Showalter v. Town of Thorntown, 902 N.E.2d 338 (Ind. Ct. App. 2009). · Go Syfert
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Showalter v. Town of Thorntown, 902 N.E.2d 338 (Ind. Ct. App. 2009). Cases Citing This Book View Copy Cite
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cited 2× by 1 distinct case · …substantive questions independent in character and not within the issues presented to the trial court shall not be first made upon appeal at p. 342 ✓
30 citation events (30 in the last 25 years) across 1 distinct court.
Strongest positive: In Re: The Termination of the Parent-Child Relationship of A.C. Jr. and J.C. (Minor Children) A.C. (Father) v. The Indiana Department of Child Services (mem. dec.) (indctapp, 2020-03-17)
Treatment trajectory · 2010 → 2026 · click a year to view as-of
2010 2018 2026
Top citers, strongest first. 22 distinct citers. How cited ↗
discussed Cited as authority (rule) In Re: The Termination of the Parent-Child Relationship of A.C. Jr. and J.C. (Minor Children) A.C. (Father) v. The Indiana Department of Child Services (mem. dec.) (2×) also: Cited "see"
Ind. Ct. App. · 2020 · confidence medium
Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind. Ct. App. 2009) (explaining that the trial court “cannot be found to have erred as to an issue or argument that it never Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020 Page 8 of 14 had an opportunity to consider”), trans. denied.
discussed Cited as authority (rule) Jarvis Peele v. State of Indiana
Ind. Ct. App. · 2019 · signal: cf. · confidence medium
Cf. Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind. Ct. App 2009) (noting that the rule of waiver “in part protects the integrity of the trial court; it cannot be found to have erred as to an issue or argument that it never had an opportunity to consider.”) (quotation marks omitted).
discussed Cited as authority (rule) Kurt J. Kemp v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2018 · confidence medium
See Johnson v. State, 879 N.E.2d 649, 654 (Ind. Ct. App. 2008) (“Generally, a challenge to the constitutionality of a criminal statute must be raised by a motion to dismiss prior to trial, and the failure to do so waives the issue on appeal.”); Craig v. State, 883 N.E.2d 218, 220 (Ind. Ct. App. 2008) (concluding that State was precluded from challenging defendant’s motion to withdraw plea on the basis that defendant failed to verify motion because State had not presented argument to trial court); see also Griffin v. State, 16 N.E.3d 997, 1006 (Ind. Ct. App. 2014) (“The rule of waiver i…
discussed Cited as authority (rule) M.L.M. v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2016 · confidence medium
“A party generally waives appellate review of an issue or argument unless that party presented that issue or argument before the trial court.” Griffin v. State, 16 N.E.3d 997, 1006 (Ind. Ct. App. 2014) (quoting Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind. Ct. App. 2009), trans. denied).
discussed Cited as authority (rule) Obed Bailey v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2016 · confidence medium
“A party generally waives appellate review of an issue or argument unless that party presented that issue or argument before the trial court.” Griffin v. State, 16 N.E.3d 997, 1006 (Ind. Ct. App. 2014) (quoting Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind. Ct. App. 2009), trans. denied)).
discussed Cited as authority (rule) I.A.E., Inc. and William Lazarus
Ind. Ct. App. · 2015 · confidence medium
Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind.Ct.App.2009) (“A party generally waives appellate, review of an issue or argument .unless that party, presented that issue or argument before the trial court.”), trans. denied. 3.
discussed Cited as authority (rule) County of Lake and the Lake County Plan Commission v. Alan J. Pahl and Roderick Pahl
Ind. Ct. App. · 2015 · confidence medium
Id. at 23-24, The Appellees further assert that the trial court’s findings were not *1102 clearly erroneous and that the trial court “cannot be found to have erred on this issue [the lack of findings on buildings, structures, and fencing], which it never had the opportunity to consider.” Id. at 25 (citing Showalter v. Town, of Thorntown, 902 N.E.2d 338, 342 (Ind.Ct.App.2009)[, trans. denied.]).
discussed Cited as authority (rule) Michael Coleman v. State of Indiana
Ind. Ct. App. · 2014 · confidence medium
As we explained in Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind. Ct. App. 2009), trans. denied: A party generally waives appellate review of an issue or argument unless that party presented that issue or argument before the trial court. . . . *** This rule exists because trial courts have the authority to hear and weigh the evidence, to judge the credibility of witnesses, to apply the law to the facts found, and to decide questions raised by the parties.
discussed Cited as authority (rule) Eric Cox and Pea Cocks Corp. d/b/a Cox's Pub v. Mayerstein-Burnell Co., Inc. d/b/a MBAH Insurance and Jeff Clute
Ind. Ct. App. · 2014 · confidence medium
It is well settled that one cannot make an argument for the first time on appeal, much less in one’s Reply Brief. *806 Ind. Appellate Rule 46(C); Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind.Ct.App.2009), trans. denied. 6 .
discussed Cited as authority (rule) Lee Travis Griffin v. State of Indiana
Ind. Ct. App. · 2014 · confidence medium
However, our decision is grounded in different authority than that cited by the State. 3 *1006 As we explained in Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind.Ct.App.2009), trans. denied: A party generally waives appellate review of an issue or argument unless that party presented that issue or argument before the trial court.
discussed Cited as authority (rule) Saral Reed and Durham School Services, Inc. v. Richard Bethel
Ind. Ct. App. · 2014 · confidence medium
Moreover, "[i]t is well established that '[al party may not object on one ground at trial and seek reversal on appeal using a different ground'" Musgrave v. Aluminum Co. of Am., Inc., 995 N.E.2d 621, 638-39 (Ind.Ct.App.2013) (quoting Malone v. State, 700 N.E.2d 780, 784 (Ind.1998) and citing Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind.Ct.App.2009) (stating that the trial court "cannot be found to have erred as to an issue or argument that it never had an opportunity to consider"), trans. denied ).
discussed Cited as authority (rule) State v. Prater (2×)
Ind. Ct. App. · 2010 · confidence medium
See, eg., Lea v. Lea, 691 N.E.2d 1214, 1218 (Ind.1998); Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind.Ct.App.2009), trans. denied.
discussed Cited "see" Vinita Singh Tyagi v. Vichitra Tyagi, Vijai and Sushma Tyagi
Ind. Ct. App. · 2020 · signal: see · confidence high
See Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind. Ct. App. 2009) (explaining that “[t]he rule of waiver in part protects the integrity of the trial court; it cannot be found to have erred as to an issue or arguments that it never had an opportunity to consider.
discussed Cited "see" Evelyn Butcher v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2015 · signal: see · confidence high
See Griffin v. State, 16 N.E.3d 997, 1006 (Ind. Ct. App. 2014) (quoting Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind. Ct. App. 2009), trans. denied) (“[S]ubstantive questions independent in character and not within the issues or not presented to the trial court shall not be first made upon appeal. . . .
discussed Cited "see" Sally Brodie v. Viking Development, LLC (2×)
Ind. Ct. App. · 2015 · signal: see · confidence high
See Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind. Ct. App. 2009), trans. denied.
cited Cited "see" Steven M. Sandleben v. State of Indiana
Ind. Ct. App. · 2014 · signal: see · confidence high
See Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind.Ct.App.2009), trans. denied. 10 .
discussed Cited "see" Daniel Lee Pierce v. State of Indiana
Ind. Ct. App. · 2014 · signal: see · confidence high
See Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind. Ct. App. 2009), trans. denied. 14 commit the charged acts, and the trial court abused its discretion to the extent it admitted the websites.
discussed Cited "see" Brian Yost v. Wabash College, Phi Kappa Psi Fraternity, Inc., Phi Kappa Psi Fraternity - Indiana Gamma Chapter at Wabash College, and Nathan Cravens (2×)
Ind. Ct. App. · 2012 · signal: see · confidence high
See Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind. Ct. App. 2009) (stating that “substantive questions independent in character and not within the issues presented to the trial court shall not be first made upon appeal”) (citation omitted), trans. denied.
discussed Cited "see, e.g." Michael Turi v. J.R., a minor, b/n/f Stacy Rheinlander
Ind. Ct. App. · 2026 · signal: see, e.g. · confidence medium
See, e.g., Showalter v. Town of Thorntown, 902 N.E.2d 338, 342-43 (Ind. Ct. App. 2009) (holding property owner’s claim on appeal was waived when the owner did not assert it before the trial court), trans. denied.
cited Cited "see, e.g." Maria S. Sanchez v. Michael D. Sphire (mem. dec.)
Ind. Ct. App. · 2017 · signal: see, e.g. · confidence medium
See, e.g., Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind. Ct. App. 2009), trans. denied.
discussed Cited "see, e.g." Norris Avenue Professional Building Partnership v. Coordinated Health, LLC
unknown court · 2015 · signal: see, e.g. · confidence medium
See, e.g., Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind.Ct.App.2009), trans. denied. [13] We thus turn to the merits of Norris’ claim, namely, whether at the time Coordinated Health surrendered the premises it was responsible to pay rent for the entirety of the second Option term.
discussed Cited "see, e.g." Billy L. Musgrave, Jr. and Kim A. Musgrave v. The Aluminum Company of America, Inc., and Alcoa Fuels, Inc.
Ind. Ct. App. · 2013 · signal: see also · confidence medium
It is well established that “[a] party may not object on one ground at trial and seek reversal on appeal using a different *639 ground.” Malone v. State, 700 N.E.2d 780, 784 (Ind.1998); see also Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind.Ct.App.2009) (stating that the trial court “cannot be found to have erred as to an issue or argument that it never had an opportunity to consider”) (quotation omitted), trans. denied.
Retrieving the full opinion text from the archive…
Stuart SHOWALTER and Nancy Showalter, Appellants-Defendants,
v.
TOWN OF THORNTOWN, Appellee-Plaintiff
06A01-0805-CV-211.
Indiana Court of Appeals.
Mar 12, 2009.
902 N.E.2d 338
2009 Ind. App. LEXIS 395
2009 WL 653036
Bryan Lee Ciyou, Ciyou & Dixon, P.C., Indianapolis, IN, Attorney for Appellants., Cy Gerde, Hanna, Gerde & Russell, Michael L. Parkinson, Lafayette, IN, Attorneys for Appellee.
Najam, Baker, Kirsch.
Cited by 24 opinions  |  Published

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Stuart and Nancy Showalter appeal from the trial court's order that they pay the attorneys' fees incurred by the Town of Thorntown ("Thorntown") in Thorn-town's enforcement of various ordinances against the Showalters. The Showalters raise a single issue for our review, which[*339] we restate as whether they preserved their appeal of the trial court's order that they pay Thorntown's attorneys' fees.

We affirm.

FACTS AND PROCEDURAL HISTORY

The facts are not disputed on appeal. As the trial court specially found in its April 3rd, 2008, order:

6. At all times relevant to this case, Defendant Stuart Showalter rented the property located at 725 West Main Street, Thorntown, Boone County, Indiana. As of September 1, 2006, Stuart Showalter resided at that location.
7. Defendant Naney Showalter was, as of September 1, 2006, and continues to be the owner of said property.
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9. There was in effect on September 1, 2006, Thorntown , Town Ordinance ©2004-2-12-1(B), which ordinance states in relevant part as follows: ["PUBLIC NUISANCE AFFECTING HEALTH. The following acts, omissions, places, conditions and objects are hereby specifically declared to be public nuisances .. [."]
10. In particular,] 2004-2-12-1(B)(4) provides: [] "All noxious weeds and other rank growth of vegetation, which are allowed to exeeed one foot."
11. Thorntown Ordinance 2004-12, 13-106 defines "noxious weeds" as "any weed over 12 inches in height, defined by the USDA as a prohibited or restricted nature and including but not limited to ... wild grasses such as ... giant fox tail. ... ["]
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13. Ordinance Number 2004-2-12-1(C)(1) declares as public nuisances "all signs and billboards, awnings and other structures over or near streets and sidewalks, public grounds, or places frequented by the public, so situated or constructed as to endanger the public."
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17. Thorntown Ordinance 2004-1-11 further provides that:
"(a) Any person who violates any ordinance of the town, including any provision of this code, for which no penalty is specifically prescribed shall, upon conviction, be fined a sum not exceeding $2,500.00.
(b) Notwithstanding any other provision herein, any person adjudged guilty of violating any provision of this code may also be adjudged to pay the cost of the prosecution including attorney fees, and any actual damages sustained by the town by virtue of such violation. - -
(c) Any person adjudged guilty of violating this Code who fails to promptly pay the fine and costs shall be subject to such proceedings for collection as provided by law.
(d) Each day a violation occurs or continues constitutes a separate and distinct offense."
18. On September 1, 2006, and prior thereto, Jeff Woodard was the marshal in Thorntown, Indiana. Woodard testified that prior to September 1, 2006, he received numerous informal complaints regarding the condition of the Showal-ters' Thorntown property. Marshal Woodard testified that he had issued other citations to Stuart Showalter prior to the citation issued on September 1, 2006.
[*340] 28. On September 1, 2006, Thorn-town Marshal Jeff Woodard issued Complaint and Summons #003386 to Stuart Showalter for alleged violations of Ordinances 2004-2-12-1(B)(4) and 2004-2-12-1(C)(1) upon the property located at 725 West Main Street.... Marshal Woodard testified that Stuart Showalter was the resident....
24. On January 16, 2007, the Plaintiff Town of Thorntown filed a "Motion to Add Necessary Defendant." In said Motion, the Town alleged that it had recently learned that the real estate ... was in fact owned by Nancy Showal-ter....
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29. Some of the photos admitted depict numerous signs in the windows of the residence at 725 West Main Street. Plaintiffs Exhibit four (4) depicts signs in each of the four (4) windows on the front of Defendant Stuart Showalter's residence. Exhibits four (4) and five (5) depict signs displayed in three (8) of the windows on the west side of Stuart Showalter's residence as well. Exhibits one (1) through eight (8) further depict vegetation appearing to be in excess of twelve (12) inches in height. 30. It was the testimony of Defendant's witness Robert Crouch[ ] that he had also observed flashing lights around a sign displayed in a window of the Defendants' Thorntown house.
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34. On cross-examination, Marshal Woodard testified that the citation was written in light of the size and number of signs displayed; the size of the writing on the signs; and the location of the signs within close proximity to the intersection of State Road 47 and the public thoroughfare that runs adjacent to the west side of the Defendants' property.
35. When asked what hazard the signs posed, Marshal Woodard testified that the signs drew the attention of drivers on those thoroughfares away from the streets ... and to the signs....
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48. Nancy Showalter acknowledged that Plaintiff's Exhibit fifteen (15) depicted growth of vegetation at least two (2) feet in height....
49. Naney Showalter testified further that "foxtail" is an "ornamental grass." Mrs. Showalter admitted during her testimony that she did not know whether "foxtail" is a "noxious weed."
50. Mrs. Showalter acknowledged, on cross-examination, that one would not usually plant ornamental grasses under a swing set as is depicted in Plaintiff's Exhibit fifteen (15).
60. Thorntown Council President Gary Jones testified at trial that the Town of Thorntown incurred attorney fees in the prosecution of this cause of action. Plaintiff's Exhibit fourteen (14), the statement of Town Attorney Cy Gerde, was admitted into evidence. Exhibit fourteen (14) showed attorney fees totaling [$19,980.00].
61. At trial, Defendant Stuart Show-alter challenged portions of Plaintiff's Exhibit [14].
62. In particular, Stuart Showalter contested entries on said bill for communications by the town attorney with former Indiana Public Access Counsel- or Karen Davis and present Indiana Public Access Counselor Heather Willis-Neal.
[*341] 63. The record confirms that the Defendants mever utilised the Indiana Rules of Trial Procedure in conducting discovery in the present case. Instead, Defendant Stuart Showalter utilized the Indiana Public Access Statuile(s) in seeking documents from the Town of Thorntown relating to the present case.
64. Stuart Showalter further questioned entries on Exhibit fourteen (14) that referenced cause numbers not associated with the case tried on October 10, 2007, and February 14, 2008.
65. If the Court were to subtract the time listed on Plaintiff's Exhibit fourteen (14) attributable to cases other than [the] current cause ... the result would be the subtraction of [21.3] hours[ ] from said statement.
66. [$185] per hour, [86.7] hours of attorney time compute[s] to [$16,039.50] in billable hours.
CONCLUSIONS OF LAW
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18. At trial, the Town of Thorntown proved by a preponderance of the evidence violations by the Defendants on September 1, 2006(,] of Thorutown Town Ordinance 2004-2-12-1(B)(4).
27. The Plaintiff Town of Thorntown met its burden of proof as to its allegation of violation of Ordinance 2004-2-12-1(C)(1).
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JUDGMENT IS HEREBY ENTERED in favor of the Plaintiff Town of Thorntown and against the Defendants Stuart Showalter and Nancy Showalter upon the two (2) ordinance violations with which they were cited on September 1, 2006.
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THE DEFENDANTS ARE, THEREFORET,] liable for total fines in this cause of action in the sum of [$7,310].
IF IS FURTHER ORDERED that the Town of Thorntown has established reasonable attorney fees expended in the prosecution of the present case in the sum of [$16,039.50] through October 10, 2007, and that the Town is entitled to [a] hearing on additional attorney fees sustained by the Town by virtue of the Defendants' violations after October 10, 2007. Hearing on additional fees will be set upon the request of Plaintiff's counsel.

Appellants' App. at 15-31 (emphases added).

On July 30, 2007, more than two months before the first of the two contested hearings before the trial court, Thorntown filed its motion for summary judgment against the Showalters. In that motion, Thorn-town specifically sought to recover for its attorneys' fees pursuant to Thoratown Ordinance 2004-1-11(b). See Pl. Exh. 13 at 5. And on February 14, 2008, at the second of the two contested hearings, Thorntown again sought to recover its attorneys' fees, and Thorntown introduced its July 30, 2007, motion for summary judgment into evidence without objection. See Tran-seript at 190. In response, the Showalters did not challenge Thorntown's right to recover those fees. Rather, at the February 14, 2008, hearing, the Showalters raised only the following challenges to Thorn-town's claim for fees: (1) charges made for communication with Indiana's public access counselor were inappropriate, id. at 199-200, 202; (2) charges pertaining to "junetive [sic] and declaratory relief" were inappropriate, id. at 200-01; and (3) charges for another cause number were[*342] improperly applied to the action against the Showalters, id. at 200-04. Again, in its order of April 3, 2008, the trial court ordered the Showalters to pay Thorn-town's attorneys' fees. This appeal ensued.

DISCUSSION AND DECISION

The Showalters raise one issue on appeal, namely, whether Thorntown Ordinance 2004-1-11(b), which permits Thorntown to recover its attorneys' fees upon the successful enforcement of its ordinances, violates Indiana law. In response, Thorntown asserts that the Showalters waived this issue for appellate review because they did not first present their argument to the trial court. In their Reply Brief, the Showalters concede that, generally, an issue is available for appellate review only if it has first been raised before the trial court. However, the Showalters contend that "the issue on appeal is not 'X" amount of Thornton's [sic] attorney[s'] fees.... The issue is the legal means by which the trial court found it could afford this relief to Thorn-town as first set out in the Special Findings." Reply at 3 (emphasis original). The Showalters continue: "[ Wel do not concur that [the legal authority of the trial court to order payment of attorneys' fees] is part and parcel of the trial court's attorney[s'] fees evidence, and[,] as such, waiver, thereafter, of all matters related to same [sic]." Id. at 4.

The Showalters have waived the issue raised on appeal for review. As this court has explained on numerous occasions: |

A party generally waives appellate review of an issue or argument unless that party presented that issue or argument before the trial court. GKC Indiana Theatres, Inc., v. Elk Retail Investors, LLC, 764 N.E.2d 647, 652 (Ind.Ct.App.2002). However, that principle is not without limits. As explained by this court in Bielat v. Folia:
"The rule that parties will be held to trial court theories by the appellate tribunal does not mean that no new position may be taken, or that new arguments may not be adduced; all that it means is that substantive questions independent in character and not within the issues or not presented to the trial court shall not be first made upon appeal. Questions within the issues and before the trial court are before the appellate court, and new arguments and authorities may with strict propriety be brought forward." 141 Ind.App. 452, 454, 229 N.E.2d 474, 475 (1967).

Johnson v. Parkview Health Sys., 801 N.E.2d 1281, 1287-88 (Ind.Ct.App.2004) {emphasis added), trans. denied. Further:

This rule exists because trial courts have the authority to hear and weigh the evidence, to judge the credibility of witnesses, to apply the law to the facts found, and to decide questions raised by the parties. See Whiteco Indus., Inc. v. Nickolick, 549 N.E.2d 396, 398 (Ind.Ct. App.1990). Appellate courts, on the other hand, have the authority to review questions of law and to judge the sufficiency of the evidence supporting a decision. Id. The rule of waiver in part protects the integrity of the trial court; it cannot be found to have erred as to an issue or argument that it never had an opportunity to consider. Conversely, an intermediate court of appeals, for the most part, is not the forum for the initial decisions in a case....

GKC, 764 N.E.2d at 651 (emphasis added).

Here, the Showalters were first informed on July 80, 2007, by Thorntown that it would seek reimbursement of its attorneys' fees pursuant to Ordinance 2004-1-11(b). Thorntown reiterated that[*343] position more than six months later, during the contested hearing on February 14, 2008. At no point between July 30, 2007, and the end of the contested hearing on February 14, 2008, did the Showalters challenge the legal authority behind Thorntown's request for attorneys' fees, nor did the Showalters challenge the legitimacy of Thorntown Ordinance 2004-1-11(b). Rather, the Showalters only challenged portions of Thorntown's Exhibit 14 on the grounds that some charges were erroneously included in that exhibit.

The Showalters' characterization that they could not have known "the legal means by which the trial court found it could afford this relief" until the trial court actually ordered them to pay attorneys' fees is without merit. See Reply at 3. Thorntown gave the Showalters ample notice of its claim and the authority for its claim, namely, Thorntown Ordinance 2004-1-11(b). The Showalters responded by parsing Thorntown's evidence rather than challenging the legal authority for Thorn-town's claim, and the trial court entered its April 3, 2008, order in accordance with the parties' arguments.

We reluctantly conclude that the Show-alters have waived their arguments. The issues raised by the Showalters merit appellate review. Both the amount of the Thorntown fine levied against the Showal-ters ($7,810) and the amount of the attorneys' fees awarded to Thorntown ($16, 039.50) appear excessive. To be sure, the Showalters should have cut the weeds and removed the signs, but those violations hardly raise complex legal issues to warrant a judgment in excess of $28,000. Finally, the fact that the Showalters utilized Indiana's Public Access Statutes, rather than the Indiana Rules of Trial Procedure, to obtain documents from Thorntown is of no moment and should not have exposed the Showalters to additional attorneys' fees.

In sum, we are obliged to hold that the Showalters have not preserved their arguments for appellate review. The Showal-ters stated issue on appeal -that the award of attorneys' fees to Thorntown is contrary to law-is a substantive question independent in character from the issues and arguments they raised at trial. We cannot say that the trial court erred when it never had an opportunity to address the issue now raised for the first time on appeal. The judgment against the Showal-ters is affirmed.

Affirmed.

BAKER, C.J., and KIRSCH, J., concur.