author: Robb, Judge.

text:
    Tarsha CHEESMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 11A01-1708-CR-1939
    Court of Appeals of Indiana.
    Filed April 12, 2018 Rehearing Denied May 24, 2018
    Attorney for Appellant: Victoria L. Bailey, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Jesse R. Drum, Deputy Attorney General, Indianapolis, Indiana
   Robb, Judge.

Case Summary and Issue

[1] Following a bench trial, Tarsha Cheesman was convicted of theft, a Class A misdemeanor. Cheesman now appeals, presenting only one issue for our review which we restate as whether the trial court erred in denying Cheesman's demand for a jury trial. Concluding the trial court did not err, we affirm.

Facts and Procedural History

[2] In May of 2016, Cheesman was employed by Page's IGA Grocery Store in Brazil, Indiana. On May 31, she requested a $50 cash advance from her next paycheck. The owner obliged, Cheesman signed a note promising to repay the $50, and the owner left a note instructing another employee to withhold $50 after cashing Cheesman's next paycheck. In a video later presented at trial, Cheesman can be seen stealing the $50 which the employee had set aside, and, although given another opportunity to repay the debt, Cheesman never did. State's Exhibit 1.

[3] On June 22, 2016, Cheesman was charged with theft, a Class A misdemeanor. On August 1, 2016, the trial court conducted an initial hearing at which Cheesman signed a Defendant's Acknowledgement of Rights providing:

4. (For Misdemeanor cases only) If you wish to exercise your right to trial by jury, you must file a written demand for a jury trial. You must file this written demand no later than ten (10) days before your first scheduled trial date. If you fail to file a written demand, or if you file a written demand but you file it late, you give up your jury trial right, permanently. If you give up your jury trial right, you will have no say about whether it will be a jury or a judge who hears the evidence at your trial and determines whether the State of Indiana proves your guilt beyond a reasonable doubt.

Appellant's Appendix, Volume II at 14 (emphasis added).

[4] The trial court set Cheesman's trial date for September 28, 2016. Cheesman moved to continue her trial and the trial court set a new trial date of December 7, 2016. Then, on November 18, 2016, the trial court set a new trial date of January 18, 2017, due to the unavailability of the presiding judge on the previously scheduled date. On January 6, 2017, Cheesman moved for a jury trial and a continuance. The trial court granted Cheesman's request for a continuance, setting a new trial date of April 19, 2017, but denied her demand for a jury trial because it was untimely filed.

[5] On April 7, 2017, the State moved to amend the information. Cheesman waived her initial hearing on the amended information and requested a continuance, which the trial court granted, and the trial court set a new trial date of May 10, 2017. On May 1, 2017, again because of the presiding judge's unavailability on the scheduled date, the trial court reset the trial date for July 26, 2017, when Cheesman's trial was finally conducted. The trial court found Cheesman guilty as charged and sentenced her to one year suspended to probation. Cheesman now appeals.

Discussion and Decision

[6] On appeal, Cheesman argues that although Sixth Amendment jurisprudence only permits express waiver of a defendant's jury trial right, Indiana Criminal Rule 22 permits waiver where a defendant fails to file a timely request for a jury trial-timely being ten days prior to the defendant's first scheduled trial date. Therefore, Cheesman alleges that her Sixth Amendment jury trial right was violated when the trial court denied her jury demand. In turn, the State argues that Cheesman waived her jury trial right through her signature on the Defendant's Acknowledgement of Rights and her subsequent failure to demand a jury trial within the allotted time period.

[7] Notably, Cheesman confines her argument to the Sixth Amendment to the United States Constitution and does not present argument regarding Article 1, Section 13 of the Indiana Constitution, or Indiana Code Section 35-37-1-2.

[8] Indiana Criminal Rule 22 provides:

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

Applied here, the Rule required Cheesman's demand for a jury trial be filed by September 18, 2016, ten days before the first scheduled trial date of September 28. However, because September 18 fell on a Sunday, pursuant to Indiana Trial Rule 6(A)(2), Cheesman's demand was due Monday, September 19. Cheesman's demand was not filed until January 6, 2017-almost four months late.

I. Standard of Review

[9] Whether a defendant has waived her jury trial right under the Sixth Amendment is a question of law and we review such questions de novo. Horton v. State , 51 N.E.3d 1154, 1157 (Ind. 2016).

II. The Jury Trial Right

A. The Sixth Amendment

[10] The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

[11] In criminal cases, the jury trial right is "fundamental to the American scheme of justice," and such right has been incorporated to the states by way of the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). This jury trial right extends to all charged with "serious" offenses. Id. at 160-61, 88 S.Ct. 1444. Whether an offense is "serious," as opposed to "petty," is answered by "consider[ing] the maximum penalty attached to the offense." Lewis v. United States , 518 U.S. 322, 326, 116 S.Ct. 2163, 135 L.Ed.2d 590 (1996). A "serious offense" is any offense "where imprisonment for more than six months is authorized." Baldwin v. New York , 399 U.S. 66, 69, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970).

[12] In this case, Cheesman was charged with theft, a Class A misdemeanor. A Class A misdemeanor carries a possible term of imprisonment "of not more than one (1) year." Ind. Code § 35-50-3-2. Thus, as a matter of federal constitutional law, Class A misdemeanors constitute "serious offenses" for the purposes of the Sixth Amendment. See, e.g. , Martinez v. State , 82 N.E.3d 261, 264 n.4 (Ind. Ct. App. 2017), trans. denied.

B. Waiver Under the Sixth Amendment

[13] On appeal, Cheesman claims that her signature on the Defendant's Acknowledgement of Rights form and her subsequent failure to demand a jury trial within the time permitted by Indiana Criminal Rule 22 were insufficient to constitute a valid waiver of her Sixth Amendment right to a trial by jury. We disagree.

[14] It has long been established that a criminal defendant may waive his or her Sixth Amendment jury trial right. Patton v. United States , 281 U.S. 276, 299, 50 S.Ct. 253, 74 L.Ed. 854 (1930), abrogated on other grounds by Williams v. Florida , 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). Our supreme court recently discussed such waiver in Horton v. State :

The jury trial right is a bedrock of our criminal justice system, guaranteed by both Article I, Section 13 of the Indiana Constitution and the Sixth Amendment to the United States Constitution. In broad view, federal and Indiana constitutional jury trial rights guarantee the same general protection-a criminal defendant must receive a jury trial, unless he waives it. Waiver of the Sixth Amendment jury trial right must be "express and intelligent," Patton v. United States , 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854 (1930), and waiver of the Indiana constitutional jury trial right must be "knowing, voluntary[,] and intelligent," Perkins v. State , 541 N.E.2d 927, 928 (Ind. 1989).
But the Indiana jury trial right provides greater protection because, in a felony prosecution , waiver is valid only if communicated personally by the defendant, Kellems [v. State , 849 N.E.2d 1110, 1114 (Ind. 2006) ]-an issue which, under the Sixth Amendment, has split federal circuit courts of appeals. Compare United States v. Khan , 461 F.3d 477, 492 (4th Cir. 2006) (upholding written waiver signed only by counsel), and United States v. Leja , 448 F.3d 86, 94-95 (1st Cir. 2006) (same), and United States v. Page , 661 F.2d 1080, 1081-82 (5th Cir. 1981) (upholding oral waiver by counsel), with United States v. Diaz , 540 F.3d 1316, 1321-22 (11th Cir. 2008) (refusing to uphold written waiver signed only by counsel).

51 N.E.3d 1154, 1158 (Ind. 2016) (emphasis added).

[15] We addressed a claim similar to Cheesman's in Martinez v. State . There, Martinez was charged with a Class A misdemeanor and several Class C misdemeanors. At his initial hearing, Martinez-who spoke limited English-signed a written acknowledgement of rights form in Spanish. 82 N.E.3d at 263. After failing to file a timely request for a jury trial, Martinez was convicted of a Class A misdemeanor at a bench trial and he subsequently appealed his conviction presenting two arguments:

First, he argue[d] that requiring a person charged with a Class A misdemeanor to follow the procedures set forth in Ind. Criminal Rule 22 in order to exercise his or her right to a jury trial violates the Sixth Amendment to the U.S. Constitution. Second, he argue[d] that the record in this case does not reflect a knowing and intelligent waiver because the trial court gave him contradictory and ambiguous advisements concerning his right to a jury trial.

Id. at 264.

[16] Notwithstanding Martinez's waiver of the issues due to his failure to present a complete record for our review, we nevertheless attempted to address his claims on the merits. Regarding his first argument, we explained, "even if we assume that Martinez did not personally waive his right to a jury trial, we conclude that no such waiver was constitutionally required." Id. at 265. In doing so, we distinguished Horton, because the personal waiver discussed therein stemmed from a state statute-not the Sixth Amendment-and related to felony prosecutions-not misdemeanors. Id. Regarding his second argument, we noted that Martinez did not dispute the validity of the written acknowledgement of rights form, nor did he claim that he did not understand it. Rather, Martinez claimed the form was later contradicted when he was advised that if "he wished to waive his right to a jury trial, he must do so affirmatively in writing." Id. at 266. We then explained that the absence of transcripts hindered our review of the issue and concluded that Martinez had therefore failed to establish reversible error. Id. at 267.

[17] Here, Cheesman's argument differs in two meaningful respects. First, rather than the personal waiver at issue in Martinez -and Horton for that matter-Cheesman claims that waiver of the Sixth Amendment's jury trial right must be "express and intelligent." Appellant's Brief at 10. And second, Cheesman makes no allegation that the trial court provided contradictory instructions and instead alleges that her inaction-failing to file a timely demand for a jury trial-is insufficient to constitute an express waiver.

[18] We, of course, look to federal law regarding the efficacy of a waiver of a federal constitutional right. "The question of a waiver of a federal guaranteed constitutional right is ... a federal question controlled by federal law." Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). "A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst , 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). And, when considering fundamental constitutional rights, like the right to trial by jury, we "indulge every reasonable presumption against waiver." Id. Furthermore, we may not presume the waiver of a fundamental right from a silent record. Boykin v. Alabama , 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ; Casselman v. State, 472 N.E.2d 1310, 1311 n.1 (Ind. Ct. App. 1985).

[19] Regarding the applicable standard for waiver, Cheesman relies on the United States Supreme Court's language in Patton v. United States :

Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses. In such cases the value and appropriateness of jury trial have been established by long experience, and are not now to be denied. Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact-finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant.

281 U.S. at 312, 50 S.Ct. 253 (emphasis added). Cheesman also points to our supreme court's statement in Horton that "[w]aiver of the Sixth Amendment jury trial right must be 'express and intelligent,' [citing Patton , 281 U.S. at 312, 50 S.Ct. 253 ]." 51 N.E.3d at 1158.

[20] In turn, the State attempts to distinguish the holding of Patton, arguing that the court was presented with a narrow question regarding whether a defendant could consent to an eleven-person jury, not whether a defendant could waive the right to trial by jury altogether. Therefore, the State argues, "the Court's statement was dictum," because there was no question that the parties had consented to the jury. Brief of Appellee at 8. And, in support thereof, the State offers two examples of Justices referring to the relevant language from Patton as dictum:

Gonzalez v. United States , 553 U.S. 242, 255 n.1 [128 S.Ct. 1765, 170 L.Ed.2d 616] (2008) (Scalia, J., concurring) (noting that the statement "was dictum; the Patton defendants had all agreed to the waiver") (internal quotation marks and citations omitted);
id. at 267[, 128 S.Ct. 1765] (Thomas, J., dissenting) ("The [ Patton ] Court stated in dicta that the express and intelligent consent of the defendant is required before any waiver [of the right to a jury trial] can become effective.") (internal quotation marks and citation omitted).

Id. Instead of the "express and intelligent" standard of waiver advanced by Cheesman, the State asserts that the applicable standard is found in Brady v. United States , where the Court held that "[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). However, because we find the record sufficient to support either, we need not decide exactly which standard is necessary to satisfy the Sixth Amendment. See Jean-Baptiste v. State, 82 N.E.3d 878, 878 (Ind. 2017) (noting "our longstanding principle of constitutional avoidance").

[21] Here, at her initial hearing and with the benefit of counsel, Cheesman signed an Acknowledgement of Rights form explaining that:

4. (For Misdemeanor cases only) If you wish to exercise your right to trial by jury, you must file a written demand for a jury trial. You must file this written demand no later than ten (10) days before your first scheduled trial date. If you fail to file a written demand, or if you file a written demand but you file it late, you give up your jury trial right, permanently. If you give up your jury trial right, you will have no say about whether it will be a jury or a judge who hears the evidence at your trial and determines whether the State of Indiana proves your guilt beyond a reasonable doubt.

Appellant's App., Vol. II at 14 (emphasis added). Thus, Cheesman was clearly advised of her jury trial right and the consequences of failing to make a timely demand. See Levels v. State, 972 N.E.2d 972, 973-74 (Ind. Ct. App. 2012) (noting that a jury trial waiver is not valid unless the trial court advises a defendant of the consequences of his failure to demand a jury trial no later than ten days prior to the trial date).

[22] After being clearly advised of the consequences thereof, Cheesman failed to file a demand for a jury trial until nearly four months after the deadline. As we have previously explained, "[t]he right to a jury trial in misdemeanor cases is not self-executing, but is controlled by Indiana Rule of Criminal Procedure 22." Fiandt v. State , 996 N.E.2d 421, 423 (Ind. Ct. App. 2013). And, in Greene v. State , we held that:

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

670 N.E.2d 38, 39 (Ind. Ct. App. 1996) (citations omitted), trans. denied ; but see Martinez, 82 N.E.3d at 265 (holding that personal waiver of the jury trial right is not required). "Thus, when charged with a misdemeanor, a defendant can waive her right to a jury trial by failing to make a timely demand for trial by jury." Young v. State , 973 N.E.2d 643, 645 (Ind. Ct. App. 2012).

[23] To the extent Cheesman now argues that she never "expressly" waived her Sixth Amendment trial by jury right, her argument leaves us unconvinced. Although Cheesman explains the meaning of "express" as "clearly and unmistakably stated[,]" Appellant's Br. at 10 (quoting Daubert v. NRA Group, LLC , 861 F.3d 382, 389 (3rd Cir. 2017) ), she fails to apply the standard to the facts presented here by explaining how exactly her actions were constitutionally inadequate, or what exactly is necessary to expressly waive her Sixth Amendment trial by jury right. The Seventh Circuit explained:

the sole constitutional requirement is that the waiver be voluntary, knowing, and intelligent. The colloquy and the written waiver serve to document these qualities, but a jury waiver may be valid despite their absence. So long as the defendant had a "concrete understanding" of his right to a jury trial, his waiver is valid.

U.S. v. Williams , 559 F.3d 607, 610 (7th Cir. 2009), cert. denied, 558 U.S. 1147, 130 S.Ct. 1137, 175 L.Ed.2d 971 (2010) (citations omitted).

[24] Here, it is undisputed that Cheesman had a "concrete understanding" of her right to a jury trial; she signed a form clearly advising her of such right and warning her of the procedural effects of Criminal Rule 22. Thus, Cheesman was aware of what she had to do and when she had to do it-she simply did not follow proper procedure. Moreover, we note that the specific language from Patton states that waiver requires the "express and intelligent consent of the defendant." 281 U.S. at 312, 50 S.Ct. 253. We view Cheesman's signature on the Acknowledgement of Rights form and her subsequent failure to file a demand for a jury trial as reflecting her express and intelligent consent-especially considering that she now offers no argument to the contrary. Therefore, we conclude Cheesman effectively waived her right to a jury trial pursuant to the Sixth Amendment.

Conclusion

[25] In light of Cheesman's advisement of her right to jury trial, her acknowledgment thereof, and her failure to request a jury trial within the time period allotted by Criminal Rule 22, we conclude Cheesman effectively waived her right to a jury trial pursuant to the Sixth Amendment.

[26] Affirmed.

Vaidik, C.J., and Altice, J., concur.

      We heard oral argument in Hammond, Indiana, at the Hammond Academy of Science and Technology on March 19, 2018. We thank the faculty, staff, and students of the Hammond Academy of Science and Technology for their generous hospitality and commend counsel for their skilled and informative oral advocacy.

      Indiana Code section 35-37-1-2 provides:
      The defendant and prosecuting attorney, with the assent of the court, may submit the trial to the court. Unless a defendant waives the right to a jury trial under the Indiana Rules of Criminal Procedure, all other trials must be by jury.

      Under the Supreme Court's definition, "serious offenses" in Indiana for the purpose of the Sixth Amendment are Class A misdemeanors and all felonies. Class B and Class C misdemeanors carry maximum possible sentences of six months and two months, respectively. Ind. Code §§ 35-50-3-3 ; 35-50-3-4. Thus, they constitute "petty" offenses-without the protection of the Sixth Amendment.

      Although not cited by Cheesman, the Court later explained in Adams v. U.S. ex rel. McCann ,
      We have already held that one charged with a serious federal crime may dispense with his Constitutional right to jury trial, where this action is taken with his express, intelligent consent, where the Government also consents, and where such action is approved by the responsible judgment of the trial court.
      317 U.S. 269, 277-78, 63 S.Ct. 236, 87 L.Ed. 268 (1942).


source: Caselaw Access Project

author: Najam, Judge.

license: Public Domain

text:
    CITY OF GARY POLICE CIVIL SERVICE COMMISSION, Appellant-Petitioner, v. Raymond ROBINSON, Appellee-Respondent.
    Court of Appeals Case No. 45A05-1706-PL-1414
    Court of Appeals of Indiana.
    Filed April 17, 2018
    Attorney for Appellant: Rodney Pol, Jr., Assistant City Attorney, Gary, Indiana
    Attorney for Appellee: Russell W. Brown, Jr., Scott King Group, Merrillville, Indiana
   Najam, Judge.

Statement of the Case

[1] The City of Gary Police Civil Service Commission ("Commission") appeals the trial court's entry of summary judgment for Raymond Robinson on his petition for judicial review from an adverse decision of the Commission. The Commission raises three issues for our review, which we restate as follows:

1. Whether the trial court erred when it denied the Commission's motion to dismiss Robinson's petition for judicial review.
2. Whether the Commission preserved for appellate review its claim that the trial court considered inadmissible evidence on summary judgment.
3. Whether the trial court erred when it entered summary judgment for Robinson.

[2] We affirm in part, reverse in part, and remand for further proceedings.

Facts and Procedural History

[3] In September of 2012, agents with the Federal Bureau of Investigation ("FBI") arrested Gary Police Department ("GPD") Officer David Finley on charges of corruption. The FBI's investigation and ultimate arrest of Finley was based at least in part on tips provided by a confidential informant ("CI"). Shortly after Finley's arrest, the CI "went into hiding out of a valid fear that Finley (or associates) would harm" the CI. Appellant's App. Vol. II at 61.

[4] On January 19, 2013, Robinson, also an officer with the GPD, used his GPD credentials to conduct an unauthorized informational search of the National Crime Information Center ("NCIC") and the Indiana Data and Communication System ("IDACS"), which are law enforcement databases that contain information about individuals who have had contact with law enforcement. Robinson searched those databases for the CI who had assisted the FBI in Finley's case. The CI's information in those databases included the CI's phone number. Shortly after Robinson conducted that search, the CI began receiving threatening phone calls.

[5] The CI informed the FBI of those calls, and FBI Special Agent Dan Cooley investigated. In the course of that investigation, Special Agent Cooley learned that Robinson had used the NCIC and IDACS databases to access the CI's information. Special Agent Cooley arranged to interview Robinson at a GPD station in February. During that interview, Robinson admitted that he had used his GPD credentials to conduct an unauthorized search for the CI and that he had seen the CI's information in those databases. But Robinson stated that he had performed that search simply out of "curiosity." Id. Later, Robinson also admitted that he had falsely testified to Finley's sentencing court that Robinson had written a letter on Finley's behalf when, in fact, Finley had written that letter himself.

[6] On March 1, after learning of Robinson's alleged unauthorized access to the NCIC and IDACS databases, GPD Chief Wade Ingram ordered Robinson to be transferred from the Bureau of Uniform Services Division to the Administrative Services Division. About a month later, Chief Ingram ordered Robinson to be transferred back to the Bureau of Uniform Services Division. Meanwhile, the FBI continued to investigate Robinson's access to the NCIC and IDACS databases. On October 15, Indiana State Police Captain Mike White informed Chief Ingram that the FBI had substantiated to the State Police that Robinson accessed the two databases without authorization, and, as a result, the State Police had permanently revoked Robinson's access to the NCIC and IDACS databases.

[7] On January 23, 2014, the City of Gary ("the City") filed a complaint against Robinson with the Commission. The City alleged that Robinson's unauthorized access of the NCIC and IDACS databases was an "abuse of privileges" and "prohibited by directives and law." Id. at 50. The City further alleged that, due to the State Police's permanent revocation of Robinson's access to those databases, "Robinson's current function as a police officer has been permanently diminished ...." Id. at 51. Accordingly, the City requested that the Commission terminate Robinson's employment.

[8] Thereafter, a single hearing officer held a fact-finding hearing on the City's complaint. The hearing officer then recommended Robinson's termination. Robinson appealed to the Commission, but the Commission accepted the hearing officer's recommendation.

[9] Robinson filed a petition for judicial review in the trial court. After the court had denied a motion to dismiss filed by the Commission, Robinson moved for summary judgment. In his motion, Robinson argued that the designated evidence showed that the GPD was aware of Robinson's misconduct no later than March 1, 2013, when Chief Ingram transferred Robinson between divisions based on Robinson's alleged unauthorized use of the NCIC and IDACS databases. As such, Robinson continued, Commission Rule of Procedure II(7)(A), which states that "disciplinary proceedings must be commenced within one-hundred and twenty (120) days from the date the alleged misconduct is discovered," required the dismissal of the Commission's proceedings because the City's complaint was filed 328 days after March 1, 2013. Id. at 79.

[10] The Commission did not object to Robinson's designated evidence in support of his motion for summary judgment. Indeed, the Commission informed the trial court that Robinson had done a "great job of laying out the facts of the case." Tr. at 21. Rather than argue facts, the Commission argued that Rule II(7)(A) did not begin to run until the investigation into Robinson's alleged misconduct had been completed. According to the Commission, that occurred here on October 15, 2013, when State Police Captain White informed Chief Ingram that Robinson's access to the NCIC and IDACS databases was being permanently revoked based on the FBI's substantiation of Robinson's alleged misuse. As such, the Commission continued, the City timely filed its January 23, 2014, complaint with the Commission. The trial court agreed with Robinson and entered summary judgment accordingly. This appeal ensued.

Discussion and Decision

Issue One: Motion to Dismiss

[11] On appeal, we first address the Commission's argument that the trial court erred when it denied the Commission's motion to dismiss. But the Commission's argument on appeal has no relationship to the argument it made in the trial court on its motion to dismiss. Compare Appellant's Br. at 33-35 with Appellant's App. Vol. II at 6-7. As such, the Commission has not preserved its argument on appeal for our review. E.g. , Holleman v. Ind. Dep't. of Corr. , 27 N.E.3d 293, 297 (Ind. Ct. App. 2015).

[12] Nonetheless, in its motion to dismiss, the Commission asserted that Robinson bore the burden to file the Commission's record in the trial court within thirty days of the Commission's decision, which he did not do. In support of that position, the Commission relied on Indiana Code Section 4-21.5-5-13(a), a provision within Indiana's Administrative Orders and Procedures Act ("AOPA"). But AOPA does not apply here. Rather, Indiana Code Chapter 36-8-3.5 applies. Indeed, aside from the plain text of the statutes within that Chapter, the Commission's own Rules of Procedure expressly state that that Chapter applies in lieu of AOPA on judicial review. Appellant's App. Vol. II at 97-98. And Indiana Code Section 36-8-3.5-18(b)(5) directs that the Commission, not Robinson, bore the burden to file the Commission's record in the trial court on judicial review. Accordingly, we reject the argument the Commission made to the trial court and affirm the trial court's denial of the motion to dismiss.

Issue Two: Evidence on Summary Judgment

[13] We next address the Commission's argument that the trial court erroneously considered evidence on summary judgment that was not before the Commission. But we conclude that the Commission has also failed to preserve this issue for our review. It is well established that "[a] party that fails to make a timely objection" to the admission of evidence in the trial court on summary judgment "waives ... the right on appeal to assert the admission of evidence as erroneous." Hay v. Hay , 885 N.E.2d 21, 23 n.1 (Ind. Ct. App 2008) (quotation marks omitted). Here, not only did the Commission not object in the trial court to Robinson's designation of evidence on summary judgment, the Commission affirmatively agreed with Robinson's representation of facts to the trial court. Tr. at 15 - 22. We hold that this issue is not properly before us, and we do not consider it.

Issue Three: Entry of Summary Judgment

[14] We thus turn to the Commission's argument that the trial court erred when it entered summary judgment for Robinson. We review summary judgment applying the same standard as the trial court: "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.' " Williams v. Tharp , 914 N.E.2d 756, 761 (Ind. 2009) (quoting Ind. Trial Rule 56(C) ). We limit our review to the materials designated at the trial level. Fraternal Order of Police, Lodge No. 73 v. City of Evansville , 829 N.E.2d 494, 496 (Ind. 2005). Where the challenge to summary judgment raises a pure question of law, such as the interpretation of a statute, we review that question de novo . Ballard v. Lewis , 8 N.E.3d 190, 193 (Ind. 2014). Our goal in statutory interpretation is to determine the legislature's intent, which, if the statute is unambiguous, we do by following the plain and ordinary meaning of the statute. E.g. , Jones v. State , 87 N.E.3d 450, 454 (Ind. 2017).

[15] As an initial matter, we note that the Commission has, it seems, abdicated the position it took on summary judgment in the trial court. Again, in the trial court, the Commission argued only that the 120-day timeframe in which to file a complaint under Commission Rule of Procedure II(7)(A) did not begin to run until after the State Police had informed Chief Ingram of the FBI's substantiation of Robinson's misuse of the NCIC and IDACS databases. On appeal, however, the Commission instead focuses on whether the facts before the trial court on summary judgment were properly admitted and whether those facts defeat judgment as a matter of law for Robinson. But, as explained above, the Commission did not preserve a challenge to the facts for appellate review, and instead the Commission expressly conceded to the trial court that Robinson's representation of the facts was "accurate." Tr. at 21 - 22. As such, the Commission's argument on appeal that the trial court's entry of summary judgment is erroneous based on the Commission's newfound reading of the record is without merit, and we do not consider it.

[16] Nonetheless, the argument the Commission made to the trial court deserves our review, and Robinson cogently addresses that argument in his brief to this Court. Accordingly, we exercise our discretion to review the merits of the trial court's judgment on that argument.

[17] This issue turns on the interpretation of Commission Rule of Procedure II(7)(A). That Rule states:

Except as otherwise provided, disciplinary proceedings must be commenced within one-hundred and twenty (120) days from the date the alleged misconduct is discovered . Disciplinary proceedings against a police officer are barred after the expiration of two (2) years from the date of the occurrence of the alleged misconduct, unless the misconduct would, if proved in a court of law, constitute a felony or a Class A misdemeanor in which case the disciplinary proceedings may be commenced at any time.

Appellant's App. Vol. II at 79 (emphasis added). According to Robinson, the 120-day requirement began to run on March 1, 2013, when Chief Ingram transferred Robinson to a different division of the GPD based on Robinson's alleged misuse of the NCIC and IDACS databases. According to the Commission's argument in the trial court, however, the 120-day requirement began to run on October 15, 2013, when the State Police first informed Chief Ingram that the FBI had substantiated the allegations against Robinson. In agreeing with Robinson's interpretation in its order on summary judgment, the trial court applied reasoning from our medical malpractice case law to conclude that the 120-day requirement began to run when "the City of Gary knew or learned of facts that, in the exercise of reasonable diligence, should have led [it] to the discovery of the alleged misconduct." Id. at 143-44 (discussing Jeffrey v. Methodist Hosps. , 956 N.E.2d 151, 159 (Ind. Ct. App. 2011) ).

[18] We agree with the Commission's argument in the trial court for two independent reasons. First, while the trial court's analogy to medical malpractice cases might well have been persuasive in a vacuum, here we have an agency's interpretation of its own rules, which is entitled to "great weight." Andy Mohr West v. Off. of Ind. Sec'y. of State , 54 N.E.3d 349, 353 (Ind. 2016). Specifically, the Commission's interpretation of Rule II(7)(A) provides that the phrase "the date the alleged misconduct is discovered" refers to the date an allegation is substantiated by an investigation. Further, the Commission's interpretation is reasonable and not inconsistent with the language of the Rule itself. As such, the judiciary must "stop our analysis and need not move forward with any other proposed interpretation." Id.

[19] Second, under Robinson's reading of Rule II(7)(A), "discovered" means the same date as the date of the allegation. That is, Robinson reads the Rule to say, in effect, that a complaint must be filed within 120 days of the date "the alleged misconduct is alleged." Had the intent of the drafters of the Rule been to start the 120-day clock on the date of an allegation, we think the Rule would have more plainly stated as much. See, e.g. , State v. Prater , 922 N.E.2d 746, 750 (Ind. Ct. App. 2010) ("In interpreting a statute, we must consider not only what the statute says but what it does not say.") (alterations and quotation marks omitted), trans. denied .

[20] Moreover, Robinson's reading is simply not practical. As the Commission argued in the trial court, it receives reports of "alleged misconduct all the time on police officers. There has to be some type of investigation" before the City is required to consider filing a complaint. Tr. at 30. And, here, that investigation was not even an internal investigation; rather, the investigation was conducted by the FBI and the State Police and outside the control of the City and the GPD. As such, we agree with the Commission's argument in the trial court with respect to the proper interpretation of Rule II(7)(A) and hold that the 120-day requirement began to run when the State Police first informed Chief Ingram that the FBI had substantiated the allegations against Robinson. We reverse the trial court's entry of summary judgment for Robinson and remand for further proceedings not inconsistent with this opinion.

Conclusion

[21] In sum, we affirm the trial court's denial of the Commission's motion to dismiss and the court's admission of evidence on summary judgment. However, we reverse the trial court's entry of summary judgment for Robinson, and we remand for further proceedings not inconsistent with this opinion.

[22] Affirmed in part, reversed in part, and remanded for further proceedings.

Mathias, J., and Barnes, J., concur.

      The Commission argues that its objection at a prior hearing in the trial court on the Commission's motion to dismiss preserved its argument on appeal with respect to the evidence designated on summary judgment. We cannot agree. An objection must be contemporaneous to preserve an issue for appellate review. E.g. , Jackson v. State , 735 N.E.2d 1146, 1152 (Ind. 2000). The Commission further asserts that much of the complained-of evidence was not properly admitted before the Commission in Robinson's appeal from the single hearing officer's recommendation. Appellant's Br. at 21. Aside from a single online newspaper article, however, the Commission's reading of the record is incorrect. See Appellee's App. Vol. 3 at 25.

      In its argument, the Commission not only cites but substantially relies on a not-for-publication memorandum decision of this Court. We remind counsel for the Commission that such decisions "shall not be cited to any court except by the parties to the case to establish res judicata , collateral estoppel, or law of the case." Ind. Appellate Rule 65(D).

      We note that the Commission's argument on appeal is only that disputed facts preclude the entry of summary judgment, not that the Commission is entitled to summary judgment. Accordingly, we do not direct the entry of summary judgment for the Commission at this time.


text:
    FAMILY CHRISTIAN WORLD, INC. d/b/a Family Christian Center, Stephan "Steve" Munsey, Melodye J. Munsey, and Darryl Anthony Smith, Appellants-Defendants, v. Vicki OLDS, Appellee-Plaintiff.
    Court of Appeals Case No. 45A04-1709-CT-2091
    Court of Appeals of Indiana.
    FILED April 17, 2018
    Attorney for Appellants: Philip E. Kalamaros, Hunt Suedhoff Kalamaros LLP, Saint Joseph, Michigan
    Attorney for Appellee: Trent A. McCain, McCain Law Offices, P.C., Merrillville, Indiana
   Najam, Judge.

Statement of the Case

[1] Family Christian World, Inc., d/b/a Family Christian Center ("FCC"), Stephen Munsey, and Melodye Munsey ("the Munseys") appeal the trial court's denial of their motion to dismiss Vicki Olds' complaint seeking damages for the alleged wrongful death of her daughter, Dominique Olds ("Nikki"). FCC and the Munseys present a single issue for our review, namely, whether the trial court erred when it denied their motion to dismiss, in which they alleged that Nikki was their employee and, thus, that the Worker's Compensation Act provides the exclusive remedy for any claim arising from her death. We affirm.

Facts and Procedural History

[2] FCC is a church in Munster, and the Munseys are employed by the church as Senior Pastors. Nikki, a full-time student at Valparaiso University, was a member of FCC's congregation. In April and May 2015, FCC hired Nikki "as a babysitter, under the direct supervision of the Munseys." Appellants' App. Vol. II at 16. Nikki filled out an IRS Form W-9 when she was hired. Nikki babysat for FCC on five occasions between April 1 and May 20, 2015, both at the FCC church and at the Munseys' private residence, and FCC paid Nikki on each occasion. Nikki did not have a set work schedule with FCC, but she accepted babysitting jobs with FCC if those jobs did not conflict either with her job in the dining hall at Valparaiso University or her classes there.

[3] On May 29, 2015, Nikki was babysitting the Munseys' granddaughter at the Munseys' residence in Schererville. At approximately 3:00 p.m., someone found Nikki "floating face down" and "unresponsive" in the Munseys' swimming pool. Id. at 17. Nikki was transported by ambulance to a hospital, but efforts to resuscitate her were unsuccessful, and she died on June 1.

[4] On November 17, 2016, Olds filed a complaint alleging in relevant part that FCC and the Munseys were liable for Nikki's wrongful death. On December 16, FCC and the Munseys filed a motion to dismiss for lack of subject matter jurisdiction under Indiana Trial Rule 12(B)(1). In particular, they alleged that Nikki was their employee and, as such, that Olds could only bring a claim against them under the Worker's Compensation Act ("the Act"). The trial court denied that motion following a hearing. This certified interlocutory appeal ensued.

Discussion and Decision

[5] FCC and the Munseys contend that Nikki was their employee and that the Act provides the exclusive remedy for her death, which, they maintain, arose out of and in the course of her employment. Thus, they assert that the trial court is without subject matter jurisdiction to hear Olds' complaint.

[6] The Act is the exclusive means by which an employee, her personal representatives, dependents, or next of kin, at common law or otherwise, can pursue compensation for an employee's injury or death arising out of and in the course of her employment. See Ind. Code § 22-3-2-6 (2018). A defense against a negligence claim on the basis that the plaintiff's exclusive remedy is to pursue a claim for benefits under the Act is properly advanced through a motion to dismiss for lack of subject matter jurisdiction under Indiana Trial Rule 12(B)(1). See Wishard Memorial Hosp. v. Kerr , 846 N.E.2d 1083, 1087 (Ind. Ct. App. 2006). " 'In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial court may consider not only the complaint and motion but also any affidavits or evidence submitted in support.' " Id. (quoting GKN Co. v. Magness , 744 N.E.2d 397, 400 (Ind. 2001) ).

The trial court may weigh the evidence to resolve the jurisdictional issue. Id.

[7] The standard of appellate review for a Trial Rule 12(B)(1) motion to dismiss is dependent upon what occurred in the trial court, that is: (i) whether the trial court resolved disputed facts; and (ii) if the trial court resolved disputed facts, whether it conducted an evidentiary hearing or ruled on a paper record. Id. Here, the trial court ruled entirely on a paper record. We review de novo a trial court's ruling on a motion to dismiss where the facts before the trial court are disputed and the trial court rules on a paper record. Id.

[8] When challenging the trial court's jurisdiction, the purported employer bears the burden of proving that an alleged employee's claim falls within the scope of the Act unless the complaint demonstrates the existence of an employment relationship. Id. at 1088. Olds' complaint does not state whether Nikki was an employee or independent contractor. Therefore, FCC and the Munseys bore the burden of demonstrating a lack of subject matter jurisdiction based on their claim that Nikki was their employee and Olds' exclusive remedy fell under the Act. See id.

[9] In Moberly v. Day , 757 N.E.2d 1007, 1010-11 (Ind. 2001), our Supreme Court set out a ten-factor analysis to distinguish employees from independent contractors. Those factors are:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.

Id. at 1010 (quoting Restatement (Second) of Agency § 220(2) ). No single factor is dispositive. Id. We consider each factor in turn.

Extent of Control Over Details of the Work

[10] In support of their motion to dismiss, FCC and the Munseys submitted to the trial court Melodye Munsey's affidavit, which provided in relevant part that the Munseys were employed as Senior Pastors at FCC and that they had: "direct authority" over Nikki in her work for FCC; the "power and right to direct and control the means, manner[,] and method" of Nikki's work for FCC; and the right to discharge Nikki. Appellants' App. Vol. II at 63. In addition, the affidavit stated that, "[t]o the extent that things were needed by [Nikki] to perform her work for [FCC], we provided them, but did not provide a cell phone or a car." Id. And the affidavit stated that the Munseys "established [Nikki's] work boundaries, determining where and when she would work for [FCC]." Id. In light of that evidence, FCC and the Munseys contend that "this factor weighs heavily in favor" of concluding that Nikki was an employee. Appellants' Br. at 11.

[11] In Moberly , our Supreme Court set out the test on the control factor as follows: the Restatement (Second) of Agency § 220(1)

defines a servant (i.e. employee) as one "employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control." Comment d. to subsection (1) further describes control or right to control as "important and in many situations ... determinative."

757 N.E.2d at 1010. While the Restatement (Second) of Agency § 220(1) clearly states that an employee is one who is "subject to the other's control or right to control," our case law emphasizes evidence of the actual control an alleged employer exercised in the course of the working relationship. (Emphasis added.)

[12] For example, in Moberly , William Day, a farmer, hired Jay Moberly and Joe Hendershot to repair drainage tile in a field, and Moberly was injured when Hendershot negligently operated a backhoe in the course of fixing the drainage tile on Day's farm. Id. at 1008. The trial court concluded that Day was not liable for Moberly's injury because Hendershot was an independent contractor. Id. at 1013.

[13] In its analysis of the control factor, our Supreme Court observed that "the record d[id] not indicate any formal agreement about the extent of control Day exercised over Hendershot's work," but the record did "describe the working arrangement." 757 N.E.2d at 1010. In particular, the evidence showed that Day had told Hendershot and Moberly "what he wanted done and [they] would do it." Id. Day testified that he had told Moberly "to dig the holes up and fill in the tile, fix the tile." Id. at 1011. Day did not "specifically tell him each step," and he did not tell him "to operate the equipment or to dig the hole or to do the back-filling." Id. The Court held that the "evidence offered indicates that Hendershot was answerable to Day for results only, not the particulars of how he went about accomplishing assigned tasks." Id. Therefore, it held that "this important factor tilts the scale toward an independent contractor conclusion." Id.

[14] In Vinup v. Joe's Construction, LLC , 64 N.E.3d 885 (Ind. Ct. App. 2016), this court also looked to the evidence of actual control exercised in the course of the parties' relationship to determine this factor. In Vinup , Joe Getz ran a company called Joe's Construction and hired Mark Vinup. After Vinup was injured on the job, he sued Joe's Construction. The trial court granted Joe's Construction's summary judgment motion, which alleged that Vinup was an employee and was, therefore, limited to damages under the Act. On appeal, this court considered evidence of the control factor as follows:

Getz solely determined and assigned what tasks were to be done by workers of Joe's Construction. That is, Getz determined the location where the work was to be done, in this case, where on the Aberdeen Project they would be working. He determined the workers' schedules, including work hours and breaks , and he had the power to remove anyone from his employment.[ ] Joe's Construction provided the tools and equipment, including safety vests, and he determined when those were to be worn. Vinup did not use any of his own tools in the performance of his work for Joe's Construction. Contrary to Vinup's assertion, we find that the "control" factor weighs in favor of employee status.

Id. at 891 (emphasis added).

[15] Here, while Melodye's affidavit states that the Munseys in their positions as Senior Pastors for FCC had the right to control "the means, manner and method" of Nikki's work for FCC, Appellants' App. Vol. II at 63, there is no evidence that the Munseys exercised actual control over Nikki when she babysat for FCC. As we observed in Vinup , an employer determines an employee's work schedule, including work hours. 64 N.E.3d at 891. But here the evidence shows that, while the Munseys would direct where she would babysit, Nikki controlled when she would babysit. Nikki had discretion in whether she would take a babysitting job when it was offered, and, moreover, no one was supervising or directing Nikki's work at the time of her death.

[16] Without evidence that Nikki had an agreement with FCC concerning the means, manner, or method by which she would discharge her babysitting duties, and without evidence that the Munseys exercised actual control over the means, manner, or method by which Nikki discharged her babysitting duties, we cannot say that this factor weighs in favor of a determination that Nikki was an employee. We hold that this factor is neutral.

Distinct Occupation

[17] The second factor considers whether the one employed is engaged in a distinct business or occupation. Walker v. Martin , 887 N.E.2d 125, 132 (Ind. Ct. App. 2008), trans. denied . In Walker , "the evidence demonstrated that Martin was engaged in his own hauling business and did not work exclusively for" another entity. Id. Accordingly, we held that this factor "weigh[ed] in favor of Martin as an independent contractor." Id. Here, the evidence shows that Nikki was a full-time college student, worked part-time for Valparaiso University, and took babysitting jobs for FCC if she "did not have another commitment or a school obligation." Appellants' App. Vol. II at 47. Because Nikki was a full-time college student and did not work exclusively for FCC, this factor weighs significantly in favor of Nikki as an independent contractor.

Kind of Occupation

[18] In Moberly , our Supreme Court's analysis of this factor was as follows: "Unsupervised specialists commonly perform this type of heavy-equipment repair, although employers do sometimes direct such work. This factor is therefore not particularly meaningful in this case." 757 N.E.2d at 1011. Depending on the nature of the job, a babysitter may be hired independently to supervise children in the stead of a parent or guardian, or she may, for example, be hired as an employee of a daycare business and work under direct supervision. Under the evidence presented here, this factor is neutral.

Skill Required

[19] Babysitting does not require special skills, so this factor weighs moderately in favor of finding employee status.

Supplier of Equipment and Work Location

[20] The evidence shows that Nikki babysat either at FCC's church or the Munseys' residence. This factor weighs moderately in favor of finding employee status.

Length of Employment

[21] Nikki babysat for FCC on six occasions in April and May, 2015. Comment h. to the Restatement (Second) of Agency § 220(2) refers to "employment over a considerable period of time with regular hours," and comment a. to § 220(1) also describes an employee as "one who performs continuous service for another." Moberly , 757 N.E.2d at 1012. Here, Nikki neither worked regular hours for FCC, nor did she perform continuous service for FCC. The undisputed evidence shows that Nikki worked intermittently and had discretion in whether to take a babysitting job when it was offered. This factor weighs significantly in favor of independent contractor status.

Method of Payment

[22] FCC paid Nikki by the job. That is, while she was paid at an hourly rate, FCC paid Nikki on each occasion that she babysat. Indeed, Nikki was paid by two separate checks for babysitting twice on the same day, April 28, 2015. This factor weighs significantly in favor of independent contractor status. See Moberly , 757 N.E.2d at 1012.

Regular Business of the Employer

[23] There is no evidence that FCC is in the business of providing babysitting services. At most, any babysitting services FCC provides are ancillary to its "business." This factor weighs significantly in favor of independent contractor status.

Belief of the Parties

[24] The IRS requires employers to report wage and salary information for employees on a Form W-2. Berry v. Crawford , 990 N.E.2d 410, 428 (Ind. 2013). Here, FCC and the Munseys did not present evidence that they had completed a Form W-2 for Nikki. Neither did they present evidence that Nikki had filled out a Form W-4, which employers use to determine withholding from an employee's wages on a Form W-2. Rather, Nikki filled out and signed a Form W-9 when she began babysitting for FCC, and that form is used when hiring independent contractors. In addition, FCC's records describe Nikki as a "vendor" in the ledger of payments made to her and show no withholding. Appellants' App. Vol. II at 45. This factor weighs significantly in favor of independent contractor status.

Whether the Principal is in Business

[25] FCC is a church, which has certain attributes of a business. As senior pastors of FCC, the Munseys manage the "business" of the church, although they are not engaged in a for-profit enterprise. This factor weighs in favor of employee status, but is not particularly meaningful here, given that FCC is not in the babysitting business. See supra .

Conclusion

[26] In our analysis of whether an employer-employee relationship exists, "the factors must be weighed against each other as a part of a balancing test as opposed to a mathematical formula where the majority wins."See GKN , 744 N.E.2d at 402. Here, FCC and the Munseys presented evidence that the Munseys had the right to control the "means, manner, and method" of Nikki's babysitting, but they offered no evidence that they exercised control over Nikki while she babysat, and she was unsupervised at the time of her death. Appellants' App. Vol. II at 63. We hold that "the leading factor of control" is neutral, and we give no weight to this factor under these circumstances. See Moberly , 757 N.E.2d at 1013. The distinct occupation, length of employment, method of payment, and belief of the parties factors weigh significantly in favor of Nikki's independent contractor status. In particular, Nikki did not work exclusively for FCC, but was a full-time student and worked in a dining hall; Nikki worked irregular hours over the course of two months and had discretion whether to accept or reject babysitting jobs offered by FCC; FCC paid Nikki by the job; and the parties' intent that Nikki was an independent contractor is manifested by the fact that Nikki filled out a Form W-9 rather than a Form W-4, and there was no withholding. While a few of the factors lean toward employee status, those factors are less significant and do not outweigh the other factors.

[27] On this thin record, FCC and the Munseys have not sustained their burden to show that Nikki was an employee. When considered as a whole, the evidence supports the trial court's conclusion that Nikki was an independent contractor. Thus, we hold that the trial did not err when it denied their motion to dismiss for lack of subject matter jurisdiction.

[28] Affirmed.

Robb, J., and Altice, J., concur.

      In their brief on appeal, FCC and the Munseys allege that both "FCC and the Munseys were employers of [Nikki] at the time of [her death]." Appellants' Br. at 9. However, in an affidavit, Melodye states that she and Stephen were employed by FCC as senior pastors, which suggests that when they supervised Nikki they were acting as agents of FCC. There is no evidence that the Munseys hired Nikki on their own account. Nevertheless, "[w]here two employers 'so associate themselves together that both are in direct control of the employee and he is made accountable to both, he will be considered an employee of both employers[.]' " GKN Co. v. Magness , 744 N.E.2d 397, 402 (Ind. 2001) (quoting U.S. Metalsource Corp. v. Simpson , 649 N.E.2d 682, 685 (Ind. Ct. App. 1995) ).

      A Form W-9 provides information about an independent contractor necessary for the hiring party to report at a later date on a Form 1099-MISC for payments made.

      Nikki babysat for FCC on April 1, April 18, twice on April 28, and on May 20.

      Pursuant to Indiana Code Section 34-23-2-1(c)(1), Mother named Nikki's father, Darryl Anthony Smith, as a codefendant in the complaint, but he did not appear and does not participate in this appeal.

      They also moved to dismiss the complaint under Trial Rule 12(B)(6), but they do not raise that issue on appeal.

      The negative judgment standard of review does not apply here. A negative judgment occurs when a decision is made against the party who bore the burden of proving facts to a fact-finder at an evidentiary hearing. See, e.g. , Romine v. Gagle , 782 N.E.2d 369, 376 (Ind. Ct. App. 2003), trans. denied . Such decisions may not be challenged on appeal on the grounds that they are not supported by sufficient evidence; rather, they may be challenged only on the grounds that they are contrary to law. 2 Ind. L. Encyc. Appeals § 337 (Supp. Jan. 2018). Here, the trial court did not hold an evidentiary hearing to determine facts, and we are in just as good a position on appeal as the trial court was to determine the issues raised. Thus, our standard of review is de novo .

      While FCC and the Munseys contend that their right to discharge Nikki at any time bears on the control factor, we cannot agree. The right to discharge is one of seven factors our courts consider to determine the existence of an employer-employee relationship under the borrowed servant doctrine, see Hale v. Kemp , 579 N.E.2d 63, 67 (Ind. 1991), which is not at issue in this appeal. The ten-factor test in Moberly , which FCC and the Munseys concede applies here, does not include a "right to discharge" factor. 757 N.E.2d at 1010 n.3.

      Again, there is no "right to discharge" factor in the Moberly ten-factor test, and we disagree with the court in Vinup that it has any bearing on the control factor under the Moberly test. The "right to discharge" is relevant to the seven-factor Hale test because it bears on which of two employers has control over an employee.

      FCC and the Munseys point out that, in her brief to the trial court, Olds conceded that this factor weighed in favor of employee status. But on appeal, Olds contends that this factor weighs in favor of independent contractor status. Regardless, Olds' concession to the trial court was not dispositive, and it is not dispositive here. Rather, we review de novo the complaint and evidence presented to the trial court relevant to each factor.


author: Barnes, Judge.

text:
    In re: The Matter of the Paternity of S.R.W., BY Next Friend, Michele Renee BESSETTE, a/k/a Michele Renee Wright Bessette, a/k/a Michele Renee Wright, Appellant-Petitioner, v. Bradley TURFLINGER, Appellee-Respondent.
    Court of Appeals Case No. 02A05-1711-JP-2778
    Court of Appeals of Indiana.
    FILED April 18, 2018
    Attorneys for Appellant: Benjamin D. Ice, William A. Ramsey, Barrett McNagny, LLP, Fort Wayne, Indiana
    Attorney for Appellee: Christopher Bandemer, Fort Wayne, Indiana
   Barnes, Judge.

Case Summary

[1] Michele Renee Bessette ("Mother") appeals the trial court's denial of her motion for change of judge in this parenting time dispute with Bradley Turflinger ("Father"). We affirm.

Issue

[2] Mother raises one issue, which we restate as whether the trial court properly denied her motion for change of judge pursuant to Indiana Trial Rule 76(C)(3). Father cross-appeals, arguing that Mother's appeal should be dismissed as an improper interlocutory appeal.

Facts

[3] Mother and Father are the parents of S.R.W., who was born in January 2001. S.R.W. lives with Mother in Indiana, and Father lives in Minnesota. Mother and Father have joint legal and physical custody, with Father exercising parenting time according to the distance-based guidelines. The parties have had numerous significant disagreements and contempt proceedings over custody, parenting time, and support. In March 2014, the trial court found Mother in contempt and sentenced her to "sixty (60) days in the Allen County Confinement Facility, suspended on the condition that she abide by the Orders of the Court as set forth herein, and all other prior Orders of the Court that do not conflict with this Order." Appellant's App. Vol. II p. 49.

[4] In 2015, Father filed additional contempt proceedings against Mother. The trial court found Mother in contempt twice. In December 2016, the trial court held a hearing on sanctions for the contempts. The trial court ordered Mother to serve thirty days of her previously suspended sentence, ordered her to serve two thirty-day sentences for her new contempt findings, and suspended the new thirty-day sentences upon the condition that she strictly comply with the trial court's parenting time order and upon the condition that she pay $5,000 in attorney fees to Father's counsel within ninety days. Mother was then taken into custody to serve the first thirty-day previously-suspended sentence.

[5] Mother appealed, and we affirmed in part, vacated in part, and remanded to the trial court. On appeal, Mother challenged the trial court's imposition of thirty days of incarceration and the two new suspended sentences. Mother did not challenge the condition that she pay $5,000 in attorney fees to Father's attorney. We held that the thirty-day incarceration was "punitive" and vacated that portion of the order. In re Paternity of S.R.W. , No. 02A05-1701-JP-144, slip op. at 14, 2017 WL 4322375 (Ind. Ct. App. Sept. 29, 2017). We affirmed the imposition of the two thirty-day suspended sentences, but instructed the trial court to "revise its order, striking the modifiers 'strict' and 'strictly' and conditioning execution of Mother's suspended sentences only upon willful non-compliance with its orders." Id. at 16-17.

[6] After remand to the trial court, Father filed a motion for an injunction to prevent Mother from changing S.R.W.'s schooling for the 2017/2018 school year, a verified petition for rule to show cause, a motion to modify support, and a motion for proceedings supplemental. A January 2017 motion to reinstate Mother's jail sentence also remained pending. Mother filed a motion to change judge pursuant to Indiana Trial Rule 76(C)(3). The trial court issued the following order addressing Father's January 2017 motion to reinstate Mother's jail sentence and Mother's motion for a change of judge:

1. "In a paternity action, Ind. Trial R. 76(B) allows a party to make one change-of-judge request before entry of a final decree and one change-of-judge request in connection with a petition to modify that decree." In Re V.A. , 10 N.E.3d 61, 64 (Ind. Ct. App. 2014). Neither [Mother] nor [Father] timely requested a change of judge prior to the entry of the final decree in this paternity case entered on April 20, 2001. Accordingly, both parties waived their first opportunity for a change of judge.
2. Subsequently, [Mother] timely requested a change of judge on October 28, 2013, and Special Judge Daniel G. Pappas was appointed by the Clerk as a special judge in this cause on December 5, 2013. Accordingly, [Mother] exercised her second opportunity for a change of judge and is not entitled to ... another change of judge for prospective pleadings filed in this cause pursuant to Ind. Trial Rule 76(B). (See also Ind. Trial R. 79(1).)
3. However, referring to Ind. Trial R. 76(C)(3), [a] third opportunity to request a change of judge arises in cases where the trial court or a reviewing court orders a new trial, or where a reviewing court remands a case such that a further hearing and new evidence must be heard. In Re V.A. at p. 64. In its extant memorandum decision, the Court of Appeals found that the trial court abused its discretion in executing the initial thirty (30) day sentence because the appellate court determined it to be punitive not coercive as required. Accordingly, the Court of Appeals vacated [Mother's] initial thirty (30) day executed sentence imposed by the trial court. No further proceedings are required concerning the Court's 30-day executed sentence order. The trial court's executed sentence of thirty (30) days is now void and conclusive between the parties.
4. The Court of Appeals passed no judgment regarding the length of the two (2) pending thirty (30) day suspended sentences. No evidence has been received to determine whether or not [Mother] has met the conditions to purge herself of these two (2) contempt findings or, in the alternative, whether further coercive orders are required. Further, the Court of Appeals remanded with instructions and directed the trial court to revise its contempt purge conditions for these two (2) contempt findings by striking strict and strictly from its order and conditioning [Mother's] suspended sentences only upon willful non-compliance with its orders. No new trial is required and no reconsideration of previously received evidence is required on remand. Rather, the appellate court has rendered its decision and provided specific instructions to the trial court to amend its contempt-purge conditions.
5. [Mother's] Motion for Change of Judge filed October 11, 2017 should be denied.
C. Based upon the above findings, the Court orders as follows:
1. [Mother's] Motion for Change of Judge filed on October 11, 2017, is overruled and denied.
3. [FATHER'S] MOTION TO REINSTATE MOTHER'S JAIL SENTENCE FILED JANUARY 18,2017:
A. The Court finds that [Father's] Motion to Reinstate Mother's Jail Sentence filed January 18, 2017 is moot, as the Indiana Court of Appeals vacated the trial court's decision which had ordered [Mother] to serve thirty (30) days executed in the Allen County Confinement Facility for Mother's failure to purge herself of her contempt found by the Court in its March 14, 2014 Order of the Court.
B. The Court therefore orders that [Father's] Motion to Reinstate Mother's Jail Sentence filed January 18, 2017 is dismissed.
4. AMENDED CONTEMPT PURGE CONDITIONS:
A. The Court hereby amends Paragraph 2.E. of its Order of the Court dated December 20, 2016, in accordance with instructions from the Indiana Court of Appeals, to now read as follows:
For her contempt found in Paragraph 2.A. of the Order of the Court dated August 31, 2015, Mother is ordered to serve thirty (30) days in the Allen County Confinement Facility, which order of confinement is suspended upon the condition that she comply with the parenting time orders of the Court until she is no longer subject to a parenting time order, and upon the condition that she pay the attorney fee award set forth below.
For her contempt found in Paragraph 3.A. of the Order of the Court dated August 31, 2015, Mother is ordered to serve thirty (30) days in the Allen County Confinement Facility, which order of confinement is suspended upon the condition that she comply with the parenting time orders of the Court until she is no longer subject to a parenting time order, and upon the condition that she pay the attorney fee award set forth below.
[Mother] may be purged of the aforesaid 30-day suspended confinement orders by her compliance with the parenting time orders of the Court, and the payment of $5,000.00 in attorney fees to Father's counsel, Christopher Bandemer, within ninety (90) days of this Order. An attorney fee judgment is entered in favor of said Christopher Bandemer and against Mother.
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Appellant's App. Vol. II pp. 31-33. Mother now appeals.

Analysis

[7] Before addressing Mother's argument, we note that Father argues Mother's interlocutory appeal is improper. Our appellate authority is "generally limited to appeals from final judgments." Ball State Univ. v. Irons , 27 N.E.3d 717, 720 (Ind. 2015). "However, our Rules of Appellate Procedure also confer appellate jurisdiction over non-final interlocutory appeals pursuant to Appellate Rule 14." Id. "There are three ways a case may proceed as an interlocutory appeal: an interlocutory appeal of right ( Rule 14(A) ); a discretionary interlocutory appeal ( Rule 14(B) ); or an interlocutory appeal from an order granting or denying class-action certification ( Rule 14(C) )." Id. Mother argues that her appeal is proper under Indiana Appellate Rule 14(A)(1), which allows an interlocutory appeal as of right where the order is "[f]or the payment of money." According to Mother, the trial court's order required her to pay $5,000 to Father's attorney and is a basis for an interlocutory appeal as of right.

[8] We make two observations regarding Mother's argument. First, Mother raises no argument on appeal regarding the order requiring her to pay $5,000 to Father's attorney. We acknowledge that "an interlocutory appeal raises every issue presented by the order that is the subject of the appeal." Tom-Wat, Inc. v. Fink , 741 N.E.2d 343, 346 (Ind. 2001). However, the purpose of allowing appeals for the payment of money is to provide a remedy to parties compelled to part with money which is tied up awaiting litigation. Ferguson v. Estate of Ferguson , 40 N.E.3d 881, 885 (Ind. Ct. App. 2015). It seems to us to defeat the purpose of allowing such interlocutory appeals if the party does not actually raise an issue regarding the payment of money.

[9] Second, Mother was first ordered to pay the $5,000 in Father's attorney fees in December 2016. Mother appealed that order but did not raise any issue regarding the payment of the attorney fees. The order at issue here merely restated the trial court's earlier order for Mother to pay $5,000 in attorney fees. "The law is well-established that an issue is waived if it was available on the first appeal but was not presented." Citizens Action Coal. of Indiana, Inc. v. N. Indiana Pub. Serv. Co. , 582 N.E.2d 387, 391 (Ind. Ct. App. 1991). Consequently, even if Mother had raised an issue regarding the $5,000 payment, we question whether the issue was available in this appeal.

[10] Although we question whether Mother's interlocutory appeal is proper, even if it is allowable, her argument that she was entitled to a change of judge fails. Mother argues that she was entitled to a change of judge pursuant to Indiana Trial Rule 76(C)(3), which provides:

In any action except criminal no change of judge or change of venue from the county shall be granted except within the time herein provided. Any such application for change of judge (or change of venue) shall be filed not later than ten [10] days after the issues are first closed on the merits. Except:
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(3) if the trial court or a court on appeal orders a new trial, or if a court on appeal otherwise remands a case such that a further hearing and receipt of evidence are required to reconsider all or some of the issues heard during the earlier trial, the parties thereto shall have ten [10] days from the date the order of the trial court is entered or the order of the court on appeal is certified[.]

[11] Mother argues that this court remanded the case such that a further hearing and receipt of evidence was required to reconsider issues. In support of this argument, Mother contends that this court ordered the trial court to modify its orders of suspended sentences, reconsider Mother's future incarceration, and reconsider the contempt finding. Mother also argues that the trial court was required to hear new evidence and reconsider issues when examining the pending motions and Father's motion to reinstate the jail sentence. Father argues that the trial court properly denied Mother's motion for a change of judge under Indiana Trial Rule 76(C)(3) because this court did not order a new trial or order the trial court to conduct further hearings or consider additional evidence.

[12] We agree with Father. In the original appeal, we concluded as follows:

Thus, we conclude that the sanction imposed was punitive. Although a trial court may impose a punitive contempt sanction, it may do so only in criminal contempt proceedings, which involve a variety of additional procedural safeguards that were not present here. We must therefore vacate the punitive incarceration order.
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Thus, the authority to fashion a suspended sentence falls squarely within the trial court's inherent coercive and remedial civil contempt power. We therefore affirm the imposition of the suspended sanctions, while passing no judgment on the length of those sentences. Rather, we remind the trial court that any future order of incarceration must be reasonably necessary to garner compliance, as determined at the time the incarceration is imposed.
Finally, Mother points out that the order imposing suspended sentences improperly "presume[s] that any failure to comply with a future order will not only be willful but also will warrant time in jail." Appellant's Br. at 27. The order states that Mother's confinement is "suspended on the condition that she strictly comply with the parenting[-]time orders of the Court," and that she may be purged of her confinement orders "by her strict compliance with the parenting[-]time orders." Appellant's App. Vol. II at 133. We agree that the language requiring strict compliance was over-inclusive, in that prohibiting unwillful actions has no logical coercive effect. Therefore, on remand, we instruct the trial court to revise its order, striking the modifiers "strict" and "strictly" and conditioning execution of Mother's suspended sentences only upon willful non-compliance with its orders.
Conclusion
The trial court abused its discretion in imposing a punitive contempt sanction, and we therefore vacate the order of incarceration. Moreover, although the imposition of suspended sentences was a proper coercive sanction, the trial court abused its discretion in conditioning execution of the sentences on strict compliance with its parenting-time orders. We instruct the trial court to revise its order, instead conditioning the sentence upon willful non-compliance.

S.R.W., slip op. at 14-17. (internal quotations and footnotes omitted).

[13] On remand, nothing in our opinion required the trial court to conduct a new trial. Moreover, it was unnecessary for the trial court to conduct further hearings or introduce additional evidence to reconsider all or some of the issues heard during the earlier trial. Rather, the trial court only needed to revise its order to comply with our decision. The fact that the trial court had to consider new motions that were filed during or after the appeal is irrelevant to the question of whether Mother was entitled to a change of judge under Trial Rule 76(C)(3). Trial Rule 76(C)(3) allows a change of judge only where a new trial is ordered or the trial court is required to reconsider all or some of the issues heard during the earlier trial. Consideration of new motions will not mandate a change of judge under the rule. We conclude that the trial court properly denied Mother's motion for change of judge.

Conclusion

[14] The trial court properly denied Mother's motion for a change of judge. We affirm.

[15] Affirmed.

Najam, J., and Mathias, J., concur.