      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                FILED
      regarded as precedent or cited before any                       Dec 30 2016, 6:18 am
      court except for the purpose of establishing
                                                                           CLERK
      the defense of res judicata, collateral                          Indiana Supreme Court
                                                                          Court of Appeals
      estoppel, or the law of the case.                                     and Tax Court




      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Jeffrey S. Wrage                                         Michael E. O’Neill
      Colby A. Barkes                                          Marian C. Drenth
      Blachly, Tabor, Bozik & Hartman LLC                      Kathleen M. Erickson
      Valparaiso, Indiana                                      O’Neill McFadden & Willet LLP
                                                               Schererville, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Ricardo S. Trevino,                                      December 30, 2016
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               45A05-1603-CT-683
              v.                                               Appeal from the Lake Superior
                                                               Court
      Comprehensive Care, Inc.,                                The Honorable Bruce D. Parent,
      Appellee-Defendant.                                      Judge
                                                               Trial Court Cause No.
                                                               45D04-1508-CT-156



      Mathias, Judge.


[1]   The Lake Superior Court granted a motion to dismiss filed by Comprehensive

      Care, Inc. (“CCI”) in a negligence action filed by Ricardo S. Trevino


      Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016   Page 1 of 16
      (“Trevino”). Trevino appeals and argues that the trial court erred in concluding

      that his complaint fell within the scope of the Indiana Medical Malpractice Act,

      which would have required him to file a proposed complaint with a medical

      review panel before filing his complaint in court. Concluding that the acts

      alleged in Trevino’s complaint do fall within the scope of the Act, we affirm.


                                    Facts and Procedural History

[2]   At the time relevant to this appeal, CCI was a corporation licensed to practice

      physical and occupational therapy medicine in Indiana. Trevino had sustained

      a work-related injury to his left ankle and, on December 8, 2014, went to CCI

      for a return-to-work examination. During the examination, a CCI employee

      instructed Trevino to step onto stacked exercise steps. When he did so, the steps

      slipped out from under him, causing him to fall. As a result of the fall, Trevino

      sustained serious injury to his left knee.


[3]   On August 14, 2015, Trevino filed a complaint against CCI alleging the above

      facts and claiming that, as a direct and proximate result of CCI’s negligence,

      Trevino had sustained “serious, permanent, and debilitating injuries to his left

      knee, and has experienced and will continue to experience in the future,

      physical pain and the loss of enjoyment of life as a result of those injuries, as

      well as past and future lost wages and diminished earning capacity.”

      Appellant’s App. p. 9. Trevino’s complaint sought compensatory damages,

      costs, and other just and proper relief. Id.




      Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016   Page 2 of 16
[4]   After receiving an enlargement of time in which to file its response, CCI

      submitted an answer to Trevino’s complaint on October 9, 2015. On November

      13, 2015, CCI filed a motion to dismiss for lack of subject matter jurisdiction,

      arguing that Trevino’s claim fell within the scope of the Medical Malpractice

      Act. Since Trevino had not submitted a claim to a medical review panel, CCI

      argued that the trial court lacked subject matter jurisdiction to hear Trevino’s

      complaint.

[5]   Trevino filed a response on January 6, 2016, arguing that his complaint

      sounded in premises liability, not medical malpractice, and was therefore not in

      the scope of the Act. The trial court held a hearing on the motion to dismiss on

      February 29, 2016, at the conclusion of which it took the matter under

      advisement. Later that same day, the trial court issued an order on the motion

      to dismiss, which provides in relevant part:


              9. Trevino provided the Court with a series of cases that had to
              do with premises liability, not from the provision of medical
              services. Yet, Trevino’s complaint put forward the following facts
              which CCI did not contest:
                   a. CCI was at all times relevant “duly licensed to practice
                   physical and occupational therapy medicine in the state of
                   Indiana.”
                   b. CCI was at all times relevant a corporation “engaged in
                   the business of providing physical therapy and back to work
                   examinations.”
                   c. All negligent acts and omissions of CCI were performed
                   or omitted by employees, agents, and/or representatives
                   “while they were acting within the scope of their
                   employment.”

      Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016   Page 3 of 16
                   d. On the date in question, Trevino appeared at CCI for a
                   return-to-work examination related to an injury to his left
                   ankle.
                   e. CCI, while performing a return-to-work exam requested
                   that Trevino “step upon stacked exercise steps, which slipped
                   out from under him, causing him to fall and receive severe
                   and permanent injury.”
              10. To this Court, the provisions of a medical examination to
              Trevino, related to his injury, by CCI – a company that engaged
              in the provision of occupational therapy medicine – instructing
              Trevino to make specific assessable movements was the provision
              of medical services as a matter of law under the test provided by
              Popovich v. Danielson, [896 N.E.2d 1196 (Ind. Ct. App. 2008)],
              even under the very stringent limitation as on a claimant’s rights
              provided by the Court of Appeals in Peters v. Cummings, [790
              N.E.2d 572 (Ind. Ct. App. 2003)].
              11. Accordingly, this Court [finds] as a matter of law [that] it
              does not possess jurisdiction over the parties to hear this matter
              pursuant to T.R. 12(B)(1) and the Indiana Medical Malpractice
              Act.

      Tr. pp. 26-27. Trevino now appeals.


                                           Standard of Review

[6]   A trial court ruling on a motion to dismiss for lack of subject matter jurisdiction

      under Trial Rule 12(B)(1), unlike a trial court ruling on a motion to dismiss

      under Trial Rule 12(B)(6), may consider not only the complaint but also any

      affidavits or evidence submitted in support. B.R. ex rel. Todd v. State, 1 N.E.3d

      708, 711 (Ind. Ct. App. 2013). If such evidence is presented, the trial court may

      weigh the evidence to resolve the jurisdictional issue. Id. On appeal, our

      standard of review depends on what occurred in the trial court, that is, whether

      Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016   Page 4 of 16
the trial court resolved disputed facts; and if the trial court resolved disputed

facts, whether it conducted an evidentiary hearing or ruled on a “paper record.”

Id.


        If the facts before the trial court are not in dispute, then the
        question of subject matter jurisdiction is purely one of law. Under
        those circumstances no deference is afforded the trial court’s
        conclusion because appellate courts independently, and without
        the slightest deference to trial court determinations, evaluate
        those issues they deem to be questions of law. Thus, we review de
        novo a trial court’s ruling on a motion to dismiss under Trial Rule
        12(B)(1) where the facts before the trial court are undisputed.
        If the facts before the trial court are in dispute, then our standard
        of review focuses on whether the trial court conducted an
        evidentiary hearing. Under those circumstances, the court
        typically engages in its classic fact-finding function, often
        evaluating the character and credibility of witnesses. Thus, where
        a trial court conducts an evidentiary hearing, we give its factual
        findings and judgment deference. And in reviewing the trial
        court’s factual findings and judgment, we will reverse only if they
        are clearly erroneous. Factual findings are clearly erroneous if the
        evidence does not support them, and a judgment is clearly
        erroneous if it is unsupported by the factual findings or
        conclusions of law.

        However, where the facts are in dispute but the trial court rules
        on a paper record without conducting an evidentiary hearing,
        then no deference is afforded the trial court’s factual findings or
        judgment because under those circumstances a court of review is
        in as good a position as the trial court to determine whether the
        court has subject matter jurisdiction. Thus, we review de novo a
        trial court’s ruling on a motion to dismiss where the facts before
        the court are disputed and the trial court rules on a paper record.




Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016   Page 5 of 16
      GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001) (citations and internal

      quotations omitted).


[7]   Here, it appears that the facts are essentially undisputed. Moreover, although

      the trial court held a hearing on the motion to dismiss, the hearing was simply

      an oral argument, as the parties presented no evidence and no witnesses were

      sworn. Accordingly, we apply a de novo standard of review based on the paper

      record before us. See B.R. ex rel. Todd, 1 N.E.3d at 712 (applying de novo

      standard where trial court held hearing at which parties made legal arguments

      and did not present evidence) (citing Popovich v. Danielson, 896 N.E.2d 1196

      (Ind. Ct. App. 2008)).


                              The Indiana Medical Malpractice Act

[8]   The Medical Malpractice Act authorizes a patient who has a claim for bodily

      injury or death due to medical malpractice to file a complaint in any court with

      jurisdiction. Ind. Code § 34-18-8-1; Terry v. Cmty. Health Network, Inc., 17

      N.E.3d 389, 393 (Ind. Ct. App. 2014). Indiana Code section 34-18-8-4 provides

      that “an action against a health care provider may not be commenced in a court

      in Indiana before: (1) the claimant’s proposed complaint has been presented to

      a medical review panel . . . and (2) an opinion is given by the panel.” Thus,

      until a medical review panel has issued its opinion, the trial court has no

      jurisdiction to hear and adjudicate the claim. Terry, 17 N.E.3d at 393; see also

      B.R. ex rel. Todd, 1 N.E.3d at 713 (“simply said, the Act grants subject matter




      Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016   Page 6 of 16
       jurisdiction over medical malpractice actions first to the medical review panel,

       and then to the trial court.”).1


[9]    We further observe that, “‘the statutory procedures for bringing a medical

       malpractice action are in derogation of common law, and as such, they are to

       be strictly construed against limiting a claimant’s right to bring suit.’” B.R. ex rel.

       Todd, 1 N.E.3d at 713 (quoting Weldon v. Universal Reagents, Inc., 714 N.E.2d

       1104, 1107 (Ind. Ct. App. 1999)). When our General Assembly enacts a statute

       in derogation of common law, we presume that the legislature is aware of the

       common law, and does not intend to make any change beyond what is declared

       in express terms or by unmistakable implication. Id.


[10]   As explained in B.R. ex rel. Todd,


             “Malpractice” is defined as “a tort or breach of contract based on
              health care or professional services that were provided, or that
              should have been provided, by a health care provider, to a
              patient.” I.C. § 34-18-2-18. A “patient” is “an individual who
              receives or should have received health care from a health care
              provider, under a contract, express or implied, and includes a
              person having a claim of any kind, whether derivative or
              otherwise, as a result of alleged malpractice on the part of a
              health care provider.” I.C. § 34-18-2-22. And “health care” is “an
              act or treatment performed or furnished, or that should have been
              performed or furnished, by a health care provider for, to, or on




       1
         There is an exception to the requirement that a complaint for medical malpractice be submitted to a medical
       review panel if the plaintiff’s complaint includes a declaration that the plaintiff seeks damages of $15,000 or
       less. Ind. Code § 34-18-8-6(a). If such a declaration is included, the case may be commenced in the trial court
       without first submitting the complaint to a medical review panel. Id.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016           Page 7 of 16
               behalf of a patient during the patient’s medical care, treatment, or
               confinement.” I.C. § 34-18-2-13.


       1 N.E.3d at 713.


[11]   “The Act covers ‘curative or salutary conduct of a health care provider acting

       within his or her professional capacity, but not conduct unrelated to the

       promotion of a patient’s health or the provider’s exercise of professional

       expertise, skill, or judgment.’” Terry, 17 N.E.3d at 393 (quoting Howard Reg’l

       Health Sys. v. Gordon, 952 N.E.2d 182, 185 (Ind. 2011)). When deciding whether

       a claim falls under the provisions of the Medical Malpractice Act, we are

       guided by the substance of a claim to determine the applicability of the Act. Id.


[12]   The fact that the alleged misconduct occurs in a healthcare facility, or that the

       injured party was a patient at the facility, is not dispositive in determining

       whether the claim sounds in medical malpractice. Id. (citing Madison Ctr., Inc. v.

       R.R.K., 853 N.E.2d 1286, 1288 (Ind. Ct. App. 2006)). Instead, the test is

       whether the claim is based on the provider’s behavior or practices while acting

       in his professional capacity as a provider of medical services. Id. Or, put

       differently, “A case sounds in ordinary negligence where the factual issues are

       capable of resolution by a jury without application of the standard of care

       prevalent in the local medical community.” Anonymous Hosp., Inc. v. Doe, 996

       N.E.2d 329, 333 (Ind. Ct. App. 2013). Thus, we have held that the Medical

       Malpractice Act was not intended to extend to cases of ordinary negligence or

       premises liability. Pluard ex rel. Pluard v. Patients Comp. Fund, 705 N.E.2d 1035,

       1037 (Ind. Ct. App. 1999).
       Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016   Page 8 of 16
[13]   Application of these tests has resulted in “‘hairline distinctions between claims

       that sound in medical negligence and those that sound in ordinary negligence.’”

       Preferred Prof’l Ins. Co. v. West, 23 N.E.3d 716, 727 (Ind. Ct. App. 2014), trans.

       denied (quoting Doe, 996 N.E.2d at 333). More recent decisions of this court

       have offered the following distinction when facing the issue of whether a claim

       falls within the purview of the Medical Malpractice Act:


               A case sounds in ordinary negligence [rather than medical
               negligence] where the factual issues are capable of resolution by a
               jury without application of the standard of care prevalent in the
               local medical community. By contrast, a claim falls under the
               Medical Malpractice Act where there is a causal connection
               between the conduct complained of and the nature of the patient-
               health care provider relationship.


       West, 23 N.E.3d at 727 (quoting Doe, 996 N.E.2d at 333) (brackets in original);

       accord Terry v. Cmty. Health Network, Inc., 17 N.E.3d 389, 393 (Ind. Ct. App.

       2014); B.R. ex rel. Todd, 1 N.E.3d at 714-15.


                                        Discussion and Decision

[14]   In the present case, Trevino argues that his claim of negligence does not require

       resolution of the applicable medical standard of care and therefore does not fall

       within the purview of the Medical Malpractice Act. We disagree. Applying the

       above-mentioned standard to the facts of this case, we conclude that there is a

       causal connection between the conduct complained of—Trevino being

       instructed to step upon stacked exercise steps, which slipped out from under

       him—and the nature of the patient-provider relationship. It is not Trevino’s


       Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016   Page 9 of 16
       status as a patient, which he concedes, that is dispositive, nor is it dispositive

       that the accident occurred on hospital property. Instead, it is dispositive that

       Trevino was injured while performing an activity that he was instructed to do

       by his health-care provider, a health care provider who falls under the Medical

       Malpractice Act, while undergoing a medical test.


[15]   We therefore find unavailing Trevino’s citation to Winona Memorial Foundation

       of Indianapolis v. Lomax, 465 N.E.2d 731 (Ind. Ct. App. 1984). In that case, the

       plaintiff Lomax went to a hospital to undergo physical therapy in a large pool.

       Before she did so, she was instructed to change her clothes in a dressing room

       adjacent to the pool area. On her way from the dressing room to the pool area,

       Lomax tripped and fell when she caught her foot on a floorboard that protruded

       from the floor. No hospital employee was assisting Lomax when she fell, and

       no medical treatment or physical therapy was rendered to her before or at the

       time of the fall. Lomax sued the hospital, alleging negligence in the

       maintenance of the floor. The hospital moved to dismiss the complaint for

       failure to comply with the review provisions of the Medical Malpractice Act,

       which the trial court denied.

[16]   On appeal, the hospital argued that Lomax’s claim of negligence fell within the

       scope of the Act. Our court disagreed. After going through the history of the

       Medical Malpractice Act, the court observed that the conditions which led to

       the enactment of the Act had nothing to do with the sort of liability a health

       care provider risks when a patient, or anyone else, is injured by the negligent

       maintenance of the provider’s business premises. Id. at 739. The court further

       Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016   Page 10 of 16
       noted that matters such as the maintenance of reasonably safe premises are

       within the common knowledge and experience of the average person, such that

       there is no need to present this question to the experts on a medical review

       panel, who “are no more qualified as experts on such matters than the average

       juror.” Id. at 740. Because Lomax did not frame her claim for relief as a failure

       to provide her with adequate medical care or treatment, but instead framed it as

       one of premises liability, her complaint could “not possibly be construed as

       alleging the sort of negligence that the Medical Malpractice Act was intended to

       cover. Id. at 742.


[17]   In contrast, here Trevino did not simply trip on a poorly maintained floor while

       unattended. He fell while performing an exercise that his health care provider

       instructed him to do while undergoing a physical examination. To determine

       whether CCI was liable would require the trier of fact to determine whether the

       provider acted within the applicable standard of care for the healthcare

       provider.


[18]   Accordingly, we also find Trevino’s citation to Pluard v. Patients Compensation

       Fund, 705 N.E.2d 1035 (Ind. Ct. App. 1999), to be unpersuasive. In that case,

       the plaintiff was preparing to undergo a circumcision the day after his birth. As

       a nurse’s assistant positioned a surgical lamp over the infant, the lamp became

       detached from the wall, fell on the child, and injured his face and head. The

       child’s parents filed suit on his behalf and reached a settlement agreement with

       the hospital. The parents then petitioned for payment of excess damages from

       the Patient’s Compensation Fund. The Fund argued that Pluard had no

       Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016   Page 11 of 16
       standing to seek damages because his injuries did not sound in medical

       malpractice but rather in premises liability. The trial court granted summary

       judgment in favor of the Fund, and Pluard appealed.


[19]   On appeal, Pluard argued that his case was distinguishable from that in Lomax

       because the plaintiff in Lomax tripped and fell while unattended by medical

       personnel whereas he was injured while being attended by a nurse’s assistant

       under the control and supervision of a physician while being prepared for a

       medical procedure. The Pluard court disagreed, noting that the assistant’s

       manipulation of the light, while close in time to the light’s falling, was not

       alleged to have caused his injuries. Id. at 1038. Instead, the court reasoned, the

       injury occurred because the light was not properly attached to the wall. Id. “Put

       another way, the duty to secure the light, and even the nurses’ assistant’s duty

       to position it, did not involve a health care decision involving the exercise of

       professional skill or judgment. Instead, it involved the general duty to maintain

       safe premises and equipment.”2 Id.


[20]   In contrast, here there is no allegation that the exercise steps slipped due to

       improper maintenance of the building or premises. If Trevino had instead

       slipped on the steps leading to the building or the stairs inside the building, his

       case would be more on point with Pluard. However, Trevino alleged that he was




       2
         Judge Sullivan dissented, believing that the question depended “upon whether or not the nurse was
       negligent in the manner in which she positioned the lamp and whether that negligence, if any, was a
       proximate cause of the injury. Id. at 1039 (Sullivan, J., dissenting).

       Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016       Page 12 of 16
       instructed by CCI personnel to step onto stacked exercise steps, which then

       slipped out from under him, causing him to fall. This is distinct from a nurse

       manipulating a lamp that falls off the wall.


[21]   Lastly, Trevino cites Community Hospital v. Avant, 790 N.E.2d 585 (Ind. Ct.

       App. 2003). In Avant, the plaintiff sued the hospital after he injured himself

       while engaged in a personal training program that the professional trainer had

       designed for him. The trainer was employed by a health club owned and

       maintained by the hospital. The defendants filed a motion to dismiss

       contending that the complaint alleged medical malpractice and that the trial

       court lacked jurisdiction because Avant had not presented his claim to a

       medical review panel. The trial court denied the motion to dismiss and the

       defendants brought an interlocutory appeal.


[22]   On appeal, this court affirmed the trial court’s denial of the defendants’ motion

       to dismiss. The court concluded that Avant was not a client of the health club

       owned by the hospital and therefore did not qualify as a “patient” as that term

       is defined by the Medical Malpractice Act. Id. at 587. There was no evidence

       that Avant was under a physician’s orders to start the training regimen at the

       club as part of a medical treatment plan. Id. “Therefore, the trial court correctly

       assumed subject matter jurisdiction over the claim.” Id.


[23]   Yet again, we find this case to be distinguishable. The court in Avant held that

       the plaintiff was not a “patient” as that term is defined by the Medical




       Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016   Page 13 of 16
       Malpractice Act. Here, however, Trevino concedes that he is a patient.3

       Moreover, unlike in Avant, it was alleged that Trevino acted under the

       instruction of his healthcare provider, whereas in Avant, there was no indication

       that the plaintiff was under the orders of his healthcare provider to start the

       exercise regimen as part of a medical treatment plan.


[24]   We find support for our holding in Putnam County Hospital v. Sells, 619 N.E.2d

       968 (Ind. Ct. App. 1993), a case cited by CCI. In Sells, the plaintiff had

       undergone a tonsillectomy at the defendant hospital and was taken to the

       recovery room while still under anesthesia. The rails on Sells’ bed had not been

       raised, and she fell from the bed, injuring her face. Sells sued the hospital

       without first filing a claim with a medical review panel, and the hospital moved

       to dismiss the claim for lack of subject matter jurisdiction. The trial court denied

       the motion, and the hospital appealed.


[25]   On appeal, this court held that the complaint did sound in medical malpractice,

       not ordinary negligence or premises liability. Id. at 971. In so holding, the court

       noted that Sells’ allegation of negligence was based on failing to ensure that the

       railings were in place on her recovery room bed. Id. This, the court held, was

       not an allegation of faulty premises or equipment but instead challenged the

       “health care decision” the hospital made regarding Sells while she was under

       anesthesia. Id. Sells’ complaint also contained other references to her medical



       3
        See Appellant’s Br. p. 7 (“Trevino is a patient of the facility and it is undisputed CCI is a qualified health
       care provider.”).

       Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016              Page 14 of 16
       care and treatment: not only was she under anesthesia, she alleged that the

       hospital failed to properly train and supervise its staff to monitor patients after

       surgery, that the hospital failed to properly monitor her in the recovery room,

       and that the hospital failed to take steps to prevent her from injuring herself

       while under anesthesia. “In essence, Sells’ complaint alleg[ed] that the

       Hospital’s acts or omissions fell below the appropriate standard of care.” Id.


[26]   The same is true here. Trevino alleged that CCI was licensed to practice

       physical and occupation therapy medicine, that CCI’s agents or employees

       acted while within the scope of their employment, and that, while undergoing a

       return-to-work examination, he was instructed to step on the exercise steps that

       slipped out from under him, causing him to fall. The gravamen of Trevino’s

       complaint is not premises liability, but rather that his physical therapist acted

       negligently in either setting up the exercise steps or instructing Trevino, a man

       with a knee injury, to step on the exercise steps. Thus, his claim is based on the

       provider’s behavior or practices while acting in his professional capacity as a

       provider of medical services. See Terry, 17 N.E.3d at 393. Put differently, there

       is a causal connection between the conduct of which Trevino complained and

       the nature of the patient-healthcare provider relationship. See West, 23 N.E.3d

       at 727; accord Terry, 17 N.E.3d at 393; B.R. ex rel. Todd, 1 N.E.3d at 714-15; Doe,

       996 N.E.2d at 333.


                                                  Conclusion

[27]   In summary, we hold that there was a causal connection between the conduct

       of which Trevino complained and the nature of the patient healthcare provider
       Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016   Page 15 of 16
       relationship. Therefore, Trevino’s complaint falls within the scope of the

       Medical Malpractice Act. Because Trevino did not submit his claim to a

       medical review panel, the trial court was without jurisdiction to hear Trevino’s

       claim. We accordingly affirm the order of the trial court granting CCI’s motion

       to dismiss for lack of subject matter jurisdiction.


[28]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016   Page 16 of 16
