showing of prima facie error in Indiana

2020Instead, we apply a less stringent standard of review and will reverse upon a showing of prima facie error, which is error “at first sight, on first appearance, or on the face of it.” Court of Appeals of Indiana | Memorandum Decision 19A-PL-2203 | March 20, 2020 Page 3 of 7 Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct. App. 2006).

2020“Instead, we apply a less stringent standard of review and will reverse upon a showing of prima facie error, which is error ‘at first sight, on first appearance, or on the face of it.’” Mullett v. Baker, 120 N.E.3d 630 (Ind. Ct. App. 2019) (quoting Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct. App. 2006)).

2016Under such circumstances, we may reverse upon a showing of prima facie error on the issue which was not addressed.” Nat’l Oil & Gas, Inc. v. Gingrich, 716 N.E.2d 491, 496 (Ind.Ct.App.1999) (citations omitted). “ ‘Although this failure does not relieve us of our obligation to correctly apply the law to the facts in the record in order to determine whether reversal is required, counsel for the appellee remains responsible for controverting arguments raised by the appellant.’ ” Elliott v. Rush Mem’l Hosp., 928 N.E.2d 634, 639 (Ind.Ct.App.2010) (quoting Nance v. Miami Sand & Gravel, LLC, 825 N.E.2

2013See Nat'l Oil & Gas, Inc. v. Gingrich 716 N.E.2d 491, 496 (Ind.Ct.App.1999) (failure to respond to an issue raised by an appellant is akin to the failure to file a brief, and under such cireumstances we may reverse the unaddressed issue on a showing of prima facie error).

2018Rather, in these instances, we may reverse upon a showing of prima facie error, “defined as, at first sight, on first appearance, or on the face of it.” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006) (quotation marks omitted). [6] Summary judgment is appropriate only “if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C).

2017Because we will not undertake to argue on his behalf, we will reverse on a showing of prima facie error under the standard set out above, that is, error apparent “at first sight, on first appearance, or on the face of it.” Id.

1998Kirk v. Monroe County Tire , 585 N.E.2d 1366, 1368 (Ind. Ct. App. 1992).

1997Kirk v. Monroe County Tire, 585 N.E.2d 1366, 1368 (Ind.Ct.App.1992).

2002“When an appellee fails to file a brief, we may reverse the trial court’s decision based on a showing of prima facie error.” Newman v. Bernstein, 766 N.E.2d 8, 10 (Ind.Ct.App.2002) (citing Fagan v. Royer, 244 Ind. 377, 386-87 , 193 N.E.2d-64, 69 (1963)).

2002“Prima facie error means error ‘at first sight, on first appear- *312 anee, or on the face of it.’ ” Id. (quoting Bd. of Trs. of Purdue Univ. v. Severson, 729 N.E.2d 1020, 1023 (Ind.Ct.App.2000), trans. denied).

2024See Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014).

2020E.g., In re Parrish’s Estate, 293 N.E.2d 62, 65 (Ind. Ct. App. 1973).

2020Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008).

2018See Goodwin v. Magness Oil Co. , CV-17-249, 2018 WL 2245652 , 552 S.W.3d 26 (Ark.

2017A.S. v. T.H., 920 N.E.2d 803, 805 (Ind. Ct. App. 2010).

2017Discussion and Decision [10] An owner or occupier of real property has a duty to business invitees to keep the property in a reasonably safe condition, Douglass v. Irvin, 549 N.E.2d 368, 369 (Ind. 1990), or, put differently, to exercise reasonable care for invitees’ protection.

2016See Khaja v, Khan, 902 N.E.2d 857, 868 (Ind.Ct.App.2009) (noting that an appellee's failure to respond to an issue raised by the appellant is akin to failing to file a brief as to. that issue and we may reverse upon a showing of prima facie error on that issue). 6 .

2016Under such circumstances, we may reverse upon a showing of prima facie error on the issue which was not addressed.” Nat’l Oil & Gas, Inc. v. Gingrich, 716 N.E.2d 491, 496 (Ind.Ct.App.1999) (citations omitted). “ ‘Although this failure does not relieve us of our obligation to correctly apply the law to the facts in the record in order to determine whether reversal is required, counsel for the appellee remains responsible for controverting arguments raised by the appellant.’ ” Elliott v. Rush Mem’l Hosp., 928 N.E.2d 634, 639 (Ind.Ct.App.2010) (quoting Nance v. Miami Sand & Gravel, LLC, 825 N.E.2

2016App.2008). “ ‘Under the rules of statutory construction and common law that constitute one aspect of Indiana’s double jeopardy jurisprudence, where one conviction is elevated to a class A felony based on the same bodily injury that forms the basis of another conviction, the two cannot stand.’ ” Id. (quoting Strong v. State, 870 N.E.2d 442, 443 (Ind.2007)).

2016Under such circumstances, we may reverse upon a showing of prima facie error on the issue which was not addressed.” Nat’l Oil & Gas, Inc. v. Gingrich, 716 N.E.2d 491, 496 (Ind.Ct.App.1999) (citations omitted). “ ‘Although this failure does not relieve us of our obligation to correctly apply the law to the facts in the record in order to determine whether reversal is required, counsel for the appellee remains responsible for controverting arguments raised by the appellant.’ ” Elliott v. Rush Mem’l Hosp., 928 N.E.2d 634, 639 (Ind.Ct.App.2010) (quoting Nance v. Miami Sand & Gravel, LLC, 825 N.E.2

2014Therefore, Heinenman is “entitled to reversal upon a showing of prima facie error, or error that is evident at first sight, on first appearance, or on the face of it.” Bruce v. State, 749 N.E.2d 587, 591 (Ind. Ct. App. 2001), trans. denied.

2012Thus, though Nelson does not raise the matter of the timeliness of his appeal, and Burtin has not filed any appellee’s brief challenging Nelson’s contentions on appeal,2 we must address the 2 Ordinarily, where no appellee’s brief has been filed, an appellant may succeed on appeal upon a showing of prima facie error, or error “‘at first sight, on first appearance, or on the face of it.’” Morgal-Henrich v. Henrich, 970 N.E.2d 207, 210 (Ind. Ct. App. 2012) (quoting Trinity Homes, LLC v. Fang, 848 N.E.2d 4 question of the timeliness of Nelson’s appeal.

2007See Deckard v. Deckard, 841 N.E.2d 194, 199 (Ind.Ct.App.2006) (stating that when appellee fails to file a brief, we may reverse on a showing of prima facie error).

2005Ferrell v. Dunescape Beach Club Condominiums Phase I, Inc., 751 N.E.2d 702, 713 (Ind.Ct.App.2001).

2002“Prima facie error means error ‘at first sight, on first appear- *312 anee, or on the face of it.’ ” Id. (quoting Bd. of Trs. of Purdue Univ. v. Severson, 729 N.E.2d 1020, 1023 (Ind.Ct.App.2000), trans. denied).