MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                Sep 30 2015, 9:51 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS                                 ATTORNEY FOR APPELLEES
Mary Beth Ramey                                          William H. Kelley
Ramey & Hailey                                           Kelley & Belcher
Indianapolis, Indiana                                    Bloomington, Indiana

Nicholas F. Baker
The Hastings Law Firm
Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Matthew Longest, Deceased,                               September 30, 2015
by Robert Longest,                                       Court of Appeals Cause No.
Administrator of the Estate and                          47A01-1501-CT-35
Parent of Matthew Longest, and                           Appeal from the Lawrence Circuit
Robert Longest, Jr.,                                     Court
Administrator of the Estate of                           The Honorable Lori Thatcher
Maribel Longest, Deceased and                            Quillen, Special Judge
Parent of Matthew Longest,                               Trial Court Cause No.
Appellants-Plaintiffs,                                   47C01-9910-CT-894




Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CT-35 | September 30, 2015   Page 1 of 10
              v.

      Lisa M. Sledge, a minor and
      Roger Brown and Donna Sledge,
      a/k/a Donna Sledge Brown,
      Appellees-Defendants.




      Barnes, Judge.


                                             Case Summary
[1]   Robert Longest, Sr., as the administrator of the Estate of Matthew Longest, and

      Robert Longest, Jr., as the administrator of the Estate of Maribel Longest,

      (collectively “the Longests”) appeal the trial court’s judgment in favor of Lisa

      Sledge, Robert Brown, and Donna Sledge Brown (collectively “the Appellees”).

      We reverse.


                                                     Issue
[2]   The Longests raises two issues. We address the dispositive issue, which is

      whether the trial court properly determined that the Child Wrongful Death

      Statute (“CWDS”) did not apply to the Longests’ cause of action.




      Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CT-35 | September 30, 2015   Page 2 of 10
                                                         Facts
[3]   In 1998, Matthew was twenty, living with his parents, Robert, Sr., and

      Maribel,1 and working as a hod carrier, for his father, a journeyman mason.

      Hod carriers “mix mud, set up walls, start materials ahead of the mason, [and]

      keep them supplied with mortar . . . .” Tr. p. 89. Matthew was learning the

      trade as his father’s apprentice. Through this “on-the-job training,” Matthew

      could eventually take a qualification test to become a journeyman mason. Tr.

      p. 57. Alternatively, the union offers an apprenticeship program, which is a

      four-year program, with monthly progress reports and a classroom component.

      Both paths can lead to an individual becoming a journeyman mason.


[4]   On April 21, 1998, Robert, Sr., was driving, and Matthew was a passenger

      when they were involved in a head-on collision with a vehicle driven by sixteen-

      year-old Lisa Sledge. Matthew was killed in the accident, and Robert, Sr., was

      seriously injured.


[5]   In 1999, the Longests filed a lawsuit, which included a wrongful death claim,

      against the Appellees. In 2001, the trial court granted partial summary

      judgment in favor of the Appellees on the basis that the Longests was not

      entitled to recover under the CWDS because Matthew was not enrolled in a

      vocational school or program at the time of his death. In 2012, a bench trial

      were held regarding liability and damages, during which the Longests asked the




      1
          During the course of litigation, Maribel passed away.


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      trial court to reconsider its prior summary judgment order. The trial court

      rejected this request but found in favor of the Longests on the issue of liability.

      The Longests appealed the grant of summary judgment in favor of the

      Appellees on the CWDS claim.


[6]   On appeal, the Longests argued that Matthew’s informal, non-union

      apprenticeship was sufficient to create a genuine issue of material fact

      concerning whether he was enrolled in a vocational school or program at the

      time of his death as required by the CWDS. We concluded, “provided that the

      non-union apprenticeship qualifies as a vocational program, we have little

      difficulty concluding that Matthew was ‘enrolled’ for the purposes of the

      CWDS.” Longest v. Sledge, 992 N.E.2d 221, 227 (Ind. Ct. App. 2013), trans.

      denied.


[7]   On remand, findings and conclusions were requested and, following the trial,

      the trial court found in part:

                At the time of this tragic accident Matthew was not “enrolled” in
                a “vocational school or program”. Only two witnesses testified
                at trial about Matthew’s employment and on the job training,
                (Robert Longest Senior and Robert Longest Junior). It is
                undisputed that at the time of the accident Matthew was
                employed as a hod carrier with strictly on the job training and
                there was no classroom work, no completion of any application
                forms and no creation of any documentation for any enrollment
                in any program and no record for any actual program. In fact,
                the only items contained in Matthew’s personnel or employment
                file were the standard bookkeeping payroll documentation for tax
                withholdings, hours and wages as would be the case of any
                employee. There were no application forms, no self-study
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               programs, no record keeping, no requirement to study textbooks,
               no requirement to complete a module of questions, no study of
               materials, no classroom activity, no classroom instructions, no
               curriculum, nothing to sign and no grades or graduation
               certificates.


[8]    App. pp. 295-96. The trial court concluded that the Longests “have not met

       their burden of proving that Matthew was enrolled in an institution of higher

       education or in a vocational school or program at the time of the accident.” Id.

       at 296. The Longests now appeal.


                                                   Analysis
[9]    In reviewing findings and conclusions issued pursuant to Indiana Trial Rule

       52(A), we apply a two-tiered review, and affirm if the evidence supports the

       findings and the findings support the judgment. Wysocki v. Johnson, 18 N.E.3d

       600, 603-04 (Ind. 2014). We may not set aside findings or a judgment unless

       they are clearly erroneous, and we must give due regard to the trial court’s

       opportunity to judge witness credibility. Id. (citing Ind. T.R. 52(A)). Findings

       are clearly erroneous only when they have no factual support in the record, and

       judgment is clearly erroneous if it applies the wrong legal standard to properly

       found facts. Id. at 603-604.


[10]   The relevant version of the CWDS defines “child” as “an unmarried individual

       without dependents who is: (1) less than twenty (20) years of age; or (2) less

       than twenty-three (23) years of age and is enrolled in an institution of higher




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       education or in a vocational school or program.” Ind. Code 34-1-1-8(a) (1997).2

       In the Longests’ first appeal, we concluded:


               “enrollment” does not necessarily require any written record,
               particularly where the circumstances indicate such records would
               be unnecessary or superfluous. Here, . . . Robert Sr. attested that
               there is no formal enrollment process for non-union, on-the-job
               apprenticeships like the one in which Matthew was participating.
               We decline to impose such a rigid requirement in this case,
               particularly in light of the fact that Matthew was learning the
               trade under the supervision of his own father. Rather, we
               conclude that in this context, to be “enrolled” in a vocational
               program means no more than to be actively participating in such
               a program. Robert Sr. testified that Matthew was continuously
               participating in the apprenticeship at the time of his death. Thus,
               provided that the non-union apprenticeship qualifies as a
               vocational program, we have little difficulty concluding that
               Matthew was “enrolled” for the purposes of the CWDS.


       Longest, 992 N.E.2d at 227.


[11]   The law of the case doctrine mandates that an appellate court’s determination

       of a legal issue binds the trial court and ordinarily restricts the court on appeal

       in any subsequent appeal involving the same case and relevantly similar facts.

       Hopkins v. State, 782 N.E.2d 988, 990 (Ind. 2003). Although a court has the




       2
         In 1998, the CWDS was recodified as Indiana Code Section 34-23-2-1, effective July 1, 1998. The statute
       now defines a “child” as “an unmarried individual without dependents who is: (1) less than twenty (20) years
       of age; or (2) less than twenty-three (23) years of age and is enrolled in a postsecondary educational
       institution or a career and technical education school or program that is not a postsecondary educational
       program.” There is no dispute regarding the application of the prior version of the CWDS.



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       power to revisit prior decisions of its own or of a coordinate court in any

       circumstance, courts should be loathe to do so in the absence of extraordinary

       circumstances such as where the initial decision was “clearly erroneous and

       would work manifest injustice.” Id. (quotation omitted). Because we decided

       the issue of Matthew’s enrollment as a matter of law in the Longests’ first

       appeal, the issue of enrollment was not available for reconsideration by the trial

       court and, in the absence of a compelling reason, we will not reconsider this

       conclusion. Thus, the trial court’s finding on remand that there was no

       application forms or documentation of enrollment is not relevant because the

       issue of enrollment was resolved in the first appeal.


[12]   The only issue properly before the trial court was whether Matthew’s

       apprenticeship was a vocational school or program under the CWDS. On this

       issue, we observed in the Longests’ first appeal:


               Moreover, we believe the legislature’s decision to delay the age of
               majority for the purposes of the CWDS from age twenty until age
               twenty-three where the decedent is enrolled in an “institution of
               higher education or in a vocational school or program” reflects
               its intention to allow recovery when a decedent was in active
               pursuit of any of a broad range of educational goals—ranging
               from college degrees to trade designations and other, less
               traditional certifications like those at issue in Sweet [v. Art Pape
               Transfer, Inc., 721 N.E.2d at 311 (Ind. Ct. App. 1999)]. We
               believe that disallowing coverage based solely on a program’s
               informality and focus on real-world, on-the-job training as
               opposed to classroom learning would ignore the practical realities
               of many courses of vocational study and exclude those in pursuit
               of a number of traditional trade designations from the operation
               of the CWDS. In light of the statute’s broad language and

       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CT-35 | September 30, 2015   Page 7 of 10
               express inclusion of vocational programs, we do not believe this
               to have been the legislature’s intent.


               None of this is to suggest, however, that merely adding an
               element of on-the-job training will transform what would
               otherwise be nothing more than a job into a vocational program.
               Here, Matthew was simultaneously working as hod carrier and
               pursuing his informal apprenticeship under his father’s
               supervision. Provided Matthew successfully completed the
               apprenticeship and demonstrated the requisite skill, he would
               have attained the title of journeyman mason and been eligible for
               union certification. As Robert Sr. attested, “[w]hether working
               for me or for Wilhelm, and whether in the union’s formal
               apprentice program or through the less formal, but equally
               accepted on-the-job training, Matthew was working toward the
               completion of his apprenticeship and becoming a mason.”
               Appellant’s Appendix at 63. Based on these facts, we conclude that
               the evidence most favorable to the Longests as the non-moving
               parties is sufficient to create a genuine issue of material fact as to
               whether the informal, non-union apprenticeship was a vocational
               program for the purposes of the CWDS.


       Longest, 992 N.E.2d at 228 (second alteration in original).


[13]   At the trial on remand, Robert, Jr., and Robert, Sr., testified about the

       apprenticeship path to becoming a journeyman mason and the on-the-job

       training that it involves. They testified that the union recognizes

       apprenticeships and the union program as the two paths to becoming a

       journeyman. Robert, Jr., described the apprenticeship as “working under other

       journeyman to learn how to do the trade. . . . There’s a period of time to where

       you’re going from starting to a process of learning how to become a skilled

       craftsman in a trade-in whatever trade it is.” Tr. p. 21. He also testified that
       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CT-35 | September 30, 2015   Page 8 of 10
       becoming a journeyman mason increased one’s pay by 60%-75%. Robert, Sr.,

       described the steps of progression in learning the trade as beginning as a hod

       carrier and then learning to use a trowel. He also explained that a dexterity test

       was required to obtain a journeyman card. He testified that Matthew was in

       the phase of learning how to use the tools.


[14]   It is true, as the trial court found, that the apprenticeship program in which

       Matthew was participating did not include any specific record keeping,

       textbook or other study materials, classroom component, or grades. However,

       the undisputed evidence showed that there are two paths to becoming a

       journeyman mason, that Matthew was participating in one of the paths, and

       that after his apprenticeship he could eventually complete the necessary testing

       to become a journeyman mason. Given the narrow issue before the trial court,

       we conclude that the trial court erred in determining that the Longests had “not

       met their burden of proving that Matthew was enrolled in an institution of

       higher education or in a vocational school or program at the time of the

       accident.” App. p. 296. The undisputed evidence showed that the informal,

       non-union apprenticeship was a vocational program because it could ultimately

       lead to Matthew obtaining his journeyman’s card.


                                                 Conclusion
[15]   The trial court improperly concluded that the Longests failed to meet their

       burden of establishing that Matthew’s apprenticeship was a vocational program

       under the CWDS. We reverse.


       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CT-35 | September 30, 2015   Page 9 of 10
[16]   Reversed.


       Najam, J., and Bradford, J., concur.




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