                                                                           FILED
                                                                      Feb 02 2017, 8:39 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Karl J. Veracco                                            Scott L. Bunnell
Larry L. Barnard                                           Andrew S. Williams
Carson Boxberger LLP                                       Michelle K. Floyd
Fort Wayne, Indiana                                        Fort Wayne, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Rachel Neal,                                               February 2, 2017
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           02A03-1604-CT-1002
        v.                                                 Appeal from the Allen Superior
                                                           Court
IAB Financial Bank, f/k/a                                  The Honorable David J. Avery,
Grabill Bank,                                              Judge
Appellee-Defendant.                                        Trial Court Cause No.
                                                           02D09-1409-CT-446



May, Judge.




Court of Appeals of Indiana | Opinion 02A03-1604-CT-1002 | February 2, 2017                    Page 1 of 16
[1]   Rachel Neal appeals a summary judgment in favor of IAB Financial Bank (“the

      Bank”). She argues the trial court erred in finding the Bank owed no duty

      toward her.1 We affirm.



                             Facts and Procedural History
[2]   On September 27, 2012, Gabriel Biddle drove into the Bank’s parking lot

      because he had a flat tire. Bank employees suggested Biddle move his car into

      the farthest teller lane because it would be easier to change the tire there. To do

      so, he entered the teller lane through the exit. He moved his car without

      difficulty or complications.


[3]   The Bank employees who spoke with Biddle said he appeared “somewhat

      unaware and unsettled,” (Appellee’s App. at 6), but they assumed he was

      frustrated with needing to change the tire. They did not see any alcohol

      containers in the car, observe that his eyes were bloodshot, or smell alcohol.

      They did not suspect he was intoxicated. They did not take possession of

      Biddle’s keys or exert any control over his car. The Bank employees testified

      they were not trained, as part of their jobs, to identify whether an individual is

      intoxicated.




      1
      We held oral argument in this case on December 7, 2016, at the Allen County Courthouse in Fort Wayne.
      We thank court staff for their hospitality and commend counsel for their well-prepared advocacy.

      Court of Appeals of Indiana | Opinion 02A03-1604-CT-1002 | February 2, 2017                Page 2 of 16
[4]   The Bank employees helped Biddle change his tire, and afterward they noticed

      he “kind of staggered.” (Id.) Biddle got into his car and left the Bank property.

      After he left, the Bank employees questioned whether there was something

      wrong with Biddle and began to speculate he might have been drinking. The

      Bank’s assistant manager, Tyler Shawgo, called 911 to report the Bank

      employees’ suspicion that Biddle “might be driving drunk.” (Appellant’s App.

      at 54.) During the 911 call, Shawgo told the dispatcher Biddle “just didn’t

      kinda [sic] seem to know what was going on . . . he just did not seem all O.K. –

      he was kind of staggering and wasn’t really aware of what was . . . .” (Id. at

      55.) The dispatcher asked Shawgo “so he appeared like he had been drinking?”

      and Shawgo replied “Mmmm-hmmmm.” (Id.) Biddle was later involved in a

      traffic accident that injured Neal.


[5]   Neal sued the Bank,2 alleging she would not have been injured in the accident

      but for the Bank employees’ negligent act of helping Biddle change his tire so he

      could get back on the road. She claimed the Bank assumed a duty of care

      toward her and other motorists when its employees helped change the tire. The

      trial court granted the Bank’s motion for summary judgment. It determined

      that under Indiana law, a party cannot be held liable for a drunk driver causing

      injuries to a third party unless it furnished the drunk driver alcohol, maintained




      2
        The parties do not dispute the Bank employees were acting within the scope of their employment and,
      therefore, the Bank would be vicariously liable for employees’ actions if employees were found to be
      negligent. See Sword v. NKC Hospitals, Inc., 714 N.E.2d 142, 147 (Ind. 1999) (under theory of respondeat
      superior, an employer can be held liable for the wrongful acts of his employee which are committed within the
      scope of employment).

      Court of Appeals of Indiana | Opinion 02A03-1604-CT-1002 | February 2, 2017                      Page 3 of 16
      a legal right to control the vehicle, or had a special relationship with the other

      parties.



                                  Discussion and Decision
[6]   We review summary judgment using the same standard as the trial court:

      summary judgment is appropriate only where the designated evidence shows

      there is no genuine issue of material fact and the moving party is entitled to

      judgment as a matter of law. Rogers v. Martin, 63 N.E.3d 316, 320 (Ind. 2016).

      All facts and reasonable inferences are construed in favor of the non-moving

      party. City of Beech Grove v. Beloat, 50 N.E.3d 135, 137 (Ind. 2016). Where the

      challenge to summary judgment raises questions of law, we review them de

      novo. Rogers, 63 N.E.3d at 320.


[7]   To prevail on a claim of negligence, Neal must demonstrate (1) the Bank owed

      a duty to Neal; (2) the Bank breached that duty by allowing its conduct to fall

      below the applicable standard of care; and (3) the Bank’s breach of duty

      proximately caused a compensable injury to Neal. Id. at 321. Absent a duty,

      there can be no breach. Id. The trial court found the Bank had no duty to Neal.


[8]   Neal contends the trial court erred in entering summary judgment in favor of

      the Bank on the premise it had no duty. Specifically, she argues “the Bank

      gratuitously assumed a duty when its employees acted to assist a visibly

      intoxicated Biddle to change his tire.” (Appellant’s Br. at 6.) The Bank argues

      it assumed no duty to Neal because it “did not specifically and deliberately


      Court of Appeals of Indiana | Opinion 02A03-1604-CT-1002 | February 2, 2017   Page 4 of 16
      undertake any service or obligation to ensure Biddle, Neal, or other drivers on

      the public roadway were safe from drunk drivers.” (Appellee’s Br. at 16.)


[9]   Whether a duty exists is a question of law for the court to decide. Rogers, 63

      N.E.3d at 321. We therefore review de novo whether the Bank owed Neal a

      duty. See id. at 320 (reviewing existence of duty de novo). Where the element of

      duty has “already been declared or otherwise articulated,” judicial

      determination of the existence of a duty is unnecessary. Id. In determining

      whether a duty exists when it has not been established by law, we use a three-

      part balancing test under which we consider: (1) the relationship between the

      parties, (2) the reasonable foreseeability of harm, and (3) public policy concerns.

      Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. Ct. App. 1991), disapproved in other

      circumstances by Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 391

      (Ind. 2016) (holding the Webb v. Jarvis three-part test for determining the

      existence of a duty is inappropriate in landowner-invitee cases).3 We examine

      each factor in turn.




      3
       On October 26, 2016, after the briefs were filed but before oral argument in this case, the Indiana Supreme
      Court handed down two decisions, Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384 (Ind. 2016), and
      Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016), both of which expressly disapproved the Webb v. Jarvis
      framework for determining duty in landowner-invitee cases. Our Indiana Supreme Court noted “balancing
      all of the Webb factors in landowner-invitee cases is not necessary,” because it is “well-established” that “two
      of the three factors, relationship and public policy, [weigh] in favor of establishing a duty between a social
      host and his guest.” Rogers, 63 N.E.3d at 323-24. The “critical element” for determining whether a duty
      exists in such situations, the court reasoned, is foreseeability of harm. Id.
      The extent to which the Goodwin and Rogers framework for determining duty applies in negligence actions
      more generally remains to be decided. Here, we are not addressing the duty of a landowner to its invitee, but
      rather the duty of a third party to a motorist injured by an intoxicated driver. Unlike in landowner-invitee
      cases where there is already a well-established “duty to protect” owed by landowners to invitees, see Rogers,
      63 N.E.3d at 324, Indiana courts are generally reluctant to impose a duty on individuals to control the

      Court of Appeals of Indiana | Opinion 02A03-1604-CT-1002 | February 2, 2017                         Page 5 of 16
                                     (1) Relationship between the Parties


[10]   When addressing the duty to control the conduct of others, Indiana courts

       generally follow the principles set forth in the Restatement (Second) of Torts,

       which states:


                There is no duty so to control the conduct of a third person as to
                prevent him from causing physical harm to another unless


                (a) a special relation exists between the actor and the third person
                    which imposes a duty upon the actor to control the third
                    person’s conduct, or


                (b) a special relation exists between the actor and the other which
                    gives the other a right to protection.


       Hawn v. Padgett, 598 N.E.2d 630, 633 (Ind. Ct. App. 1992) (quoting

       Restatement (Second) of Torts § 315 (1965)).


[11]   However, a duty of care may arise where one party assumes such a duty, either

       gratuitously or voluntarily. Yost v. Wabash College, 3 N.E.3d 509, 517 (Ind.

       2014). “The assumption of such a duty creates a special relationship between



       actions of a third person unless there is a “special relationship.” See Spierer v. Rossman, 798 F.3d 502, 512 (7th
       Cir. 2015) (finding no special relationship existed between social peers who drank alcohol together); Hawn v.
       Padgett, 598 N.E.2d 630, 633 (Ind. Ct. App. 1992) (finding no special relationship existed between
       acquaintances who were camping and drinking alcohol together); Lather v. Berg, 519 N.E.2d 755, 759 (Ind.
       Ct. App. 1988) (holding negligence arising from nonfeasance must be premised on a special relationship
       between the parties), reh’g denied. In light of that factual difference, we find it especially critical to consider
       the relationship of the parties and public policy concerns in determining whether a duty exists here.
       Accordingly, we hold application of the Webb v. Jarvis three-part balancing test is appropriate. To the extent
       Goodwin and Rogers establish a new framework for determining foreseeability, see Rogers, 63 N.E.3d at 325,
       we adopt that framework and apply it herein within the larger Webb v. Jarvis test for determining duty.

       Court of Appeals of Indiana | Opinion 02A03-1604-CT-1002 | February 2, 2017                           Page 6 of 16
       the parties and a corresponding duty to act in the manner of a reasonably

       prudent person.” Id. (emphasis added). This concept is expressed in

       Restatement (Second) of Torts § 324A (1965), which provides:

               One who undertakes, gratuitously or for consideration, to render
               services to another which he should recognize as necessary for
               the protection of a third person or his things, is subject to liability
               to the third person for physical harm resulting from his failure to
               exercise reasonable care to protect his undertaking, if


               (a) his failure to exercise reasonable care increases the risk of
                   such harm, or


               (b) he has undertaken to perform a duty owed by the other to the
                   third person, or


               (c) the harm is suffered because of reliance of the other or the
                   third person upon the undertaking.


[12]   The assumption of this duty requires “affirmative, deliberate conduct” making

       it apparent the actor specifically undertook to perform the task he is charged

       with having performed negligently, because “without the actual assumption of

       the undertaking there can be no correlative legal duty to perform that

       undertaking carefully.” Yost, 3 N.E.3d at 517. It is therefore “essential to

       identify and focus on the specific services undertaken,” for “liability attaches

       only for the failure to exercise reasonable care in conducting the ‘undertaking.’”

       Id. “Where the record contains insufficient evidence to establish such a duty,

       the court will decide the issue as a matter of law.” Id.


       Court of Appeals of Indiana | Opinion 02A03-1604-CT-1002 | February 2, 2017   Page 7 of 16
[13]   “[A]s a general rule under the gratuitous undertaking concept, a person other

       than the driver is not liable for damages caused by the negligent acts of the

       driver unless that person has a special relationship that gives him or her the

       right to control the vehicle.” Buchanan ex rel. Buchanan v. Vowell, 926 N.E.2d

       515, 520 (Ind. Ct. App. 2010). Under this rule, we have held there is no duty to

       try to prevent an intoxicated person from driving. Hawn, 598 N.E.2d at 634.

       We have drawn a distinction, however, between “preventing” an intoxicated

       person from driving and “assisting” an intoxicated person in driving. See

       Buchanan, 926 N.E.2d at 521 (holding a person who assisted an intoxicated

       person in driving may be liable to a third party injured by the intoxicated

       driver).


[14]   In Hawn, a group of friends went camping and drank alcohol. The defendants

       attempted to prevent Scott, a drunk friend, from driving by taking his keys.

       However, Scott became belligerent, so the defendants returned Scott’s keys to

       him. Scott subsequently drove his truck into a tree, injuring the plaintiff, Hawn,

       who was asleep in the back of the truck. Id. at 632. Hawn sued the other two

       campers, arguing they “assumed a duty to prevent their friend from driving

       while intoxicated because [their] gratuitous intervention gave rise to a special

       relationship when one did not otherwise exist.” Id. at 632.


[15]   We first noted the general rule that, in the absence of a special relationship,

       there is no duty to control the conduct of a third person to prevent him from

       causing physical harm to another. Id. at 633 (citing Restatement (Second) of

       Torts § 315). However, we noted the law may impose a duty to control the

       Court of Appeals of Indiana | Opinion 02A03-1604-CT-1002 | February 2, 2017   Page 8 of 16
       conduct of a third party when three factors are demonstrated: (1) where a

       person is in need of supervision or protection (such as a child, intoxicated

       person, or business invitee); (2) from someone who is in a superior position to

       provide it (such as a parent, supplier of alcohol, business owner, or hospital);

       and (3) that person has a right to intervene or control the actions of the other

       person. Id. (citing Sports, Inc. v. Gilbert, 431 N.E.2d 534, 538 (Ind. Ct. App.

       1982), trans. denied). We then reasoned the two defendants “were merely

       acquaintances of Scott and Hawn[,] . . . were not charged with their supervision

       or protection, and had no right to control their actions.” Id. Furthermore, the

       defendants “did not supply Scott or Hawn with alcohol or other drugs.” Id.

       We concluded “no special relationship arose between them,” and therefore

       “they did not assume a duty to control Scott.” Id. In holding the friends were

       not liable, we reasoned:


               [C]ourts should be reluctant to extend liability to those who
               gratuitously attempt to prevent intoxicated individuals from
               driving. A finding of liability in this case would encourage others
               to take no action rather than incur the risk of liability for failing
               to successfully control an intoxicated motorist.


       Id. at 634 n.2.


[16]   We revisited the concept of gratuitous undertakings in Buchanan. There,

       Vowell and her daughter drank alcohol together at a work event to such an

       extent that the daughter was legally intoxicated. Instead of calling a cab,

       Vowell and her daughter devised a plan wherein each would drive her own car

       home, with the daughter in a lead car and Vowell trailing behind, as the two
       Court of Appeals of Indiana | Opinion 02A03-1604-CT-1002 | February 2, 2017   Page 9 of 16
       spoke to each other on their cell phones. On the way home, the daughter struck

       a pedestrian, causing injuries. The pedestrian brought suit against Vowell

       claiming negligence, but the trial court dismissed the pedestrian’s complaint

       under Indiana Trial Rule 12(B)(6) for failure to state a claim upon which relief

       could be granted. Id. at 518.


[17]   On appeal, we reversed, concluding the pedestrian sufficiently stated a claim for

       negligence. We held the mother gratuitously assumed a duty to prevent her

       daughter from injuring others when she agreed to make sure her daughter drove

       home successfully. Id. at 521. In so holding, we reiterated that courts should be

       reluctant to extend liability to those who gratuitously attempt to prevent

       intoxicated individuals from driving. Id. at 520 (citing Hawn, 598 N.E.2d at 634

       n.2). However, we distinguished Hawn because Buchanan involved a defendant

       who tried not to prevent an intoxicated driver from driving, but rather to assist

       her with driving. Id. at 520-21. We noted the allegations in the complaint

       demonstrated Vowell “went beyond the actions of the defendants in Hawn” and

       “agreed to enter into a concerted activity whereby [Vowell] would follow the

       drunken [daughter].” Id. at 521-22. Thus, because Vowell “encouraged [her

       daughter’s] tortious activity,” we concluded a duty could exist under the theory

       of gratuitous undertakings. Id. at 522.


[18]   Neal urges us to conclude, under Buchanan, the Bank assumed a duty to her and

       other motorists when its employees undertook to help change Biddle’s tire,

       which allowed him to get back on the road. We hold Buchanan is

       distinguishable.

       Court of Appeals of Indiana | Opinion 02A03-1604-CT-1002 | February 2, 2017   Page 10 of 16
[19]   Here, Biddle, who had no relationship with the Bank, pulled into the Bank

       parking lot in the middle of the day with a flat tire. It was not until after the

       Bank employees finished helping him change the tire, and Biddle was on his

       way, that the Bank employees became concerned Biddle might be intoxicated.

       The Bank’s assistant manager then called 911 to report the incident because

       “they were concerned for Biddle’s safety and for the safety of the motoring

       public.” (Appellant’s App. at 62.) Unlike in Buchanan, where Vowell was the

       mother of the intoxicated driver, here, there was no relationship between Biddle

       and the Bank employees. In addition, the nature of the Bank employees’

       conduct here is drastically different than Vowell’s, as Vowell deliberately

       assisted her daughter in committing tortious behavior, i.e., Vowell was on the

       telephone to help her daughter drive while intoxicated. Here, Biddle happened

       upon the Bank employees with a flat tire, and the Bank employees, acting out of

       a Good Samaritan reflex, simply helped a distressed motorist change his tire.


[20]   We hold the relationship between the parties here is more like the one discussed

       in Hawn. In Hawn, we reasoned no special relationship arose between the

       defendants and either Scott or Hawn because the defendants were not charged

       with their supervision or protection, and had no right to control their actions.

       Hawn, 598 N.E.2d at 634. Similarly, here, the Bank employees were not in a

       superior position to supervise or protect Biddle, nor did they have any right or

       duty to control his actions.


[21]   Moreover, we must emphasize the importance of identifying the specific

       services undertaken here. See Yost, 3 N.E.3d at 517 (recognizing it is “essential

       Court of Appeals of Indiana | Opinion 02A03-1604-CT-1002 | February 2, 2017   Page 11 of 16
       to identify and focus on the specific services undertaken,” for “liability attaches

       only for the failure to exercise reasonable care in conducting the

       ‘undertaking’”). Neal lumps the Bank’s actions together as “assisting a visibly

       intoxicated driver in changing a flat tire,” (Appellant’s Br. at 3), and would

       have us hold that changing the tire was “assistance with driving.” However, as

       we held above, the Bank employees did not assist Biddle with driving in the

       way that Vowell helped her daughter. The specific service undertaken here was

       to change the tire. And Neal does not allege that in doing so, the Bank failed to

       use reasonable care, which caused an accident between Biddle and Neal. We

       therefore cannot say it is apparent the Bank specifically and deliberately

       undertook to protect the public roadways, and therefore Neal, from an

       intoxicated driver.


[22]   Because we find no special relationship existed between the Bank and Biddle,

       or between the Bank and Neal, and the Bank did not create any special

       relationship by gratuitously assuming a duty, we conclude the relationship of

       the parties weighs in favor of no duty here.4


                                                (2) Foreseeability




       4
        We also note no liability arises here under the Indiana Dram Shop Act, as the Bank did not furnish alcohol
       to Biddle. See Ind. Code § 7.1-5-10-15.5 (2016) (requiring a person furnishing alcohol have actual knowledge
       the person to whom alcohol was furnished was visibly intoxicated at the time the alcohol was furnished
       before liability may arise).

       Court of Appeals of Indiana | Opinion 02A03-1604-CT-1002 | February 2, 2017                    Page 12 of 16
[23]   We likewise find a lack of foreseeability that weighs against finding the Bank

       had a duty to Neal. When foreseeability is part of the duty analysis, it is “a

       general threshold determination that involves the evaluation of (1) the broad

       type of plaintiff and (2) the broad type of harm.” Rogers, 63 N.E.3d at 325.

       This foreseeability analysis focuses on “the general class of persons of which the

       plaintiff was a member and whether the harm suffered was of a kind normally

       to be expected – without addressing the specific facts of the occurrence.” Id.

       This analysis “comports with the idea that ‘the courts will find a duty where, in

       general, reasonable persons would recognize it and agree that it exists.’” Id.


[24]   Applying this foreseeability analysis to the case at hand, our inquiry is whether

       a duty should be imposed on the Bank, a financial institution, to take

       precautions to protect motorists on the public roadways from the potential of a

       stranded motorist being intoxicated, before it gratuitously attempts to render aid

       to that stranded motorist. Being stranded due to a flat tire is commonplace on

       roadways. And, we acknowledge, the incidence of intoxicated drivers on

       roadways continues to be higher than ideal. However, we cannot say drunk

       drivers routinely stop at places of business seeking aid during the middle of the

       day. It is therefore not reasonably foreseeable to a third person - whether it be

       an individual or business - who acts as Good Samaritan, that a stranded

       motorist to whom they render aid will harm another motorist on the public

       roadway. To require every individual who undertakes to aid a stranded

       motorist to safeguard against the possibility that motorist may be intoxicated




       Court of Appeals of Indiana | Opinion 02A03-1604-CT-1002 | February 2, 2017   Page 13 of 16
       would be requiring those individuals to ensure the safety of all motorists. We

       do not believe reasonable persons would recognize such a duty exists.


[25]   To the extent Neal argues there is a general duty “not to assist an intoxicated

       person in driving,” (see Appellant’s Br. at 7), we agree. We held so in Buchanan.

       Indeed, the Seventh Circuit Court of Appeals noted in its analysis of Buchanan,

       the consequences of Vowell’s decision to assist her daughter in driving drunk

       were “predictably tragic.” Spierer v. Rossman, 798 F.3d 502, 512 (7th Cir. 2015).

       But for reasons already discussed above, the facts here are distinguishable from

       those in Buchanan. Thus, we cannot say the harm to Neal was foreseeable.


                                                (3) Public Policy


[26]   Lastly, public policy considerations weigh heavily against finding the Bank

       owed a duty to Neal. Here, roughly five minutes after Biddle left the Bank’s

       premises, Shawgo called 911 to report the incident. The 911 call indicates

       Shawgo did not need any emergency services, but “just want[ed] to get [the

       information about Biddle] out and make sure that he [was] safe and everybody

       else [was] safe.” (Appellant’s App. at 56.) While Neal argues this case is

       distinguishable from Hawn because Hawn “does not involve a claim of assisting

       a drunk driver in returning to the roadway, but merely failing to prevent a

       drunk from doing so,” (Appellant’s Br. at 10), we actually find the policy

       implications here closely parallel those discussed in Hawn.


[27]   Like in Hawn, where the camping friends attempted to prevent their friend from

       driving intoxicated out of concern for safety, the Bank employees here called

       Court of Appeals of Indiana | Opinion 02A03-1604-CT-1002 | February 2, 2017   Page 14 of 16
       911 out of concern for safety upon concluding Biddle might be intoxicated.

       Imposing liability here would punish the Bank for calling 911 to report concern

       for Biddle’s safety and for the safety of the motoring public. It would, as we

       stated in Hawn, encourage others in the future to take no action when they

       believe they encountered an intoxicated person, rather than incur the risk of

       liability. Hawn, 598 N.E.2d at 634 n.4. We are reluctant to so hold.


[28]   In the same way, we note public policy should encourage rendering aid or

       assisting stranded motorists on the roadways, not dis-incentivize it. Were we to

       impose a duty on all individuals to consider the potential risk of harm to third

       persons before helping motorists in peril, it would require those individuals to

       weigh their personal risk of exposure to liability to third persons injured by the

       motorist against the motorist’s immediate need for assistance. We refuse to

       impose such a duty.


[29]   In so holding, we do not unequivocally suggest actors who help motorists never

       have a duty toward unknown third persons foreseeably at risk of injury resulting

       from negligent conduct of the driver. But where, like here, there was no prior

       relationship between the Bank and either Biddle or Neal, nor evidence of an

       actor’s knowledge of the motorist’s intoxication, imposing a duty on Good

       Samaritans that could discourage providing assistance to motorists in need of

       aid is contrary to public policy. As the Court of Appeals for the Seventh Circuit

       recently noted, “[t]here is simply no case where Indiana courts have recognized

       responsibility on the part of a person to ensure the safety of intoxicated persons



       Court of Appeals of Indiana | Opinion 02A03-1604-CT-1002 | February 2, 2017   Page 15 of 16
       with whom they have unexpectedly come into contact.” Spierer, 798 F.3d at

       513. We decline to recognize such a duty today.



                                                Conclusion
[30]   Because all three of the Webb factors lean against imposing a duty here, the trial

       court did not err in concluding the Bank owed no duty to Neal. Accordingly,

       we affirm the trial court’s summary judgment in favor of the Bank.


[31]   Affirmed.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 02A03-1604-CT-1002 | February 2, 2017   Page 16 of 16
