Cody Dallas v. Brandon Cessna

FOR PUBLICATION
FILED
May 25 2012, 8:53 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
ALAN D. WILSON WILLIAM E. BECK, II
Kokomo, Indiana Kokomo, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CODY DALLAS, )
)
Appellant-Defendant, )
)
vs. ) No. 80A02-1110-CT-925
)
BRANDON CESSNA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPTON CIRCUIT COURT
The Honorable Thomas R. Lett, Judge
Cause No. 80C01-0905-CT-215
May 25, 2012
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Cody Dallas (Dallas), appeals the trial court’s judgment
finding Dallas jointly and severally liable to the Appellee-Plaintiff, Brandon Cessna
(Cessna), for damages following intentional acts of battery.
We affirm.
ISSUES
Dallas raises two issues on appeal, which we restate as:
(1) Whether the trial court erred when it imposed joint and several liability for an
intentional tort that originated in a crime; and
(2) Whether Dallas’ intentional touching of Cessna was a proximate cause of
Cessna’s injuries.
FACTS AND PROCEDURAL HISTORY
In the Fall of 2007, Cessna, a freshman at Indiana University in Bloomington, was
dating Kayla Schoultz (Schoultz). Schoultz had previously dated Cody Lewellen
(Lewellen), a student at IUPUI. In September of 2007, Schoultz was visiting with Cessna
when she received a phone call from Lewellen. Cessna took the phone and told Lewellen
that Schoultz did not want to talk to him. He also used Facebook to tell Lewellen not to
have any more contact with Schoultz. In turn, Lewellen posted derogatory language on
Cessna’s Facebook Wall. At some point, Cessna called Lewellen telling him that “he
wanted [Lewellen] to come to Bloomington so he could fight [him].” (Appellant’s App.
p. 61).
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Around midnight, on September 28, 2007, Lewellen, together with Dallas and
another friend, Kyle Morris (Morris), drove to Bloomington to pick up Dallas’ car which
had been left in Bloomington after a sporting event the previous weekend. On the way to
Bloomington, Dallas learned for the first time that Lewellen and Cessna planned to fight.
Lewellen told Dallas that there was a girl he used to talk to and “Cessna was with her
now[.]” He also informed his friends about Cessna’s phone call. Lewellen and Dallas
started texting Cessna, telling him that “he was going to get his butt kicked.”
(Appellant’s App. p. 69). Cessna responded “Oh, you can think whatever you want. I’m
drunk, so that’s the only way you’ll be able to beat me up.” (Appellant’s App. p. 69).
Arrangements were made to meet up at the Eigenmann Quad.
Outside the Eigenmann Quad, Morris and Dallas hid out of sight behind an air
conditioning unit as Lewellen faced off against Cessna. Cessna and Lewellen had words
and began arguing. They pushed and shoved each other. Lewellen threw a left hook and
hit Cessna on the right side of the face. Cessna fell straight to the ground. Lewellen
“dragged him a little ways, straddled him, and then gave him a bunch of blows to the
head and face.” (Transcript p. 173). Cessna never hit Lewellen. As Dallas and Morris
emerged from behind the air conditioning unit, Morris noticed that Cessna was on his
back, bleeding out of his nose, and appeared to be unconscious. Lewellen turned and
started to walk to the car with Morris. When Lewellen looked back, he saw Dallas
kicking Cessna right in the face. Immediately after the fight, Lewellen contacted
Schoultz and told her that he had just left Cessna “in a puddle of his own blood.”
(Appellant’s App. p. 142).
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Later that night, Lewellen was contacted by the police and gave a statement. On
September 29, 2007, the State filed an Information, charging him with battery resulting in
serious bodily injury, a Class C felony. After Lewellen was charged, he agreed to contact
Dallas to get a tape recorded statement. During this telephone conversation, Dallas
admitted that he “only kicked [Cessna] one time. And it was a good kick though, I broke
his nose, I’m sure of that.” (Appellant’s App. p. 81). On July 1, 2008, the State charged
Dallas with disorderly conduct, a Class B misdemeanor. Both Lewellen and Dallas
entered into plea agreements with the State. On January 13, 2009, Lewellen pled guilty
to battery resulting in serious bodily injury, a Class C felony, and was sentenced to four
years with three years suspended to probation. On February 27, 2009, Dallas pled guilty
to disorderly conduct, a Class B misdemeanor, and was ordered to pay court costs and a
fine.
Following the beating, Cessna was taken to the hospital where he remained for
twelve hours. He suffered cuts and abrasions to his head, bruising around his eyes and
face, a fractured nose, and a subarachnoid bleed in his brain. He was addled and had
trouble thinking. Cessna’s family members indicated that he has undergone a personality
change because of the assault: he is anxious and has trouble coping with multiple voices.
On May 26, 2009, Cessna filed a Complaint against Lewellen and Dallas alleging
that Lewellen and Dallas had intentionally battered him and seeking damages for his
personal injuries. On June 29, 2009, a default judgment was entered against Lewellen,
which was affirmed by this court on November 29, 2010. See Lewellen & Dallas v.
Cessna, No. 80A05-1005-CT-330 (Ind. Ct. App. Nov. 29, 2010). On July 26, 2011, a
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bench trial was conducted. On September 13, 2011, the trial court entered Special
Findings of Fact, Conclusions of Law and Judgment, concluding, in pertinent part, that
2. Both [Lewellen and Dallas] committed intentional acts of battery upon
Cessna that injured him.
3. Dallas and Lewellen’s intentional acts of battery against Cessna
combined for one indivisible injury, namely the physical damages and
personal injuries to Cessna.
***
10. Lewellen was contacted by the IU police and gave a statement.
Lewellen agreed to call [Dallas] and tape record the statement. In that
telephone call he recalled that Dallas said, “Oh, I . . . I only kicked him one
time.” And he said, “And, it was a good kick though, I broke his nose. I’m
sure of that.”
11. Lewellen, in his deposition and at trial, described a discussion in the
car after the attack on Cessna where he saw blood on the shoe Dallas had
on. The blood was from the kick to Cessna’s face. There was a discussion
about Cessna’s blood on Dallas’ shoe.
12. Dallas denied at trial that he “. . . kicked Cessna in the face . . .”
choosing instead to describe a more gentle touching of Cessna with his foot
while Cessna was unconscious or nearly unconscious on the ground. That
testimony was not credible.
***
20. [Lewellen] pled guilty to battery resulting in serious bodily injury with
respect to the beating of [Cessna] in Monroe Circuit Court . . . The [c]ourt
finds that the plea of Lewellen was based upon the same evidence as the
civil proceeding herein.
21. [Dallas] pled guilty to disorderly conduct in connection with the
beating of [Cessna] . . . The [c]ourt finds that the plea of Dallas was based
upon the same evidence as the civil proceeding herein.
***
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3. That [Lewellen and Dallas] are jointly and severally liable to [Cessna]
for damages for intentional acts of battery inflicted upon [Cessna] on the
29th day of September 2007.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that
[Cessna] should be and hereby is awarded a JUDGMENT of damages
against [Lewellen] and [Dallas], jointly and severally, in the sum of
Seventy Five Thousand Dollars ($75,000), plus the costs of this action.
(Appellant’s App. pp. 10-12, 15).
Dallas now appeals.1 Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
Here, the trial court entered special findings of fact and conclusions of law
pursuant to Ind. Trial Rule 52(A). Therefore, our standard of review is two-tiered: we
first determine whether the evidence supports the trial court’s findings and second, we
determine whether the findings support the judgment. Briles v. Wausau Ins. Companies,
858 N.E.2d 208, 212 (Ind. Ct. App. 2006). Findings of fact are clearly erroneous when
the record lacks any reasonable inference from the evidence to support them, and the trial
court’s judgment is clearly erroneous if it is unsupported by the findings and the
conclusions which rely upon those findings. Id. In establishing whether the findings or
the judgment are clearly erroneous, we consider only the evidence favorable to the
judgment and all reasonable inferences to be drawn therefrom. Id.While conducting our review, we cannot reweigh the evidence or judge the
credibility of any witness, and must affirm the trial court’s decision if the record contains
1
Lewellen did not appeal the trial court’s entry against him.
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any supporting evidence or inferences. Id. However, while we defer substantially to
findings of fact, we do not do so for conclusions of law. Id. We evaluate conclusions of
law de novo and owe no deference to a trial court’s determination of such questions. Id.We note that in this case, the trial court adopted Cessna’s proposed findings and
conclusions verbatim. Although wholesale adoption is not prohibited, we do not
encourage trial courts to engage in this practice. See Carpenter v. Carpenter, 891 N.E.2d
587, 593 (Ind. Ct. App. 2008). We have recognized that “this practice weakens our
confidence as an appellate court that the findings are the result of considered judgment by
the trial court. Id. Although 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. Joint and Several Liability2
Dallas contends that the trial court erred when it imposed joint and several liability
following the intentional tort he committed on Cessna. Referencing our supreme court’s
opinion in Ind. Dept. of Ins. v. Everhart, 960 N.E.2d 129 (Ind. 2012), Dallas asserts that
the enactment of the Comparative Fault Act abrogated the old rule of joint and several
liability in suits to which the Act applies. As such, Dallas requests us to reverse the trial
2
Cessna asserts that Dallas waived his argument on joint and several liability because he failed to raise it
during trial. We disagree. In his proposed findings of fact and conclusions of law submitted to the trial
court, Dallas requested the trial court to assess fault between the parties, with 45% allocated to Cessna,
55% allocated to Lewellen, and 0% allocated to Dallas. Because counsel elected to forego closing
argument at trial and instead chose to submit proposed findings and conclusions, we find that Dallas’
argument, contesting the joint and several liability, was properly raised by way of his proposed findings
and conclusions, and therefore not waived.
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court’s judgment against him and to remand for determination of his share of the nominal
damages.
Indiana’s Comparative Fault Act governs “any action based on fault that is
brought to recover damages for injury or death to a person or harm to property.” Ind.
Code § 34-51-2-1. At common law, joint tortfeasors were jointly and severally liable for
the indivisible harm they caused a plaintiff. Hoesel v. Cain, 53 N.E.2d 165 (Ind. 1944).
A plaintiff could sue any of the joint tortfeasors and recover damages in the amount of
the entire harm even though another joint tortfeasor had a hand in the injury. Id. at 170-
71. The Comparative Fault Act changed this landscape when it abrogated the common
law rule by requiring the jury to allocate a percentage of responsibility for the plaintiff’s
injuries to each defendant and any nonparty who contributed to those injuries and each
defendant need only pay his proportional share. I.C. § 34-51-2-7; -8. Although the
purpose behind the comparative fault theory is to ameliorate the harsh effects of the
common law theory of contributory negligence, the Act applies even in cases of
intentional torts. Coffman v. Rohrman, 811 N.E.2d 868, 872 (Ind. Ct. App. 2004). “In
the case of intentional torts, the Act does not affect a defendant’s liability but operates to
decrease the amount of damages a plaintiff recovers if he has not appropriately mitigated
his damages.” Id. As such, in intentional torts originating in a crime, the Comparative
Fault Act explicitly provides that:
In the case of an intentional tort, the plaintiff may recover one hundred
percent (100%) of the compensatory damages in a civil action for
intentional tort from a defendant who was convicted after a prosecution
based on the same evidence.
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I.C. § 34-51-2-10.
Here, the trial court used the same evidence to find Dallas civilly liable for
Cessna’s damages as the State presented to prosecute and convict Dallas for Cessna’s
assault. Dallas pled guilty to disorderly conduct, a Class B misdemeanor. In order to
convict Dallas of this misdemeanor, the State was required to prove beyond a reasonable
doubt that Dallas intentionally engaged in fighting. See I.C. § 35-45-1-3(a). During the
civil proceedings in the instant cause, the detective investigating Cessna’s assault in the
criminal case testified that as a result of Dallas beating Cessna on the night of September
28, 2007, a criminal charge was filed against him. Dallas admitted that he was charged
with a misdemeanor resulting from the fight with Cessna. He told the court that he did
not know until 2009, when he was pulled over for speeding, that he had been charged
with a criminal act for “this incident involving [Cessna].” (Tr. p. 63). Even though
Dallas pled guilty, the record reflects that the same evidence used in his prosecution and
plea agreement was also presented at trial during the civil proceeding. Consequently,
Dallas may be held liable for 100% of Cessna’s damages.
Nevertheless, in support of his argument that he only should be held liable for the
damages specifically caused by him, Dallas now directs this court’s attention to our
supreme court’s recent opinion in Ind. Dept. of Ins. v. Everhart, 960 N.E.2d 129 (Ind.
2012). Dallas contends that in Everhart, our supreme court interpreted the Comparative
Fault Act as abrogating the old rule of joint and several liability in suits to which the Act
applies. While we agree that the Act changed the old common law rule of joint and
several liability, this abrogation only relates to liability grounded in negligence.
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A leading effect of the Act was to abolish the rules that contributory
negligence constituted a complete bar to recovery in most suits for
negligence. Instead, the Act requires a jury to allocate a percentage of
responsibility for the plaintiff’s injures to each defendant and any nonparty
who contributed to those injuries, and each defendant need only pay his
proportional share. In exchange for giving negligent plaintiffs greater
access to the courts, however, the Act abrogates the old rule of joint and
several liability in suits to which the Act applies.
Everhart, 960 N.E.2d at 138 (emphasis added). In a related vein, we noted in Becker v.
Fisher, 852 N.E.2d 46, 49 (Ind. Ct. App. 2006), that a jury instruction by which the jury
is instructed to assign percentages of liability, as proclaimed by Everhart, “is irrelevant to
intentional tort cases.”
It is well settled that in examining a statutory provision, we look at the statute as a
whole and give common and ordinary meaning to the words employed. Palmer v.
Comprehensive Neurologic Services, P.C., 864 N.E.2d 1093, 1098 (Ind. Ct. App. 2007),
trans. denied. Our legislature does not intend by a statute to make any change in the
common law beyond what it declares either in express terms or by unmistakable
implication. Id. As a statute in derogation of the existing common law, the Act must be
strictly construed. Id.The Act clearly stipulates that Cessna may recover one hundred percent of his
damages for the intentional tort from Dallas, as Dallas pled guilty after a prosecution
based on the same evidence used in the civil proceedings. See I.C. § 34-51-2-10.
Because both Dallas and Lewellen were involved in the battery on Cessna and both were
held liable after a criminal prosecution based on the same evidence, the imposition of
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joint and several liability for Cessna’s damages complies with the statutory requirement
of I.C. § 34-51-2-10. Therefore, we affirm the trial court.
III. Proximate Cause
Additionally, Dallas contends that the trial court erred when it found that Dallas’
touching of Cessna proximately caused Cessna’s head and facial injuries. Although the
trial court explicitly included in its findings that Dallas’ trial testimony describing “a
more gentle touching of Cessna with his foot” was not credible, Dallas now urges us to
adopt the incredible dubiosity rule in civil proceedings by pointing out that “Lewellen’s
testimony is full of inconsistencies motivated by his own self-interests.” (Appellant’s Br.
p. 22).
Within the narrow confines of the incredible dubiosity rule, a court may impinge
upon a jury’s function to judge the credibility of a witness. Love v. State, 761 N.E.2d
806, 810 (Ind. 2002). If a sole witness presents inherently improbable testimony and
there is a complete lack of circumstantial evidence, a defendant’s conviction may be
reversed. Id. Application of this rule is rare and the standard to be applied is whether the
testimony is so incredibly dubious or inherently improbable that no reasonable person
could believe it. Id.The incredible dubiosity rule represents an exception to the general prohibition
against reweighing a witness’ testimony in criminal proceedings and its application is
extremely limited and sporadic. In this light—and even discounting the disparity in
burden of proof between criminal and civil proceedings—we decline Dallas’ invitation to
extend the applicability of the rule to civil proceedings. Therefore, because Dallas’
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argument amounts to a reweighing of witness credibility, we refrain from addressing his
argument.
CONCLUSION
Based on the foregoing, we conclude that the trial court properly imposed joint
and several liability. We will not address Dallas’ argument on proximate cause as it
amounts to a reweighing of a witness’ credibility.
Affirmed.
NAJAM, J. and DARDEN, J. concur
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