Liter's of Indiana, Inc. v. Earl E. Bennett and Daniel L. Bodine

Feb 05 2016, 8:49 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
C. Gregory Fifer William Edward Jenner
Applegate Fifer Pulliam LLC David R. Sutter
Jeffersonville, Indiana Jenner Pattison Sutter & Wynn LLP
Madison, Indiana
Robert G. Bottorff, II
Jeffersonville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Liter’s of Indiana, Inc., February 5, 2016
Appellant-Plaintiff, Court of Appeals Cause No.
39A05-1408-PL-401
v.
Appeal from the Jefferson
Earl E. Bennett and Daniel L. Circuit Court
Bodine, The Honorable Alison T.
Appellees-Defendants. Frazier, Special Judge
Cause No. 39C01-0702-PL-84
Riley, Judge.
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STATEMENT OF THE CASE
Appellant-Plaintiff, Liter’s of Indiana, Inc. (Liter’s), appeals the trial court’s
judgment entered pursuant to a jury’s verdict in favor of the Appellees-
Defendants, Earl Bennett (Bennett) and Daniel Bodine (Bodine) (collectively,
the Appellees).
We affirm, and remand with instructions only as to the issuance of permanent
injunction with regards to the trespass claim.
ISSUES
Liter’s raises three issues on appeal which we restate as follows:
(1) Whether the common enemy doctrine precludes the Appellees’ negligence
claim against Liter’s;
(2) Whether the trial court abused its discretion in admitting certain expert
testimony; and
(3) Whether the jury awarded inadequate damages on Liter’s trespass claim.
FACTS AND PROCEDURAL HISTORY
Around 1982, Bennett and his father purchased 27.25 acres in Hanover,
Jefferson County, Indiana (Appellees’ Property). The existing home on the
property served as Bennett’s home. In 1992, Bodine, Bennett’s half-brother,
inherited his father’s one-half interest in the Appellees’ Property, thereby
making him a joint owner. The land adjoining to the east was owned by
Richard Clem (Clem). Clem had developed the furthest east side of his
property with residential housing and named it Jefferson Manor, Phase I. The
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western portion, which was approximately 28.072 acres and abutted the
Appellees’ Property, remained undeveloped, and in early 2006, Clem accepted
Liter’s, a construction service company, offer to purchase these remaining
28.072 acres (Liter’s Property). The Appellees’ and Liter’s Properties were
bordered on the south by Highway 62, and the Appellees’ Property and Liter’s
Property now shared a boundary line. In the middle of the two Properties,
there was a shallow ditch on the boundary line and after a rainfall, water would
collect in the ditch and run south from the Liter’s Property to the Appellees’
existing twelve-inch culvert and flow out through Highway 62.
LQI Development, Inc. (LQI), a company owned by Liter’s, projected to
develop the Liter’s Property into a residential subdivision comprising of sixty
three lots. The subdivision was to be known as Jefferson Manor, Phase II.
Embarking on its plan, on March 20, 2006, Liter’s hired Blankenbeker & Son
Land Surveyors Inc. (Blankenbeker) to conduct a boundary survey.
Consequently, Liter’s applied for a preliminary plat from the City of Madison
Plan Commission (the Commission). On May 1, 2006, an advisory hearing
was held to consider Liter’s application. During the meeting, an issue arose
regarding drainage on Liter’s Property, and the Commission directed Liter’s,
through its engineers, to consider constructing a detention basin so as to relieve
“down-stream neighbors” from flooding. (Transcript p. 884). On a follow-up
meeting held on July 6, 2006, Liter’s attorney informed the Commission that
Liter’s would procure a drainage easement from its neighbors prior to the
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Commission’s approval of the final plat. At the close of the meeting, the
Commission approved Liter’s preliminary plat. 1
Liter’s believed that the Appellees had encroached on its property because: (1)
the eaves of Bennett’s roof visibly extended “by two feet” on its property, (2)
Bennett’s driveway trees sat on Liter’s Property, (3) and Bennett’s satellite dish
was rooted on Liter’s Property. (Appellant’s App. p. 112). In addition, each
time Bennett mowed the grass bordering the boundary line, he would trespass
on Liter’s Property. (Appellant’s App. p. 112). On September 25, 2006,
Blankenbeker completed its initial survey, which did not confirm the
aforementioned alleged encroachments. On October 26, 2006, Blankenbeker
revised the initial survey. Again, the alleged encroachments were undetected.
Still, in the same month and in an effort to resolve the impending drainage issue
raised by the Commission, Liter’s approached the Appellees seeking to
construct a retention basin 2 on the Appellees’ Property. The Appellees rejected
Liter’s proposal.
1
The record shows that in November 2007, the Commission approved the final plat.
2
Section 5 of the Madison County Stormwater Drainage Ordinance defines a retention basin as a storm
water storage facility without a defined/constructed discharge point.
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On January 16, 2007, through a letter, Liter’s once again approached the
Appellees and offered $2,500 in exchange for the grant of an easement to
construct a storm water detention basin 3 on the Appellees’ Property. In
addition, Liter’s proposed to execute an easement in favor of the Appellees,
thus providing them with an access strip which would allow Bennett to walk
and mow around his house without trespassing on the Liter’s Property, and to
also keep the unpermitted encroachments. On the same day, the Appellees,
through their lawyer, rejected that offer. Following that rejection, Liter’s
commissioned Blankenbeker to commence plans to build a detention basin on
its property.
Since prior surveys did not reveal the encroachments, Liter’s instructed
Blankenbeker to conduct a third survey, which was finalized on February 5,
2007. That survey confirmed Liter’s allegations, and consistent with those
findings, on February 7, 2007, Liter’s filed a Complaint seeking to enjoin and
recover damages for the continuing trespass on its property. On April 3, 2007,
the Appellees counterclaimed, alleging nuisance since Liter’s had erected a spite
3
Section 5 of the Madison County Stormwater Drainage Ordinance defines a detention basin as a facility
constructed or modified to restrict the runoff of storm water to a prescribed rate, and/or to detain excess
waters that accumulate upstream from the outlet.
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fence 4 which deprived them of light and air. On April 23, 2007, Liter’s filed its
response stating that the chain link fence could not reasonably deprive the
Appellees of light and air. On January 14, 2009, following leave of court, the
Appellees amended their Counterclaim to contend that Liter’s had negligently
designed its subdivision and that the post-development surface water runoff
from the Liter’s Property would flood the Appellees’ Property. In the same
month, Liter’s filed its response.
Almost two years later, on December 6, 2010, Liter’s filed a motion for
summary judgment on the Appellees’ negligence claim and on Liter’s trespass
claim. In support of its motion, Liter’s argued that Indiana’s common enemy
doctrine—which provides that surface water that does not flow in defined
channels is a common enemy, and each landowner may deal with it in such a
manner as best suits his own convenience—applied; therefore, it could not be
liable for negligence. On its trespass claim, Liter’s argued that the facts were
unrebutted. The Appellees’ sole rebuttal to Liter’s assertion that the common
enemy doctrine barred their claim was that the doctrine was abrogated by the
adoption of Indiana Code section 36-9-27-69.5—which provides in part: (1) that
4
Indiana Code section 32-26-10-1, titled “Description of Spite Fence,” defines as a nuisance “a fence
unnecessarily exceeding six (6) feet in height, maliciously erected . . . for the purpose of annoying the owners
or occupants of adjoining property.”
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a drainage plan must maintain the amount of drainage through the tract that
existed when the tract was created; (2) the plan may not change locations where
surface water enters the tract and exits the tract; and (3) water that sheds off a
new structure especially when the new structure is elevated or near a property
line or both must exit the tract in the same location where it did when the tract
was created. A hearing on the summary judgement motion was held on
November 21, 2011, and the trial court took the matter under advisement.
Without issuing specific findings, on March 5, 2012, the trial court summarily
found there were genuine issues of material fact that precluded a disposition.
Following the denial of Liter’s summary judgment motion, on June 12, 2012,
the Appellees filed their Second Amended Counterclaim, adding a third claim
pursuant to Indiana Code section 36-9-27-69.5 which provides requirements for
drainage plans when subdividing lots. In addition, the Appellees sought a
declaratory judgment in the interpretation and application of Indiana Code
section 36-9-27-69.5 to the case. On November 26, 2012, following a hearing,
the trial court determined that Indiana Code section 36-9-27-69.5 was
inapplicable to the case and it dismissed the Appellees’ third claim.
On March 5, 2014, Liter’s filed a motion seeking to dismiss portions of the
Appellees’ Second Amended Counterclaim. On June 4, 2014, the trial court
entered an order granting in part and denying in part Liter’s motion.
Specifically, the trial court dismissed paragraph 4(b) of the Appellees’
negligence claim alleging that Liter’s had negligently and carelessly designed its
subdivision by using a land surveyor instead of a registered engineer.
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Nevertheless, the trial court declined to dismiss paragraph 4(e) wherein the
Appellees had claimed that Liter’s had negligently designed its subdivision in a
manner that would lead to an increased drainage burden upon the Appellees’
Property.
The only remaining claims at the time of trial were: (1) Liter’s trespass claim
regarding the eaves of Bennett’s roof encroaching its property; (2) the
Appellees’ nuisance claim with respect to the spite fence; and (3) the Appellees’
negligence claim alleging that:
4. [Liter’s] . . . had negligently and carelessly designed its subdivision
in the following particulars:
****
c. Designed a subdivision and ponding system where surface water
will be collected into a body and discharged into the [Appellees’
Property];
d. Designed and created a nuisance by creating a private pond or a
common private pond;
e. Designed and created a subdivision that will increase drainage
burden upon lower land owners including the [Appellees]; and
f. Failed to use their own property so as not to cause unnecessary
injury to [Appellees’ Property].
5. As a proximate result of the negligence [] the [Appellees’ Property]
has been seriously devalued and will be subject to flooding and
destruction . . . .
(Appellant’s App. p. 234).
A six-day jury trial was held from July 22-July 28, 2014. With regards to the
trespass claim, at time of trial, the satellite dish had been removed, but the eaves
of Bennett’s roof remained. The Appellees’ sole defense to the trespass claim
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was that they had acquired the portion encroached upon through a prescriptive
easement. Liter’s offered unrebutted evidence that the value of its property had
been reduced, thereby incurring a loss of $18,000. At the close of the evidence,
Liter’s moved for a directed verdict on its claim but was denied.
On the nuisance issue, Bennett stated that he came home sometime in February
2007 to find a chain link fence erected on the boundary line between the two
properties. Bennett indicated that it made him feel like he was being punished
for rejecting Liter’s propositions. Bennett’s wife testified that looking through
their window felt like they were in prison. Bennett acknowledged that Liter’s
took down the fence sometime in August of 2007. Liter’s defense was that it
put up the fence to establish the property line between the two properties.
With regards to the Appellees’ negligence claim, much of the arguments were
centered on the design scale that Blankenbeker had employed in constructing
the basin. The Appellees presented evidence of Robert Isgrigg (Isgrigg), an
engineer who evaluated Blankenbeker’s design. Isgrigg stated that a rational
method is employed to calculate the dimension of the basin. 5 Isgrigg pointed
5
According to the HERPICC Stormwater Drainage Manual (the Manual), the formula for the rational
method is stated as Q=CIA—where Q is the peak discharge of the storm water in cubic feet per second; C is
the ratio of peak runoff rate (runoff coefficient); I is the rainfall intensity; and A is the contributing area in
acres.
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out that the runoff coefficient factor utilized by Liter’s surveyor, Blankenbeker,
was too high and due to that, it led to the construction of a small detention
basin. Isgrigg argued that the use of a lower coefficient would have resulted in
the construction of an adequate detention basin. According to the final plat
submitted to the Commission in 2007, Blankenbeker indicated that the size of
the detention basin to be constructed would be 34,500 cubic feet. Isgrigg stated
that during his site visit on September 19, 2008, he measured the detention
basin and found that it to be 20,000 cubic feet. According to Isgrigg, an
adequate detention basin should have been around 50,000 cubic feet.
In addition, Isgrigg stated that the final plat showed “a 24-inch diameter culvert
I believe [] under the entrance driveway on Highway 62. There is no culvert.
They didn’t put it in. So what happens if they’ve got uh . . . 300 feet of curve,
streets, curved gutters, rain gutters flowing down to [the Appellees’] driveway
entrance on Highway 62. . . . The water dumps into that intersection.” (Tr. p.
666). During wet months, Isgrigg stated that the area would receive about “half
an inch to an inch rainfall [], three or four times a month.” (Tr. p. 663).
Because the detention basin was too small, Isgrigg believed that the basin would
fill up faster and that there would be an accelerated discharge of surface water
from the Liter’s Property which would, in turn, cause erosion and flooding on
the Appellees’ Property.
The Appellees also retained a contractor, Scott Best (Best), who testified over
Liter’s objection that based on his experience, the detention basin seemed to be
“small for the amount of property that we are dealing with” but admitted that
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he was not a hydrologist or surveyor, and had not performed any calculations
on which to base his opinion. (Tr. p. 781). The record shows that part of
Liter’s drainage system consisted of twenty-five drain pipes. Out of the twenty-
five, nineteen drained into the detention basin and the remaining six drained
away from the basin. Best stated that he observed several curb drains which he
described as “an inlet box that is on or in a roadway that catches all the water
that comes down the road.” (Tr. p. 773). According to Best, there was “a pipe
[] taking water from the curb drains” and directly emptying out on the
Appellees’ Property. (Tr. p. 775). Best indicated that said pipe was located
about ten to fifteen feet from Bennett’s house.
During cross-examination, Best clarified that the drain pipes did not end and
empty out on Appellees’ Property as earlier stated on direct, but they sat, ended
and drained on the Liter’s Property. Best also admitted that he did not conduct
any topography review to see which path the water travels after leaving the
drain pipes. Additionally, Best stated that on the day he visited the Liter’s
Property sometime in June 2013, the detention basin was empty and there was
no water feeding through the pipes. Also, Best stated there was no standing
water in the Appellees’ driveway culvert, Bennett’s house was still standing,
and there was no visible damage to Bennett’s residence.
Blankenbeker testified that the purpose of a detention basin was to “hold back
the water and let it out slowly,” with the goal being “to let it out at the same
rate that it occurred before the development occurred.” (Tr. p. 868).
Blankenbeker explained that the detention basin was designed to collect the
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storm water accumulations from the Liter’s Property and the water was to be
channeled through a weir structure, and then into a concrete swale running
parallel to the boundary line between the two properties. From the swale, the
water was intended to diffuse into the Appellees’ existing twelve-inch culvert
and flow out through Highway 62.
Blankenbeker contended that in his twenty-four years of designing residential
subdivisions, he had never utilized a low coefficient as that suggested by
Isgrigg. In support of Blankenbeker’s design, Liter’s presented the testimony of
a civil engineer, Bernard Hauersperger (Hauersperger), who found the runoff
coefficient factor applied by Blankenbeker to be sensible. Hauersperger further
testified that during his site visit, he inspected the detention basin and he
determined it adequate for the sixty-three lots in Jefferson Manor, Phase II.
During cross-examination, Hauersperger acknowledged that there was
“ponding of water at the outlet end” of the Appellees’ driveway culvert. (Tr. p.
927). He also acknowledged that “if this subdivision is fully built out [] more
water will be draining onto the [Appellees’ Property] than it did prior to the
development.” (Tr. p. 927). Despite Isgrigg’s assertion that one of the pipes
directly drained into the culvert, on redirect, Hauersperger explained the pipe
that drained close to the Appellees’ driveway culvert first drained into a swale.
He further stated that the swale “would hold quite a bit of water . . . you could
call it a detention facility given that the driveway pipe . . . has a restriction on
the end of it. I believe it has an eight-inch [] pipe on the end of the culvert.”
(Tr. p. 930). Because there was a restriction on the tail end of the culvert, it
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caused water to slowly discharge from the culvert and flow out into Highway
62.
Bodine testified that the construction at the Liter’s Property began sometime in
2008. At the time of the current trial, out of the sixty-three lots, only six lots
had been developed. Bodine stated that “we’ve got erosion . . . underneath the
driveway where one of the [] storm drains comes across our property [].” (Tr.
pp. 798-99). Bennett testified that before Liter’s broke ground in 2008, they had
never experienced water backing up “right on the brick” of his house. (Tr. p.
806). Bennett indicated that the flooding occurred at least “two or three times a
year.” (Tr. p. 806). Bennett stated that he would use a bush hog to mow the
grass in the depression amid the two Properties, but a ditch had formed due to
erosion. In addition, Bennett claimed that during a three-inch rainstorm, water
would canal into one of the drain pipes that was situated about sixty feet behind
his house. 6 He indicated that the water would then channel through the swale,
6
Conflicting evidence was presented as to how close that pipe was situated to Bennett’s house. At trial, Best
testified that the said pipe was approximately ten to fifteen feet from Bennett’s home. Isgrigg testified that the
pipe was “roughly about [seventy-five feet],” whereas Bennett stated that the pipe was about sixty feet from
his home. (Tr. p. 665).
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but because the water was substantial, it would rise, overflow to his property,
and backup behind his house.
Additionally, the Appellees presented testimony of a licensed appraiser,
Katherine Love (Love), who stated that she visited the Appellees’ Property on
January 3, 2011. Love stated that while conducting her survey, she explored
the Property and looked exhaustively at the surroundings. Love admitted that
there were no drainage issues nor did she observe erosion on the Appellees’
Property. Love stated as of January 2011, the value of the Appellees’ Property
was $217,000. Over Liter’s objection, Love was permitted to testify that the
value of Appellees’ Property would diminish in light of Liter’s inadequate
detention basin and also on the backdrop of some speculative flooding that
would occur at least three times a year. Specifically, Love stated that the
Appellees’ Property would be devalued if it flooded three times a year, and that
the Appellees would suffer damages of $134,500; therefore the new value of
their Property would be $82,500. During cross-examination, Love
acknowledged that she had not observed any destruction, and that her opinion
on the Appellees’ Property lessening in value was based on mere speculation.
After six days of jury trial and close to nine hours of deliberations, the jury
found for Liter’s on its trespass claim but awarded no damages. On the
nuisance claim, the jury found for the Appellees’ but also awarded no damages.
As for the Appellees’ negligence claim, the jury found for the Appellees,
awarding court costs and attorney’s fees and directing Liter’s to “make
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necessary repairs to [the] drainage []. This will prevent any and all future
flooding to [the Appellees’ Property].” (Appellant’s App. p. 26).
The trial court accepted the verdicts for the trespass and nuisance claims, but
declined to accept the verdict on negligence, stating that it was inconsistent.
Specifically, the trial stated that the Appellees had not sought court costs and
attorney’s fees; as such, the award was inconsistent pursuant to Indiana Code
section 34-51-2-13—providing, in part, that whenever a jury returns verdicts in
which the ultimate amount awarded is inconsistent with its determinations of
total damages and percentages of fault, the trial court shall inform the jury of
such inconsistencies, and order it to resume deliberations to correct its verdict.
Accordingly, the trial court directed the jury to reconsider it negligence verdict,
and it provided the jurors with new verdict forms to guide its determination.
Following the conclusion of those deliberations, the jury returned a verdict in
favor of the Appellees, awarding damages of $51,150 each to Bennett and
Bodine. On August 25, 2014, the trial court entered an order consistent with
the jury verdicts.
Liter’s now appeals. Additional information will be provided as necessary.
DISCUSSION AND DECISION
I. Common Enemy Doctrine
The Appellees advanced a negligence claim against Liter’s on the grounds that
Liter’s negligently designed the subdivision “in such a manner that runoff
water” from the Liter’s Property will discharge and flood the Appellees’
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Property. (Appellant’s App. p. 233). In arguing that it had no duty to the
Appellees, Liter’s claims that the construction of a drainage system on its
property was an effort to protect its own property from the accumulation of
surface waters and that the common enemy doctrine protects it from incurring
any liability.
We note this is an appeal from a jury trial, and “when reviewing the sufficiency
of evidence in a civil case, we determine whether there is substantial evidence of
probative value supporting the judgment. Jamrosz v. Resource Benefits, Inc., 839
N.E.2d 746, 758 (Ind. Ct. App. 2005), trans. denied. We do not weigh the
evidence or judge the credibility of witnesses but consider only the evidence
most favorable to the judgment along with all reasonable inferences to be drawn
therefrom. Davidson v. Bailey, 826 N.E.2d 80, 87 (Ind. Ct. App. 2005). We
affirm unless the judgment “is against the great weight of the evidence.” Id.
In Argyelan v. Haviland, 435 N.E.2d 973, 975 (Ind. 1982), our supreme court
stated:
In its most simplistic and pure form the rule known as the “common
enemy doctrine,” declares that surface water which does not flow in
defined channels is a common enemy and that each landowner may
deal with it in such manner as best suits his own convenience. Such
sanctioned dealings include walling it out, walling it in and diverting
or accelerating its flow by any means whatever.
In Bulldog Battery Corp. v. Pica Investments, Inc., 736 N.E.2d 333, 339 (Ind. Ct.
App. 2000), we clarified that under the common enemy doctrine of water
diversion, it is not unlawful for a landowner to improve his land in such a way
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as to accelerate or increase the flow of surface water by limiting or eliminating
ground absorption or changing the grade of the land even where his land is so
situated to the land of an adjoining landowner that the improvement will cause
water either to stand in unusual quantities on the adjacent land or to pass into
or over the adjacent land in greater quantities or in other directions than the
waters were accustomed to flow. An owner of land has the right to occupy and
improve it in such manner and for such purposes as he may see fit including
changing the surface or by erecting buildings thereon. Argyelan, 435 N.E.2d at
976.
An exception to the common enemy doctrine exists where an owner of land, by
artificial means, throws or casts water onto his neighbor in unusual quantities
so as to amplify the force at a given point or points. Id. Furthermore, we note
that the common enemy doctrine applies only to surface water, and not to a
natural watercourse. Long v. IVC Indus. Coatings, Inc., 908 N.E.2d 697, 702 (Ind.
Ct. App. 2009). “Surface water” has been defined as “[w]ater from falling rains
or melting snows which is diffused over the surface of the ground or which
temporarily flows upon or over the surface as the natural elevations and
depressions of the land may guide it but which has no definite banks or channel
. . .” Kramer v. Rager, 441 N.E.2d 700, 705 (Ind. Ct. App. 1982). Finally, we
note that the common enemy doctrine may apply regardless of the form of
action brought by the plaintiff, that is, regardless of whether the plaintiff asserts
his claims as an action for negligence, trespass, or nuisance. Bulldog Battery
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Corp., 736 N.E.2d at 339; Luhnow v. Horn, 760 N.E.2d 621, 632 (Ind. Ct. App.
2001).
In Argyelan, the defendants erected a commercial building upon their lot, which
was adjacent to the plaintiff's residential lot. Argyelan, 435 N.E.2d at 974. As
part of the improvement to the lot, the defendants also erected downspouts
directed toward the property line and paved a substantial portion of the lot. Id.
at 975. Following completion of these improvements, the plaintiffs complained
that surface water was draining from the defendants’ property and pooling on
their property, causing damage. Id. The defendants then erected a six-inch
curb or retaining wall along the property line. Id. In a sustained rain, water
would accumulate behind the curb and eventually flow over it onto the
plaintiffs’ property. Id. The supreme court held that the defendants were not
liable to the plaintiffs for damage caused by the overflowing surface water
pursuant to the common enemy doctrine because there was no showing that the
defendants had, by artificial means, conducted the water in unusual quantities
by new channels onto particular parts of the plaintiffs’ land. Id. at 976. In so
holding, the court stated that the fact that “water was once impounded or
channeled [via downspouts] can be of no moment if it is diffused to a general
flow at the point of entering the adjoining land.” Id.
The Appellees now argue that the combination of having a drainage pipe that
drained closely behind Bennett’s house and another that drained into their
driveway culvert, coupled with the construction of an undersized detention
basin, caused surface water from the Liter’s Property to diffuse at a greater
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speed, intensity, and volume than before. In this regard, the Appellees argue
that the facts place this case squarely within the exception to the common
enemy doctrine—providing that the rule does not apply where an owner of land
has, by artificial means, thrown or cast water onto his neighbor in unusual
quantities so as to amplify the force at a given point or points. See Argyelan, 435
N.E.2d at 976. 7
With regards to the size of the detention basin, Liter’s stated that according to
the final plat submitted to the Commission in 2007, the detention basin was
34,500 cubic feet. Liter’s constructed a detention basin measuring 20,000 cubic
feet. The Appellees argued that an adequate detention basin should have been
50,000 cubic feet. In addition, the Appellees’ retained contractor testified over
Liter’s objection that based on his experience, the detention basin seemed to be
“small for the amount of property that we are dealing with” but admitted that
7
The Appellees acknowledge the rule espoused in Argyelan; however, they point out in a footnote that they
agree with the dissent in Argyelan and further state that “Indiana should adopt the rule of reasonable use or a
modified version of the common enemy doctrine.” (Appellees’ Br. p. 9). We initially note that we
abandoned the common enemy doctrine in favor of a different rule called the “rule of reasonable use” in
Rounds v. Hoelscher, 428 N.E.2d 1308 (Ind. Ct. App. 1981). However, “our supreme court promptly pinned
our ears back and reasserted the common enemy doctrine as the law in Indiana in Argyelan.” Pickett v. Brown,
569 N.E.2d 706, 708 (Ind. Ct. App. 1991), trans. denied. Therefore, we respectfully decline the Appellees’
invitation to reverse supreme court precedent.
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he was not a hydrologist or surveyor, and had not performed any calculations
on which to base his opinion. (Tr. p. 781).
As for drainage pipes, Liter’s drainage system comprised twenty-five drain
pipes. Out of the twenty-five, nineteen drained into the detention basin and the
remaining six drained away from the basin. The Appellees averred that one of
those the pipes was located about ten to fifteen feet from Bennett’s house, and
that surface water would feed through that pipe and empty on their property.
Refuting the Appellees’ claim, Liter’s argued that despite the existence of that
pipe, surface water would first drain into a swale, the swale would then hold the
water momentarily before draining into the Appellees’ driveway culvert.
As noted previously, under the common enemy doctrine, it is not unlawful for a
landowner to accelerate or increase the flow of surface water by limiting or
eliminating ground absorption or changing the grade of the land, even if it
causes water to stand in unusual quantities on the adjacent land or to pass into
or over the adjacent land in greater quantities or in other directions than the
water did before. Long, 908 N.E.2d at 702 (quoting Argyelan, 435 N.E.2d at
976). In order to impose liability for surface water discharge, it must be
collected on the Liter’s Property and cast off in concentrated volumes onto the
Appellees’ Property. See Argyelan, 435 N.E.2d at 975. More importantly, the
distinction lies in the character of the flow as it enters the adjoining property.
“Whether surface water is collected and cast upon neighboring land as a body
or collected but diffused before entering neighboring property will be largely a
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question of fact.” Bulldog Battery Corp., 736 N.E.2d at 340. In the present case,
it was the jury’s role to determine whether, in light of the evidence before it,
Liter’s detention basin and drainage system collected water and cast it upon the
Appellees’ Property in unusual quantities so as to increase the force with which
it entered onto the property at specific points. Considering the evidence most
favorable to the verdict, as we are required to do, the evidence presented
showed that the Liter’s Property had a gradual fall of about 1-2%. Originally,
surface water from the Liter’s Property would traverse through a depression
amidst the two properties and flow into the Appellees’ existing driveway culvert
and flow out under Highway 62. The Appellees argued that before Liter’s
improved its Property, they had never experienced flooding. Specifically,
Bennett testified that before Liter’s broke ground in 2008, he had never
experienced water backing up “right on the brick” of his house. (Tr. p. 806).
Also, Bodine stated that “we’ve got erosion . . . underneath the driveway where
one of the [] storm drains comes across our property [].” (Tr. pp. 798-99).
Furthermore, Bennett stated that during a three-inch rainstorm, water would
canal into one of the drain pipes that was situated closely behind his house and
into the swale; however, since the amount of water was substantial, it would
rise, overflow to its property and, backup behind his house. In addition, the
jury was also presented with photographs and diagrams illustrating Liter’s
detention basin and drainage system; some of the photographs showed standing
water, some did not.
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Admittedly, there was a lot of conflicting evidence offered by both parties.
Some witnesses testified in a manner favorable to Liter’s and others favorable to
the Appellees. However, as the reviewing court, we respect the jury’s exclusive
province to weigh conflicting evidence. See Davidson, 826 N.E.2d at 87. From
the evidence of the case—though not free from conflict—the jury reasonably
determined that the construction of Liter’s undersized basin led to the casting
off of surface water in concentrated volumes onto the Appellees’ Property. In
this regard, we find that the common enemy doctrine does not preclude the
Appellees’ claim of negligence against Liter’s, and we affirm the trial court.
II. Admission of Expert Testimony
Liter’s next argues that the trial court abused its discretion in allowing the
Appellees’ expert witness, Love, a licensed appraiser, to render opinion
testimony regarding the diminution of the Appellee’s Property upon a
speculative flooding event. Specifically, Liter’s argues that Love’s testimony
regarding the Appellees’ Property reducing in value was based on “pure
guesswork and speculation.” (Appellant’s Br. p. 26).
The admissibility of expert testimony is guided by Indiana Evidence Rule 702,
which provides:
(a) If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training,
or education, may testify thereto in the form of an opinion or
otherwise.
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(b) Expert scientific testimony is admissible only if the court is satisfied
that the scientific principles upon which the expert testimony rests are
reliable.
A witness must be qualified as an expert by his knowledge, skill, experience,
training, or education and must have sufficient skill in a particular area before
he may offer opinions in that area. Armstrong v. Cerestar USA, Inc., 775 N.E.2d
360, 366 (Ind. Ct. App. 2002), trans. denied. The proponent of the expert
testimony has the burden of establishing the foundation and reliability of the
scientific principles on which the testimony is based. Hannan v. Pest Control
Servs., Inc., 734 N.E.2d 674, 679 (Ind. Ct. App. 2000), trans. denied. The trial
court acts as a gatekeeper by preliminarily assessing whether the reasoning or
methodology underlying the testimony is scientifically valid and can properly
be applied to the facts in issue and by ensuring the testimony both rests on a
reliable foundation and is relevant. Armstrong, 775 N.E.2d at 366. In other
words, the trial court is to control the admission of proffered expert testimony
rather than admitting what is offered and leaving it to the jury to determine the
weight of the testimony. Norfolk S. Ry. Co. v. Estate of Wagers, 833 N.E.2d 93,
101 (Ind. Ct. App. 2005), trans. denied. Expert testimony admitted under Rule
702 requires more than a subjective belief or unsupported speculation.
Armstrong, 775 N.E.2d at 366. It “must be supported by appropriate validation
or good grounds based on what is known . . . .” Lytle v. Ford Motor Co., 814
N.E.2d 301, 309 (Ind. Ct. App. 2004), trans. denied.
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The record shows that, in January 2011, at the request of the Appellees, Love, a
certified appraiser, performed a survey of the Appellees’ Property. Love
indicated that her survey involved an exhaustive exploration of the Property
and its surroundings. Love admitted that there were no drainage issues at the
time nor did she observe erosion. Love indicated that as of January 2011, the
fair market value of the Appellees’ Property was $217,000. Love then
responded to a hypothetical question where she stated that based on her years
of experience as an appraiser, and in light of Liter’s undersized basin, and upon
the happening of a flooding event occurring at least three times a year, the
Appellees’ Property would diminish in value. Specifically, Love stated that the
Appellees’ Property would suffer estimated damages of $134,500. During
cross-examination, Love acknowledged that she had not observed any
destruction in 2011, and that her opinion was based on speculation.
“Although it has been said that an expert witness must have observed facts
sufficient to enable him to form a valid opinion, those facts may be supplied in
the form of a hypothetical question which incorporates facts previously adduced
at the trial.” Fulton Cnty. Comm’rs v. Miller, 788 N.E.2d 1284, 1286 (Ind. Ct.
App. 2003). Here, we find ample evidence in the record to provide a factual
basis for the hypothetical situation on which Love’s opinion was based.
Bennett testified that following the development of the subdivision, water
would lap up against his house approximately two to three times a year. He
also indicated that the Property has experienced erosion at specific points. In
addition, the Appellees presented evidence through its engineer, Isgrigg, that an
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adequate detention basin should have been around 50,000 cubic feet, but Liter’s
had constructed a 20,000 cubic feet detention basin. Also, Isgrigg stated that
the result of the undersized basin led to an accelerated discharge of surface
water from the Liter’s Property. Furthermore, Isgrigg pointed out that the
accelerated discharge of surface water would cause erosion.
While Love did not observe any flooding or damage on the Liter’s Property
during her visit in 2011, her expert testimony was sufficiently tied to the facts of
the case and was not unreasonable or outside the scope of the evidence. See
Armstrong, 775 N.E.2d at 366. Accordingly, we find that based upon the facts
and circumstances herein, the trial court did not abuse its discretion in
admitting Love’s testimony.
II. Damages
Liter’s also argues that the jury’s award of zero dollars to its trespass claim was
inadequate in light of the evidence. Liter’s argues that this cause should be
remanded to the trial court for the award of damages or, in the alternative,
remanded with instructions for the trial court to grant permanent injunctive
relief requiring the Appellees to remove the unpermitted portion of Bennett’s
roof that extends over its property.
When we review a jury’s damage award that the appellant claims is inadequate,
we apply a strict standard. Ritter v. Stanton, 745 N.E.2d 828, 843 (Ind. Ct. App.
2001), trans. denied. Specifically, we “consider only the evidence that supports
the award together with the reasonable inferences therefrom.” Id. “If there is
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any evidence to support the amount of the award, even if it is conflicting, this
court will not reverse.” Id. This standard reflects the premise that damages
“are particularly a jury determination.” Sears Roebuck and Co. v. Manuilov, 742
N.E.2d 453, 462 (Ind. 2001). Therefore, we do not substitute our “idea of a
proper damage award for that of the jury.” Id. (quoting Prange v. Martin, 629
N.E.2d 915, 922 (Ind. Ct. App. 1994), trans. denied). Because appellate courts
are unable “to actually look into the minds of the jurors, . . . .we will not reverse
if the award falls within the bounds of the evidence.” Sears Roebuck, 742 N.E.2d
at 462 (citation omitted); see also Russell v. Nuemann–Steadman, 759 N.E.2d 234,
237 (Ind. Ct. App. 2001) (stating, “[t]he trial court may only reverse a jury
verdict ‘when it is apparent from a review of the evidence that the amount of
damages awarded by the jury is so small or so great as to clearly indicate that
the jury was motivated by prejudice, passion, partiality, corruption or that it
considered an improper element.’”) (citation omitted).
The record demonstrates that after Liter’s conducted a boundary survey of its
Property, it became apparent that the eaves of Bennett’s roof extended over its
Property by two feet. Liter’s also claimed that Bennett’s satellite dish was
rooted on its property. In the Compliant, Liter’s sought permanent injunctive
relief requiring the Appellees to remove the unpermitted encroachments, and
the award of treble damages due to the continuing trespass. At trial, Liter’s
presented unrebutted evidence that its property had been devalued by $18,000
as result of Bennett’s roof extending to it property. We note that a jury is
presumed to have followed the court’s instructions. Prange, 629 N.E.2d at 922.
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The jury was instructed that it could award Liter’s damages that resulted from
the trespass. After deliberations, the jury found that Liter’s had substantiated its
trespass claim, but was not entitled to damages of any kind. Also, the jury
found for the Appellees on its nuisance claim but all the same denied it
damages.
The Appellees briefly argue that “[n]owhere did Liter’s offer an objection to the
jury verdict of no damages on the trespass count, and thereby waived the error,
if any.” (Appellees’ Br. p. 17). Although not specifically mentioned by the
Appellees, we note that Liter’s did not file a motion to correct error after the
jury verdict. Under the Indiana Rule 59(A)(2), a motion to correct error is
prerequisite to appeal when a party seeks to address a claim that a jury’s verdict
is excessive or inadequate. Here, Liter’s did not file a motion to correct error,
and its argument that we should review the award of zero dollar damages as
being inadequate, is waived on appeal.
At the very least, Liter’s seeks that we remand this cause for the issuance of a
permanent injunction. We note that permanent injunctions are limited to
prohibiting injurious interference with rights and must be narrowly tailored so
that its scope is not more extensive than is reasonably necessary to protect the
interests of the party in whose favor it is granted. Plaza Grp. Props., LLC v.
Spencer Cnty. Plan Comm’n, 877 N.E.2d 877, 881 (Ind. Ct. App. 2007), See also
Soc. Serv. v. Hospitality House, 704 N.E.2d 1050, 1061 (Ind. Ct. App. 1998). “A
trial court may issue an injunction in order to prevent a continued trespass.”
Ballard v. Harman, 737 N.E.2d 411, 417 (Ind. Ct. App. 2000).
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At the time of the current trial, Liter’s had removed the spite fence; however,
the Appellees had not removed the eaves of the roof that extended to Liter’s
Property. Here, we find that the continued existence of the Appellee’s roof
extending to Liter’s property would involve a continuing trespass. According,
injunctive relief is the appropriate remedy on remand. Therefore, we remand to
the trial court with instructions for the issuance of a permanent injunction
requiring the Appellees to remove the unpermitted portion of Bennett’s roof
that extends over Liter’s Property.
CONCLUSION
In light of the foregoing, we conclude that: (1) the common enemy doctrine
does not preclude the Appellees’ negligence claim; (2) there was no abuse of
discretion in admitting Love’s testimony; and (3) Liter’s argument that the
jury’s award of zero damages is inadequate is waived on appeal; however,
because there is continuing trespass, we remand to the trial court with
instructions for the issuance of a permanent injunction.
Affirmed, but remanded with instructions for the issuance of a permanent
injunction with respect to the continuing trespass.
Bailey, J. and Barnes, J. concur
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