Wayne Zollman and Teresa Zollman v. James Albert Costello and Lisa Renee Costello (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 21, 2018
• Docket: 18A-PL-1537
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 21 2018, 10:06 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEES John A. Kraft Mark J. Crandley Young Lind Endres & Kraft Barnes & Thornburg, LLP New Albany, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Wayne Zollman and Teresa December 21, 2018 Zollman, Court of Appeals Case No. Appellants-Defendants, 18A-PL-1537 Appeal from the Clark Circuit v. Court The Honorable Joseph P. Weber, James Albert Costello and Lisa Judge Renee Costello, Trial Court Cause No. Appellees-Plaintiffs. 10C03-0901-PL-1

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1537 | December 21, 2018 Page 1 of 11 STATEMENT OF THE CASE [1] Appellants-Defendants, Wayne and Teresa Zollman (collectively, Zollman),

appeal the trial court’s findings of fact and conclusions thereon in favor of

Appellee-Plaintiffs, James Albert and Lisa Renee Costello (collectively,

Costello) awarding Costello damages in the amount of $41,543 after Zollman

destroyed 31 trees on Costello’s property.

[2] We affirm.

ISSUES [3] Zollman presents us with three issues on appeal, which we restate as:

(1) Whether the trial court abused its discretion by finding that Zollman’s

maintenance of a lime pile uphill from Costello’s property line and trees

was the direct cause of the destruction of the trees;

(2) Whether the trial court abused its discretion by admitting expert

testimony in the form of an opinion pursuant to Indiana Rule of

Evidence 703; and

(3) Whether the trial court’s damage award was supported by sufficient

evidence.

FACTS AND PROCEDURAL HISTORY [4] Zollman and Costello are neighbors, both owning adjacent farming properties

in Clark County, Indiana. The boundary line between the two contiguous

properties is marked by a fence. The Costello property included 31 mature ash

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1537 | December 21, 2018 Page 2 of 11 trees, clustered near each other close to the Zollman land, which created an

“arboreal setting” in the back of Costello’s property. (Transcript p. 6). At a

certain point, Costello noticed that the trees began to rot, wither, and die, while,

at the same time, Zollman had piled lime dust uphill from the Costello’s

property line and the tree cluster. After noticing the trees’ deterioration,

Costello took soil samples from around the tree trunks for testing. Eventually,

the trees rotted from the ground up and the entire cluster died and had to be

removed.

[5] On October 20, 2005, Costello filed his initial Complaint against Zollman to

resolve a dispute pertaining to the boundary line between the two properties.

On August 15, 2011, Costello amended his Complaint, adding a claim for

trespass and a request for damages due to the destruction of the 31 ash trees.

On January 14, 2013, Costello filed his motion for summary judgment, which

was denied by the trial court on August 26, 2013. Approximately a year later,

on August 14 and 20, 2014, the trial court conducted a bench trial. On October

28, 2014, the trial court issued its judgment, granting Zollman the property east

of the fence line and awarding a monetary judgment against Costello. As to the

trespass claim, the trial court concluded that there was no evidence to support

Costello’s damage claim for the 31 ash trees.

[6] Costello appealed the trial court’s judgment. In our memorandum opinion in

Costello v. Zollman, 2016 WL 3060139 (May 31, 2016), trans. denied (Costello I),

we determined that there was sufficient evidence to support Costello’s trespass

claim, and we reversed the trial court on that issue. On October 20, 2017, the

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1537 | December 21, 2018 Page 3 of 11 trial court held a hearing on the remanded issue. Two months later, on

December 20, 2017, the trial court entered its Order, finding that “Zollman

caused the loss of Costello’s trees and that the trees were appropriately valued

at $41,543 and that amount is hereby awarded to [Costello].” (Appellant’s

App. Vol. II, p. 28). After Zollman moved for reconsideration of the Order due

to lack of findings and conclusions of law, Costello tendered his proposed

findings. The trial court adopted these findings and reaffirmed its judgment

award in favor of Costello.

[7] Zollman now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION I. Standard of Review

[8] Where, as here, the trial court enters findings of fact and conclusions thereon

pursuant to Indiana Trial Rule 52(A), our standard of review is well-settled.

First, we determine whether the evidence supports the findings and second,

whether the findings support the judgment. Kwolek v. Swickard, 944 N.E.2d 564,

570 (Ind. Ct. App. 2011), trans. denied. In deference to the trial court’s

proximity to the issues, we disturb the judgment only when there is no evidence

supporting the findings or the findings fail to support the judgment. Id. We do

not reweigh the evidence, but consider only the evidence favorable to the trial

court’s judgment. Id. Challengers must establish that the trial court’s findings

are clearly erroneous. Id. Findings are clearly erroneous when a review of the

record leaves us firmly convinced a mistake has been made. Id. However,

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1537 | December 21, 2018 Page 4 of 11 while we defer substantially to findings of fact, we do not do so to conclusions

of law. Id. Additionally, a judgment is erroneous under Indiana Trial Rule 52,

if it relies on an incorrect legal standard. Id. We evaluate questions of law de

novo and owe no deference to a trial court’s determination of such questions.

Id.

[9] We note that in this case, the trial court adopted Costello’s proposed findings

verbatim. Although wholesale adoption is not prohibited, we do not encourage

trial courts to engage in this practice. Dallas v. Cessna, 968 N.E.2d 291, 296

(Ind. Ct. App. 2012). We have recognized that “this practice weakens our

confidence as an appellate court that the findings are the result of the

considered judgment by the trial court.” Id. (quoting Carpenter v. Carpenter, 891

N.E.2d 587, 593 (Ind. Ct. App. 2008)). While we do not apply an altered

standard of review when a trial court adopts a party’s findings verbatim, “near

verbatim reproductions may appropriately justify cautious appellate scrutiny.”

II. Cause of Damages

[10] Zollman contends that the trial court erred in concluding that Zollman’s

trespass on Costello’s property was responsible for the destruction of the trees.

Specifically, in Costello I, this court addressed Costello’s claim of trespass

against Zollman and articulated certain findings before reversing the trial

court’s conclusion that there was no evidence to support a trespass claim and

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1537 | December 21, 2018 Page 5 of 11 remanding to the trial court. Zollman now requests this court to revisit this

[11] At common law, a plaintiff bringing a trespass action must establish two

elements: (1) the plaintiff must show he possessed the land when the alleged

trespass occurred, and (2) the plaintiff must demonstrate the alleged trespasser

entered the land without legal right. Holland v. Steele, 961 N.E.2d 516, 525 (Ind.

Ct. App. 2010), trans. denied. Relying on Lever Bros. Co. v. Langdoc, 655 N.E.2d

577, 582 (Ind. Ct. App. 1995), we concluded in Costello I, that “a trespass could

occur if there was a direct causal relation between the actor’s conduct and the

intrusion of the foreign matter upon the possessor’s land that caused the harm.”

Costello I, at *9. After reviewing the record of the trial court’s proceedings, we

found that:

It was undisputed the Zollmans stored lime dust piles near their barn, the trees were downhill from the barn, the Costellos have never used lime on their property, lime increases the pH levels in soil, and high pH levels harm trees. Based on these undisputed facts, the laboratory results [Costello] provided to Mills [the Costellos’ certified arborist], and Mills’ experience as a certified arborist, Mills concluded—in his professional opinion—there was a causal connection between the lime on the Zollman Real Estate and the death of the Costellos’ trees. Because we conclude the trial court’s findings are clearly erroneous, coupled with the fact the trial court made no other findings pertaining to the issue, we remand to the trial court to enter further findings on this issue consistent with the evidence presented.

Costello I, at *11.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1537 | December 21, 2018 Page 6 of 11 [12] Any action taken upon remand must conform to the opinion and order

promulgated by the court of appeals. Muncy v. Harlan Bakeries, Inc., 930 N.E.2d

591, 600 (Ind. Ct. App. 2010). Nevertheless, upon remand some discretion is

vested in the lower court, depending on the circumstances of the case and the

terms of the opinion ordering further action. Id. Therefore, an order, like here

‘to enter further findings on this issue consistent with the evidence presented,’

“requires action consistent with the terms of the opinion.” Id.

[13] Upon remand, the trial court entered findings, supporting Costello I’s analysis,

and concluding in turn that “[b]y maintaining a large lime pile directly uphill

from the tress and allowing it to run downhill into [Costello’s] property,

[Zollman] committed the very tort described in Lever Bros., and in the [c]ourt of

[a]ppeals’ opinion in this case.” (Appellant’s App. Vol. II, p. 27). As the trial

court’s findings of fact and conclusion thereon are in line with our opinion in

Costello I, we decline Zollman’s invitation to reweigh the evidence yet again and

we affirm the trial court’s conclusion of Zollman’s trespass as the cause of

damages.

III. Opinion Testimony

[14] Not disputing the admissibility of Costello’s expert testimony on the issue of

valuation, Zollman contends that the trial court incorrectly admitted the

expert’s testimony on the issue of causation. Zollman maintains that because

the expert’s opinions about the soil’s pH composition were based on a report

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1537 | December 21, 2018 Page 7 of 11 generated by an independent company and the expert had not personally taken

or tested the soil samples, it was inappropriate to rely on his testimony.

[15] We review a trial court’s decision on the admissibility of the evidence for an

abuse of discretion, which occurs when the decision is against the logic and

effect of the facts and circumstances before the court. Weinberger v. Boyer, 956

N.E.2d 1095, 1104 (Ind. Ct. App. 2011), trans. denied. Even where the trial

court’s decision is erroneous; however, we will not reverse the judgment where

the decision does not prejudice the substantial rights of the parties. Id.

[16] Although inadmissible evidence typically cannot be introduced at trial,

inadmissible evidence may nevertheless be relied upon for the purposes of

expert-rendered opinion testimony. Indiana Rule of Evidence 703 provides that

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. Experts may testify to opinions based on inadmissible evidence provided that it is of the type reasonably relied upon by experts in the field.

There are limits however to the extent that a party proffers opinion testimony

that is merely a “conduit” for placing inadmissible evidence before the court

without meaningful opportunities for cross-examination. See Barrix v. Jackson,

973 N.E.2d 22, 26 (Ind. Ct. App. 2012), trans. denied. As our supreme court has

recognized,

Some experts customarily gather information from a variety of other experts and authoritative sources and rely upon it in

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1537 | December 21, 2018 Page 8 of 11 reaching their opinions. When an expert witness’ own independent opinion is arrived at in this manner and it is introduced into evidence and the expert witness is subject to cross-examination, that part of the substrata of information which aided in the formation of the opinion, though hearsay in nature and though not falling within any hearsay exception, may nevertheless be admissible for use by the trier of fact in judging the weight of the opinion.

Id. (quoting Miller v. State, 575 N.E.2d 272, 274 (Ind. 1991)). However, such

hearsay is inadmissible where it is merely a restatement of another’s conclusion

“as a conclusory answer to an ultimate fact in issue,” such that the veracity of

the statement is not “subject to the test of cross-examination.” Id.

[17] The evidence reflects that, upon first noticing the trees’ deterioration, Costello

took soil samples from around the trunks which she had tested by an

independent company. At trial, Costello introduced Greg Mills (Mills), a

certified arborist—whose credentials were not challenged by Zollman—as her

expert. Mills explained that the “compounds of the soil” are included in the

“field of arbor culture.” (Tr. First Trial, Vol. II, p. 90). He elaborated that even

though he occasionally performs soil tests for customers, Costello only engaged

him to calculate the value of the damaged trees. During the bench trial, Mills

testified that Costello sent him the report of the soil sample analysis by certified

mail. Based on his review of the test results, Mills reached his own independent

conclusions. He explained that the test results of the soil indicated a high pH,

in “the category called alkaline.” (Tr. First Trial, Vol. II, p. 112). Offering his

own study of the test results performed by the testing company, Mills explained

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1537 | December 21, 2018 Page 9 of 11 the results’ meaning and reached his conclusion as to what happened to the

trees based on his evaluation of the test results, opining that the pH content of

the soil killed the trees.

[18] Instead of being a mere conduit to introduce the report and to regurgitate the

report’s information, Mills interpreted and explained the test results. Subjecting

these results to his independent analysis, Mills reached his own conclusions,

which were subject to cross-examination by Zollman. Accordingly, we cannot

conclude that the trial court abused its discretion by admitting Mills’ testimony

with respect to the cause of the trees’ deterioration.

IV. Damage Award

[19] Lastly, Zollman challenges the damage award in the amount of $41,543 granted

to Costello by the trial court. Zollman contends that although Mills testified

about the general valuation of the trees, no evidence was introduced “as to the

value of each tree purportedly lost.” (Appellant’s Br. p. 18).

[20] During the bench trial, Costello offered Mills’ report into evidence identifying

the value of each of the 31 ash trees. Mills testified on the commonly-used

calculation method, explaining that he measured the diameter of each tree

stump, examined the cost of replacement for a tree with that specific diameter,

determined the price per square inch from that amount, calculated the

difference between the replacement trunk and the trunk of the existing tree, and

applied certain adjustments based on the condition of the tree, location, and

species. Mills explained that he employed this methodology for each of the

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1537 | December 21, 2018 Page 10 of 11 trees. Based on his calculations, the total value of the trees amounted to

$41,543. Zollman did not object to Mills’ evaluation testimony or to the

introduction of his report into evidence, nor did Zollman cross-examine Mills

on the calculations or offer rebuttal evidence. Therefore, as Costello introduced

sufficient evidence to support Mills’ valuation of the trees, the trial court

properly entered the damage award in favor of Costello.

CONCLUSION [21] Based on the foregoing, we hold that the trial court did not abuse its discretion

by finding that Zollman’s maintenance of a lime pile uphill from Costello’s

property line and trees was the direct cause of the destruction of the trees; the

trial court properly admitted expert testimony in the form of an opinion; and

the trial court’s damage award was supported by sufficient evidence.

[22] Affirmed.

[23] Vaidik, C. J. and Kirsch, J. concur

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1537 | December 21, 2018 Page 11 of 11