FOR PUBLICATION
                                                               Dec 17 2013, 9:33 am




ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

MATTHEW M. GOLITKO                          JOHN C. TRIMBLE
Golitko & Daly, P.C.                        SONIA C. DAS
Indianapolis, Indiana                       Lewis Wagner, LLP
                                            Indianapolis, Indiana


                            IN THE
                  COURT OF APPEALS OF INDIANA

JASON YOUNG,                                )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )        No. 29A02-1303-PL-298
                                            )
HOOD’S GARDENS, INC.,                       )
                                            )
     Appellee-Plaintiff.                    )


                  APPEAL FROM THE HAMILTON SUPERIOR COURT
                       The Honorable J. Richard Campbell, Judge
                           Cause No. 29D04-1008-PL-12527



                                 December 17, 2013

                            OPINION - FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

      Appellant-Defendant, Jason Young (Young), appeals the trial court’s summary

judgment in favor of Appellee-Plaintiff, Hood’s Gardens, Inc. (Hood’s).

      We affirm.

                                        ISSUES

      Young raises two issues on appeal, which we restate as the following:

      (1) Whether the trial court abused its discretion by striking portions of Young’s

          designated affidavit; and

      (2) Whether the trial court erred when it granted summary judgment in favor of

          Hood’s.

                       FACTS AND PROCEDURAL HISTORY

      Steve Hood (Steve) is the owner of Hood’s, a greenhouse located in Noblesville,

Indiana. In September 2009, Steve contacted Craig Mead (Mead), who did business as

Discount Tree Extraction a/k/a D & E Tree Extraction, to remove a tall oak tree at Hood’s.

Mead provided similar services to Hood’s a year before, removing a large hickory tree that

had been damaged during a storm. Though contracting Mead to remove the tree, Steve did

not permit him to keep the wood.

      Mead quoted Hood’s a price of $600 to remove the tree, which Steve accepted. No

written agreement was made. Mead’s services included cutting down and removal of the

tree, wood, and debris. This time, Mead was permitted to keep the wood, which he

intended to resell as firewood. The price was fixed: the amount of time, the use of

                                            2
equipment, or the number of workers required to complete the work would not affect the

price. However, Mead’s practice was to “price accordingly if I got all the wood.”

(Appellant’s App. p. 91).

      In September 2009, Mead sent workers to Hood’s to cut the tree limbs down. Steve

did not direct their activities. Workers also removed the wood from Hood’s, but the stump,

“measuring ten to fifteen feet in height,” remained. (Appellant’s App. p. 36). Meanwhile,

Mead arranged for Young to remove the stump, offering him $100 for the work. On

September 29, 2009, Young arrived at Hood’s and told Steve that Mead had sent him to

remove the stump. Young called Mead to complain that the work was taking “too long,”

and that he did not “really think this is worth my time for the money.” (Appellant’s App.

p. 92). Mead agreed to pay Young $200 for the work. While working, Young was severely

injured and rendered a paraplegic. Steve later paid Mead $600 for the work.

      On October 27, 2009, an attorney representing Young contacted Hood’s, seeking

worker’s compensation benefits because Mead did not carry worker’s compensation

insurance.   Hood’s did not procure a certificate from Mead certifying worker’s

compensation coverage. On August 26, 2010, Hood’s filed a complaint for declaratory

judgment against Mead and Young. Hood’s alleged that because the work performed by

Mead was less than $1,000, it was not secondarily liable for worker’s compensation

benefits. On October 25, 2010, Young filed his answer, but Mead did not respond and a

default judgment later was issued against him.



                                            3
       On July 29, 2011, Hood’s filed its motion for summary judgment, arguing that, as a

matter of law, it was not secondarily liable for payment of worker’s compensation benefits

to Young. Specifically, Hood’s contended that because its contract with Mead was less

than $1,000, it did not meet the threshold to trigger secondary liability under the Indiana

Worker’s Compensation Act (Act). On September 28, 2011, Young responded to Hood’s

summary judgment motion, designating his affidavit in support. That same day, Young

filed a motion to dismiss for lack of subject matter jurisdiction, arguing that the Indiana

Worker’s Compensation Board possessed exclusive jurisdiction over the matter. On

October 25, 2011, Hood’s responded and moved to strike portions of Young’s affidavit.

On December 13, 2011, the trial court held hearings on the parties’ motions, granting

Young’s motion to dismiss and declaring Hood’s summary judgment moot.

       Hood’s appealed and this court reversed. Hood’s Gardens, Inc. v. Young, 976

N.E.2d 80, 84 (Ind. Ct. App. 2012). We concluded that the Act’s exclusivity provision

deprived a trial court of jurisdiction to address an employee’s “rights and remedies in an

action against his employer for injuries,” the trial court nevertheless possessed jurisdiction

“to make a threshold determination about whether an employer is subject to the Act’s rights

and remedies provisions.” Id. at 83-84. As a result, we held that “the trial court erred in

granting Young’s motion to dismiss for lack of jurisdiction and in deciding that [Hood’s]

summary judgment motion was moot” and remanded for further proceedings. Id. at 84.




                                              4
       On February 8, 2013, the trial court held a hearing on the motion for summary

judgment and motion to strike. On March 12, 2013, the trial court issued its Order granting

summary judgment in favor of Hood’s and striking portions of Young’s affidavit.

       Young now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

                                   I. Standard of Review

       On appeal, Young challenges the trial court’s grant of summary judgment in favor

of Hood’s as well as the striking of his affidavit. The purpose of summary judgment is to

terminate litigation where there is no factual dispute and which may be determined as a

matter of law. Madison Cnty. Bd. of Comm’rs v. Town of Ingalls, 905 N.E.2d 1022, 1025

(Ind. Ct. App. 2009), trans. denied. When reviewing the grant or denial of a motion for

summary judgment, we must determine whether there is a genuine issue of material fact

and whether the moving party is entitled to judgment as a matter of law. Ind. Trial Rule

56(C). In reviewing a trial court’s ruling on summary judgment, this court stands in the

shoes of the trial court, applying the same standards in deciding whether to affirm or reverse

summary judgment. Roche Diagnostics Operations, Inc. v. Marsh Supermarkets, LLC,

987 N.E.2d 72, 78 (Ind. Ct. App. 2013), trans. denied. Thus, on appeal, we must determine

whether there is a genuine issue of material fact and whether the trial court has correctly

applied the law. Id. In doing so, we consider all of the designated evidence in the light

most favorable to the non-moving party. Id. A trial court’s grant of summary judgment is

clothed with a presumption of validity. BP Amoco Corp. v. Szymankski, 808 N.E.2d 683,

                                              5
686 (Ind. Ct. App. 2004), trans. denied. Summary judgment will be affirmed on appeal if

it is sustainable on any theory or basis found in the evidence designated to the trial court.

Town of Ingalls, 905 N.E.2d at 1025.

       Here, the trial court’s summary judgment contains its findings of fact and

conclusions of law in support. However, the trial court’s findings on summary judgment

are not binding on appeal. Roche, 987 N.E.2d at 78. Although an aid to appellate review,

the trial court’s findings and conclusions merely afford the appellant an opportunity to

address the merits of the trial court's rationale. Id.

                                     II. Motion to Strike

       Before turning to the merits of Young’s appeal, we address the trial court’s grant of

Hood’s motion to strike Young’s affidavit. A trial court has broad discretion in ruling on

a motion to strike. Lanni v. Nat’l Collegiate Athletic Ass’n, 989 N.E.2d 791, 797 (Ind. Ct.

App. 2013). Generally, we review a trial court’s decision to admit or exclude evidence for

an abuse of discretion. Id. at 797-98. We reverse a trial court’s decision to admit or exclude

evidence only if that decision is clearly against the logic and effect of the facts and

circumstances before the court, or the reasonable, probable, and actual deductions to be

drawn therefrom. Id. at 798. Further, the trial court’s decision will not be reversed unless

prejudicial error is shown. Id.

       Pursuant to Indiana Trial Rule 56(E), “[s]upporting and opposing affidavits shall be

made on personal knowledge, shall set forth such facts as would be admissible in evidence,

and shall show affirmatively that the affiant is competent to testify to the matters stated

                                               6
therein.” The trial court struck Paragraph 7 of Young’s affidavit, which contained his

opinion that the value of the wood Mead took exceeded $400. Specifically, it concluded

that Young did not qualify as an expert and “there is nothing in Young’s affidavit … about

his personal observations, knowledge, and past experience that would make his opinion as

to the values of the wood admissible.” (Appellant’s App. pp. 97-98).

       In his appellate brief, Young cites to his affidavit in his statement of facts but argues

only that it “set out that the value of the wood exceeded the cash being paid to remove it.”

(Appellant’s Br. p. 11). He does not otherwise develop his claim or provide citations to

authority to dispute the trial court’s striking a portion of the affidavit. We therefore

conclude that Young has waived this argument. See Ind. Appellate Rule 46(A)(8)(a).

       Waiver notwithstanding, we find no abuse of discretion. Young’s statement as to

the value of wood at best qualifies as a conclusory and speculative lay opinion. Further,

Young’s affidavit contains no indication that he is an expert. See Ind. Evidence Rule 702.

Nor does Young’s affidavit establish that he has a degree of knowledge short of that

sufficient to be declared a “skilled witness” under Indiana Evidence Rule 701. See Linton

v. Davis, 887 N.E.2d 960, 975 (Ind.Ct.App.2007), trans. denied. Opinion testimony of a

skilled witness or lay observer must be “(a) rationally based on the perception of the

witness and (b) helpful to a clear understanding of the witness’s testimony or the

determination of a fact in issue.” Evid.R. 701. Here, Young’s affidavit offers no basis to

conclude that the value of the wood is based upon his personal knowledge. Therefore, the

trial court did not abuse its discretion by striking that portion of Young’s affidavit.

                                               7
                            III. Ind. Code Section 22-3-2-14(b)

       Young also contends that the trial court erred when it granted summary judgment.

Specifically, he asserts that, although the contract between Hood’s and Mead was $600,

because Mead testified that he priced his services depending upon whether or not he was

permitted to take the wood for resale, a genuine material of fact exists whether the actual

value of the contract exceeded $1,000.

       Resolution of Young’s argument requires us to interpret Indiana Code section 22-

3-2-14(b), which “imposes on a person who hires a contractor without verifying that the

contractor carries worker’s compensation insurance liability to the same extent as the

contractor for the injury or death of any of the contractor’s employees.” Everett Cash Mut.

Ins. Co. v. Taylor, 926 N.E.2d 1008, 1011 (Ind. 2010). The interpretation of a statute is a

legal question that is reviewed de novo. Rebirth Christian Acad. Daycare, Inc. v. Ind.

Family & Soc. Servs. Admin., 990 N.E.2d 24, 27 (Ind. Ct. App. 2013).                Statutory

interpretation is the responsibility of the court and within the exclusive province of the

judiciary. Id. The first and often the last step in interpreting a statute is to examine the

language of the statute. Id. When confronted with an unambiguous statute, we do not

apply any rules of statutory construction other than to give the words and phrases of the

statute their plain, ordinary, and usual meaning. Id. This court’s goal in statutory

construction is to determine, give effect to, and implement the intent of the legislature. Id.

       Indiana Code section 22-3-2-14(b) provides, in relevant part, as follows:

       [A]ny corporation, limited liability company, partnership, or person,
       contracting for the performance of any work exceeding one thousand dollars
                                            8
       ($1,000) in value by a contractor subject to the compensation provisions of
       [I.C. ch.] 22-3-2 through [I.C. ch.] 22-3-6, without exacting from such
       contractor a certificate from the worker's compensation board showing that
       such contractor has complied with section 5 of this chapter, [I.C. §] 22-3-5-
       1, and [I.C. §] 22-3-5-2, shall be liable to the same extent as the contractor
       for compensation, physician’s fees, hospital fees, nurse’s charges, and burial
       expenses on account of the injury or death of any employee of such
       contractor, due to an accident arising out of and in the course of the
       performance of the work covered by such contract.

       Isolating the statutory requirement that the “value” of the work exceed $1,000,

Young argues that a contract’s value consists of the total amount of consideration

exchanged by the parties. Although the undisputed contract price for Mead’s tree removal

services was $600, Young urges us to include the value of the wood received by Mead to

determine the value of the contract. According to Young, adding the contract price to the

value of wood received by Mead yields a contract value exceeding $1,000.

       In rejecting Young’s argument, the trial court found that companies who contract

for work in excess of $1,000 are put “on notice that … they may be liable for the worker’s

compensation benefits for the contractor’s workers unless they first obtain a certificate of

worker’s compensation coverage from the contractor.”             (Appellant’s App. p. 96).

Therefore, the trial court interpreted the statute to require an “up-front” agreement “for the

performance of work exceeding $1,000” to trigger secondary liability. (Appellant’s App.

pp. 96-97). The trial court reasoned that, “[o]therwise, companies would be unknowingly

exposing themselves to liability, depending on the value of “scrap” that they just want to

be removed from their property.” (Appellant’s App. p. 97). We agree.



                                              9
       “Value” means “[t]he monetary worth or price of something; the amount of goods,

services, or money that something commands in an exchange.”                 BLACK’S LAW

DICTIONARY (9th ed. 2009). The statute specifies that it is the contractor who furnishes the

performance of work in excess of $1,000 in value, rather than any value provided by the

contractee. Thus, we interpret the statute to base secondary liability only upon the value

provided by the contractor.

       Although Hood’s did not obtain a certificate from him, Mead agreed to provide tree

removal services to Hood’s for $600. Therefore, the value of the work performed by the

contractor did not exceed $1,000 and no secondary liability for Hood’s under I.C. § 22-3-

2-14(b) resulted from the transaction. We therefore affirm the trial court’s grant of

summary judgment in favor of Hood’s.

                                     CONCLUSION

       Based on the foregoing, we conclude that the trial court did not abuse its discretion

by striking Young’s affidavit, and the trial court properly granted Hood’s Motion for

summary judgment

       Affirmed.

ROBB, C. J. concurs

KIRSCH, J. dissents with separate opinion




                                            10
                              IN THE
                    COURT OF APPEALS OF INDIANA

JASON YOUNG,                                     )
                                                 )
      Appellant-Defendant,                       )
                                                 )
              vs.                                )      No. 29A02-1303-PL-298
                                                 )
HOOD’S GARDENS, INC.,                            )
                                                 )
      Appellee-Plaintiff.                        )


KIRSCH, Judge, dissenting

      I respectfully dissent.


      This case illustrates once again the marked difference in summary judgment

procedure in Indiana as compared to federal practice. Lacy-McKinney v. Taylor Bean &

Whitaker Mortg. Corp., 937 N.E.2d 853, 865 (Ind. Ct. App. 2010) (citing Cole v. Gohmann,

727 N.E.2d 1111, 1113 (Ind. Ct. App. 2000)). Federal summary judgment procedure

requires summary judgment to be granted against a party who fails to establish an essential

                                            11
element of that party’s case as to which that party bears the burden of proof at trial. Id.

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In contrast, under Indiana’s

summary judgment procedure, the party moving for summary judgment has the burden of

establishing that no genuine issue of material fact exists. Id. at 865-66 (citing Jarboe v.

Landmark Cmty. Newspapers, 644 N.E.2d 118, 123 (Ind. 1994)). Only after the moving

party has met this burden with a prima facie showing that no genuine issue of material fact

exists does the burden then shift to the non-moving party to establish that a genuine issue

of material fact does in fact exist. Id. at 866.


       Here, the dispute between the parties centered on whether the value of the work

provided by Mead exceeded $1,000. As the moving party, Hood’s had the burden of

establishing the absence of any genuine issue of material fact that the actual value of the

services provided by Mead to Hood’s, the $600 contract price plus the value of the wood

Mead was allowed to keep, did not exceed $1,000. However, Hood’s failed to designate

any evidence to show that the value of the wood Mead was allowed to keep did not exceed

$400, which would make the value of the services provided over $1,000. Mead testified

that the wood was more valuable to him than the $600 in cash he received and that he made

sure to clarify with Hood’s that the contract was for $600 plus the wood. Hood’s did not

establish that the value of the wood combined with the $600 caused the value of services

provided to it by Mead to not exceed $1,000.




                                              12
      The trial court found that, although it was possible that the wood did have a fair

market value of over $400, Hood’s did not acknowledge it and that no evidence was

presented that Hood’s was aware or should have been aware that the value of the wood

exceeded $400. Under Indiana’s summary judgment procedure, unlike the federal

procedure, the burden was on Hood’s to come forth with evidence to show that no genuine

issue of material fact existed as to the value of the contract not exceeding $1,000, which

Hood’s failed to do. I, therefore, vote to reverse the grant of summary judgment in favor

of Hood’s and would remand for further proceedings.




                                           13
