Amanda Peters v. GIRL SCOUTS OF SOUTHWEST INDIANA, INC.

FILED Feb 28 2024, 8:48 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana Amanda Peters, as Natural Parent of Isabelle Meyer, Deceased, Appellant-Plaintiff

v.

Girl Scouts of Southwest Indiana, Inc., Girl Scouts of the United States of America, Inc., Benjamin Brassard, and Cynthia Meyer, Appellees-Defendants

February 28, 2024 Court of Appeals Case No. 23A-CT-1342 Appeal from the Perry Circuit Court The Honorable M. Lucy Goffinet, Judge Trial Court Cause No. 62C01-2007-CT-279

Opinion by Judge Tavitas Judges Pyle and Foley concur.

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Tavitas, Judge.

Case Summary [1] In this interlocutory appeal, Amanda Peters (“Mother”) appeals the trial court’s

dismissal of Benjamin Brassard (“Father”) and Cynthia Meyer

(“Grandmother”) from a Child Wrongful Death Statute (“CWDS”) action

brought by Mother against the Girl Scouts of Southwest Indiana (“Girl

Scouts”). 1 The trial court dismissed Father’s and Grandmother’s claims based

upon their failure to file claims within the two-year period prescribed by the

CWDS, but Mother argues that the trial court abused its discretion by doing so.

We conclude that Father and Grandmother failed to file timely claims, and

accordingly, we affirm.

Issue [2] Although Mother raises multiple issues, we address the following dispositive

issue, which we restate as whether Father’s and Grandmother’s claims were

untimely under the CWDS.

Facts [3] The facts here are undisputed. Eleven-year-old Isabelle Meyer tragically died

on June 24, 2019, after a tree fell and struck her at a camp operated by the Girl

1 In November 2022, Mother settled her CWDS claim against the Girl Scouts of the United States of America, Inc. Girl Scouts of the United States of America, Inc., was thereafter dismissed from the action with prejudice by the parties’ agreement in February 2023 and is not a party to this appeal.

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Scouts in Perry County. At the time, Grandmother and her husband, Stanley

Meyer, were the court-appointed guardians of Isabelle. [4] On July 10, 2020, Mother, as natural parent and personal representative of

Isabelle’s estate, filed a complaint against the Girl Scouts pursuant to the

CWDS. The trial court later granted Mother’s motion to amend the complaint

to remove references to Mother as personal representative. [5] In October 2020, the Girl Scouts filed a motion to dismiss Mother’s action due

to Mother’s failure to join a party needed for just adjudication under the CWDS

and Indiana Trial Rule 19. The Girl Scouts argued that Mother failed to join

Father in the CWDS action, that Father was an indispensable person, and that

the action was subject to dismissal as a result of Mother’s failure. [6] In response, on November 17, 2020, Mother requested permission to file a

second amended complaint to add Father as a defendant in the action, pursuant

to the CWDS, which the trial court granted. Service was not perfected upon

Father until July 2021; Father filed an answer on August 9, 2021. The trial

court then denied the Girl Scouts’ motion to dismiss. [7] On June 8, 2022, Mother requested permission to file a third amended

complaint to add Grandmother as a defendant in the action due to her

guardianship of Isabelle; the trial court granted the motion. 2 Grandmother

2 Grandmother’s husband was co-guardian, but he was not added to the action.

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never filed an answer to the third amended complaint and has never appeared

in the action. On July 8, 2022, the Girl Scouts filed a motion to dismiss

Grandmother. The Girl Scouts argued that: (1) Grandmother is not an

appropriate defendant under the CWDS; (2) Grandmother failed to make a

claim within the two-year statute of limitations; and (3) Mother’s addition of

Grandmother as a defendant long after the statute of limitations expired did not

preserve Grandmother’s claim. Mother responded that Grandmother’s claim

was allowed under the CWDS and that Grandmother’s claim was not subject to

the statute of limitations because Mother’s complaint was timely filed. [8] The Girl Scouts then filed a motion to dismiss Father in August 2022. The Girl

Scouts argued that Father failed to timely assert his claim pursuant to the

CWDS because he did not pursue an action himself and did not file his answer

to Mother’s complaint until forty-six days after the statute of limitations

expired. Accordingly, the Girl Scouts argued that Father’s claim under the

CWDS should be dismissed. In response, Mother argued that Father’s claim

was derivative of Mother’s claim and that it was, thus, timely. [9] On May 5, 2023, the trial court granted the Girl Scouts’ motions to dismiss

Father and Grandmother. Mother filed a motion to certify the order for

interlocutory appeal under Indiana Appellate Rule 14, which the trial court

granted. We accepted interlocutory jurisdiction, and Mother now appeals. 3

3 We held oral argument in this matter on January 24, 2024. We thank counsel for their presentations.

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Discussion I. Standing

[10] Before addressing the issues raised by the parties, we must note our concerns

with the odd procedural posture in this case. Below, Grandmother did not

enter an appearance in this action, and Father filed only an appearance and

answer. Neither Father nor Grandmother responded to the motions to dismiss.

Father and Grandmother are automatically parties to this appeal pursuant to

Indiana Appellate Rule 17(A). Neither, however, has filed an appearance or

presented arguments on appeal. [11] Although the order at issue dismissed Father and Grandmother, the Notice of

Appeal was filed by Mother’s counsel. Throughout the Appellant’s Brief,

Mother identifies herself as the Appellant, but all of Mother’s arguments on

appeal relate to the dismissal of Grandmother’s and Father’s claims; none of

the arguments on appeal relate to Mother’s claims. We note that the standing

doctrine “focuses on whether the complaining party is the proper person to

invoke the court’s power.” Campbell v. El Dee Apartments, 701 N.E.2d 616, 621

(Ind. Ct. App. 1998). “The standing rule bars litigants from asserting the right

or legal interests of others in order to obtain relief from injury themselves.” Id.;

see also Hoosier Contractors, LLC v. Gardner, 212 N.E.3d 1234, 1238 (Ind. 2023)

(“Indiana law is clear that standing requires an injury, which is met if the party

shows it ha[s] suffered or [is] in immediate danger of suffering a direct injury as

a result of the complained-of conduct.”) (internal citations and quotations

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omitted). Accordingly, it is unclear how Mother can assert the rights or legal

interests of Father and Grandmother in this matter. [12] As for the absence of an appearance for Father or Grandmother in this matter,

at the oral argument, Mother’s counsel asserted that he also represents Father

and Grandmother. See Peters v. Girl Scouts of Southwest Indiana, Inc., et al., 23A-

CT-1342, Jan. 24, 2024 Oral Argument at 4:23, 6:03. Counsel’s appearance in

this appeal, as shown in part below, however, does not indicate that he

represents Father or Grandmother.

Id., June 15, 2023 Appearance by Attorney. 4 In her Reply Brief, Mother asserts

that “there is no impropriety associated with [Mother, Father, and

Grandmother’s] determination that their interests are best advanced collectively

at this stage of the proceedings . . . .” Appellant’s Reply Br. p. 10. It is unclear,

however, how counsel could represent Mother—the plaintiff—and also

4 Given counsel’s appearance for Mother only, we are perplexed by counsel’s statement at oral argument that he represents Mother, Father, and Grandmother.

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represent Father and Grandmother—who are defendants in this litigation. See

Ind. Prof. Conduct Rule 1.7. 5 [13] We acknowledge that we have allowed one party to present arguments

regarding the dismissal of another party where the first party is prejudiced by

the dismissal. See Smith v. Walsh Constr. Co. II, LLC, 95 N.E.3d 78, 88 (Ind. Ct.

App. 2018) (“As a general matter, the dismissal of a co-defendant from a case

subjects remaining defendants to greater potential liability, which creates

sufficient prejudice to confer standing upon a co-defendant to appeal such a

ruling.”) (internal quotation marks omitted), trans. denied. We also

acknowledge, as the Girl Scouts have pointed out, that “some confusion” exists

regarding the CWDS statute. Appellee’s Br. p. 16. Accordingly, to the extent

5 This Rule provides: (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. Prof. Cond. R. 1.7 (emphasis added).

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Mother is somehow prejudiced by the dismissal of Father and Grandmother

from the action, we will address the arguments presented on appeal.

II. Standard of Review

[14] Mother’s arguments relate to the rights of Father and Grandmother, whom the

trial court dismissed from the underlying suit upon the Girl Scouts’ motions. A

motion to dismiss under Indiana Trial Rule 12(B)(6) tests the legal sufficiency

of the complaint. Price v. Ind. Dep’t of Child Servs., 80 N.E.3d 170, 173 (Ind.

2017). We “accept as true the facts alleged in the complaint.” Id. We review

motions to dismiss de novo, and we will affirm a dismissal if the allegations

“are incapable of supporting relief under any set of circumstances.” Id. We

also will affirm a dismissal if the decision “is sustainable on any basis in the

record.” Id. “A motion to dismiss for failure to state a claim on which relief

may be granted is an appropriate means of raising the statute of limitations.”

William F. Braun Milk Hauling, Inc. v. Malanoski, 192 N.E.3d 213, 217 (Ind. Ct.

App. 2022). [15] Moreover, the parties’ arguments require this court to interpret the CWDS.

“When interpreting an unambiguous statute, we accord words their plain

meaning.” Ind. Off. of Util. Consumer Couns. v. S. Ind. Gas & Elec. Co., 200 N.E.3d

915, 919 (Ind. 2023). When reviewing an ambiguous provision in a statute, the

“primary goal is to determine, give effect to, and implement the intent of the

Legislature with well-established rules of statutory construction.” Id. “[W]e do

not presume that the Legislature intended language to be used in a statute to be

applied illogically or to bring about an unjust or absurd result.” Id. “The Court of Appeals of Indiana | Opinion 23A-CT-1342 | February 28, 2024 Page 8 of 19

CWDS must be strictly construed because it is in derogation of the common

law.” Johnson v. Harris, 176 N.E.3d 252, 256 (Ind. Ct. App. 2021), trans. denied.

III. Father and Grandmother were required to file claims, and they failed to do so in a timely manner.

[16] The trial court dismissed Father and Grandmother because they did not file

claims before the two-year time constraint for filing a CWDS claim expired.

“[A]ny CWD[S] claim must be brought no later than two years of the date of

death; that is what the plain language of the statute provides.” Ellenwine v.

Fairley, 846 N.E.2d 657, 666 (Ind. 2006). Like the Wrongful Death Act, the

CWDS “creates an enforceable right of action, ‘unknown to the common law,’

only if commenced within the prescribed timeframe” and “the statute is

regarded as a non-claim statute.” Brugh v. Milestone Contractors, LP, 202 N.E.3d

1091, 1095 (Ind. Ct. App. 2023) (quoting Blackford v. Welborn Clinic, 172 N.E.3d

1219, 1224 (Ind. 2021)) (discussing the Wrongful Death Act), trans. denied. As

with the Wrongful Death Act, the two-year period under the CWDS “is not a

statute of limitation but a condition precedent to the existence of the claim.”

Alldredge v. Good Samaritan Home, Inc., 9 N.E.3d 1257, 1261 (Ind. 2014). [17] “While ‘statutes of limitation create defenses that must be pleaded and may be

waived,’ a non-claim statute is self-executing and ‘imposes a condition

precedent to the enforcement of a right of action.’” Blackford, 172 N.E.3d at

1225 (quoting Bahr v. Zahm, 37 N.E.2d 942, 944 (Ind. 1941)). If a party fails to

file a claim within the prescribed time, “no enforceable right of action is

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created.” Id. Thus, although the parties refer to the two-year period as a statute

of limitations, it is actually a condition precedent to the existence of a claim. [18] Here, Isabelle died on June 24, 2019; Mother filed her action on July 10, 2020,

well within the two-year time constraint. Mother added Father as a defendant

in November 2020, but service was not made upon Father until July 2021.

Father did not file an answer until August 9, 2021. Accordingly, although

Father was added as a defendant well within the two years, service of the

complaint and his answer were not made until after the two-year time

constraint expired. As for Grandmother, she was not added as a defendant

until June 2022, well after the two-year time period, and she has never

answered or filed an appearance in this litigation. [19] Mother, however, argues that neither Father nor Grandmother were required to

“bring a claim” to be entitled to an apportionment of damages under the

CWDS. Appellant’s Br. p. 12. Because they were not required to bring a

claim, Mother argues that “it necessarily follows that their failure to do so

within two years of Isabelle’s death does not estop their right to [a] damages

apportionment arising from a claim timely brought and maintained by

[Mother].” Id. at 13. Thus, according to Mother, the CWDS does not require a

parent or guardian named as a defendant to file an answer in order to receive an

apportionment of damages. Rather, Mother claims that such parties would

only need to assert their claims in some form prior to settlement or a trial.

Under Mother’s argument, if Mother’s claim was timely, the two-year time

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constraint would never bar Father’s and Grandmother’s apportionment of

damages. [20] Mother’s argument requires an interpretation of the CWDS, codified at Indiana

Code Section 34-23-2-1, which provides:

(c) An action may be maintained under this section against the person whose wrongful act or omission caused the injury or death of a child. The action may be maintained by:

(1) the father and mother jointly, or either of them by naming the other parent as a codefendant to answer as to his or her interest;

(2) in case of divorce or dissolution of marriage, the person to whom custody of the child was awarded; and

(3) a guardian, for the injury or death of a protected person.

(d) In case of death of the person to whom custody of a child was awarded, a personal representative shall be appointed to maintain the action for the injury or death of the child.

*****

(i) Damages awarded under subsection (f)(1), (f)(2), (f)(3)(C), and (f)(3)(D) inure to the benefit of:

(1) the father and mother jointly if both parents had custody of the child;

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(2) the custodial parent, or custodial grandparent, and the noncustodial parent of the deceased child as apportioned by the court according to their respective losses; or

(3) a custodial grandparent of the child if the child was not survived by a parent entitled to benefit under this section.

However, a parent or grandparent who abandoned a deceased child while the child was alive is not entitled to any recovery under this chapter.

(Emphasis added). [21] Only one action for Isabelle’s death is allowed under the CWDS. See, e.g.,

Hanna v. Ind. Farmers Mut. Ins. Co., 963 N.E.2d 72, 77 (Ind. Ct. App. 2012)

(“Pursuant to the CWD[S], it is apparent that the parents of a minor child can

maintain a single, joint claim for the death of their minor child. In other words,

nothing in the statute permits each parent to maintain a separate wrongful

death claim in his or her own right.”), trans. denied. Thus, where, as here, one

parent has filed a CWDS action, the statute requires that the other parent be

added as a “codefendant to answer as to his or her interest.” See Ind. Code §

34-23-2-1(c)(1). [22] Here, Mother added both Father and Grandmother as defendants. The Girl

Scouts complain that the CWDS does not allow a guardian to be named as a

codefendant. We acknowledge that the CWDS does not require the guardian—

here, Grandmother—who may also maintain an action, to be added as a

Court of Appeals of Indiana | Opinion 23A-CT-1342 | February 28, 2024 Page 12 of 19 codefendant. Although the CWDS requires a parent to add the other parent as a codefendant, we conclude that nothing in the CWDS prevents the parent from also joining the guardian as an indispensable party under Trial Rule 19. 6 A guardian could also file a motion to intervene 7 pursuant to Indiana Trial Rule 24. 8

6 We noted in City of Terre Haute v. Simpson, 746 N.E.2d 359, 364 (Ind. Ct. App. 2001), trans. denied, that: [T]he [CWDS]’s parental joinder provision is analogous to the joinder provisions under Trial Rule 19, under which actions are subject to dismissal if an indispensable person needed for just adjudication is not joined in the action as a party. As under Trial Rule 19, an individual parent asserting a claim under the [CWDS], while having standing to maintain an action, must join the deceased child’s other parent as a party or face dismissal of the action for failure to comply with the plain requirements of the statute. (footnote omitted). Despite the comparison in Simpson between the CWDS and Indiana Trial Rule 19, we note that Indiana Trial Rule 19 addresses the joinder of indispensable parties and provides, in part: “If [an indispensable party] has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant.” Thus, under the CWDS, the parent not bringing the action must be added as a “codefendant,” but Trial Rule 19 requires that the parent be joined as a “plaintiff” or a defendant if he or she refuses to be joined as a plaintiff. Accordingly, under Trial Rule 19, Mother should have joined Grandmother as a plaintiff or a defendant if she refused to be joined as a plaintiff. Although not raised by the parties, the differences between the CWDS and Trial Rules raise concerns that portions of the statute conflict with our Trial Rules. Our Supreme Court has held that if a statute is a “substantive law, then it supersedes [our Trial Rules], but if such statute merely establishes a rule of procedure, then [our Trial Rules] would supersede the statute.” Church v. State, 189 N.E.3d 580, 588 (Ind. 2022). “We have long held that laws are substantive when they establish rights and responsibilities, and laws are procedural when they ‘merely prescribe the manner in which such rights and responsibilities may be exercised and enforced.’” Id. (quoting State ex rel. Blood v. Gibson Cir. Ct., 157 N.E.2d 475, 478 (Ind. 1959)). Because the parties do not raise the issue, however, we do not address it further. 7 The difference between joinder and intervention has been described as follows: “Joinder” is a method by which one may be compelled to become a party whereas “intervention” is a method by which an outsider with an interest in a lawsuit may come in as a party on their own application. . . . The only difference between intervention of right and joinder is which party initiates the addition of a new party to the case. 59 AM. JUR. 2D PARTIES § 144 (footnotes omitted). 8 Although not at issue here, confusingly, a “guardian” may maintain an action under the CWDS, but a “guardian” is not entitled to an apportionment of damages. Similarly, a “custodial grandparent” is entitled to an apportionment of damages, but a “custodial grandparent” may not maintain an action unless the

Court of Appeals of Indiana | Opinion 23A-CT-1342 | February 28, 2024 Page 13 of 19 [23] Despite the addition of Father and Grandmother as parties to the litigation,

Mother argues that it was unnecessary for Father and Grandmother to file a

claim in the action until the case was ready for settlement or trial. Mother’s

argument, however, is inconsistent with our basic trial rules and procedures.

We are aware of no authority for the proposition that a party claiming damages

from the defendant may simply show up any time before settlement or trial and

assert a right to damages. [24] To the contrary, Indiana Trial Rule 4(A) provides that “[t]he court acquires

jurisdiction over a party or person who under these rules commences or joins in

the action, is served with summons or enters an appearance, or who is subjected

to the power of the court under any other law.” Trial Rule 8(A) notes that:

“To state a claim for relief, whether an original claim, counterclaim, cross-

claim, or third-party claim, a pleading must contain: (1) a short and plain

statement of the claim showing that the pleader is entitled to relief, and (2) a

demand for relief to which the pleader deems entitled. . . .” Typically, a person

joined as an indispensable party under Trial Rule 19 or intervening under Trial

Rule 24 would file a pleading to assert their claim if any, i.e., an answer,

counterclaim, and/or a cross-claim pursuant to the trial rules. Accordingly, we

conclude that, pursuant to the trial rules, Father and Grandmother were

required to file a claim to assert their rights to any damages in the litigation.

custodial grandparent is also the guardian. Under the CWDS, an aunt, for example, who is the child’s guardian, would not be entitled to an apportionment of damages.

Court of Appeals of Indiana | Opinion 23A-CT-1342 | February 28, 2024 Page 14 of 19 [25] Here, although Father asserted his rights in an answer after the two-year time

constraint expired, Grandmother has never filed a claim or even an appearance

in the litigation. In fact, Mother concedes in her Reply Brief that, should

Mother’s appeal be dismissed, Father and Grandmother “will not have a right

to maintain [Mother’s] claim, and the statute of limitations will bar them from

filing an independent claim of their own.” Appellant’s Reply Br. p. 8. Mother,

however, contends that, because her complaint was timely, Father’s and

Grandmother’s “right to an apportionment of damages arising therefrom is not

subject to a statute of limitation dismissal.” Appellant’s Br. p. 13. Mother cites

no relevant authority, including any trial rules, for this proposition. [26] In addressing these issues, both Mother and the Girl Scouts discuss King v.

King, 610 N.E.2d 259 (Ind. Ct. App. 1993), trans. denied. There, after the death

of his child, the custodial parent filed a CWDS action and named the

noncustodial mother as a defendant, among others. The mother’s attorney

entered an appearance but later withdrew. Two years and three days after the

child’s death, the mother’s new attorney filed the mother’s answer to the

complaint. The answer, however, listed the wrong cause number, and the

father and other defendant denied having received the answer. The father later

settled the action, and the case was dismissed. The mother later filed a motion

for relief from judgment, which the trial court denied. [27] On appeal, the mother argued that the dismissal of the case was erroneous

because she did not receive notice of the settlement. We held that the mother

was not entitled to notice of the settlement because “she failed to timely express

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an interest in the proceedings in general and in the possible damage award in

particular. In short, she made no appearance.” King, 610 N.E.2d at 262. After

her first attorney withdrew his appearance, the mother did not enter a pro se

appearance, have another attorney enter an appearance, file an answer, or

“assert an interest in any possible wrongful death proceeds.” Id. By the time

the mother hired another attorney and filed an answer, the two-year “statute of

limitations” had already expired. [28] The mother also argued that, “because [the father] filed his claim within the

two year period and because [the father] named her in that claim, [the mother]

must also be considered as having timely asserted a claim.” Id. at 263. This

Court rejected that argument and held: “[The mother] did nothing even

remotely suggesting she wished to share in any damages until three days after

the limitation period passed. We know of no authority supporting the bald

proposition that a parent or guardian automatically asserts a wrongful death

claim merely by being named a defendant, and [the mother] offers no authority

for the assertion.” Id. [29] The mother also argued that the damages subsection of the CWDS 9 required

the trial court to apportion damages between the parents and that the CWDS

does not specifically require a parent to file an answer. This Court also rejected

that argument and held: “Neither of these propositions relieve[s] a party

9 Then Indiana Code Section 34-1-1-8(h), see now Indiana Code Section 34-23-2-1(i).

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wishing to assert either a wrongful death claim or an interest in any proceeds

recovered from actually asserting the appropriate pleading in the first instance

and in a timely fashion.” Id.

The only way [the mother] could prevail is if her misfiled answer could be deemed to have “related back” to [the father’s] timely- filed claim. Again, however, we find no authority supporting the proposition, and again, [the mother] offers none. Neither do we find a compelling rationale to adopt such a rule in this case or ones like it. We note that under traditional relation-back analysis, a party’s [later] pleading or amendment is examined to determine the degree to which it is logically or equitably connected to a document the party had filed earlier. Here, of course, [the mother] filed nothing prior to the expiration of the limitation period.

Id. (internal citations omitted). [30] In summary, this Court held in King as follows:

That a non-custodial parent must still timely assert his or her interest in any damages in order to avail himself or herself of those damages is neither unduly burdensome nor inconsistent with the statutory scheme and standard rules of pleading and practice.

Finally, we wish to emphasize that our holding today, that a non- custodial parent must timely and affirmatively assert his or her interest in a share of any wrongful death of child damages recovered, must necessarily be limited to those situations in which the non-custodial parent has been given notice of the custodial parent’s wrongful death claim. We have no occasion to address the situations in which the custodial parent maintains a wrongful death of child action but does not inform the non-

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custodial parent of the action’s existence or in which the custodial parent does not file suit in the first instance.

Id. at 264 (footnotes omitted). This Court ultimately concluded that the trial

court properly denied the mother’s motion for relief from judgment because the

mother was legally barred from recovering damages. [31] We reach the same conclusion here. Under our trial rules, Father and

Grandmother were required to assert a claim to be entitled to an apportionment

of damages. Neither Father nor Grandmother asserted their claims within the

CWDS’s two-year time constraint, and Mother presents no relevant authority

for the proposition that Father’s and Grandmother’s claims were timely simply

because Mother’s complaint was timely. Under these circumstances, we

conclude that the trial court properly dismissed Father and Grandmother.

Conclusion [32] The trial court did not abuse its discretion by granting the Girl Scouts’ motions

to dismiss Father and Grandmother. Accordingly, we affirm. [33] Affirmed.

Pyle, J., and Foley, J., concur.

ATTORNEY FOR APPELLANT Gabriel A. Hawkins Cohen & Malad, LLP Indianapolis, Indiana

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ATTORNEYS FOR APPELLEE – GIRL SCOUTS OF SOUTHWEST INDIANA, INC. Adam S. Glass Danny E. Glass Fine & Hatfield Evansville, Indiana

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