author: Bailey, Judge.

text:
    ELWAY COMPANY, LLP, Dale K. Elrod, Jeffrey L. Elrod, and Mary Ann Waymire, Appellants-Plaintiffs/Counterclaim Defendants, v. CHAMPLAIN CAPITAL PARTNERS, L.P., Appellee-Defendant/Counterclaim Plaintiff.
    Court of Appeals Case No. 18A-CC-443
    Court of Appeals of Indiana.
    FILED October 26, 2018 Rehearing denied January 4, 2019
    Attorneys for Appellants: Richard A. Kempf, Paul T. Deignan, Thomas F. O'Gara, Taft Stettinius & Hollister LLP, Indianapolis, Indiana
    Attorneys for Appellee: Jenny R. Buchheit, Eileen P.H. Moore, Adam D. Zacher, Ice Miller LLP, Indianapolis, Indiana
   Bailey, Judge.

Case Summary

[1] Elway Company, LLP, ("Elway Company") and siblings Dale K. Elrod ("Dale"), Jeffrey L. Elrod ("Jeffrey"), and Mary Ann Waymire ("Mary Ann") (collectively and at times taken together with Elway Company, "the Elrod Plaintiffs") appeal a grant of summary judgment in favor of Champlain Capital Partners, L.P. ("Champlain") upon remand from an appeal of prior litigation related to eight construction projects ("the Bonded Projects") covered by a Bonding Collateral Agreement ("the Agreement") executed by the Elrod Plaintiffs and Safeco Surety ("Safeco"), now Liberty Mutual Insurance Company. We remand "to permit the introduction of evidence so that the trial court may consider and rule on whether the various projects from which bond claims arose ... were completed within the scope of the meaning of completion as set forth by the Agreement." Champlain Capital Partners, L.P. v. Elway Co., LLP , 58 N.E.3d 180, 201 (Ind. Ct. App. 2016), trans. denied (" Champlain I ").

Issues

[2] The Elrod Plaintiffs present for our review three consolidated and restated issues:

I. Whether the law-of-the-case doctrine should be discarded under the circumstances of this case;
II. Whether the trial court improperly granted summary judgment upon its determination that all bonded projects were complete, thereby triggering the reimbursement provision of the Agreement; and
III. Whether prejudgment interest was properly awarded.

Facts and Procedural History

[3] In 2004, Dale, Jeffrey, and Mary Ann were majority shareholders in the John K. Elrod Company ("JKE"), a business involved in construction of stadium seating and safety barriers. See Champlain I . In 2005, Champlain, a Delaware investment firm focused on small business acquisition and growth, acquired JKE in a leveraged buyout. The Elrod siblings were then minority shareholders.

[4] Before and after the leveraged buyout, JKE obtained its performance, payment, and supply bonds from Safeco. After the buyout, Safeco determined that it would no longer accept personal indemnities from a family member and instead demanded $3.5 million collateral in the form of an irrevocable letter of credit ("ILOC"). See id. The Elrod siblings agreed to loan $3.5 million to JKE from the proceeds of the sale of the business to Champlain. The ILOC was placed with Fifth Third Bank.

[5] JKE's finances became unstable and Fifth Third Bank moved JKE's loans to a workout division in anticipation of foreclosing on the loans. See id. at 186. During July and August of 2006, the Elrod Plaintiffs, Champlain, JKE's lenders, and other minority shareholders in JKE negotiated a transaction to restructure JKE's finances. The Elrod Plaintiffs contributed several million dollars in capital to JKE, and Elway Corporation acquired, with the Elrod funds, certain JKE assets, thereby contributing $4.7 million to JKE. Safeco released the $3.5 million ILOC, replaceable by a $3.5 million ILOC using capital from Champlain ("the Substitute LOC").

[6] With JKE on more solid financial footing, its goal was to expand its business to include larger jobs. For this, JKE needed to increase its bonding limits with Safeco. To address the availability of collateral so that Safeco would increase JKE's bonding limits, the restructuring transaction included the Agreement. The Agreement required Champlain to provide the Substitute LOC in a value not to exceed $3.5 million and this had been done before the Agreement was executed. The Agreement also required the Elrod Plaintiffs to provide collateral not to exceed $3.5 million to Safeco, but the terms did not include a time limit. See id. at 186-87.

[7] By mid-October of 2006, JKE's cash flow situation was dire, and it defaulted on lease payments to Elway Company. On October 16, 2006, Champlain, as the majority shareholder, placed JKE into liquidation bankruptcy proceedings. JKE ceased performance on the Bonded Projects. Consequently, Safeco acted to draw down the funds in the Substitute LOC. See id. at 188. Safeco placed the $3.5 million into a bank account to use for paying claims against bonds Safeco had issued on JKE's behalf. Safeco used all but $591,023.98 of funds from the Substitute LOC to reimburse itself for claims against JKE bonds and pay expenses associated with bond claims and litigation. Eight construction project owners had potential bond claims: Michigan International Speedway ("MIS"), Darlington Raceway, Watkins Glen, Maine Township High School, Kewanee School, Rialto School, Speedway Bid, and Speedway Grandstand.

[8] Champlain demanded reimbursement from the Elrod Plaintiffs for the Safeco draw-down of funds, but the Elrod Plaintiffs disputed the demands. On December 22, 2010, the Elrod Plaintiffs filed a declaratory judgment complaint, alleging that their obligations under the Agreement were limited to payments made from the Substitute LOC for defaults on only performance bonds. Champlain filed a counterclaim, alleging that the Elrod Plaintiffs had breached the terms of the Agreement by failing to post an additional $3.5 million in collateral and by withholding reimbursement for claims paid related to the Bonded Projects. In addition to alleging breach of contract, Champlain asserted claims of unjust enrichment and breach of an implied covenant of good faith and fair dealing.

[9] The parties filed cross-motions for summary judgment, and the trial court granted partial summary judgment to the Elrod Plaintiffs, concluding that the Agreement applied only to performance bonds and that an unjust enrichment claim could not proceed when the rights of the parties were controlled by a contract. Champlain requested reformation of the Agreement on grounds of scrivener error or mutual mistake, but the trial court declined to reform the Agreement. A bench trial proceeded on the claims of breach of contract and breach of an implied covenant of good faith and fair dealing. On September 15, 2015, the trial court entered judgment entirely in favor of the Elrod Plaintiffs. See id. at 189. Champlain appealed.

[10] On appeal, this Court first addressed the trial court's findings and conclusions related to the Elrod Plaintiffs' failure to post an additional $3.5 million in collateral. We "conclude[d] that the Agreement required that the Elrod Plaintiffs add to the bonding collateral only upon Safeco's demand" and "[t]he Agreement did not by its terms require the Elrod Plaintiffs to make $3.5 million available to Champlain or JKE." Id. at 194. Moreover, the Agreement did not "provide that Safeco's refusal to continue to underwrite JKE's bonds amounted to a reduction of collateral that would first inure to Champlain's benefit or otherwise require that the Elrod Plaintiffs replace the Substitute LOC with a $3.5 million contribution of their own." Id. As such, the trial court did not err when it found no breach on this basis.

[11] Turning to whether the Agreement established a reimbursement obligation on the part of the Elrod Plaintiffs, we quoted the relevant portion of the Agreement ("the Reimbursement Provision"):

Notwithstanding any documentation to the contrary setting forth the legal effect, rights, obligations, and priority of Safeco as against (i) Champlain under the Substitute LOC and (ii) [the Elrod Plaintiffs] under the Elrod/Elway Guaranty, but subject to section D.2 below, both Champlain and [the Elrod Plaintiffs]
agree that they will share and incur ultimate liability and financial out-of-pocket exposure to Safeco on a pro rata and pari passu basis with respect to the $7 Million aggregate Safeco Collateral Commitment, which is being made under the Substitute LOC and the Elrod/Elway Guaranty.

(App'x at 59.)

[12] Examining the Agreement as a whole, we concluded that the parties' intent was "to ensure that the risk of loss of funds to Safeco bond claims would not rest solely with Champlain." Champlain , 58 N.E.3d at 196. Having determined that the trial court erred in concluding that Champlain was not entitled to reimbursement unless the Elrod Plaintiffs had also contributed collateral, we turned to consider the extent of the reimbursement obligation. The parties disputed the proper interpretation of language in Section D.2 of the Agreement, specifically:

To the extent that an LOC Draw does not result in a commensurate and concurrent request from Safeco for the Elrods and/or Elway to fund under the Elrod/Elway Guaranty, the Elrods and/or Elway (as applicable) will reimburse Champlain fifty percent (50%) of any and all amounts drawn down ... according to the following procedure: (a) if at any time, there is only one Bonded Project in which the Customer or Safeco has declared a default and Safeco has made an LOC Draw, then [the Elrod Plaintiffs] will pay or reimburse Champlain, in accordance with Sections C and D hereof, on or before 30 days after such Bonded Project is "Completed." ("Completed" is defined as either (I) acceptance by the customer, or (II) issuance of an occupancy permit by the applicable governmental authority); (b) if at any time, more than one Bonded Project is the subject of a notice of default .. then the payment or reimbursement obligation of [the Elrod Plaintiffs] hereunder will not occur until 30 days after the last one of all such Bonded Projects are Completed; moreover, for purposes of calculating the amount to be paid or reimbursed [by the Elrod Plaintiffs], all LOC Draws will be aggregated and "netted," such that any credits or payments by the customer or Safeco in respect of any Bonded Project that serves to mitigate the amount of any LOC Draw will reduce such payment or reimbursement obligation of [the Elrod Plaintiffs].

(App'x at 59-60). We concluded that the Reimbursement Provision did not include an express requirement for an accounting; thus, Champlain did not forfeit reimbursement rights for failure to provide a detailed accounting. Champlain , 58 N.E.3d at 199. We also concluded that the Reimbursement Provision "does not limit the scope of the reimbursement obligation only to amounts drawn down due to performance bond defaults." Id. at 200.

[13] We then examined the Agreement's criteria for project completion and ultimately reversed solely on the matter of reimbursement and remanded to permit the introduction of evidence of completion:

For a project to be deemed completed and thereby to create a reimbursement obligation on the part of the Elrod Plaintiffs, the Agreement in Section D.2(a) required "either (I) acceptance by the customer, or (II) issuance of an occupancy permit by the applicable governmental authority." (App'x at 60.) The trial court construed this provision to require that "Champlain must produce certificates of occupancy or acceptance to confirm completion ... in order to trigger any liability." (App'x at 20.)
We again conclude that the trial court erred in its construction of the agreement. There simply is no expressed requirement for certificates of acceptance in the Agreement. The Agreement calls for either acceptance by the customer or an occupancy permit from an applicable governing authority.
The trial court's misconstruction of this provision affected not only its legal reasoning, but also its fact-finding. The trial court found that only one project could be considered completed - the Rialto School Corporation project, for which Champlain produced a certificate of acceptance. The trial court concluded, however, that there was no acceptance of another project, at Michigan International Speedway, because though the customer had entered into a settlement agreement with respect to bond liability, "[n]o evidence was submitted that these repairs were ever completed or, if completed, when the completion was certified." (App'x at 20.) This finding, of course, was premised on the erroneous conclusion that proof of completion could come only through a certificate of occupancy or completion.
The trial court's erroneous construction of these provisions resulted in litigation that limited the scope of the evidence presented at trial. Accordingly, upon remand, we instruct the trial court to conduct appropriate proceedings to permit the introduction of evidence so that the trial court may consider and rule on whether the various projects from which bond claims arose - related to either performance or payment bonds - were completed within the scope of the meaning of completion as set forth by the Agreement, and in conformance with the interpretation of the Agreement set forth above.

Id. at 200-201. The Elrod Plaintiffs filed a petition for rehearing, which was denied on October 4, 2016. On January 19, 2017, the Indiana Supreme Court denied a petition for transfer. On January 26, 2017, the opinion of this Court was certified, and the matter was remanded to the trial court. Anticipating no further bond claims, Safeco conditionally returned $554,537.00 to Champlain.

[14] On September 22, 2017, Champlain filed a motion for summary judgment. After some discovery disputes and extensions of time in which to conduct discovery, the parties appeared on December 5, 2017 for a hearing on the pending motion for summary judgment and a pending motion to strike, which challenged the admissibility of an affidavit attached to the motion for summary judgment.

[15] Champlain argued that, "for at least the past seven years," both parties have "had in their possession evidence from Safeco demonstrating that the eight bonded projects at issue are completed." (S.J. Tr. at 6.) Champlain designated the deposition testimony of Safeco's corporate representative, Stacy Hipsak-Goetz ("Goetz"). That deposition, in its entirety, had been admitted at the bench trial as Stipulated Trial Exhibit 1. Therein, Goetz had testified that she had personal knowledge of the completion of the Kewanee Project, Maine Township Project, Watkins Glen Project, Darlington Raceway Project, Iowa Speedway Bid Project, and the Iowa Speedway Grandstand Project. However, because the trial court had at the bench trial focused upon only performance bond claims, the findings of fact, conclusions of law, and judgment had specifically addressed evidence of completion of only the Rialto and MIS projects.

[16] With the benefit of this Court's opinion in Champlain I , Champlain asked the trial court to consider the deposition testimony as prima facie evidence of the completion of most Bonded Projects. The trial court had made a factual finding in its prior judgment that the Rialto School Corporation project had been completed within the scope of the Agreement, because a certificate of occupancy had been produced at trial. See Champlain I , 58 N.E.3d at 201. As for the MIS project, Champlain argued that this Court had, in the prior appeal, determined that project "to be completed." (S.J. Hearing Tr. at 6.)

[17] The Elrod Plaintiffs responded, "that is not what the Court of Appeals said," (Tr. at 18), and argued "there was no ruling by the Court of Appeals that the settlement agreement substituted for acceptance." Id. at 19. The Elrod Plaintiffs further asserted that the MIS/JKE contract had been terminated in 2006, Goetz had testified in her deposition that she lacked knowledge of completion, and Champlain had failed to obtain evidence of completion. The Elrod Plaintiffs asked that the matter proceed to trial.

[18] On February 21, 2018, the trial court granted Champlain's motion for summary judgment. In its order on summary judgment, the trial court treated each of the Bonded Projects as completed, triggering the reimbursement obligation. The trial court assigned completion dates of January 3, 2008 for the Rialto Project, September 1, 2006 for the Kewanee Project, November 19, 2006 for the Watkins Glen Project, April 25, 2006 for the Darlington Raceway Project, and September of 2006 for the Iowa Speedway Bid Package and the Iowa Speedway Grandstand Project. As to the MIS Project, the trial court concluded that this Court had "by implication" expressed a belief "that Michigan International Speedway had accepted the Project" and that the law of the case prevented re-examination. (Appealed Order at 11.)

[19] Judgment was entered against the Elway Company, Dale, Jeffrey, and Mary Ann, jointly and severally, in the amount of $1,472,731.30. The trial court concluded that the final bonded project was completed no later than March 26, 2013, when Safeco settled the claim related to the MIS Project, and awarded prejudgment interest calculable from thirty days later, April 25, 2013. This appeal ensued.

Discussion and Decision

Law of the Case

[20] The Elrod Plaintiffs ask that we revisit the determinations that the Agreement was intended to allocate the risk of loss between parties and that the Agreement applies to both performance and payment bonds. Champlain responds that, under the law-of-the-case doctrine, the intent and scope of the Agreement will not be relitigated.

[21] The law-of-the-case doctrine provides that an appellate court's determination of a legal issue binds the trial court and the appellate court in any subsequent appeal involving the same case and substantially the same facts. Rapkin Grp., Inc. v. Cardinal Ventures , 29 N.E.3d 752, 758 n.6 (Ind. Ct. App. 2015). The law-of-the-case doctrine is based upon the sound public policy that once an issue has been litigated and decided, that should be the end of the matter. Id. Unlike the doctrine of res judicata , the law-of-the-case is a discretionary tool. Id. The law-of-the-case doctrine has been found to be inapplicable when additional information distinguishes the case factually from the case decided in the first appeal. Id. Also, to invoke the law-of-the-case doctrine, "the matters decided in the prior appeal must clearly appear to be the only possible construction of the opinion." Travelers Cas. & Sur. Co. v. Maplehurst Farms, Inc. , 18 N.E.3d 311, 315 (Ind. Ct. App. 2014) (quoting Riggs v. Burell , 619 N.E.2d 562, 564 (Ind. 1993) ), trans. denied .

[22] In the prior appeal, we unquestionably decided that the Agreement allocated risk between the parties and that the Agreement's reimbursement requirement applied to payment bonds as well as performance bonds. That holding is unambiguous, with only one possible construction. We determined that the trial court had erroneously construed one provision that limited the scope of the evidence presented at trial. Champlain I , 58 N.E.3d at 201. We remanded to permit the introduction of evidence "so that the trial court may consider and rule on whether the various projects from which bond claims arose - related to either performance or payment bonds - were completed within the scope of the meaning of completion as set forth by the Agreement, and in conformance with the interpretation of the Agreement as set forth above." Id.

[23] The Elrod Plaintiffs claim that they presented new evidence relative to the parties' understanding of contract terms. "[W]here new facts are elicited upon remand that materially affect the questions at issue, the court upon remand may apply the law to the new facts as subsequently found." In re Change to Established Water Level of Lake of Woods in Marshall Cty. , 822 N.E.2d 1032, 1044 (Ind. Ct. App. 2005), trans. denied .

[24] However, the Elrod Plaintiffs have essentially renewed the legal arguments rejected by this Court in the first appeal and on rehearing. The trial court was not required, on remand, to elicit facts necessary to interpret the Agreement. Rather, the trial court was instructed to act in conformance with the interpretation of the Agreement as set forth in the opinion. Because we remanded only to permit the introduction of evidence of completion of Bonded Projects, if indeed the Elrod Plaintiffs presented new evidence of contractual intent, it was not relevant to an issue for the trial court upon remand. We discern no basis upon which to find the law-of-the-case inapplicable.

Grant of Summary Judgment

[25] Upon review of a trial court's grant or denial of summary judgment, we apply a well-settled standard:

We review summary judgment de novo, applying the same standard as the trial court: Drawing all reasonable inferences in favor of ... the non-moving parties, summary judgment is appropriate if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if its resolution would affect the outcome of the case, and an issue is genuine if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences. The initial burden is on the summary-judgment movant to demonstrate [ ] the absence of any genuine issue of fact as to a determinative issue, at which point the burden shifts to the non-movant to come forward with contrary evidence showing an issue for the trier of fact. And [a]lthough the non-moving party has the burden on appeal of persuading us that the grant of summary judgment was erroneous, we carefully assess the trial court's decision to ensure that he was not improperly denied his day in court.

Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014) (citations omitted).

[26] In Champlain I , we acknowledged that the trial court, as the fact-finder in a bench trial, was to determine whether each of the Bonded Projects had been completed. As of the first appeal, this fact-finding had been made - by the trial court - as to one bonded project, Rialto. We remanded and "instruct[ed] the trial court to conduct appropriate proceedings to permit the introduction of evidence so that the trial court may consider and rule on whether the various projects ... were completed."

[27] The trial court did not conduct an evidentiary hearing, but rather considered designated materials. In conducting our review of the designated materials, it is undisputed that Safeco considered each of the bond claims resolved. Safeco had internally classified each of the Bonded Projects as completed or tendered.

[28] With respect to the MIS project, Goetz had described it as "a claim resolved" in 2013. (Appellee's App. Vol. II, pg. 103.) She provided some history of the claim handling. After JKE filed bankruptcy and ceased work on the Bonded Projects, MIS contacted Safeco claiming that JKE's work was defective and requesting that Safeco arrange for repairs. Eventually, Safeco and MIS entered into a settlement agreement regarding repair. Safeco agreed that MIS could retain the balance it owed on the construction contract and Safeco paid MIS an additional $200,000.00. MIS executed a release. Safeco did not monitor whether repairs were performed. Indeed, it is also undisputed that Safeco's representative did not know the ultimate outcome of the MIS Project. Specifically, Goetz had "no idea what they did with our money." (Appellee's App. Vol. II, pg. 105).

[29] Relevant evidence upon remand would be that which would permit the trial court to factually determine completion as defined by the Agreement. The Agreement does not define completion as, for example, cessation of work, resolution of bond claims, consent of surety, a certificate of substantial completion, or surety's classification. Under the Agreement, completion is demonstrated by acceptance or a certificate of occupancy by a governmental authority. It is axiomatic that a certificate of occupancy must relate to one of the Bonded Projects to fall within the purview of the Agreement.

[30] In its summary judgment order, the trial court stated that this Court had, in Champlain I , "by implication" expressed this Court's "belief" that "MIS had accepted the Project." (Appealed Order at 11.) We did not, and could not properly find that MIS, the customer, accepted the work performed. An appellate court does not engage in factfinding. See Woods v. State , 701 N.E.2d 1208, 1216 (Ind. 1998) (observing that a reviewing court does not have reasonable ability to engage in fact-finding or take new evidence).

[31] In Paragraph 42, the summary judgment order references the Release between MIS and Safeco, to which Champlain and the Elrod Plaintiffs were not parties. This Release provides in part: "prior to the completion of the Prime Contract, MIS alleged certain leakage and water damage which MIS contended was the result of Elrod's breach of the Prime Contract." (App. Vol. V, pg. 127.) The Release further stated that "Elrod's Prime Contract was terminated on or about October 25, 2006." See id.

[32] The "Prime Contract" would appear to be, considering Goetz's deposition testimony and the language of the Release, the final contract between JKE and MIS. However, it was not the only contract between JKE and MIS. Although the summary judgment order states in Paragraph 41 that a Certificate of Occupancy was issued for the MIS project, and the trial court considered it immaterial that the issuance of that certificate predated the Agreement, the trial court did not assign a completion date for the MIS project based upon that certificate of occupancy, as it did with some other projects. Nor can we do so. Even if we assume that the Certificate of Occupancy was issued by the appropriate governmental authority, without further evidentiary development, the question remains as to whether it referenced work that was within the scope of the Agreement. And even if the facts in designated materials are undisputed, summary judgment is inappropriate if there is a good faith dispute as to the inferences to be drawn from those facts. Long v. Durnil , 697 N.E.2d 100, 104 (Ind. Ct. App. 1998), trans. denied.

[33] The existence of the certificate does not give rise to a single inference. Designated materials - specifically, the deposition testimony of Dennis Leary and Goetz - indicate that more than one bond had been issued relative to MIS and that MIS had owned twelve to fourteen racetracks where JKE had performed work. We cannot say, as a matter of law, that the pre-Agreement certificate, whatever its origin, without dispute satisfied the contractual requirement of completion under the Agreement. Nor do we conclude, as a matter of law, that there was customer acceptance of the MIS Bonded Project. We conclude that the trial court improvidently granted summary judgment to Champlain.

Conclusion

[34] The Elrod Plaintiffs have provided no basis for disregarding the law of the case. However, because we conclude that the designated materials do not establish that each of the Bonded Projects was completed "within the scope of the meaning of completion as set forth by the Agreement," Champlain I at 201, we remand to permit the introduction of evidence.

[35] Reversed and remanded.

Bradford, J., and Altice, J., concur.

      Because we remand for a predicate factual determination, we do not address the third issue.

      Two types were involved in the parties' dispute: performance bonds (ensuring JKE customers of project completion) and payment bonds (ensuring JKE's subcontractors of payment).

      The Elway Corporation is a limited liability corporation owned by Dale, Jeffrey, and Mary Ann.

      The Agreement included a choice-of-law clause providing that the Agreement should be governed under Delaware law.

      Champlain asked that the Agreement be reformed to refer to all surety bonds as opposed to performance bonds and refer to $3.5 million as a fixed amount rather than a cap.

      We also affirmed the trial court's conclusion that there was no breach by the Elrod Plaintiffs of the Agreement's implied covenant of good faith and fair dealing.

      Pro rata terms require proportional allocation, "according to an exact rate, measure, or interest." Black's Law Dictionary 1415 (10th ed. 2014). Pari passu terms require proportionality of pace, that is, compensation "without preference." Id. at 1290.

      We also instructed the trial court to consider the Safeco-retained LOC funds in its decision on remand. Id. at 201.

      The trial court also stated that "there was a Certificate of Occupancy issued for the Michigan International Speedway Project" and "[t]he fact that it was issued before the Bonding Collateral Agreement was signed or before Michigan International Speedway made a claim on the performance bond is immaterial to the determination of whether the Project was completed." (Appealed Order at 11.) The judgment in the bench trial states: "The parties stipulated that on June 13, 2015, Champlain first produced to the Elrods (via counsel) ... a certificate of occupancy from MIS dated June 13, 2005, which was over one year before the execution of the Bonding Collateral Agreement." (Judgment, para. 106.) (emphasis added). The trial court may have intended to reference the year of 2006, as opposed to 2005, consistent with Goetz's deposition testimony. However, the trial court did not assign a completion date based upon the Certificate of Occupancy.

      Goetz explained that Safeco considered a project tendered if it was turned over to a new contractor for completion or repairs.

      The Release indicates that the Parties [Michigan International Speedway, also "MIS", and Safeco] "desire to compromise and settle the claims and disputes between them." (App. Vol. V, pg. 127.) Safeco released MIS from liability to pay the contract balance. MIS released Safeco from claims of any kind and assigned to Safeco its "claims against Elrod." See id. at pg. 129.


source: Caselaw Access Project

author: Pyle, J., concurs. Crone, Judge, dissenting.

license: Public Domain

text:
    TOWN OF DARMSTADT and Bob Stoops, Town Council President, Appellants-Petitioners, v. CWK INVESTMENTS-HILLSDALE, LLC, C. Wayne Kinney, and the Evansville-Vanderburgh County Board of Zoning Appeals, Appellees-Respondents.
    Court of Appeals Case No. 18A-MI-150
    Court of Appeals of Indiana.
    FILED October 30, 2018
    Statement of the Case
    [1] The Town of Darmstadt and Bob Stoops, as Town Council President, (collectively "the Town") appeal the trial court's dismissal of their petition for judicial review of a decision by the Evansville-Vanderburg County Board of Zoning Appeals ("BZA"). The Town raises one issue for our review, namely, whether the trial court erred as a matter of law when it dismissed the Town's petition as untimely.
    [2] We affirm.
    Facts and Procedural History
    [3] On December 13, 2016, CWK Investments-Hillsdale, LLC ("CWK") filed an improvement loan permit application with the Town of Darmstadt for construction of four apartment buildings. Thereafter, the Evansville Area Plan Commission Site Review Committee denied CWK's application on February 28, 2017.
    [4] CWK appealed the denial of its application to the BZA. The BZA held a hearing on CWK's appeal on June 15, 2017. At the conclusion of the hearing, the BZA voted to reverse the commission's decision and approve CWK's application. On July 11, the Town filed a petition for judicial review of the BZA's June 15th decision in Cause Number 82D07-1707-MI-3672 ("the First Petition"). Thereafter, on August 17, the BZA issued its written findings of fact, which reiterated the Board's decision to approve CWK's application.
    [5] On August 21, CWK filed a motion to dismiss the First Petition because the Town had failed to file the BZA's record with the trial court within thirty days from the date the Town had filed its petition for judicial review and because the Town had failed to seek an extension of time to file the record. That same day, the Town filed a request with the BZA to compile the board record. On August 23, the Town filed a motion for extension of time to file the record with the trial court. The Town filed the board record on August 31.
    [6] On September 5, the Town filed a second petition for judicial review of the BZA's decision in Cause Number 82D07-1709-MI-4656 ("the Second Petition"). CWK filed a motion to dismiss the Second Petition pursuant to Indiana Trial Rules 12(B)(1) and 12(B)(8). Specifically, CWK asserted that the Second Petition was untimely because the Town had not filed that petition within thirty days from the BZA's June 15 decision. CWK also asserted that the trial court should dismiss the Second Petition because the same matter was already pending under the First Petition's cause number. The Town responded that it had timely filed the Second Petition because it was filed within thirty days from the date the BZA had issued its written findings of fact.
    [7] On January 11, 2018, the trial court held oral argument on both motions to dismiss. Subsequently, the trial court granted both motions. Specifically, the trial court dismissed the First Petition because the Town had neither filed the board record within thirty days from the date it filed the First Petition nor requested an extension of time to file the record. And the court dismissed the Second Petition as untimely. The trial court concluded that, for purposes of Indiana Code Section 36-7-4-919(e), the BZA had made its decision on CWK's application at the meeting on June 15, 2017. Thus, the trial court concluded that the Town had not timely filed its petition for judicial review because it did not file the Second Petition within thirty days from the date the BZA made its decision. This appeal ensued.
    Discussion and Decision
    [8] The Town contends that the trial court erred when it dismissed the Second Petition. As our Supreme Court has stated:
    The standard of appellate review for motions to dismiss under Rule 12(B) depends on whether the trial court resolved disputed facts, and if so, whether there was an evidentiary hearing. We review de novo a court's ruling on motions to dismiss for failure to timely file necessary agency records where the court ruled on a paper record.
    Teaching Our Posterity Success, Inc. v. Ind. Dep't of Educ. , 20 N.E.3d 149, 151 (Ind. 2014) (citations omitted). Here, the trial court did not conduct an evidentiary hearing but ruled on CWK's motion to dismiss based on a paper record. Thus, we review the trial court's grant of CWK's motion de novo . Further, this appeal presents a question of statutory interpretation. "Matters of statutory interpretation, which inherently present pure questions of law, are reviewed de novo ." Paquette v. State , 101 N.E.3d 234, 237 (Ind. 2018).
    [9] The Town contends that the trial court erred when it dismissed the Second Petition as untimely. Specifically, the Town asserts that the BZA made its decision when it issued its findings of fact on August 17. Accordingly, the Town contends that it timely filed the Second Petition on September 5, which was less than thirty days after the BZA issued its findings. But CWK and the BZA counter that the BZA made its decision when it voted to overturn the Evansville Area Plan Commission's denial of CWK's application at the hearing on June 15. As such, CWK and the BZA contend that the Town did not timely file the Second Petition because the Town did not file that petition within thirty days from the date of the hearing. Thus, in order to determine whether the Town timely filed its petition for judicial review, we must determine when the BZA made its decision.
    [10] As this court has recently stated, "[t]he primary purpose of statutory interpretation is to ascertain and give effect to the intent of the legislature. The best evidence of legislative intent is the statutory language itself, and we strive to give the words in a statute their plan and ordinary meaning." 21st Amendment, Inc. v. Ind. Alcohol and Tobacco Comm'n , 84 N.E.3d 691, 696 (Ind. Ct. App. 2017) (citations and quotations marks omitted). We begin our analysis by looking to the plain language of the relevant statute, which, in this case, is Indiana Code Section 36-7-4-919 (2018).
    [11] Indiana Code Section 36-7-4-919(e) provides, in relevant part, that a board of zoning appeals "shall make a decision on any matter that it is required to hear under the 900 series ... at the conclusion of the hearing on that matter[.]" (emphasis added.) That same section also provides that, "[w]ithin five (5) days after making any decision under the 900 series, the board of zoning appeals shall file in the office of the board a copy of its decision ." Ind. Code § 36-7-4-919(f) (emphasis added). Based on the plain and unambiguous language of the statute, it is clear that a board of zoning appeals is required to make its decision on a matter at the conclusion of the hearing, which decision the board is then required to make a part of the agency's record within five days after having made the decision.
    [12] The Town acknowledges that a board of zoning appeals makes a decision at the hearing. However, the Town asserts that "there is no basis to conclude that the General Assembly intended oral decisions to be the exclusive 'zoning decision' subject to judicial review." Appellant's Br. at 16. In essence, the Town asserts that, while an oral decision made at the hearing is a zoning decision, the written findings of fact are also a zoning decision that triggers judicial review.
    [13] To support its contention, the Town relies on Indiana Code Section 36-7-4-915, which states that "[t]he board shall in all cases heard by it make written findings of fact." The Town also relies on Indiana Code Section 36-7-4-1016(a), which provides that "[f]inal decisions of the board of zoning appeals under ... the 900 series of this chapter ... are considered zoning decisions for purposes of this chapter[.]" Thus, the Town maintains that, because the General Assembly chose to place the findings requirement in the 900 Series, it placed the requirement for findings of fact "among those BZA actions that trigger a right to judicial review." Appellant's Br. at 13. We cannot agree.
    [14] When we interpret a statute, "we are mindful of both what it does say and what it does not say." ESPN, Inc. v. Univ. of Notre Dame Police Dep't , 62 N.E.3d 1192, 1195-96 (Ind. 2016) (quotation marks omitted). "We may not add new words to a statute which are not the expressed intent of the legislature." Ind. Alcohol & Tobacco Comm'n v. Spirited Sales, LLC , 79 N.E.3d 371, 376 (Ind. 2017). While we agree that Indiana Code Section 36-7-4-1016 provides that any decision under the 900 series is considered a zoning decision, there is nothing to indicate that written findings of fact, even though required by Indiana Code Section 36-7-4-915, constitute a decision of the board separate and distinct from the decision of the board made at the hearing. Indeed, nowhere in that Section does the word "decision" appear.
    [15] Further, pursuant to Indiana Code Section 36-7-4-1605, "[a] petition for review is timely only if the petition for review is filed not later than thirty (30) days after the date of the zoning decision that is the subject of the petition for judicial review." And there is nothing in that Section that says a petition is timely only if filed within thirty days from the date the board enters its findings of fact. Had the legislature intended for the findings of fact to constitute a decision of the board of zoning appeals that triggers judicial review, it could have included language in Section 36-7-4-1605 to that effect. But the legislature did not include that language. And we cannot add words to the statute that are not there. See Ind. Alcohol & Tobacco Comm'n , 79 N.E.3d at 376. And, as discussed above, Indiana Code Section 36-7-4-919 states that a board of zoning appeals "shall make" its decision at the hearing.
    [16] Additionally, we find this court's decisions in Biggs v. Board of Zoning Appeals of City of Wabash , 448 N.E.2d 693 (Ind. Ct. App. 1983), and Hoagland v. Town of Clear Lake Board of Zoning Appeals , 871 N.E.2d 376 (Ind. Ct. App. 2007), to be instructive. In Biggs , the issue was whether the board of zoning appeals made its decision at the hearing when it voted to deny Biggs' variance request or whether the board made its decision when it approved the minutes from the meeting. Biggs , 448 N.E.2d at 694. This court held that the date of the board's decision was the date of the hearing because minutes "are not the event, but a record of the transpired event." Id. This court further held that the event, which was a decision on a variance request, occurred at the meeting "regardless of when, if ever, it was memorialized." Id. As Biggs did not file the petition for writ of certiorari within thirty days from the date the board made its decision at the hearing, the trial court correctly dismissed his petition.
    [17] And in Hoagland , this court addressed whether the trial court had properly dismissed the Hoaglands' petition for judicial review of a decision of the board of zoning appeals because the Hoaglands had failed to timely serve all adverse parties. Hoagland , 871 N.E.2d at 380. In that case, the board of zoning appeals held a hearing on the Hoaglands' petition on December 20, 2005. Id. at 382. The Hoaglands then filed their petition for judicial review on January 19, 2006; however, the Hoaglands did not serve the other parties at that time. Id. On appeal, the Hoaglands asserted that the BZA's decision was not issued on December 20, 2005, because the BZA had not issued findings of fact. Id. at 382-83. Relying on Biggs , this court held that, "[e]ven though the BZA in this case did not issue written findings of fact, the Hoaglands were aware of the BZA's December 20, 2005, decision." Id. at 383. Thus, this court held that the Hoaglands had thirty days from the date of the BZA's December 20, 2005, decision to file their petition and serve the required notices. Id. Because the Hoaglands had failed to do so, the trial court did not err when it dismissed their petition. Id.
    [18] Similarly, here, the BZA's decision was made at the meeting on June 15, 2017, although the BZA did not memorialize its decision with its findings of fact until two months after the hearing. See Biggs , 448 N.E.2d at 694. And while the BZA did not immediately issue findings of fact, the Town was aware of the BZA's June 15, 2017, decision. See Hoagland , 871 N.E.2d at 383. Thus, the entry of findings of fact does not constitute a "decision" of a board of zoning appeals or otherwise trigger judicial review. Rather, the findings of fact are simply an explanation of the board's reasoning for its decision made at the hearing.
    [19] We acknowledge the Town's argument that the statute requires a board of zoning appeals to make findings of fact. See I.C. § 36-7-4-915. And we agree that those findings of fact are essential for judicial review of the BZA's decision. Indeed, neither the trial court in the first instance or this court on appeal can conduct an adequate review of the BZA's decision without the findings. See, e.g. , Riverside Meadows I, LLC v. City of Jeffersonville, Ind. Bd. of Zoning App. , 72 N.E.3d 534, 540 (Ind. Ct. App. 2017) ("written findings are necessary to ensure adequate judicial review of administrative decisions."). However, as discussed above, the statute is clear. The General Assembly has required a person to file a petition for judicial review within thirty days from the Board's decision made at the hearing, not within thirty days from the board's entry of findings of fact.
    [20] The Town emphasizes that, if we require a petitioner to file a petition for judicial review based only on the oral decision of the board, then we would require the petitioner to take "an appeal based on the scant information available from an oral decision." Appellant's Br. at 19. We do not disagree. But we must "give effect to the intent of the legislature." 21st Amendment, Inc. 84 N.E.3d at 696. And, here, it is clear that the legislature intended for a petitioner to petition for judicial review based on the decision that the board made at the hearing, not based on its findings of fact.
    [21] Indeed, Indiana Code Section 36-7-4-1607(b) outlines the required contents of a petition for judicial review. And, while that statute requires several items to be included in the petition, it does not require a petitioner to include a copy of the findings of fact. Additionally, Indiana Code Section 36-7-4-1613(a) provides:
    Within thirty (30) days after the filing of the petition, or within further time allowed by the court, the petitioner shall transmit to the court the original or a certified copy of the board record for judicial review of the zoning decision consisting of ... any board documents expressing the decision[.]
    (Emphasis added). A board's written findings are merely a document "expressing the decision." Accordingly, the General Assembly anticipated that a petitioner could file for judicial review before a board has entered its findings of fact.
    [22] Further, even though a petitioner initially has thirty days after filing the petition for judicial review to file the board record, "[a]n extension of time in which to file the record shall be granted by the court for good cause shown." I.C. § 36-7-4-1613(b) (emphasis added). And the "[i]nability to obtain the record from the responsible board within the time permitted by this section is good cause." Id. Thus, the General Assembly anticipated that the board might not complete its findings of fact within thirty days from the date the petitioner files for judicial review. And the legislature has mandated that our trial courts grant any request for an extension of time in order to allow the petitioner to obtain the board's complete record. If the board should fail to timely issue its findings of fact, the trial court may, on its own motion or on the motion of the petitioner, compel the board of zoning appeals to comply with Indiana Code Section 36-7-4-915 and to issue findings of fact.
    [23] When we interpret statutes, "[w]e examine the statute as a whole, reading its sections together so that no part is rendered meaningless if it can be harmonized with the remainder of the statute." Anderson v. Gaudin , 42 N.E.3d 82, 85 (Ind. 2015). Reading the relevant statutes together, it is clear that the legislature intended for a petitioner to file for judicial review of a board's decision within thirty days from the date the board made its decision at the hearing. The petitioner then has thirty days to file the record, including the findings of fact, or to request an extension of time. And the trial court must grant the request for more time if the board has not yet completed its findings or compiled its record.
    [24] In sum, we must apply the petition for review statute as it is written. First, there is no provision in the statute for an extension of time within which to file a petition beyond thirty days after the BZA's decision voted on at the hearing. Second, there is no statutory provision to indicate that the BZA must make findings of fact before the thirty-day period begins to run. Third, there is no requirement in the statute that a petitioner submit findings of fact with the petition; instead, the petition need only include an "identification of the decision at issue, together with a copy, summary, or brief description of the decision." I.C. § 36-7-4-1607(b)(3). And, fourth, the petition for review statute expressly provides for an extension of time within which to file the record after the petition has been filed, to include "any board documents expressing the decision," I.C. § 36-7-4-1613(a), which is exactly the purpose served by the written findings of fact.
    [25] Accordingly, we hold that a board of zoning appeals makes its decision at the conclusion of the hearing on the matter. The findings of fact, while essential to judicial review, are not a separate, appealable decision of the board. In the present case, the BZA made its decision at the conclusion of the hearing on June 15, 2017. The Town then had thirty days from that date to file its petition for judicial review. But the Town did not file the Second Petition until September 5, which was more than thirty days after the BZA had made its decision. Accordingly, the Town did not timely file the Second Petition, and
    the trial court did not err when it dismissed that petition as untimely. We affirm the trial court's order.
    [26] Affirmed.

      We held oral argument in this case on October 10, 2018, in Indianapolis. We thank counsel for their excellent advocacy in this matter.

      C. Wayne Kinney, a party to this appeal, owns and operates CWK.

      The Town does not appeal the trial court's dismissal of the First Petition.

      The Town asserts that neither Biggs nor Hoagland applies because neither case specifically determines whether the "now mandatory entry of findings was a 'zoning decision' that triggered the right to judicial review[.]" Appellant's Br. at 24. We agree that neither case directly addresses the question at issue here, and we acknowledge that the cases are not directly on point. However, we still find both cases to be helpful. We also agree with the trial court that the statutory amendment that now requires a board of zoning appeals to issue findings of fact "does not alter the precedents set by Biggs and Hoagland [.]" Appellant's App. Vol. II at 17.

      Prior to 2011, a petitioner filed for judicial review of a board of zoning appeals' decision by filing a petition for writ of certiorari. See I.C. § 36-7-4-1003 (2010).

      That statute does, however, require a petitioner to identify the decision at issue and to include a copy, summary, or description of the decision. See I.C. § 36-7-4-1607(b)(3). Thus, while a petitioner can include a copy of the decision, if available, the petitioner could also provide a description of the issue if the findings of fact are not yet complete.

      We note that the Town timely filed its First Petition. However, the trial court dismissed that petition because the Town did not timely file the board record or seek an extension of time.

      The Town also asserts that the trial court erred when it dismissed the Second Petition pursuant to Indiana Trial Rule 12(B)(8). But, because we hold that the trial court properly dismissed the Second Petition as untimely, we need not address whether the trial court erred when it dismissed the same petition on other grounds.

   Pyle, J., concurs.

Crone, J., dissents with separate opinion.

Crone, Judge, dissenting.

[27] According to my colleagues, "it is clear that the legislature intended for a petitioner to petition for judicial review based on the decision that the board made at the hearing, not based on its findings of fact." Op. at 16. I respectfully disagree.

[28] "With regard to statutory interpretation, the meaning and intention of the legislature is to be ascertained not only from the specific phraseology of a statute but also by considering design, nature, and the consequences that flow from the various interpretations." Concerned Citizens of W. Boggs Lake v. W. Boggs Sewer Dist., Inc. , 810 N.E.2d 720, 723 (Ind. Ct. App. 2004). "Put another way, when construing the meaning of a statute, it is the court's objective to ascertain and give effect to the legislative intent and to interpret the statute in such a manner as to prevent absurdity and to advance public convenience." Id. Statutes relating to the same subject should be construed together to produce a harmonious statutory scheme. Klotz v. Hoyt , 900 N.E.2d 1, 5 (Ind. 2009).

[29] Indiana Code Section 36-7-4-919(e) provides that a board "shall make a decision" on a matter "at the conclusion of the hearing on that matter ...." Notably, this statute doesn't say that such a decision is a "zoning decision" for purposes of Indiana Code Section 36-7-4-1605. Pursuant to Indiana Code Section 36-7-4-1016(a), a "zoning decision" is a board's "final" decision ("Final decisions of the board of zoning appeals under ... the 900 series of this chapter ... are considered zoning decisions for purposes of this chapter and are subject to judicial review in accordance with the 1600 series of this chapter."). The legislature adopted the "final decision" terminology in 2011, and pre-2011 caselaw suggests that "final" in this sense means "that an administrative body has reached a determination representing the consummation of the administrative process" that "leav[es] nothing else to be accomplished ...." Johnson Cty. Plan Comm'n v. RamsHead Corp. , 463 N.E.2d 295, 299 (Ind. Ct. App. 1984). But even once a board has reached such a determination, one thing remains to be accomplished: making the written findings of fact required by Indiana Code Section 36-7-4-915. For the reasons given below, I believe that a board's decision isn't truly "final" for purposes of Indiana Code Section 36-7-4-1016, and therefore isn't a "zoning decision" for purposes of Indiana Code Section 36-7-4-1605, until the board makes those findings.

[30] There is no requirement that a board make written findings at the conclusion of a hearing, which reflects the practical reality that board employees often need additional time to review the record, consult with board members (who may have expressed differing reasons, or no reasons at all, for their votes at the hearing), conduct legal research, and draft findings that are sufficiently specific to allow a court to "review intelligently" the board's decision if someone files a petition for judicial review. Riverside Meadows I, LLC v. City of Jeffersonville, Bd. of Zoning Appeals , 72 N.E.3d 534, 539 (Ind. Ct. App. 2017) (quoting Carlton v. Bd. of Zoning Appeals of City of Indianapolis , 252 Ind. 56, 64, 245 N.E.2d 337, 343 (1969) ).

[31] Apropos of which, Indiana Code Section 36-7-4-1607(b)(6) provides that a petition for judicial review must set forth "[i]dentification of the decision at issue, together with a copy, summary, or brief description of the decision[,]" as well as "[s]pecific facts to demonstrate that the petitioner has been prejudiced by one (1) or more of the grounds described in"

Indiana Code Section 36-7-4-1614, i.e., that the decision was "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; or (5) unsupported by substantial evidence."

[32] In many cases, a petitioner won't be able to set forth specific facts to demonstrate that he or she has been prejudiced by the board's decision until after the board has issued its findings of fact. More fundamentally, a person may not be able to make an informed decision if a valid basis for judicial review exists until after the findings are issued. Requiring a person to file a petition for judicial review of a decision before the board has explained that decision in writing is absurd and contrary to public convenience, as well as inconsistent with the Indiana Rules of Professional Conduct. See Ind. Professional Conduct Rule 3.1 ("A lawyer shall not bring ... a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous ...."). The logic of such an approach is evidenced by the Indiana Rules of Appellate Procedure not requiring a party to file a notice of appeal from a trial court's final judgment or interlocutory order until after the entry of the judgment or order - which may be accompanied by written findings if made sua sponte, requested by a party, or required by statute - is noted in the chronological case summary. Ind. Appellate Rules 9(A)(1), 9(A)(2), 14(A) ; see also Ind. Appellate Rule 9(A)(3) (stating that party has thirty days to appeal from the date of an order, ruling, or decision of administrative agency). In other words, if a trial judge were to announce an oral decision at the conclusion of a hearing or trial and then subsequently enter written findings, the time for perfecting an appeal would begin to run upon the entry of the later written findings. For all these reasons, I would hold that "the date of the zoning decision" for purposes of Indiana Code Section 36-7-4-1605 should be interpreted as the date the board makes the written findings required by Indiana Code Section 36-7-4-916.

[33] The BZA hearing minutes in this case show that two BZA members (Jonathan Parkhurst and Becky Kasha), BZA's counsel (Dirck Stahl), and an attorney assisting the Town at the hearing (Steve Bohleber) agreed, at least to some extent, with my position:

Mr. Bohleber: I think the findings have to be reduced in [sic] writing and I think that starts the appeal time.
Mr. Stahl: Right.
....
Mr. Bohleber: We need to take a look at that if the losing party tonight wishes to appeal. I believe that's the procedure.
Mr. Stahl: Yeah, the written findings constitute the final decision. That's right.
Mr. Bohleber: Right, then I think you praesipe [sic] for a transcript of the record. Then that starts the appealetic [sic] process to the trial court level. Not the court of appeals.
Ms. Kasha: Yeah.
Mr. Stahl: Actually, I misspoke. That had to do with the Plan Commission decision. You'd have to look at the 1600 Series on Review of the BZA Decision. There is a requirement for findings.
Mr. Parkhurst: Clearly, the time for appeal wouldn't start until findings were made.
Ms. Kasha: Right.
Mr. Bohleber: Right, and that's my recollection. Obviously, the reviewing court can't do anything there's a praesipe [sic] prepared of the proceedings including the findings.

Appellants' App. Vol. 3 at 76. To elaborate on Bohleber's point, if a court "can't do anything" without the board's written findings, it stands to reason that a petitioner can't do anything either. Because the Town filed its second petition for judicial review within thirty days after the BZA made its written findings, I would reverse and remand for further proceedings.

      "Nonfinal" zoning decisions are subject to judicial review only under limited circumstances. See Ind. Code § 36-7-4-1602(c) ("A person is entitled to judicial review of a nonfinal zoning decision only if the person establishes both of the following: (1) Immediate and irreparable harm. (2) No adequate remedy exists at law.").

      Conceptually, a final zoning decision is similar to a trial court's final judgment, and a nonfinal zoning decision is similar to an interlocutory order.

      This Court has explained that the factfinding requirement "serves at least five important purposes[,]" i.e., "(1) to facilitate judicial review; (2) to avoid judicial intrusion into the administrative fact-finding process; (3) to aid parties in the preparation of their case for judicial review ; (4) to assure careful consideration of the facts by administrative bodies; and (5) to insure that administrative bodies remain within their jurisdiction." Schenkel v. Allen Cty. Plan Comm'n , 407 N.E.2d 265, 270 (Ind. Ct. App. 1980) (emphasis added).

      I agree with the Town that dismissal of both petitions was inappropriate under Trial Rule 12(B)(8).


author: Crone, Judge.

text:
    Brett CARNEY, Appellant-Defendant, v. Fernando PATINO, Jr., Appellee-Plaintiff
    Court of Appeals Case No. 46A03-1712-CT-2855
    Court of Appeals of Indiana.
    Filed October 31, 2018
    Attorney for Appellant: Scott B. Cockrum, Hinshaw & Culbertson LLP, Schererville, Indiana
    Attorney for Appellee: James Harper, Harper & Harper, LLC, Valparaiso, Indiana
    Case Summary
   Crone, Judge.

[1] Brett Carney reported to Michigan City police that Fernando Patino, Jr., took various fixtures from a residence that Carney had purchased at a sheriff's sale. Based on Carney's report, Patino was placed on Michigan City's "most wanted" list, arrested, and charged with a felony. Patino was later found not guilty of the criminal charge. Patino sued Carney for, among other things, defamation and intentional infliction of emotional distress. Following a trial, the jury awarded Patino $256,000 in damages against Carney.

[2] Carney now appeals, first contending that the trial court erred in denying his pretrial motion for summary judgment on grounds that his statements to police were protected, as a matter of law, by the doctrine of qualified privilege. Carney also contends that the trial court erred in denying his subsequent motion for judgment on the evidence for the same reason. Finally, Carney contends that the jury verdict is excessive and that the trial court should have granted his motion to correct error on that basis. Concluding that the trial court did not err in denying Carney's various motions, and further concluding that the jury verdict is not excessive, we affirm.

Facts and Procedural History

[3] In February 2011, Patino resided at a home on Franklin Street ("the Residence") in Michigan City that was owned by his father. Patino's father purchased the Residence in 2006 and secured a mortgage on the Residence. Following subsequent foreclosure, the Residence was sold at a sheriff's sale on the morning of February 18, 2011. Carney purchased the Residence at the sale for $33,676.

[4] Immediately after the sale on February 18, Carney proceeded to the Residence to inspect the property. He did not have a key to the Residence, and he did not know if anyone still lived in the Residence. Carney knocked on the door, but when nobody answered, he entered the Residence by using a credit card to pop open the locked door. Upon entry, Carney noted that boxes were present, indicating that the current resident was still in the process of moving. While Carney was at the Residence, Patino arrived. Patino had been told by a coworker at the nearby NAPA Auto Parts store where he worked that someone was at the Residence, so Patino went to investigate. During this relatively uneventful interaction, Carney informed Patino that he had purchased the Residence and intended to take possession of it. Patino gave Carney his name and phone number, and Carney agreed to allow Patino additional time to remove his belongings from the Residence. Carney then left the Residence.

[5] The parties agree that they had a second encounter at the Residence, but they dispute the date as well as what transpired. Patino claims that he decided to remove the remainder of his belongings on the afternoon of February 18 and so he called his father, who rented a U-Haul truck and came to the Residence with Patino's brother. Patino had returned to work, so his father and brother began removing the family's belongings from the Residence. His mother also came over to help clean. Patino joined them shortly thereafter to help with the moving process. At approximately 9:00 p.m. on February 18, while Patino and his father were still at the Residence, Carney returned to the Residence while Patino was moving the stove he had purchased into the U-Haul. Carney was angry and told Patino that he did not think Patino was allowed to take the appliances. He threatened to call the Michigan City police and stood in the doorway of the Residence to prevent Patino from removing any other items from the Residence. Thus, Patino could not go back in the Residence to retrieve his refrigerator or the washing machine that he had also purchased. Patino decided that it was best just to leave, so he grabbed his dog and walked past Carney to leave the premises. Patino overheard Carney on his cell phone telling an unknown third party, "They took the appliances." Appellant's App. Vol. 2 at 111. Patino and his family drove the U-Haul across the front lawn because Carney's truck was blocking the driveway. Patino and his father returned the U-Haul on February 19, 2011. Patino did not return to the Residence at any point after February 18, 2011.

[6] Carney agrees that the parties had a contentious second encounter at the Residence, but he claims it occurred on the afternoon of February 20, 2011. Carney claims that on that date, he encountered Patino and his father at the Residence, and that he observed two pickup trucks in the driveway loaded with various fixtures that had clearly been taken out of the Residence. Carney claims that after he confronted Patino about taking the items, Patino drove through the yard and fled the premises. Carney then inspected the Residence and discovered numerous missing fixtures and extensive damage to the interior of the Residence.

[7] Carney contacted Michigan City police on February 20 while he was at the Residence. Officer Brian Richmond came to the Residence to take the report. Carney reported to Officer Richmond that he had purchased the Residence on February 18, that upon inspection that same day he had encountered a young adult Hispanic male (later identified as Patino) who was in the process of moving out, and that the Residence was in good condition at that time. Carney stated that he encountered Patino at the Residence again shortly before the officer's arrival on February 20, and that two pickup trucks in the driveway were loaded with numerous items that should not have been removed from the Residence. Carney stated that he personally observed interior doors, closet doors, light fixtures, a register vent cover, a toilet, a bathroom sink, and shelving in Patino's trucks. Carney reported that he confronted Patino about taking the items, but that Patino and his family simply drove through the yard and fled. Carney stated that his subsequent walk-through of the Residence revealed that the fixtures had been removed from the Residence and damage had been done to the interior of the Residence. Carney did not mention anything about a missing stove or other appliances to Officer Richmond. Carney told Officer Richmond that Patino worked at a nearby NAPA Auto Parts store. Carney also reported that he believed that Patino had purchased and moved to a home on Chicago Street in Michigan City.

[8] Carney made at least four cell phone calls to Patino after the contentious second encounter. Each time, Carney left a voicemail message that Patino perceived to be threatening. In March 2011, Carney went to NAPA and confronted Patino about the appliances. He demanded that Patino return the stove and a dryer that Patino had removed from the Residence. When Patino refused, Carney stated, "When we're done with you, we're sending you back to where you came from." Id. at 113. Patino's mother was at NAPA at the time, and she overheard what Carney said about the appliances and his threatening statement to her son. Patino, a United States citizen, believed that Carney was referring to his Mexican ancestry and suggesting that he should be deported to Mexico.

[9] Following an investigation of Carney's claims by Michigan City Police Detective Corporal Anthony McClintock, a warrant was issued for Patino's arrest. Patino was also included on the Michigan City Top 10 Most Wanted List that was reported in local media. After learning of the warrant, Patino turned himself in to Michigan City Police. Patino was subsequently charged with class D felony theft for stealing "property" from the Residence. Ex. 4. The criminal charges were pending for approximately five and a half years. Following a jury trial, Patino was acquitted of the theft charge. The whole experience was "like a nightmare" for Patino and his family. Tr. Vol. 3 at 104.

[10] On February 28, 2013, Patino filed a complaint against Carney and numerous other defendants including the City of Michigan City, Indiana, the Michigan City Police Department, Michigan City Police Chief Mark Swistek, and Detective Corporal Anthony McClintock (the "Michigan City Defendants"). Patino alleged claims of false arrest, false imprisonment, libel, slander, defamation, negligent infliction of emotional distress, intentional infliction of emotional distress, negligence, and violations of his civil and constitutional rights. The matter was removed to the United States District Court for the Northern District of Indiana in April 2013. In November 2013, Patino's federal civil rights claims were dismissed with prejudice as to all defendants. Although the remaining state law claims were initially dismissed without prejudice, they were later remanded back to the LaPorte Circuit Court in December 2013. The claims against the Michigan City Defendants were dismissed by the trial court in April 2014.

[11] Patino filed an amended complaint for damages against Carney alleging that he was falsely arrested by the Michigan City Police Department and charged with class D felony theft based on knowingly false accusations made by Carney. The complaint alleged claims for defamation, negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress. Patino sought both compensatory and punitive damages for his economic losses, emotional distress, pain, suffering, and loss of reputation.

[12] Carney filed a motion for summary judgment and designation of evidence in July 2015. Among other things, Carney asserted that his statements to police were qualifiedly privileged and thus he was entitled to judgment as a matter of law as to all of Patino's claims. Patino responded with a motion in opposition to summary judgment and accompanying affidavit. The trial court entered an order denying Carney's summary judgment motion in April 2016.

[13] A jury trial began on September 25, 2017. Prior to the start, Patino withdrew his negligence claims, leaving only his defamation and intentional infliction of emotional distress claims. Patino presented his case-in-chief, and at the close of his evidence, Carney made an oral motion for judgment on the evidence again based upon qualified privilege, which the trial court took under advisement. Carney then presented his evidence, after which he renewed his motion for judgment on the evidence, which the court again took under advisement. Following deliberations, the jury returned a verdict in favor of Patino. The jury awarded total damages in the amount of $320,000 and apportioned fault as follows: Patino 5%, Michigan City Police Department 5%, Detective Corporal McClintock 10%, and Carney 80%. Accordingly, the trial court entered final judgment against Carney in the amount of $256,000.

[14] Carney filed a motion to correct error which was denied by the trial court. The court also entered its order denying Carney's motion for judgment on the evidence. Carney now appeals the court's denial of his motion for summary judgment, the denial of his motion for judgment on the evidence, and the denial of his motion to correct error.

Discussion and Decision

Section 1 - The trial court did not err in denying Carney's motion for summary judgment on the basis of qualified privilege.

[15] Carney first argues that the trial court erred in denying his pretrial summary judgment motion. "The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which can be determined as a matter of law." Lamb v. Mid Indiana Serv. Co. , 19 N.E.3d 792, 793 (Ind. Ct. App. 2014). "The party moving for summary judgment has the burden of making a prima facie showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law." Mint Mgmt., LLC v. City of Richmond , 69 N.E.3d 561, 564 (Ind. Ct. App. 2017). If the moving party meets its burden, "the burden then shifts to the nonmoving party whose response must set forth specific facts indicating that there is an issue of material fact." Venture Enter., Inc. v. Ardsley Distrib., Inc. , 669 N.E.2d 1029, 1032 (Ind. Ct. App. 1996). "The nonmovant may not rest upon bare allegations made in the pleadings, but must respond with affidavits or other evidence setting forth specific facts showing there is a genuine issue in dispute." Id. Any doubts as to any facts or inferences to be drawn from those facts must be resolved in favor of the nonmoving party. Mint Mgmt. , 69 N.E.3d at 564.

[16] "We review a summary judgment ruling de novo." Pelliccia v. Anthem Ins. Cos. , 90 N.E.3d 1226, 1230 (Ind. Ct. App. 2018). A trial court's findings and conclusions offer insight into the rationale for the court's judgment and facilitate appellate review but are not binding on this Court. Henderson v. Reid Hosp. & Healthcare Servs. , 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans. denied (2015). We may affirm a summary judgment ruling on any theory supported by the designated evidence. Manley v. Sherer , 992 N.E.2d 670, 673 (Ind. 2013). The party that lost in the trial court has the burden of persuading us that the trial court erred. Estate of Hofgesang v. Hansford , 714 N.E.2d 1213, 1216 (Ind. Ct. App. 1999). Our supreme court has cautioned that summary judgment "is not a summary trial" and Indiana consciously errs on the side of letting even marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims. Hughley v. State , 15 N.E.3d 1000, 1003-04 (Ind. 2014).

[17] Carney asserts that, even if defamatory, his statements to law enforcement concerning Patino were qualifiedly privileged, and thus he was entitled to summary judgment as to Patino's claims. A qualified privilege "applies to communications made in good faith on any subject matter in which the party making the communication has an interest or in reference to which he had a duty, either public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty." Bals v. Verduzco , 600 N.E.2d 1353, 1356 (Ind. 1992) (citation omitted). As a defense to defamation, the qualified privilege operates not to "change the actionable quality of the words published, but merely [to] rebut[ ] the inference of malice that is [otherwise] imputed." Holcomb v. Walter's Dimmick Petroleum, Inc. , 858 N.E.2d 103, 106 (Ind. 2006) (citation omitted). It is well established that "communications made to law enforcement to report criminal activity are qualifiedly privileged." Williams v. Tharp , 914 N.E.2d 756, 763 (Ind. 2009) (quoting Kelley v. Tanoos , 865 N.E.2d 593, 600 (Ind. 2007) ). This furthers the compelling public interest of encouraging citizens not only to report suspected wrongdoing but also to assist law enforcement in investigating and apprehending persons who engage in criminal activity. Id. at 762-63. Our supreme court has stated,

If this purpose is to be met, the privilege must offer a robust defense against liability. Protecting unverified and even speculative reports of suspected wrongdoing to law enforcement is, in our view, supported by ample reasons of social advantage. It is important that citizens not opt for inaction, chilled from communicating with police in all but the most certain of situations.

Id. at 765.

[18] The privilege, however, "is not without limits: a statement 'may lose its privileged character upon a showing of abuse wherein: (1) the communicator was primarily motivated by ill will in making the statement; (2) there was excessive publication of the defamatory statement; or (3) the statement was made without belief or grounds for belief in its truth.' " Bah v. Mac's Convenience Stores, LLC , 37 N.E.3d 539, 548 (Ind. Ct. App. 2015) (quoting Bals , 600 N.E.2d at 1356 ), trans. denied (2016). Thus,

the burden is upon the defendant in the first instance to establish the existence of a privileged occasion for the publication, by proof of a recognized public or private interest which would justify the utterance of the words. Then the plaintiff has the burden of overcoming that privilege by showing that it has been abused. When speaking of abuse, the essence of the concept is not the speaker's spite but his abuse of the privileged occasion by going beyond the scope of the purposes for which privilege exists. And unless only one conclusion can be drawn from the evidence, the question of whether the privilege has been abused is for the jury.

Williams , 914 N.E.2d at 762 (citations, quotation marks, and alterations omitted).

[19] We agree with Carney that the privileged occasion implicated by his communication to law enforcement related to the public interest in encouraging private citizens to report crime. Patino contends that Carney abused the privilege because, when he reported that Patino removed numerous fixtures from the Residence, he was primarily motivated by ill will and made the statement without belief or grounds for belief in truth. Carney claims that Patino presented no evidence but simply offered "speculation about the intent or knowledge of Carney in making the statement." Appellant's Br. at 33. "It is well settled, however, that '[s]ummary judgment must be denied if the resolution hinges upon state of mind, credibility of the witnesses, or the weight of the testimony.' " Bah , 37 N.E.3d at 548 (quoting Nelson v. Jimison , 634 N.E.2d 509, 512 (Ind. Ct. App. 1994) ). This is precisely the scenario that confronted the trial court here.

[20] It is undisputed that, prior to Carney's communication to law enforcement, Patino and Carney had an extremely contentious second encounter. Patino presented evidence that, although he was not even at the Residence on February 20, Carney told police that he personally observed Patino at the Residence on that date in possession of various fixtures taken from the Residence. According to Patino, it was his belief that Carney was upset that, a few days earlier, Patino removed certain appliances from the Residence that Patino had purchased, and that motivated Carney to fabricate a story about his observations on February 20 and to accuse Patino of the theft of numerous fixtures. Patino designated evidence in support of this motivation. He averred that Carney expressed his clear dismay and objection to the appliance removal when Patino was removing the stove on February 18, and that Carney confirmed those feelings when he subsequently went to Patino's place of employment and made what appeared to be a racially charged threat to send Patino "back to where [he] came from" if he did not return the appliances. Appellant's App. at Vol. 2 at 113.

[21] Viewing the designated evidence and resolving all doubts in favor of Patino as the nonmoving party, as we must, we conclude that it was for a jury to determine whether Carney was primarily motivated by ill will in accusing Patino of theft and/or whether his accusations were made without belief or grounds for belief in their truth. In other words, we cannot say that only one conclusion can be drawn from the evidence. Rather, the evidence presented, and the reasonable inferences to be drawn therefrom, was sufficient to establish a genuine issue of material fact on whether the qualified privilege had been abused, and therefore Carney was not entitled to summary judgment on Patino's claims based on the qualified privilege defense. Accordingly, the trial court did not err when it declined to enter summary judgment for Carney.

Section 2 - The trial court did not err in denying Carney's motion for judgment on the evidence on the basis of qualified privilege.

[22] Carney next asserts that the evidence presented by Patino at trial "was insufficient to overcome the application of the [qualified] privilege" and therefore his motion for judgment on the evidence should have been granted. Appellant's Br. at 19. The standard of review for a challenge to a ruling on a motion for judgment on the evidence is the same standard utilized by the trial court in making its decision. Bals , 600 N.E.2d at 1357. We look only to the evidence and reasonable inferences therefrom most favorable to the nonmoving party. Id. The motion should be granted only where there is no substantial evidence supporting an essential issue in a case. Id. (citing Ind. Trial Rule 50(A) ; Johnson v. Naugle , 557 N.E.2d 1339, 1342 (Ind. Ct. App. 1990) ; Whisman v. Fawcett , 470 N.E.2d 73, 79 (Ind. 1984) ).

[23] Our supreme court has stated that determining whether evidence was sufficient to defeat a motion for judgment on the evidence requires both a quantitative and a qualitative analysis. Purcell v. Old Nat'l Bank , 972 N.E.2d 835, 840 (Ind. 2012). Specifically, the court explained,

Evidence fails quantitatively only if it is wholly absent; that is, only if there is no evidence to support the conclusion. If some evidence exists, a court must then proceed to the qualitative analysis to determine whether the evidence is substantial enough to support a reasonable inference in favor of the non-moving party.
Qualitatively, ... [evidence] fails when it cannot be said, with reason, that the intended inference may logically be drawn therefrom; and this may occur either because of an absence of credibility of a witness or because the intended inference may not be drawn therefrom without undue speculation. The use of such words as "substantial" and "probative" are useful in determining whether evidence is sufficient under the qualitative analysis. Ultimately, the sufficiency analysis comes down to one word: "reasonable."

Id. (citations and some quotation marks omitted). Unlike a motion for summary judgment under Indiana Trial Rule 56, the sufficiency test of Indiana Trial Rule 50(A) is not merely whether a conflict of evidence may exist, but rather whether there exists probative evidence, substantial enough to create a reasonable inference that the nonmovant has met his burden. Id. at 841.

[24] Here, Patino presented sufficient evidence to meet both the quantitative and qualitative elements of the judgment on the evidence analysis. Our thorough review of the trial transcript and the totality of the testimony presented reveals that Patino presented sufficient evidence to show that Carney was not being truthful when he told police that Patino was at the Residence on February 20, and that he witnessed Patino removing various fixtures from the premises on that date. Patino also presented substantial evidence to create a reasonable inference that Carney was primarily motivated by ill will in making his statement to police and/or that he made the statement without belief or grounds for belief in its truth. In other words, we are confident that enough credible evidence was presented from which an inference that Carney abused his qualified privilege could be found by a reasonable jury without engaging in undue speculation.

[25] Carney essentially suggests that his abuse of the qualified privilege could not be established absent direct testimony from him admitting that his statements to law enforcement were in fact motivated by ill will or that he made the statements without belief or grounds for belief in their truth. He is mistaken. Viewing only the evidence and reasonable inferences therefrom most favorable to Patino as the nonmoving party, there was substantial evidence presented to overcome Carney's qualified privilege defense. Accordingly, the trial court did not err in denying Carney's motion for judgment on the evidence.

Section 3 - The jury verdict is not excessive, and the trial court did not abuse its discretion in denying Carney's motion to correct error.

[26] Following the trial court's entry of judgment on the jury's award of $256,000 in damages to Patino, Carney filed a motion to correct error asserting that he was entitled to a new trial due to "the excessiveness of the jury verdict." Appellant's App. Vol. 5 at 158. This Court has explained that the remedy offered by Indiana Trial Rule 59(J)(5) is "available only where the evidence is insufficient to support the verdict as a matter of law." Solnosky v. Goodwell , 892 N.E.2d 174, 184 (Ind. Ct. App. 2008) (quoting City of Carmel v. Leeper Elec. Servs., Inc. , 805 N.E.2d 389, 392 (Ind. Ct. App. 2004), trans. denied ). Once the trial court has entered final judgment on the evidence for the amount of proper damages, we will reverse the decision only for an abuse of discretion. Id.

[27] We afford a jury's damage award great deference on appeal. Sims v. Pappas , 73 N.E.3d 700, 709 (Ind. 2017). In considering whether a jury verdict is excessive, we do not reweigh the evidence and look only to the evidence and reasonable inferences that may be drawn therefrom that support the verdict. West v. J. Greg Allen Builder, Inc. , 92 N.E.3d 634, 643 (Ind. Ct. App. 2017), trans. denied (2018). If there is any evidence in the record which supports the amount of the award, even if it is variable or conflicting, the award will not be disturbed. Sandberg Trucking, Inc. v. Johnson , 76 N.E.3d 178, 189 (Ind. Ct. App. 2017). "To warrant reversal, the award must appear to be so outrageous as to impress the Court at first blush with its enormity." Id. (citation and quotation marks omitted). An award is not excessive unless the amount cannot be explained upon any basis other than prejudice, passion, partiality, corruption, or some other element of improper consideration. Sims , 73 N.E.3d at 709.

[28] Carney complains that "Patino presented no medical expenses, no lost wages, and no documented losses of any kind" to support the jury's damage award. Appellant's Br. at 44. He argues that "[e]ven if there is an emotional toll associated with being charged with a crime, there is no justification for so large a verdict." Id. at 45. We disagree.

[29] "Awards for pain, suffering, fright, humiliation, and mental anguish are particularly within the province of the jury because they involve the weighing of evidence and credibility of witnesses." Landis v. Landis , 664 N.E.2d 754, 757 (Ind. Ct. App. 1996). Indeed, "[p]hysical and mental pain are, by their very nature, not readily susceptible to quantification, and therefore, the jury is given very wide latitude in determining these kinds of damages." Groves v. First Nat'l Bank of Valparaiso , 518 N.E.2d 819, 831 (Ind. Ct. App. 1988). "Our inability to actually look into the minds of jurors and determine how they computed an award is, to a large extent, the reason behind the rule that a verdict will be upheld if the award falls within the bounds of the evidence." Griffin v. Acker , 659 N.E.2d 659, 664 (Ind. Ct. App. 1995).

[30] The evidence favorable to the verdict reveals that, in addition to the monetary cost incurred in defending his criminal trial, Patino suffered great mental and emotional pain due to the highly publicized charge and arrest. His criminal case was pending for more than five years, and he presented evidence of the negative impact that it had, and continues to have, on both his personal and professional life. Under the circumstances, the $256,000 award is not so outrageous as to indicate that the jury was motivated by prejudice, passion, partiality, corruption, or some other element of improper consideration. Carney has failed to persuade us that the trial court abused its discretion in denying his motion to correct error. We therefore affirm the verdict and the trial court's judgment entered thereon.

[31] Affirmed.

Najam, J., and Pyle, J., concur.

      Although Carney appeals the trial court's rulings at various stages of the proceedings, for clarity's sake, we primarily recite the relevant facts most favorable to the jury's verdict.

      Carney claims that although Patino gave him a correct phone number, he gave a false name.

      Defamation is that which tends to injure reputation or to diminish esteem, respect, good will, or confidence in the plaintiff, or to excite derogatory feelings or opinions about the plaintiff." Davidson v. Perron , 716 N.E.2d 29, 37 (Ind. Ct. App. 1999)trans. denied (2000). "To establish defamation, the plaintiff must prove the following elements: (1) a communication with defamatory imputation, (2) malice, (3) publication, and (4) damages." Id. A communication is defamatory per se if it imputes criminal conduct. Kelley v. Tanoos , 865 N.E.2d 593, 596 (Ind. 2007).

      Although Patino's amended complaint raised several claims in addition to defamation, the basis of each claim was Carney's purported false statements to law enforcement. Thus, Carney asserts that he was entitled to summary judgment on all of Patino's claims based on the qualified privilege defense. Indeed, the qualified privilege defense to defamation has also been applied to claims of false imprisonment, negligence, and intentional infliction of emotional distress. Brown v. Indianapolis Housing Agency , 971 N.E.2d 181, 186 (Ind. Ct. App. 2012).

      Carney asserts that Patino failed to designate evidence that Carney's statements to police were, in fact, false. However, in his affidavit, Patino denied being at the Residence on February 20 or being in possession of the fixtures. This, in effect, is an averment that Carney's statements to the contrary were, in fact, false.

      Carney briefly argues that the trial court erred in failing to enter at least partial summary judgment on Patino's defamation claim because Patino's amended complaint "failed to plead the alleged defamatory statements with any specificity." Appellant's Br. at 35. Carney did not assert this as grounds for summary judgment in his original brief in support of summary judgment. Indeed, his only mention of this alleged lack of specificity is a passing reference in a footnote in his reply brief in support of summary judgment. This was insufficient to alert the trial court to this argument. It is well settled that arguments not presented to the trial court on summary judgment are waived on appeal. Anderson v. Four Seasons Equestrian Ctr., Inc. , 852 N.E.2d 576, 581 (Ind. Ct. App. 2006), trans. denied . The trial court cannot be found to have erred as to an issue or argument that it never truly had an opportunity to consider. Id. Thus, Carney has waived this argument, and we will not consider it on appeal.

      Carney emphasizes that he never reported to law enforcement that he saw Patino actually taking the fixtures out of the Residence, only that he encountered Patino in the driveway of the Residence already in possession of the fixtures that had been taken out of the Residence. We find this to be a distinction without a difference.

      Carney also argues that the verdict should be set aside because the "evidence presented should have led the jury to conclude that the qualified privilege applied." Appellant's Br. at 42. This is essentially a request for us to reweigh the evidence and reassess witness credibility on the issue of whether he abused the privilege, which we cannot do. See West , 92 N.E.3d at 643 (when party seeks to reverse adverse judgment on basis of insufficient evidence, appellate court will not weigh evidence or assess witness credibility). Carney also briefly submits, without citation to authority, that the jury's allocation of 80% fault to him for Patino's injuries was unreasonable. It is well settled that the allocation of fault is entrusted to the sound judgment of the factfinder. Paragon Family Rest. v. Bartolini , 799 N.E.2d 1048, 1056 (Ind. 2003). Carney's sole argument in this regard appears to be simply a disagreement with the jury's conclusion. Without more, we decline to address the issue further.