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

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.
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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
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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
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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,
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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.”
Id.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
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remanding to the trial court. Zollman now requests this court to revisit this
evidence.
[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.
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[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
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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
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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
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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
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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
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