW further claims that the language of Section 1 establishes that deputies are employees of the County. Section 1 requires all officers and deputies to take an oath affirming they will "faithfully discharge the duties" of the office. I.C. § 5-4-1-1(a). Section 1 also states:

(c) This subsection applies to a deputy of a political subdivision. An individual appointed as a deputy is considered an employee of the political subdivision performing ministerial functions on behalf of an officer and is not required to take the oath preseribed by subsection (a) However, if a chief deputy assumes the duties of an office during a vacancy under IC 3-13-11-12, the chief deputy must take the oath required under subsection (a) before entering on the official duties of the office.

I.C. § 5-4-1-1(c) (Appellant's emphasis). The trial court concluded that Section 1

does not vitiate the more specific statutes giving employment authority to the independent elected officers. Instead, it was passed as part of legislation declaring that deputies of officers of a political subdivision do not hold a "lucrative office" under Article 2, Section 9 of the Indiana Constitution. ... [It is an insufficient basis on which to conclude that the General Assembly intended that the deputies and employees of elected officers are "employees" of the Commissioners for all purposes.

(Appellant's App. p. 19 (internal citation omitted)). We agree with the trial court.

It is well-established that "[a]) statute should be examined as a whole, avoiding excessive reliance upon a strict literal meaning or the selective reading of individual words." State v. Oddi-Smith, 878 N.E.2d 1245, 1248 (Ind.2008). Here, UAW relies on "just one sentence of a more complex statute" that has been isolated in context. Warrick Cnty. Comm'rs v. Warrick Cnty. Council, 706 N.E.2d 579, 580 (Ind.Ct.App.1999), trans. denied. Based on the context of the surrounding provisions, Section 1 simply serves to set forth the oath and bond requirements for various categories of public employees. We find nothing to indicate that Section 1 was intended to identify the County as the ultimate employer of the deputies of all elected officers.

In its reply brief, UAW claims Section 1 is unambiguous, and "the alleged 'foeus' of [Section 1] cannot contravene its plain language." (Appellant's Reply Br. p. 12). We find no merit to UAW's plain language rationale because Section 1(a) clearly states that the oath is required of "every officer and every deputy," and Section 1(c) very plainly pertains to those who are employed by the County as opposed to appointed by an officer. It is a longstanding presumption that the General Assembly does not intend statutory language "to be applied illogically or to bring about an unjust or absurd result." City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind.2007). Adopting UAW's interpretation would render Section 1(a) and 1(c) redundant, and, as we have established, the County is authorized to hire employees to carry out the management of county government and may also make appointments under limited cireumstances. Accordingly, the logical interpretation of Section 1 is that an "employee of the political subdivision" refers to one hired by the County to perform "ministerial jobs that would be performed without contravention of the statutes" and are necessary for the "maintenance of certain county functions." Roberts, 278 N.E.2d at 291-92.

We find further absurdity in UAW's contention that an excerpt from Section 1 carries greater significance than the words of numerous other statutes which state the deputies and employees actually belong to the officer. See, eg., 1.0. § 86-2-2-5(a)(2) ("[ElJach county officer ... shall prepare an itemized estimate of the amount of money required for the officer's ... office" including "the expense of employing deputies."); I.C. § 86-2-8-4 ("A county officer or a deputy or employee of a county officer is entitled to payment for services only after he has rendered those services." (emphasis added)). We thus conclude that Section 13 and Section 1 do not render the County the employer of the Officials' deputies and employees.

III. Independent Employment Decisions

Second, UAW asserts that the trial court erred in concluding that the CBA "improperly impinges" on the Officials' independence. (Appellant's Br. p. 29).

A. County's Employment Authority

UAW first posits that Section 13 and Indiana Code section 36-1-4-14 (Section 14) which states the County "may hire and discharge employees and establish a system of employment for any class of employees based on merit and qualification"-together "confer the power to employ, hire and discharge deputies and employees of the Assessor and the Recorder to the Commissioners." (Appellant's Br. pp. 30-31). UAW disagrees with the trial court that the County functions as "little more than the landlord and payroll service." (Appellant's Br. p. 29). In response, the County Group claims that the Officials have "the right to appoint their employees. And by implication they then have the right to remove their employees." (Transeript p. 16).

By statute, the Assessor may "appoint the number of full-time or part-time deputies and employees authorized by the county fiscal body." I.C. § 36-2-16-8 (Section 8). Similarly, the Recorder "is entitled to appoint one (1) first or chief deputy, and also may appoint the number of other full-time or part-time deputies and employees authorized by the county fiscal body." 1.C. § 36-2-16-4 (Section 4). UAW understands these statutes to confer to the Officials only the power to "name official-1y" and maintains that Section 4 and Section 8 "do not negate the express authority conferred to the Commissioners through [Sections 1, 18, and 14]." (Appellant's Br. pp. 30-31). If the legislature had intended to grant to the Officials "unfettered independence and authority[,]" UAW insists that Section 4 and Section 8 would explicitly include a right to terminate. (Appellant's Br. p. 31). In contrast, the County Group claims that "the power to appoint would be meaningless without the concomitant power to discipline or remove the employee." (Appellee's Br. p. 18).

Although cited by neither party, we find a prior decision of our court particularly instructive. In Roberts v. State ex rel. Jackson County Board of Commissioners, 151 Ind.App. 88, 278 N.E.2d 285, 287-88 (1972), following the death of the county's elected surveyor, the board of commissioners requested that the deputy surveyor maintain operations in the office pending the surveyor's official replacement. Reasoning that the deputy's position had automatically terminated upon the surveyor's death, the county auditor refused to compensate the deputy. This court found that "lilt is elementary that there can be no deputy without there first being a principal; the principal being the duly elected, qualified and acting official of the county." Id. at 290.

The general and well-affirmed rule is that, in the absence of some statutory provision to the contrary, the commission or appointment of a deputy officer runs or continues only during the term of the officer making the appointment. Of course, in the absence of a statute to the contrary, the principal has the right, at his pleasure, to remove his deputy.

Id. (quoting Hord v. State, 167 Ind. 622, 79 N.E. 916, 922 (1907)). "If the principal officer is re-elected or reappointed for another term, his deputies must also be reappointed in order to continue them in office." Hord, 79 N.E. at 922 (holding Attorney General could not contract on behalf of the State to employ an assistant attorney beyond the Attorney General's own term). Our court concluded in Roberts that, because the board of commissioners had requested that the deputy keep the surveyor's office open out of necessity to the public interest-and the deputy spent two months doing only "ministerial things" without "pretend[ing] to be the County Surveyor"-the deputy was entitled to compensation as an employee of the county. Roberts, 278 N.E2d at 291-93.

In the present case, UAW ardently insists that the Commissioners, rather than the Officials, have the authority to appoint and discharge the deputies. We disagree. In Roberts, the deputy was found to be employed by the county only after the surveyor's death and only for the period of time that he acted -at the board of commissioners' behest to keep the office open in the public interest. The statute in-force in Roberts provided:

[Offficers may appoint deputies and other assistants as may be necessary for the proper discharge of the duties, and the number of such deputies and assistants shall be subject to the board of commissioners, both as to full and part time employment, and the board of commissioners shall make recommendations to the county council as to the amount of salary that each shall receive.

Id. This statute parallels Section 4 and Section 8, which enable the Officials to appoint as many "full-time or part-time deputies and employees" as the Council authorizes. I.C. §§ 386-2-16-4; 36-2-16-8. "To provide for independently elected officers but to deprive them of the ability to choose and supervise their own employees would render elections meaningless and convert the officers to mere department heads or functionaries" of the Commissioners. (Appellee's Br. p. 15). The Roberts court confirmed that the right to appoint and discharge generally belongs to the elected officer, but found the board of commissioners had appropriately acted to prevent burdening the public.

Observing both Roberts and the rule set forth by our supreme court in Hord, we conclude the Officials are independently empowered to appoint and discharge their own deputies at their discretion. Furthermore, we find that the Commissioners have the power to hire an officer's deputy in two instances: (1) a statutory provision "expressly authorize[s]" the Commissioners to make such an appointment; or (2) as in Roberts, the Commissioners determine that such employment is "necessary to [serve] the public interest." I.C. § 36-2-2-13(a).

B. Anti-Nepotism Statute

UAW next cites Indiana Code Chapter 36-1-20.2 (Anti-Nepotism Statute) as indicative of the lack of independence of the Officials with respect to their deputies. The Anti-Nepotism Statute prohibits counties from employing two related individuals where one would be directly supervised by the other and authorizes counties to implement a "more stringent" policy. I.C. §§ 36-1-20.2-9 to -10. UAW claims that the Officials conceded to the County's employment authority because, following the Commissioners' enactment of a more extensive anti-nepotism policy than the one promulgated by the General Assembly, the Assessor complied and terminated his children's employment.

The trial court concluded that the Anti-Nepotism statute "provides a very narrow exeeption that proves the general rule that in the absence of such express statutory authority, the county bodies lack the power to dictate to elected officials who they can hire and fire." (Appellant's App. p. 18). We agree. And while UAW fixates on the phrase that related individuals may not be employed by. the County, we find the focus of the statute is to prevent conflict of interest-related predicaments-not to partition the County from its Officials regarding the role of "employer." Furthermore, Section 16 of the Anti-Nepotism Statute and the County's policy both state that, annually, "[elach elected officer" must submit a written certification to the Commissioners, swearing "that the officer has not violated" the anti-nepotism mandate. (Appellant's App. p. 84 (emphasis added)). If, as UAW contends, the County is strictly the employer, this provision would be illogical because the County-not the officer-would be accountable to report hiring violations. Therefore, we conclude the Anti-Nepotism policy does not negate the fact that the power to appoint and discharge belongs to the Officials.

IV. Authority to Bind Elected Officials to CBA

Lastly, UAW asserts that the trial court erred by failing to conclude that the Commissioners and Council had the requisite authority to enter into the CBA to regulate the personnel policies affecting the Officials' deputies. The trial court concluded "that the CBA imposes impermissible restrictions on the ability of the . elected officers to select, discipline, remove, and direct the work of their deputies and employees." (Appellant's App. p. 17). UAW, however, argues that the CBA does not interfere with the ability of the Officials to manage their offices and should be enforced because the Commissioners and Council have inherent authority, "well-established under Indiana law[,]" to set the employment standards for all County deputies and employees. (Appellant's Br. p. 38). It is undisputed that the Commissioners may execute contracts on behalf of the County, and the Council may appropriate funds to control the number of deputies each officer may appoint. I.C. §§ 36-1-4-7; 36-2-5-3(b).-

We have already concluded that the Officials have complete discretion to hire and discharge their deputies and employees, subject to certain limitations imposed by State law. UAW submits that the CBA "simply establishes standards that create parameters within which the [Officials] must operate when making their employment-related decisions" and controls the County's liability because elected officers "cannot be expected to have a sophisticated knowledge of the multitude of applicable employment laws." (Appellant's Br. pp. 37-38). UAW relies on our court's holding in Nass v. State ex rel. Unity Team, Local 9212, 718 N.E.2d 757, 763-64 (Ind.Ct.App.1999), trans. denied, that it was "a reasonable exercise of the Governor's responsibility for the efficient operations of the executive branch of government" to issue an executive order allowing executive branch employees to join labor unions. UAW, however, fails to consider the important "technical point" we noted in Nass. Id. at 763. There, the Governor did not negotiate and sign an agreement that bound all executive branch employees to specific terms and conditions; his executive order simply "provided a framework by which collective bargaining could take place." Id. In actuality, the executive branch department heads negotiated the agreements for the employees in their departments. Id. In distinction, the Officials in the present case did not negotiate individual CBAs with UAW for their own deputies and employees.

We agree with the trial court that, unlike the policies in the County Personnel Handbook, which are "part and parcel of" general County management, the CBA obstructs the independence of the Officials to staff their offices as they deem best. (Appellant's App. p. 18). The CBA imposes a strict seniority system for hiring preferences, specifies the manner and duration of advertising vacant positions, and "encourages internal promotion and transfer of current employees." (Appellant's Supp. App. p. 85). The CBA also compels protracted disciplinary and grievance procedures that preclude an officer's ability to remove and replace a problematic employee in a timely and efficient manner. We conclude that the Commissioners and Council, by entering into the CBA, exceeded their authority and encumbered the Officials' right to appoint and discharge their deputies and employees.

CONCLUSION

Based on the foregoing, we conclude that the trial court properly issued summary judgment for the County Group because, as a matter of law, the Commissioners and Council had no authority to execute a CBA interfering with the independence of the Officials in appointing and discharging their deputies and employees.

Affirmed.

ROBB, C.J. and KIRSCH, J. coneur.

      . The three-member board of commissioners, as the county executive, ''is the corporate entity representing the county through which it acts[;]" as such, "in legal contemplation [it is] the county." Waldrip v. Waldrip, 976 N.E.2d 102, 118 (Ind.Ct.App.2012). Accordingly, all references to the County necessarily include the Commissioners and vice versa. See Ind.Code § 36-2-2-2.

      . The seven-member county council serves as the county's fiscal body. I.C. § 36-2-3-2.

      . On November 12, 2012, between the summary judgment hearing and the trial court's Order, Shelton resigned from her position as Recorder for reasons unrelated to this litigation. Pursuant to Indiana Trial Rule 25(F)(1), her successor, Linda Smith, was automatically substituted as the defendant.

      . At some point, the Assessor hired both his son and daughter. On June 20, 2012, the Commissioners adopted an anti-nepotism policy applicable "to any department, office or elected official of the County." (Appellant's App. p. 80). The Assessor's children were subsequently terminated.

      . In its brief, UAW mentions a grievance filed against the Recorder on behalf of another terminated deputy, Kelly Kean, but provides no further details or arguments regarding this matter.

      . It is important to note that the deputies of a county official are empowered to perform all of the duties of his or her appointing official, and the deputy's acts are attributed to the officer. I.C. § 36-2-16-3.


source: Caselaw Access Project

author: BROWN, Judge.

license: Public Domain

text:
    Ralph STOCKTON, Appellant, v. FALLS AUCTIONEERS AND REALTORS and Peggy Buck as Trustee of the Peggy Buck Trust, Appellees.
    No. 18A05-1304-CT-160.
    Court of Appeals of Indiana.
    Dec. 18, 2013.
    Rehearing Denied Feb. 14, 2014.

      Jason R. Delk, Delk MeNally LLP, Muncie, IN, Attorney for Appellant.
    Branch R. Lew, Andrew S. Williams, Fort Wayne, IN, Attorneys for Appellee, Peggy Buck as Trustee of the Peggy Buck Trust.
   OPINION

BROWN, Judge.

Ralph Stockton appeals the trial court's summary judgment ruling in favor of Peggy Buck as Trustee of the Peggy Buck Trost. Stockton raises one issue, which we restate as whether the court erred in granting summary judgment in favor of Buck. In addition, Buck raises the issue of whether Stockton's appeal is timely. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

On or about May 17, 2008, Stockton attended an auction conducted by Falls Auctioneers and Realtors ("Falls"). While inspecting a lawn mower which had been advertised for sale, Stockton's feet became caught in some chains which were lying on the ground and in the grass, causing Stockton to fall and break his hip.

On May 11, 2010, Stockton filed a complaint against Falls and Buck which alleged that, while inspecting a riding lawn mower at the auction conducted by Falls, his feet became entangled in a chain which was concealed in tall grass causing him to fall and break his hip, that Buck was the owner of the property at the time, that he was a business invitee of both defendants at the auction, that the defendants were negligent in failing to maintain the property in a reasonably safe condition, failing to discover a hazardous condition, failing to adequately warn invitees of the existence of a hazardous condition, and failing to do what reasonably prudent persons would ordinarily have done under the same circumstances, and that the defendants' neg-ligenee was the proximate cause of his injuries.

On July 13, 2012, Buck filed a motion for summary judgment together with designated evidence and a memorandum in support of the motion. Stockton filed a response and designation of evidence in opposition to summary judgment on September 7, 2012, and Buck filed a reply on September 24, 2012. The court held a summary judgment hearing on September 26, 2012. On October 5, 2012, the court entered an order granting Buck's motion for summary judgment. On March 5, 2013, following a jury trial against Falls as the remaining defendant, the jury found that Falls was not at fault, and the court accepted the verdict and entered an Order on Verdict and Judgment in favor of Falls.

On March 4, 2013, Stockton filed a Notice of Appeal which indicated the appeal was taken from a final judgment, that the date of the judgment/order being appealed was March 5, 2013, and that the title of the judgment/order being appealed was Order on Verdict and Judgment. The notice requested the court reporter to transcribe the hearings on Buck's motion for summary judgment held on September 26, 2012, and the jury trial conducted on March 5, 2013. On August 9, 2018, Stockton filed an Amended Notice of Appeal which indicated that the date of the judgment/order being appealed was "March 5, 2013/October 5, 2012" and that the title of the judgment/order being appealed was "Order on Verdict and Judgment/Order on Motion for Summary Judgment." Appel-lee's Appendix at 5.

DISCUSSION

Stockton argues that the trial court erred in entering summary judgment in favor of Buck. Buck argues that summary judgment was proper and also that Stockton's appeal is untimely.

L.

We first address Buck's contention that Stockton's appeal is untimely. As previously noted, the trial court entered an order granting Buck's motion for summary judgment on October 5, 2012, and following a jury trial an Order on Verdict and Judgment was entered on March 5, 2013. Stockton filed his initial notice of appeal on March 4, 2013, identifying the March 5, 2013 order as the order being appealed, and filed an amended notice of appeal on August 9, 2018, identifying the March 5, 2013 and October 5, 2012 orders as the orders being appealed.

Buck argues that Ind. Appellate Rule 9 requires the appellant to specify the date and title of the judgment or order being appealed and that Stockton's initial notice of appeal specified the trial court's March 5, 2018 order on verdiet and judgment only and did not specify the court's October 5, 2012 order granting Buck's motion for summary judgment. In his reply brief, Stockton argues that, consistent with this court's opinion in Trinity Baptist Church v. Howard, 869 N.E.2d 1225 (Ind.Ct.App.2007), trans. denied, his notice of appeal with respect to the final judgment was timely with respect to the trial court's interlocutory order granting summary judgment. Stockton also notes that his initial notice of appeal requested a tran-seription of the hearing on Buek's motion for summary judgment and thus that Buck was on notice that the summary judgment order was an issue on appeal. Stockton argues that the amended notice of appeal was a clarification that he desired to appeal only the interlocutory order and not the final judgment following the jury trial.

In Trinity, this court held that a claimed error in an interlocutory order is not waived for failure to take an interlocutory appeal and that, if a notice of appeal from a final judgment is filed, it is also timely as to the appeal of interlocutory orders entered before the final judgment. 869 N.E.2d at 1227. With respect to whether the trial court's October 5, 2012 order granting Buek's motion for summary judgment was final or interlocutory, we note that the order did not dispose of all claims as to all parties, that the court did not in writing expressly determine that there was no just reason for delay and direct entry of judgment as to less than all the issues, claims or parties, and that Buck does not point to authority to show that the order was otherwise deemed final by law. See Ind. Appellate Rule 2(H) (providing in part that a judgment is a final judgment if "it disposes of all claims as to all parties," the trial court "in writing expressly determines under ... Trial Rule 56(C) that there is no just reason for delay and in writing expressly directs the entry of judgment ... under Trial Rule 56(C) as to fewer than all the issues, claims or parties," or "it is otherwise deemed final by law"); Ind. Trial Rule 56(C) (stating in part that "[al summary judgment upon less than all the issues involved in a claim or with respect to less than all the claims or parties shall be interlocutory unless the court in writing expressly determines that there is no just reason for delay and in writing expressly directs entry of judgment as to less than all the issues, claims or parties"). Accordingly, the trial court's summary judgment order was an interlocutory order. In addition, the trial court did not certify the interlocutory order to allow an immediate appeal under Ind. Appellate Rule 14(B). Stockton's timely appeal from the final judgment is also timely as to the appeal of the October 5, 2012 interlocutory order. See Trinity, 869 N.E.2d at 1227; see also Stephens v. Irvin, 730 N.E.2d 1271, 1277 (Ind.Ct.App.2000) (recognizing the practical effect of the trial court's ruling dismissing a defendant party from the cause of action and denying the plaintiffs' request to add another defendant party was to end the litigation due to the fact there were no longer any viable defendants and holding that, "procedurally speaking, the cause of action had not con-eluded, in that there was no final judgment"), affd on reh'g, trans. denied. Stockton's notice of appeal was not untimely.

IL.

The next issue is whether the trial court erred in granting summary judgment in favor of Buck and against Stockton. Summary judgment is appropriate only where 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(c) Mangold ex rel. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 973 (Ind.2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmov-ant. Mangold, 756 N.E.2d at 978. Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. In reviewing a trial court's ruling on a motion for summary judgment, we may affirm on any grounds supported by the Indiana Trial Rule 56 materials. Catt v. Bd. of Commr's of Knox Cnty. T9 N.E.2d 1, 3 (Ind.2002). The entry of specific findings and conclusions does not alter the nature of a summary judgment which is a judgment entered when there are no genuine issues of material fact to be resolved. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind.1996). In the summary judgment context, we are not bound by the trial court's specific findings of fact and conclusions of law. Id. They merely aid our review by providing us with a statement of reasons for the trial court's actions. Id.

The Parties' Filings and the Designated Evidence

In her July 13, 2012 motion for summary judgment, Buck alleged that she was © not in control of the .property at the time of Stockton's fall and therefore did not have a duty to him. In her designation of evidence, Buck included her affidavit, portions of a deposition of Stockton, and an affidavit of Mike Rust, who held Buek's power of attorney, with an attached contract between Buck and Falls dated March 25, 2008. The contract stated that Buck would not "interfere, prevent, or prohibit [Falls] in any manner from carrying out [its] duties and obligations of this agreement...." Appellee's Appendix at 15.

In her designated affidavit, Buck states that she hired Falls to conduct an auction of her personal property located on the premises where Stockton's fall occurred, and that she: "never owned, possessed or controlled a chain on the premises," moved into assisted living not on the premises in October 2007, was no longer residing at the premises on May 17, 2008, had not been to the premises in the week before the auction, that she was not present on the premises on May 17, 2008, was not in possession or control of the property on that date, and did not participate in or control the auction of her personal property. Id. at 17. In the designated portions of Stockton's deposition he testified that he approached the lawnmower, walked around it, and that "[when I got around here some way I didn't see the chains, got caught right in here and it threw me over here into the driveway." Id. at 22. Stockton later testified "(als I walked around the lawnmower and my foot got hung in the chains, it just turned me around and I fell on my side." Id. at 28. When asked if there was anything that obstructed his view from looking at the ground where he was walking, Stockton answered "[n]jo," and when asked if he saw the chains after he fell, Stockton answered "[alfter I fell, and my foot got hung in them, and that's -the only time I ever seen them." Id.

In her memorandum in support of her summary judgment motion, Buck argued that whether a duty is owed to a plaintiff in premises liability depends on whether the defendant was in control of the premises when the accident occurred, and that the undisputed facts show that Falls was in control of the premises at the time. Buck argued that the contract between Buck and- Falls shows that Falls had exclusive control of the premises by contract, that Buck was not in a position to observe and remedy any potential dangers to Stockton, that Buck had not been present for the auction and had not been at the residence in over a week, that she had not resided at the residence for more than six months, and that ownership of the land alone is not sufficient for premises liability.

In his September 7, 2012 response in opposition, Stockton argued that whether a duty exists and the determination of control are typically questions of fact and that there is no evidence that Buck relinquished control over the condition and maintenance of the premises, including mowing the grass. In his affidavit, Stockton stated that he attended the auction largely for the purpose of potentially purchasing a lawn mower that had been advertised for sale in the newspaper, that, "[alfter briefly inspecting the lawnmower, I got my feet caught in some chains that caused me to fall on the driveway and break my hip," and that "Had the grass been maintained and mowed, I would have been able to see the chain and may have avoided being tripped." Appellant's Appendix at 38. Stockton further stated: "I am unsure of the exact length of the grass [] at the time of the incident. However, it had clearly not been mowed for some time and nonetheless prevented me from seeing the chains lying in the grass." Id. at 39. Stockton's position is that Buck failed to conclusively establish that she relinquished complete control to Falls and was unable to negate the existence of a duty to Stockton as an invitee on the property.

The Trial Court's Summary Judgment Ruling

On October 5, 2012, the trial court entered an order granting Buek's motion for summary judgment, which stated in part: "The Court will accept as true the assertion in [Stockton's] Affidavit that the grass in the yard was too long, and he could not see the chain and tripped on it" and noted that Buck's affidavit showed that she never owned, possessed, or controlled a chain. Id. at 12. The court found that Falls was in control of the land, that Buck is not liable for a dangerous condition that came into existence after Falls took possession, and that even if Buck had gone to her house on the morning of the auction she could not have mowed as she could not interfere with Falls's conduction of the auction at that point. The order further stated that Stockton did not designate evidence or cite case law that says a landowner has the duty to check his or her property a day or so prior to giving up control for an auction or other event, and that as a matter of law Buck did not owe a duty to Stockton.

Arguments on Appeal

On appeal, Stockton contends that possession and control of property generally is a question of fact involving occupation and intent to control, that the designated evidence reveals that his injuries were caused by both a chain and the dangerous length of the grass, that the contractual prohibition on Buck interfering with the auction had no bearing on the determination of whether a duty of care existed, and that nothing prohibited Buck from inspecting the premises prior to the auction and removing the dangerous condition of the lengthy grass.

Buck points to Stockton's testimony that he did not look in the grass where he was walking and could not say that he would have seen the chains had he looked, and that she had nothing to do with the placement of the chains, which was done entirely by Falls.

Discussion and Analysis

The tort of negligence has three elements: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; and (8) injury to the plaintiff resulting from the defendant's breach. Beta Steel v. Rust, 830 N.E.2d 62, 69 (Ind.Ct.App.2005) (citing Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind.2004)). Summary judgment is appropriate when the undisputed material evidence negates one element of a claim. Rhodes, 805 N.E.2d at 385. In the absence of the existence of a duty, there can be no negligence. Harris v. Traini, 759 N.E.2d 215, 222 (Ind.Ct.App.2001). Summary judgment is rarely appropriate in negligence cases. Beto Steel, 830 N.E.2d at 69. "This is because negligence cases 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." Id. (citing Rhodes, 805 N.E.2d at 387).

An owner of property generally is under a duty to keep the property in a reasonably safe condition for business invitees and has an affirmative duty to - exercise ordinary care to keep the property in a reasonably safe condition coextensive with the purpose and intent of the invitation. Id. at 70; see Harris, 759 | N.E.2d at 225 ("The thread through the law imposing liability upon occupancy of premises is control. Only the party who controls the land can remedy the hazardous conditions which exist upon it and only the party who controls the land has- the right to prevent others from coming onto it. Thus, the party in control of the land has the exclusive ability to prevent injury from occurring.") (citations, internal quotation marks, and brackets omitted). This court has stated:

"In premises liability cases, whether a duty is owed depends primarily upon whether the defendant was in control of the premises when the accident occurred." Rhodes, 805 N.E.2d at 385. The rationale behind this rule "is to subject to liability the person who could have known of any dangers on the land and therefore could have acted to prevent any foreseeable harm." Id. "Generally, whether a duty exists is a question of law for the court to decide." Id. at 386. Sometimes, however, the existence of a duty depends upon underlying facts that require resolution by the trier of fact, and this may include questions regarding who controlled property at the time and place of an accident. See id. Possession and control-of property for premises liability purposes has been described as a question of fact involving . occupation and intent to control the particular area where the injury occurred. Crist v. K-Mart Corp., 653 N.E.2d 140, 145 (Ind.Ct.App.1995).

Beta Steel, 880 N.E.2d at 70. In addition, "[aletual physical possession of property at the precise moment an accident happens is not always dispositive on the question of control for premises liability purposes, if there was evidence that another party was in a better position to prevent the harm that occurred." McCraney v. Gibson, 952 N.E.2d 284, 288 (Ind.Ct.App.2011) (citation omitted), trans. denied.

In Rhodes, Gurtz, a truck driver for Tyson Foods, was struck and killed by a forklift while at Wright Brothers Farm. 805 N.E.2d at 384. The defendants owned the farm and raised chickens under a contract for Tyson, and the accident occurred while Tyson employees were at the farm collecting chickens. Id. The lights in the chicken houses were off and the outside of the chicken houses did not have any lighting to illuminate the loading area, and neither the backup lights nor the backup alarm on the forklift were working. Id. at 384-385. Gurtz's estate sued Wright Brothers Farm, and the trial court granted summary judgment in favor of Wright Brothers Farm. Id. at 385. This court affirmed summary judgment for the defendants in part because it found that they did not owe a duty to Gurtz because they did not exert control over the area where the accident occurred when it occurred, basing its conclusion on the contract between Tyson and the defendants. Id.

On transfer, the plaintiffs argued that the Court of Appeals erred in using the contract between Tyson and the defendants instead of Indiana law to determine if the defendants owed a duty to Gurtz. Id. The Indiana Supreme Court held that the plaintiffs were "correct that Indiana law governs whether Defendants owed a duty to Gurtz," that the Court of Appeals "placed too much emphasis on the contract between Tyson and Defendants in determining that no duty existed," that "[the contract aids in understanding the business relationship between Tyson and Defendants, but that is all," and that "[a] person cannot limit his or her tort law duty to third parties by contract." Id. The defendants argued that at the time Gurtz was killed, Tyson controlled the land, so only Tyson could be held responsible for harm to its employees. Id. at 386. The Court held that there was a sufficient factual dispute about whether Tyson or the defendants controlled the premises where and when the accident occurred that a jury should decide the question. Id. The Court also held:

Furthermore, even if Tyson controlled the premises while it caught chickens, that would not automatically relieve Defendants of responsibility for injuries to Tyson's employees. Defendants have always controlled the external lighting. Tyson provided its contract growers with specifications for building the chicken houses, but Tyson never prescribed any procedure for external lighting around the chicken houses. It neither required nor forbid the installation of external lights.... The lack of lighting may have contributed to the accident....
Because the facts are in dispute as to whether Tyson or Defendants controlled the area where the accident occurred at the time it occurred and because Defendants controlled the external lighting that may have contributed to Gurtz's death, summary judgment is inappropriate on this issue.

Id. at 386-387.

Here, in considering whether Buck retained control of the area of Stockton's fall for the purpose of duty we observe that the March 25, 2008 contract between Buck and Falls does not provide or purport to provide that Buck surrender possession and control of the premises to Falls or that such a surrender would result in Falls being responsible for the condition of the premises. There is no language in the contract and no other designated evidence which suggests that Falls agreed to mow the grass or otherwise maintain, check, or be responsible for certain or all conditions which may have existed on all or part of the premises or that Buck was in part relieved, by virtue of the contract or auction, of the duty of a landowner to keep the property in a reasonably safe condition coextensive with the purpose and intent of an invitation for persons to come on the property. The contract did not prescribe any procedures regarding grass mowing. See Rhodes, 805 N.E.2d at 386 (noting the agreement never prescribed any procedure for external lighting). Consistent with the Court's comments in Rhodes, the contract "aids in understanding the business relationship between" Buck and Falls, "but that is all." See id. at 385. The contract did not relieve Buck of any duty she may have owed to third parties but only provided that she would not interfere with the auction of her personal property. We also observe that the contract and the other designated evidence does not show when Falls took possession of the premises to conduct the auction-that is, whether Falls arrived at the premises on the day of the auction or on an earlier date.

In addition, while Buck may not have controlled or directed the placement of the chains and although Stockton may not have looked in the grass where he was walking, the designated evidence demonstrates that there is a question of fact regarding whether Stockton's fall was caused, at least in part, by the length of the grass. In his affidavit, Stockton stated: "Had the grass been maintained and mowed, I would have been able to see the chain and may have avoided being tripped," and that the grass "clearly not been mowed for some time" and "nonetheless prevented me from seeing the chains lying in the grass." Appellant's Appendix at 38-39.

Further, while Buck stated in her affidavit that she had moved into an assisted living facility in October 2007 and that she had not been to the premises in the week before the auction, there is no designated evidence which suggests Buck was unable to have the grass mowed prior to the date of the auction in order to remove any dangerous condition which may have existed or keep the property in a reasonably safe condition coextensive with the purpose and intent of the invitation. There is a sufficient factual dispute regarding control of the condition of the premises and in particular the length of the grass that a trier of fact should decide the question. See Rhodes, 805 N.E.2d at 386 (holding that there was a sufficient factual dispute about whether Tyson or the defendants controlled the premises where and when the accident occurred that a jury should decide the question); Beta Steel, 830 N.E.2d at 71 (noting that "(allthough Hyre had effectively taken over the electrical control room at the time of Brian's death and purportedly controlled how the work would be performed, Beta had been fully responsible for the installation of the electrical control cabinet on which he stepped"). Furthermore, the designated evidence shows that the nature of the auction was such that individuals were expected to walk in close proximity to the items such as the lawn mower. See Beta Steel, 830 N.E.2d at 71 (noting that the "[the nature of the job requested by Beta. required persons to work in close proximity to and above this cabinet").

CONCLUSION

There are questions of fact regarding whether Stockton's fall was caused in part by the length of the grass and whether Buck controlled the length of the grass. It cannot be said as a matter of law that Buck owed no duty to Stockton and Buck was not entitled to summary judgment on this basis.

For the foregoing reasons, we reverse the trial court's order granting Buek's motion for summary judgment and remand for further proceedings.

Reversed and remanded.

NAJAM, J., and MATHIAS, J., concur.

      . Additional facts as set forth in the parties' designated evidence will be discussed in Part II below.

      . As noted by Buck, we recognize that the date of the initial notice of appeal was March 4, 2013, one day before the March 5, 2013 Order on Verdict and Judgment. An entry in the chronological case summary on March 8, 2013, indicates that Stockton filed a notice of appeal. The notice identifies the March 5, 2013 order as the order being appealed, and Buck does not argue or point to authority to show that the initial notice of appeal was untimely as to the March 5, 2013 order.

      . Buck and the trial court in its summary judgment order cite to Reed v. Beachy Const. Corp., in which the trial court granted summary judgment to the Johnsons as home owners, finding that they did not have control of the construction of the deck upon which an accident occurred. 781 N.E.2d 1145, 1147 (Ind.Ct.App.2002), trans. denied. On appeal, the court noted that the undisputed facts were that the Johnsons owned the home where the accident occurred, had moved only a few miscellaneous items into the home, and had not moved in the rest of their personal property, and it was undisputed that the Johnsons had agreed to postpone possession of the property until after a home show at the builder's request. Id. at 1149. The court found that the Johnsons owned the property but were neither in possession nor control of the © premises during the home show and noted that the simple fact of ownership is not necessarily dispositive of the question of possession or control and the duty that arises therefrom. Id. at 1150. The court held that "[blecause the Johnsons postponed possession of the premises and surrendered control of it to [the builder] for purposes of the tour, they did not control the premises to the extent a duty to Reed arose." Id. In this case, unlike in Reed, the designated evidence does not demonstrate that Buck was not in possession and control of the premises prior to the auction or prior to permitting Falls to conduct the auction on the premises. We find the designated evidence in Reed to be distinguishable from the designated evidence in this case.


author: BAILEY, Judge.

text:
    Brittney WATSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 71A03-1303-CR-91.
    Court of Appeals of Indiana.
    Dec. 19, 2013.

      Marielena Duerring, South Bend, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Joseph Y. Ho, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Brittney Watson ("Watson") appeals her conviction for Murder, a felony, presenting the sole issue of whether sufficient evidence supports the conviction. We affirm.

Facts and Procedural History

During the evening of November 29, 2010, Watson, Cornelius Miller ("Miller"), and several other individuals were involved in a confrontation in a parking lot in South Bend. Watson called Miller a "rapist" because of his alleged internet posting of nude photos of Watson's friend. (Tr. 327.) Miller responded by punching Watson in the face several times. Miller's girlfriend, Ashley Shaw ("Shaw"), then engaged in a fistfight with Watson for "about five minutes." (Tr. 329.) Shaw and Miller got into Shaw's vehicle to leave, but Watson attempted to jump on top of the moving vehicle. Shaw drove her vehicle into Watson.

Witnesses heard Watson make threats, including: "somebody is going to die" and "I'm going to have my brothers and them come down here and kill your b- a-. I'm going to have them shoot your £ g house up." (Tr. 62, 78.) Upon leaving, Watson telephoned the father of her child, Steven Rice ("Steven"), and Steven's brother, Stephon Rice ("Stephon"), to report that she had been beaten.

Approximately two hours later, Steven and Stephon appeared at the home where Watson was staying. Both were armed. Stephon was accompanied by his mother's boyfriend, Rene Vasquez ("Vasquez") and Steven was accompanied by his cousin, Brandon Rogers ("Rogers"). The brothers, Watson, and Rogers discussed "going to fight" Miller. (Tr. 279.) Stephon expressed his intention to kill Miller.

At some point, Stephon observed a parked vehicle and approached it. Apparently believing that Watson's assailant was inside, Stephon confronted the passengers, saying: "I'm going to kill everybody. Somebody is going to die tonight." (Tr. 302.) Watson stopped him, protesting that he had targeted the wrong man.

Watson left in a vehicle with Steven and Rogers; Stephon and Vasquez followed. Watson directed the men to the residence shared by Miller and Shaw. At the apartment, she urged the brothers, "You all better do what we came here to do." (Tr. 303.) Although she expressed an interest in going inside to "fight a girl who was in the house," Watson ultimately remained in the vehicle. (Tr. 304.) When Miller answered his door, Steven and Stephon fired multiple shots at him. Miller was struck twice and killed. Watson fled the scene.

Watson was charged with Miller's murder. At trial, the State's theory was that Watson acted as an accomplice. She was convicted as charged and sentenced to fifty years imprisonment, with five years suspended to probation. This appeal ensued.

Discussion and Decision

Watson was convicted of violating Indiana Code section 35-42-1-1, which provides that a person who knowingly or intentionally kills another human being commits murder. When reviewing a claim of insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses, but will consider only the probative evidence and reasonable inferences supporting the judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). We will affirm the conviction unless no reasonable fact-finder could find the elements of the erime proven beyond a reasonable doubt. Id.

Watson claims that there is insufficient evidence to support her conviction because the State failed to establish the requisite element of intent. More specifically, Watson argues that when the State alleges the commission of murder by aiding or abetting, a knowing mens rea is insufficient and the State must prove that the defendant acted with the specific intent that the victim be killed. We disagree with Watson's contention that the State bore a heightened burden of proof as to intent because Watson was an accomplice and not the actual shooter.

Under the accomplice liability statute, "[a] person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense...." Ind.Code § 35-41-24. Our supreme court has noted that "there is no separate crime of being an accessory to a crime or aiding and abetting the perpetrator of a crime; rather, a defendant may be convicted as a principal upon evidence that he aided or abetted in the perpetration of the charged crime." Sanquenetti v. State, 727 N.E.2d 487, 441 (Ind.2000). An actor who would have been considered an accessory under the common law now vicariously commits the actual offense. Id. That is, even where the court or jury utilizes the accomplice liability statute to determine guilt, the individual is considered to have been convicted on the weight of his or her own action, and the individual who aids another person in committing a crime is as guilty as the actual perpetrator. Id.

Watson directs our attention to Bethel v. State, 730 N.E.2d 1242, 1246 (Ind.2000), in which our supreme court reversed convictions for aiding attempted murders due to insufficiency of the evidence to prove that Bethel had the specific intent to kill the victims. The Bethel Court relied upon Spradlin v. State, 569 N.E.2d 948, 950 (Ind.1991) for the "well-settled" proposition that a conviction for attempted murder requires proof of specific intent to kill, and concluded:

[Tjo conviet for the offense of aiding an attempted murder, the State must prove: (1) that the accomplice, acting with the specific intent to kill, took a substantial step toward the commission of murder, and (2) that the defendant, acting with the specific intent that the killing occur, knowingly or intentionally aided, induced, or caused the accomplice to commit the crime of attempted murder.

Bethel, 730 N.E.2d at 1246.

Here, however, the jury need not have found-consistent with Spradiin-that Watson must have~possessed the specific intent to kill Miller. The State alleged the commission of a completed murder as opposed to an attempted murder. "The defendant must have had the specific intent to commit murder in order to be found guilty of attempted] murder. There is no comparable requirement for the murder charge." Echols v. State, 722 N.E.2d 805, 808 (Ind.2000). See also Garrett v. State, 714 N.E.2d 618, 622 (Ind.1999) (observing that the requirement of a specific intent to kill applies only in attempted murder cases, and not in murder cases where the defendant may be convicted upon a showing of either an intentional or knowing killing).

As to an accomplice, he can be found guilty of murder if he either knew or intended that the victim would be killed by a principal. For example, in Taylor v. State, 840 N.E.2d 324, 336-87 (Ind.2006), an appeal from the denial of a post-convietion petition challenging an accomplice murder conviction, our supreme court observed: "If Taylor knowingly or intentionally aided and abetted Bowling to kill Anderson, Taylor can be found guilty of murder so long as (1) Bowling killed Anderson and (2) Taylor knew or intended that Anderson would be killed." The Taylor Court explicitly held: "a defendant can be guilty as an accomplice even if the principal does not act 'knowingly or intentionally." " Id. at 328.

In determining accomplice liability, the fact-finder can consider factors including: (1) presence at the scene of the crime; (2) companionship with another engaged in a crime; (3) failure to oppose the commission of the crime; and (4) the course of conduct before, during, and after the occurrence of the crime. Wieland v. State, 736 N.E.2d 1198, 1202 (Ind.2000). A defendant's presence during the commission of the erime or his failure to oppose the crime, standing alone, are insufficient to establish accomplice liability; however, a fact-finder may consider them along with the defendant's course of conduct and his companionship with the one who commits the crime. Echols, 722 N.E.2d at 807.

The probative evidence supporting Watson's conviction includes the following. After Watson was beaten by Miller, she told Carlia Wells, the mother of Miller's children: "I'm going to have my brothers come back and kill your baby daddy." (Tr. 330.) Other witnesses heard similar threats. Watson immediately placed calls to Steven and Stephon, who then arranged rides to South Bend. Watson told her friend, Jarika Studway, that the brothers were on their way and "bringing their .9s with them." (Tr. 31.) Watson was present when Stephon threatened to kill Miller; she did not oppose the plan to kill Miller and in fact subsequently spoke up to stop Stephon from shooting the wrong man. Ultimately, Watson directed the armed men to Miller's residence and urged them to "do what we came here to do." (Tr. 303.) According to one of the State's witnesses, Watson appeared "glad" when she received a telephone call and told the caller that Miller had been killed. (Tr. 292.)

From the foregoing, the jury could have determined beyond a reasonable doubt that Watson either knew or intended that Miller would be killed and acted in concert with Steven and Stephon to accomplish the deed. The evidence is sufficient to support her conviction for Murder.

Affirmed.

BAKER, J., and NAJAM, J., concur.

      . We held oral argument in this case on December 2, 2013, at New Palestine High School in New Palestine, Indiana. We wish to thank our host and commend counsel for their able advocacy.


author: SHEPARD, Senior Judge.

text:
    In the Matter of the ESTATE OF Stephen T. HANNEBAUM, Deceased, Renada Fay Hannebaum, Appellant, v. Mary Rebecca Hannebaum and Stephen T. Hannebaum, II, as Personal Representatives of Estate of Stephen T. Hannebaum, Appellees.
    No. 81A05-1301-ES-17.
    Court of Appeals of Indiana.
    Dec. 19, 2013.

      J. Clayton Miller, Jordan Law, LLC, Richmond, IN, Attorney for Appellant.
    Jamie H. Harvey, Smith Harvey Law Office, Connersville, IN, Attorney for Ap-pellees.
   OPINION

SHEPARD, Senior Judge.

Under Indiana's probate law, a spouse who has voluntarily left the marital residence and engaged in an adulterous relationship is barred from inheritance by intestacy. In this case, the issue is what evidence suffices to invoke this disqualification.

FACTS AND PROCEDURAL HISTORY

Stephen T. Hannebaum and Renada Fay Hannebaum were married in June 2002. On August 1, 2007, Renada moved out of the marital residence and began dating Doug Wilson. Renada filed a petition for dissolution in October 2007, but her divoree from Stephen was never finalized. Stephen died intestate on April 3, 2011.

Renada paid Stephen's funeral expenses, and she subsequently petitioned the court to open a supervised estate and name her personal representative. Stephen's mother Mary and his son Stephen II filed an objection to the appointment of Renada. Following a hearing, the court appointed Mary and Stephen II as personal representatives. Renada then filed a motion indicating her desire to be considered an heir of Stephen's estate. The court held a hearing to determine heirship and in due eourse it issued an order finding that Re-nada had forfeited her right to inherit from Stephen's estate.

ISSUE

Renada claims on appeal that the evidence did not establish either of the conditions necessary to exclude her as an heir to Stephen's estate.

DISCUSSION AND DECISION

Many American jurisdictions adopted the rule that prevailed in England at least since the reign of Edward I-that someone who voluntarily leaves a spouse and is living in adultery with another person when that spouse dies may not inherit through the laws of intestacy. Indiana embraced this policy no later than the Revised Statutes of 1852. 1 R.S. Chapter 27, §§ 32, 38. The present version of the Indiana statute says:

If either a husband or wife shall have left the other and shall be living at the time of his or her death in adultery, he or she as the case may be shall take no part of the estate or trust of the deceased husband or wife.

Ind.Code § 29-1-2-14 (2005).

The history and meaning of this statute was thoughtfully explored early on in an opinion by Justice Elliott. See Shaffer v. Richardson's Adm'r, 27 Ind. 122 (1866). More recently, Judge Friedlander has helpfully traced the decisions issued during the intervening decades. In re Estate of Patrick, 958 N.E.2d 1155 (Ind.Ct.App.2011), trans. denied. The short of the matter for present purposes is that to deny a surviving spouse an inheritance, the estate must establish that the surviving spouse (1) was living in adultery at the time of the deceased's death and (2) voluntarily abandoned the deceased spouse. See id. at 1158-59.

In resolving the present dispute, the trial court sua sponte entered findings of fact and conclusions of law. When the trial court enters findings and conclusions without being asked or required to do so, the specific findings control only as to the issues they cover, while a general judgment standard applies to any issues upon which the court has not made findings. In re Estate of Powers, 849 N.E.2d 1212, 1216 (Ind.Ct.App.2006). We will reverse the judgment only when it is shown to be clearly erroneous, i.e., when it is unsupported by the findings of fact and the conclusions entered on those findings. Id. With the benefit of the foregoing cases and this standard of review in mind, we proceed to the two points on which Renada claims the evidence is inadequate.

A. iving in Adultery ?

Renada admits to dating Doug Wilson after she left Stephen and to spending some nights alone with him at his residence. Tr. pp. 6, 7; Appellant's Br. p. 7. She alleges, however, that there was no evidence presented that she was in a sexual relationship with Wilson at the time of Stephen's death.

The fact of sexual relations must usually be inferred from the circumstances in adultery cases because "direct proof of sex acts between the parties is virtually impossible to produce." Oliver v. Estate of Oliver, 554 N.E.2d 8, 11 (Ind.Ct.App.1990). Thus, an adulterous relationship may be inferred from circumstantial evidence establishing an opportunity for such conduct. Id.

The evidence Stephen's estate cites in support of the finding that Renada was living in adultery when Stephen died in April 2011 was: (1) Renada's confirmation that she began dating Doug Wilson "after [she] left Stephen" in August 2007, (2) her agreement during trial that she "spent some nights at Mr. Wilson's residence alone with him," and (8) testimony from a private investigator who observed Renada three months after Stephen died entering Wilson's residence through the garage by punching in a code at the door. Tr. pp. 6, 7, 12-14.

The first two items on this list of the pertinent evidence, identified as to date only as being sometime after August 2007, offered only the slightest hint at whether Renada was sexually involved with Wilson at the time Stephen died on April 3, 2011. Similarly, if the private investigator's testimony about Renada's comings and goings three months after the death stood alone, it might well not be probative on the question of adultery on the day of Stephen's death.

The three pieces of evidence together, though, suggest a continuing behavior that we conclude is sufficient to sustain the trial court's finding of an adulterous relationship between Renada and Wilson in April 2011.

B. Voluntary Departure ?

Although the parties do contest the finding on adultery, their arguments focus primarily on abandonment. "Voluntary abandonment" in the context of Indiana Code section 29-1-2-14 means that the departing spouse intended a permanent separation rather than a temporary one, and that the deceased spouse neither agreed to the separation nor caused it. See Inmn.re Estate of Patrick, 958 N.E.2d at 1160.

Renada asserts that she did not voluntarily abandon Stephen; rather, she maintains that she fled the marital home to escape domestic abuse. The trial court's judgment, however, rests in substantial part on finding that the only identified instance of abuse occurred after Renada had already moved out of the marital residence.

At the hearing, Renada testified unequivocally that she moved from the marital residence on August 1, 2007. Her counsel argued, as he does on appeal, that Stephen committed battery before Renada moved out of the residence and that this battery was the cause of her moving out. Renada's counsel asked the trial court to take judicial notice of its own record in cause number 81C01-0709-CM-239, the criminal case arising from Stephen's battery upon Renada.

On appeal, the Estate has included in its appendix some of the documents of which the trial court presumably took judicial notice in cause number 81C01-0709-CM-239. The affidavit of probable cause for that proceeding and its attached Exhibit A show that the battery occurred on September 9, 2007, at 508A Harbor Court in Liberty, Indiana. These documents indicate that this address was Renada's place of residence at the time and that Stephen's address was 2605 West Snake Hill Road in Liberty. If there were any other acts of violence, the record does not establish them, either through documentary evidence or Renada's testimony. Based upon this evidence, the trial court properly found that Renada voluntarily abandoned Stephen. As for whether Renada left Stephen permanently rather than temporarily, we think that a court can find permanent departure where, as here, a spouse leaves the marital residence, files for dissolution, and remains away for roughly four years, notwithstanding the fact that a final decree of dissolution had not been issued.

CONCLUSION

We therefore affirm the trial court's judgment.

MATHIAS, J., concurs.

ROBB, C.J., concurs in result.