      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
                                                                              FILED
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                          Oct 24 2019, 7:43 am

      court except for the purpose of establishing                            CLERK
                                                                          Indiana Supreme Court
      the defense of res judicata, collateral                                Court of Appeals
                                                                               and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Darin Higgs                                              Scott L. Tyler
      Evansville, Indiana                                      Natalie Short
                                                               Waters, Tyler, Hofmann & Scott,
                                                               LLC
                                                               New Albany, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Tammy Webber,                                            October 24, 2019
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               19A-CT-274
              v.                                               Appeal from the Posey Superior
                                                               Court
      Kenneth Kuebler Heating & Air                            The Honorable Keith A. Meier,
      Conditioning, Inc.,                                      Senior Judge
      Appellee-Defendant.                                      Trial Court Cause No.
                                                               65D01-1707-CT-267



      Mathias, Judge.


[1]   Tammy Webber (“Webber”) appeals the judgment of the Posey Superior Court

      in favor of Kenneth Kuebler Heating & Air Conditioning, Inc. (“Kuebler”) in


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019             Page 1 of 27
      Webber’s negligence action against Kuebler. On appeal, Webber claims that the

      trial court clearly erred by concluding that Kuebler was not negligent per se.

[2]   We affirm.


                                          Statement of Facts
[3]   In 2014, Webber hired Kuebler to install a new air-conditioning unit in her

      home in Posey County, Indiana. Kuebler installed the unit on July 8, 2014,

      replacing an aging unit that had been in the house for decades.


[4]   Three years later, in April 2017, Webber replaced the vinyl flooring in the

      utility room where the air-conditioning unit was located alongside her washing

      machine, water heater, and freezer. When she removed the flooring, she

      noticed that the subfloor had water damage. Webber believed that some of this

      water damage was caused by a clog in the drain for her washing machine. This

      clog apparently occurred in July 2014, when Webber did some laundry for a

      neighbor who had a fire in her house. The neighbor’s laundry contained cinders

      which clogged the washing machine drain. Webber did not discover this clog

      until she removed the vinyl flooring. Webber replaced the damaged subflooring

      around the washing machine. Webber also found additional water damage to

      the subflooring, which she attributed to the air-conditioning unit installed by

      Kuebler.


[5]   On July 25, 2017, Webber filed her complaint against Kuebler, alleging breach

      of contract, negligence, unjust enrichment, and fraudulent inducement. A

      bench trial was held on August 1, 2018. The trial court entered findings of fact
      Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 2 of 27
and conclusions of law on December 6, 2018, finding in favor of Kuebler on all

counts. The trial court’s extensive findings and conclusions provide in pertinent

part:


        8. Kuebler is a small company in the business of maintaining
        and installing heating and air systems since 1980. It is owned and
        operated by Kenneth, who had installed his first furnace in 1960
        and who had installed as many as 150 units in one year.

        9. [Webber] had known Kenneth for several years prior to the
        events alleged in her Complaint and Kuebler had serviced
        [Webber]’s old air handling system which came with the house—
        which [Webber] believed to be original to the house.

        10. In early to mid-2014, [Webber] called Kuebler regarding a
        problem with the original air handler unit, which was located in
        the utility room.

        ACQUISITION OF THE UNIT:
        11. Kenneth suggested [Webber] replace the old air handling unit
        to save on energy bills and avoid increasingly frequent servicing
        of the old unit. [Webber] agreed to purchase a new unit from
        Kuebler for $6,418.00

                                                ***

        15. The unit installed by Kuebler is a “down flow” configuration
        and consists of several basic components which, starting towards
        the top of the unit and going down are: the A-coil (also called an
        evaporator, is used to transfer heat from inside the home to the
        outside of the home) is toward the top of the unit; a condensate
        drip pan is located below the A-coil and above the blower and
        plenum and is used to catch condensation from the A-coil; a
        blower is located below the A-coil; the plenum (also referred to in
        the evidence as the transition or supply plenum) is located at the
        base of the unit at the floor and is used to connect the unit to the
        duct work below it in the crawl space. There is also a plastic
        drain line connected to the drip pan which drains water from the
        pan to outside the house.


Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 3 of 27
        16. Kenneth and two of Kuebler’s employees installed the unit
        on or about July 8, 2014 in the same location in the utility room
        as the original unit. The installation included a modification
        made by Kuebler which included fabricating a short plenum to
        adapt to the existing plenum in the floor to support the coil and
        the unit. The plenum was screwed to the floor to secure the unit
        rather than being connected directly to the metal ductwork,
        leaving the subfloor protruding into the ductwork. Silicone was
        placed under the plenum to stop air leaks which could cause
        condensation if air leaked. When he was initially installing this
        unit, he saw the subfloor but did not remember what it looked
        like, yet he also testified that he saw no damage to the edge of the
        sub-flooring when the new plenum was installed and testified he
        would probably see damage if it were there but did not know if
        the floor looked like the damage shown in Exh. 19.

        17. The laundry room floor was not level, but the evidence did
        not support a finding as to what caused the floor to be unlevel
        nor the extent and effects of that condition (except as specifically
        set forth herein).

        18. Kenneth did not review the manufacturer installation
        instructions prior to this job because he felt he was familiar with
        them. The evidence appeared to be in conflict. The [e]vidence did
        not specifically disclose whether he had previously installed this
        particular model and, if he had, the date he last reviewed the
        instructions. Because the floor was not level, Kenneth installed the unit
        tilting to the front although the manufacturer specified the unit was to be
        level. He did not normally install an air handler which was not level
        because of possible water leakage from the drip pan. He was not
        concerned, however, because the tilt was to the front, where the pan is
        located, but admitted this style could cause condensation.

        19. The original plenum was located under the home. Kenneth
        never checked the temperature of the unconditioned plenum to
        make sure it would not cause condensation. He did not insulate
        the plenum which he had added to the unit because it was in a
        conditioned area although the crawl space under the unit was
        unconditioned space. He estimated the cost to insulate the
        plenum would be $5.00 to $10.00.

        20. [Webber] was pleased with the new unit unit’s energy
        efficiency and its ability to heat and cool her home. She did not

Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 4 of 27
        experience any malfunctions with the unit and had no complaints
        about how it worked. It lowered her utility bills, as Kenneth had
        predicted.

        21. The utility room shares walls with the kitchen, guest
        bedroom, and living room and has one exterior wall. Since
        Kuebler’s installation of the unit, [Webber]’s utility room has
        housed the unit and deep freeze next to each other on one wall,
        which separated it from the kitchen where the stove and
        refrigerator were located behind the unit and the washing
        machine, dryer and water heater on the opposite wall. All
        appliances in the utility room were removed to perform the work
        but the evidence did not disclose where they were stored (except
        the unit was stored on the porch) during the floor replacement
        nor whether any repairs or modifications were made to them.

        22. In July 2014 [Webber]’s neighbor had a fire and [Webber]
        laundered 32 to 35 loads of their clothing using her washing
        machine in her utility room. Unbeknownst to [Webber] at that
        time, the cinders from the clothing accumulated in the overflow
        drain from the washing machine and solidified over time,
        clogging the drain. The evidence did not clearly disclose whether
        this was before or after the installation of the unit by Kuebler[.]

        FUNKS CARPET:
        23. The utility room floor had been covered with vinyl flooring
        since the purchase of the house. Generally, there were two
        flooring layers below the vinyl floor—a particle board as the
        upper layer and plywood beneath. In the corner, where the deep
        freeze was located, there was plywood but no particle board,
        although the evidence did not support the reason for that
        condition. The floor joists were under the plywood.

        24. Although the evidence did not state why, in April of 2017,
        [Webber] hired a local flooring company, Funks Carpet and
        Warehouse (“Funks”), to replace all of the vinyl flooring in the
        utility room. The evidence was not clear as to whether or not the
        entire floor area was covered with vinyl and, if not, exactly which
        areas were covered with vinyl. There was not sufficient evidence
        to determine the condition of the existing vinyl floor such as
        whether or not it had any tears, holes, significant wear or
        scuffing, etc. where water could have flowed on top of the vinyl

Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 5 of 27
        and then seeped through the holes or tears to the subfloor and
        then to other areas of the room.

        25. When the Funks’ employees began removing the old vinyl
        flooring, they discovered water damaged subflooring and black
        mold. It was only then that [Webber] realized water had been
        leaking into the utility room subfloor from the clogged washing
        machine drain and the subfloor under and around the washing
        machine had been damaged from the water leakage. [Webber]
        did not know how long the water stains had been on the subfloor
        because they were covered by the vinyl flooring.

        26. The evidence was not clear as to when, but [Webber] had
        seen water on the linoleum twice and removed it but did not
        investigate the floor for damage and she did not know how many
        times the washing machine had overflowed onto the floor.

        MIKE MORROW:
        27. [Webber] hired [a] contractor, Mike Morrow, to remediate
        the water damage caused by the clogged washing machine drain
        and to replace the damaged subfloor. Morrow inspected the
        damage and noted that “the subfloor” was saturated with water
        from the washing machine.” Morrow also discovered water-
        damaged subflooring around the unit which was also previously
        hidden by the vinyl flooring. Photographs of the subfloor show
        what appears to be a few inches of space between the watermark
        in the subflooring around the washing machine and the
        watermark in the subflooring near the unit. The floor crumbled
        when it was being removed.

        BAYLOR/GRESHAM:
        28. [Webber] hired Baylor Heating & Air, a company similar to
        Kuebler, to remove and reinstall the unit. Baylor then re-installed
        the unit. When Baylor removed the unit, they placed it on
        [Webber]’s front porch for one to two weeks while Morrow
        removed, replaced and attempted to level the utility room floor
        and Funks laid a new vinyl floor.

        29. Ethan Gresham[] (“Gresham”), a Baylor employee,
        performed the reinstallation work. During the reinstallation, he
        took additional measures to decrease the likelihood of leaking
        and condensation from the unit, including insulating the plenum
Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 6 of 27
        in the floor because it would be more likely to lessen any
        condensation in the duct work. He testified that it is his practice
        to insulate the supply plenum transition unless the air handling
        unit is in a conditioned space, but he was not aware of any
        building code or installation instruction requiring such insulation.
        There was no evidence suggesting that the utility room was an
        unconditioned space.

        30. While he was there, [Webber] asked Gresham to attempt to
        locate the cause of the water damage. Although Gresham did not
        investigate to determine if the unit had been installed by Kuebler
        with a slight tilt toward the front side, he felt a tilt of the unit
        would be proper because the drip pan is located in the front and
        one wants any condensation water to flow to that location;
        however, he made sure the unit was level to prevent water
        drainage issues. He did not know whether the manufacturer
        required the unit be level but, to his knowledge, the building
        codes required [it].

        31. Gresham gave possible causes for the water damage in
        [Webber]’s home:
             A.) Water coming from the unit. He did not, however, run
             the unit to view any condensation which may be occurring
             because he was simply reinstalling it, but he would have if he
             were attempting to rule out water damage from the unit. He
             noted the unit, with this style of air flow and with the A-coil
             above the blower, is highly prone to getting so cold that the
             metal will sweat with condensation. He opined that, based
             solely on a visual inspection of the damage around the unit,
             the unit’s A-coil caused the water damage, although he was
             not sure how this occurred, or alternatively, the water
             damage could have been caused by a failure to insulate the
             plenum at the base of the unit and/or a failure to insulate the
             ductwork underneath the house.
             B.) Water penetrating the foundation and then seeping
             through the crawl space and then rising up to damage the
             floor because the subfloor was less than four cinder blocks off
             the ground. Gresham did not recall if he inspected
             [Webber]’s crawl space or how it looked but he would have
             done so if he were conducting an investigation to determine
             the cause of the water damage;


Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 7 of 27
             C.) A roof leak; and
             D.) Other appliances, such as refrigerators, washing
             machines, freezers, and water heaters, or other causes, such
             as leaks from plumbing.

        32. Gresham made no effort to investigate these or alternate sources of the
        leak and was unaware of the clogged washing machine drain nor did he
        conduct any investigation to determine whether there had been other
        appliances located in the utility room. When he performed the
        reinstallation work, the other appliances —which were
        previously located in the utility room—had been removed. Thus,
        Gresham had no opportunity to inspect those possible alternative
        causes of the water damage, including the leak from the washing
        machine drain.

        33. Gresham’s opinions on the causes of the water damage lack an
        adequate factual foundation. He had never been specially retained to
        render an opinion on water damage. He testified that in fewer
        than six instances during the course of repairing or replacing a
        unit, the customer asked him to opine as to the cause of a
        potentially leaky unit. In these instances he did not follow any
        scientific method for investigating water damage prior to
        rendering his opinion. He was able to ascertain the cause by
        turning on the unit and actually observing and identifying the
        water leaking or dripping from a part of that air handling unit,
        often the A-coil. He acknowledged that, if the A-coil was the cause of
        the leak, he would have been able to observe the leak had he only turned
        on the unit prior to removal. Contrary to his prior practice, he admitted
        he did not turn on this unit before it was removed. As such, he could not
        determine whether, in fact, water leaked from this unit due to
        condensation or otherwise. Moreover, he failed to inquire into
        pertinent facts, such as the age of the unit, when the unit was
        installed, or the condition of the previously-replaced air handling
        unit when it was removed. He admitted he lacked the
        qualifications to conduct a forensic investigation to determine the
        cause of the water damage, and he failed to attempt to rule out
        potential causes of the water damage he had identified through his
        previous work experience. Although there was no evidence
        suggesting he was not competent to perform the regular duties of
        his job, he has no education beyond high school and no training
        in forensics, property damage losses, or investigations of water
        intrusion issues. He had never testified as an expert in HVAC or

Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 8 of 27
        a related matter. He admitted he would defer to the opinion of a
        forensic investigator as to the cause of water damage on a floor.

        34. In his experience, Gresham had seen A-coils dripping water
        and had seen calcium buildup in drip parts which was an
        indicator of water buildup from the A-coil.

        35. Gresham was unable to verify his theory that the water problem was
        caused by the supply plenum not being insulated. He admitted he was
        not in court to testify that the way the unit was installed by
        Kuebler was in violation of any code or installation instruction
        nor that any water problem in [Webber]’s home resulted from the
        unit not being level.

        36. The floor work and reinstallation of the unit took 44 days to
        complete. During that time, the home was in disarray and the
        living conditions were difficult.

        KENNETH:
        37. Kenneth has had to replace some flooring when replacing old
        air handling units. Although he recognized that drain issues are
        possible when an air handling unit is installed with a tilt and he
        did not usually install them with a tilt because water could
        possibly leak from the drip pan and the manufacturer had
        instructed the unit should be level, in this case, the floor was not
        level so he installed it with a tilt to the front where the drip pan is located
        so it would drain better.

        38. Kenneth had never seen any air handler, similar to this unit,
        installed inside a house where the lack of insulation on a plenum
        located in a conditioned area caused moisture to escape resulting
        in a problem. He was aware there are different temperatures
        interacting in an area where conditioned and unconditioned
        spaces meet, which can cause condensation. He was also aware
        down flow air handling units, like the unit in this case, are prone
        to getting cold enough to create condensation around an un-
        [insulated] supply plenum and there is a lot of condensation
        running from it in the summer. In this case, he did not check the
        temperature of the plenum in the unconditioned area to ensure
        the temperature differential was not high enough to create
        condensation. He did not insulate the supply plenum mainly
        because it was located in a conditioned space.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019       Page 9 of 27
        39. After [Webber] discovered the water problems and filed a
        complaint, Kenneth came to her home and looked inside the
        unit, which was prior to Rimkus and Cammack being involved in
        this case. He could not see inside the plenum modification he
        had added to the unit to determine if there was any discoloration.
        He saw no sign of moisture and the drip pan showed no evidence of
        overflow and he found the water mark in the pan to be way below [the]
        top edge of the pan. He also operated the unit for approximately 30 to 60
        minutes and found no condensation in the unit nor any water running
        on the floor.

        40. Kenneth testified that Posey County adopted the
        International Residential Code, but the evidence did not indicate
        whether it was adopted prior to or after Kuebler installed
        [Webber]’s unit. It provides, in pertinent part:
             Section M1401.1 Installation. Heating and cooling
             equipment and appliances shall be installed in accordance
             with the manufacturer’s installation instructions and the
             requirements of this code.
             Section M1411.3 Condensate Disposal. Condensate from
             all cooling coils and evaporators shall be conveyed from the
             drip pan outlet to an approved place of disposal. . . .
             Section M1411.3.1 Auxiliary and secondary drain systems.
             In addition to the requirements of Section M1411.3, a
             secondary drain or auxiliary drip pan shall be required for
             each cooling or evaporator coil where damage to any
             building components will occur as a result of overflow from
             the equipment drip pan or stoppage in the condensate drain
             piping. . . .
                                                      ***

        41. The “Installation Instructions” for the unit provide, in
        pertinent part:
             Plenums & Air Ducts
             • Plenums and air ducts should be installed in accordance
               with . . . all applicable local codes . . . .


             Unconditioned Spaces


Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 10 of 27
             • All duct work passing through unconditioned space must be
             properly insulated to minimize duct losses and prevent
             condensation . . . . .
                                            CAUTION:
              The air handler must be level to ensure proper
              condensation drainage. An unlevel installation may
              result in structural damage, premature equipment
              failure, or possible personal injury.
              • To ensure proper condensate drainage, the unit must be
              installed in a level position. . . .
               • If the air handler is located in . . . a living space where
               damage may result from condensate overflow, an auxiliary
               drain line should extend from the pan to a conspicuous
               point and serve as an alarm indicating that the primary
               drain is restricted.

        42. The equipment warranty on the unit provides, in pertinent
        part:
             Warranty effective for equipment manufactured after
             January 1, 2013.

             This NORDYNE equipment and/or NORDYNE
             accessories must be installed by a licensed or otherwise
             qualified dealer or contractor and must be installed in
             accordance with NORDYNE’S installation instructions and
             in compliance with local codes. Improper installation may
             endanger the occupants of the dwelling.

        43. The evidence did not support a finding as to whether or not
        the unit was manufactured after January 1, 2013 such that the
        unit is covered under this warranty.

        44. There would be no way to install an auxiliary drip pan under
        this unit because air would be flowing through that space and the
        pan would block the air flow.

        CAMMACK:
        45. On April 26, 2017, shortly after the discovery of the damaged
        subflooring, Marc Cammack (“Cammack”), a Senior Consultant
        with Rimkus Consulting Group, personally inspected [Webber]’s

Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 11 of 27
        house and the damage, and conducted an investigation in an
        attempt to determine the cause or causes of the water damage.
        He was accompanied by Steve Weber, a licensed civil engineer
        with Rimkus and a graduate of the Rose Hulman Institute of
        Technology with a B.S. in Civil Engineering. Weber is registered
        as a Professional Engineer in 16 states, including Indiana and has
        extensive experience in water and flood damage. He was not
        called to testif[y] but he and Cammack consulted and formed a
        consensus opinion.

        46. Cammack has a degree in Agricultural Engineering with a
        focus on machinery. As a registered professional mechanical
        engineer in five states, including Indiana, Cammack has
        conducted over 1000 forensic investigations in his career, with
        100 or more concerning the cause of a water leak; although not
        necessarily related to leaks related to HVAC. He testified as an
        expert without objection as to his qualifications.

        47. The vinyl flooring in the utility room had been removed prior
        to Cammack’s investigation, except for under the water heater.

        48. Cammack observed the water staining with black fungal
        growth on the subfloor where the washer had sat and noted
        “[t]he wood floor was severely stained where the door of the
        freezer would have overlain.” It was across the room from where
        the unit had been located. Although there was a gap between that
        water staining and the water staining located towards the unit, he
        opined that the water from the washer could have migrated on
        the vinyl flooring towards the unit, especially if the vinyl floor
        ran towards the unit. There were no single photos in evidence
        which clearly showed the extent and exact location of the larger
        water stain in the area where the unit sat—either in the utility
        room or from underneath it in the crawlspace. Cammack also
        opined that the missing particle board in the corner where the
        deep freeze was located was consistent with a possible, prior floor
        problem and repair.

        49. Cammack was aware there had been a deep freeze in the
        room but he did not investigate it for a leak because it was not in
        the room. The evidence did not disclose where the deep freeze
        was located at the time of this inspection.



Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 12 of 27
        50. Although Cammack noted some degradation of the particle
        board, with more degradation where the drain line is located than
        around the plenum which had been added by Kuebler, he would
        have expected to see more degradation if there were a water issue.
        Although there were stains in the wood floor under the unit, . . .
        “there was no evidence of fresh moisture intrusion.[”]

        51. During Cammack’s inspection, he ran the unit for
        approximately 30 minutes. He noted a Delta T (difference of
        temperature between 2 measuring points) of approximately 18
        degrees but did not explain the significance of that finding to his
        conclusions. He observed the condensate drip pan in the unit did not
        leak and that the condensate lines carried the condensate to outside the
        house. Cammack’s forensic investigation also included an internal
        inspection of the unit while it was in operation. The A-coil was in
        good condition. Examination of the unit’s condensate drip pan
        did not show signs of overflowing. It showed white stains left
        behind by water, but, the white line created by those water stains
        is near the bottom of the drip pan. He concluded the level of water in
        the drip pan had never gotten very high and that the “water stains within
        the pan revealed typical condensate levels well below the upper-edge of the
        pan.” He also concluded that the absence of an auxiliary drip pan did not
        cause water on the floor. He inspected the blower and although
        there was some light speckling on it, it did not line up to the drip
        pan nor was there significant corrosion suggesting ongoing water
        leakage. He inspected the breakers and supply wires below the blower
        housing and concluded that if the drip pan had overflowed, he would
        have had expected to see evidence thereof, but they were in good
        condition, very clean, had no corrosion and no water staining. He also
        inspected the wiring and control board, which were also below
        the A-coil and drip pan. He concluded that if there were
        overflow, he would have expected to see some evidence of
        overflow, but there was none. He also looked inside the plenum
        and looked where the plenum was fastened to the subfloor. He
        observed minimal degradation of the particle board, no water
        staining, and no evidence of water damage. He would have expected
        to see much darker coloration on the subfloor than he did if there had
        been a leak. He saw no condensation from the plenum while he
        was conducting his inspection. He also observed some
        discoloration of the duct work under the house but it did not
        change his opinion.


Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 13 of 27
        52. The underside of the utility room floor, as seen from the
        crawl space, in the area where the washer drain and supply lines
        were located, showed a large amount of stain and “significant”
        degradation of the plywood, which was more than the
        degradation in other areas of the utility room. . . . Beneath the unit
        there was no significant degradation of the plywood or floor joists and no
        evidence of old moisture damage. He noted that if the plenum had
        experienced significant condensation, he would have expected to
        have seen some damage to the subfloor, but there was no
        damage. He concluded there was no significant water intrusion in that
        area.

        53. Cammack found that the inside of the exterior wall of the
        crawl space showed water intrusion from outside the house
        including wet mortar joints and soil against the wall and multiple
        wet locations, the significance of which was that water can
        migrate up to the floor which can contribute to damage to the
        subfloor. There was also no vapor barrier below the house. He
        also observed erosion around the foundation.

        54. Cammack noted that the original vinyl floor affected the
        ability to determine the cause of the water problem because the
        staining of the floor would not have been visible and because the
        degradation was not to the point where there was rot nor was the
        floor unsafe to the point where one would put their foot through
        it.

        55. Cammack did not have a specific opinion as to the cause of
        [Webber]’s floor damage, due in part to the fact that the damaged
        subfloor had been covered by vinyl flooring until the Spring of
        2017, coupled with the fact that other appliances were located in
        the utility room. He determined the unit was not the cause of any of the
        water-damaged subflooring in [Webber]’s utility room.

        56. Cammack identified the following possible causes of the
        damage, with none of these more or less likely than another:
             A. The old unit which was replaced by Kuebler.
             B. Defrost of the deep freeze adjacent to the unit.
             C. Long time condensation from the crawl space conditions,
             although the evidence did not disclose whether there was
             water damage to the flooring in other areas of the house.


Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 14 of 27
             D. He could not say the washer drain leak did not cause the
             floor damage around the unit since the water from the
             clogged washing machine drain could have migrated to the
             subflooring around the unit.

        57. Cammack’s investigation specifically ruled out the uninsulated
        supply plenum transition as a cause of the water damage. His
        inspection of the unit revealed no evidence of leaking or
        condensation from the unit as installed by Kuebler. As depicted
        in the photograph of the supply plenum and adjacent subflooring,
        there was no evidence of significant condensation at the site of
        the plenum.

        58. Cammack’s “Moisture Damage Evaluation” stated:
             1. The stains on the floor of the Webber utility room were unrelated
             to the current air handler or its installation.
             2. The floor conditions were possibly the result of one or
             more of the following: leaks from the previous unit, defrost of
             the adjacent freezer, long-term condensation from improper
             crawlspace conditions, or some other unknown source.
             3. Previously existing moisture stains would not have been
             visible until the vinyl floor covering was removed.

        59. In reference to Section M1411.3.1 Auxiliary and secondary
        drain systems he noted:
             The air unit installation manual recommended the same
             instructions for condensate drainage. The installation of the
             unit did not conform to the excerpts above; however, the
             condensate line was observed to be draining at the exterior of
             the building. The unit lacked the shut off noted . . . above,
             but there was no evidence that water ever rose to the level
             that it would have been activated.

        60. With respect to condensation, he found and concluded:
             No condensation was observed on the supply duct. No
             condensate drain leaks were observed. The supply ductwork
             was not water-stained and/or corroded as would be expected
             if duct sweating were the source of the floor water stains. We
             concluded that the stains on the flooring were unrelated to the air
             handling unit or its installation.


Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 15 of 27
        61. With respect to moisture in the crawlspace, he found and
        concluded:
             All modern building codes require the proper installation of
             methods to remove excess moisture vapor from the
             crawlspace. Vapor barriers are to be installed on the dirt floor
             to prevent evaporation. Properly placed and sized openings
             in the foundation walls are required to ventilate the
             crawlspace air and remove moisture vapor. External soils are
             required to slope away from the building and be properly
             drained. None of those requirement was [sic] met in the Webber
             house.
             Water drained towards the house and flowed into
             penetrations and cracks in the foundation walls. That water
             flowed at velocities and quantities to erode crawlspace soils.
             There were no vapor barrier or ventilation openings. Such
             conditions created high levels of moisture vapor in the
             crawlspace. The duct work and the floor framing in the
             crawlspace had no insulation. The lack of insulation resulted
             in a semi-conditioned space that would have been generally
             heated and cooled with operation of the house air system.
             Though the moisture-laden air had the potential for
             condensation, it likely would only in severe exterior
             temperature differential.

        62. Cammack did not uncover any evidence that the installation of the
        unit by Kuebler caused or contributed to the water problems in the
        subfloor.

        DAMAGES:
        63. [Webber] alleges that Kuebler’s breach of contract and/or
        negligence led to various expenses, including:
             $111.78 for developing photographs used as trial exhibits
             $234.00 for photo enlargements . . .
             $1,689.00 for Baylor’s inspection and reinstallation of the
             unit
             $1,536.00 for water removal and installation of new flooring
             $74.89 for a wet/dry vacuum. The evidence was not clear
             whether this was a rental or purchase.
             $180.00 for laundry expenses at laundromat while repairs
             were made to utility room
Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 16 of 27
             $180.00 for mileage expenses to and from the laundromat
             $191.01 Court Costs
             $15,324.48 for attorneys fees
             $29,521.16 TOTAL

        64. [Webber] testified that Morrow had rendered two bills for the
        floor replacement—one related to the area around the washing
        machine and one for the area around the air handler. Neither of
        the bills were offered into evidence.
        65. [Webber] and Kuebler did not discuss payment of legal fees if
        a dispute arose and they were not addressed in Exhibits A and B.

        MISC:
        66. The evidence also did not support a finding as to the
        following:
             A. How long water had penetrated into the floor.
             B. Whether or not [Webber] had ever checked the
             condensate drain on the unit for blockage or spill-over or
             other maintenance items on the unit that may have disclosed
             developing or existing issues.
             C. Whether or not liquid was found in the duct work or the
             returns on the unit.
             D. Whether or not the prior unit was level.
             E. The dimensions of the utility room.
             F. Whether or not the floor was actually wet when it was
             being removed.

                       PART IV: CONCLUSIONS THEREON

        1. [Webber] has the burden of proof on her claims.

        Breach of Contract:
        2. The evidence did not support a conclusion that Kuebler
        breached any of its contractual obligations or that, if it did breach
        its contractual obligations, that the breach caused the water
        damage to the floor in the utility room and [Webber]’s other
        claimed damages.


Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 17 of 27
        Negligence:
        3. Although the unit was not installed precisely according the
        manufacturer’s installation instructions and the residential
        building code, the evidence did not support the conclusion that the
        water damage to the floor in the utility room and [Webber]’s other
        claimed damages resulted from installation of the unit.

        4. The evidence was sufficient to support the conclusion that
        [Webber] suffered losses an[d] expenses—but they were not the
        result of Kuebler’s negligence.

        Misc:
        5. The evidence does not support a conclusion that [Webber] met
        her burden of proof on her claims nor that she should recover
        from Kuebler under either cause of action for negligence or
        breach of contract.

        6. Kuebler is not responsible for [Webber]’s damages and losses.

        Damages and Attorney Fees:
        7. Because the evidence does not support the conclusion that
        Kuebler’s installation of the unit was the responsible cause of the
        water damage to [Webber]’s floor, under either breach of
        contract or negligence, the court cannot award damages or
        attorney fees.

                                   PART V: JUDGMENT

        IT IS THEREFORE CONSIDERED, ORDERED,
        ADJUDGED AND DECREED that the above Findings of Fact
        and Conclusions Thereon are incorporated herein as the Order
        and Judgment of this court without further enumeration.

        IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED,
        AND DECREED that based on the above Findings of Fact and
        Conclusions Thereon, the Court finds in favor of the Defendant,
        Kenneth Kuebler Heating & Air Conditioning, Inc, on Counts 1
        and 2 and against Plaintiff.




Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 18 of 27
      Appellant’s App. pp. 18–30 (record citations and footnotes omitted) (bold and

      underline in original, italic emphasis added). Webber now appeals.


                                       I. Timeliness of Webber’s Appeal

[6]   The first issue we address is Kuebler’s argument that Webber’s appeal is

      untimely. As stated above, the trial court entered its final judgment on

      December 6, 2018. Webber therefore had until January 7, 20191 to file a notice

      of appeal or file a motion to correct error. See Ind. Appellate Rule 9(A) (“A

      party initiates an appeal by filing a Notice of Appeal with the Clerk (as defined

      in Rule 2(D)) within thirty (30) days after the entry of a Final Judgment is noted

      in the Chronological Case Summary.”); Ind. Trial Rule 59 (“The motion to

      correct error, if any, shall be filed not later than thirty (30) days after the entry

      of a final judgment is noted in the Chronological Case Summary.”).


[7]   On December 28, 2018, Webber filed a motion with the trial court seeking a

      thirty-day extension of the time limit to file a notice of appeal. The trial court

      denied this motion on January 1, 2019, correctly explaining that Appellate Rule

      9 does not permit a trial court to extend the time limits to file a notice of

      appeal.2 See Tarrance v. State, 947 N.E.2d 494, 496 (Ind. Ct. App. 2011) (noting

      that “‘no provision of the appellate rules permits trial courts to expand the time


      1
       Thirty days from December 6 is January 5. But in 2019, January 5 was a Saturday. Thus, the notice of
      appeal was not due until the following Monday, January 7.
      2
       Indiana Trial Rule 72(E) does provide that, if service of a copy of a court’s entry is not evidenced in the
      CCS, the court, “upon application for good cause shown, may grant an extension of any time limitation
      within which to contest such ruling, order or judgment to any party who was without actual knowledge, or
      who relied upon incorrect representations by Court personnel.”). Here, the trial court’s final judgment was
      evidenced by a note in the CCS. See Appellant’s App. pp. 11–12. Trial Rule 72(E) is therefore inapplicable.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019                  Page 19 of 27
      limit prescribed by Appellate Rule 9.’”) (quoting Sewell v. State, 939 N.E.2d 686,

      687 (Ind. Ct. App. 2010)).3

[8]   Instead of filing a notice of appeal by January 7, 2019, Webber filed, on

      January 3, 2019, what she styled as a “Motion for Relief From Judgment to

      Correct Error Pursuant to Trial Rule 60(B).” Appellee’s App. p. 5

      (capitalization altered).4 In this motion, Webber sought to “correct errors

      regarding the judgment entered on December 6, 2018, pursuant to Ind. Trial

      Rule 60(B)(1), due to a mistake having a prejudicial impact on the Plaintiff . . .

      .” Id. at 5. Kuebler filed a response to Webber’s motion on January 8, 2019,

      and, on January 18, 2019, the trial court denied Webber’s motion. The trial

      court’s order stated, “Plaintiff's Motion should be denied—both as a motion for

      relief from judgment under Trial Rule 60 and as a motion to correct error under

      Trial Rule 59.” Appellant’s App. p. 36. Webber filed a notice of appeal on

      February 6, 2019, sixty-two days after the trial court entered its final judgment

      but only nineteen days after the trial court denied Webber’s post-judgment

      motion.


[9]   The timeliness of Webber’s appeal depends upon whether her post-judgment

      motion was a motion for relief from judgment under Trial Rule 60(B) or a

      motion to correct error under Trial Rule 59. If a party timely files a motion to


      3
        We note that Sewell was subsequently abrogated on other grounds by our supreme court in In re Adoption of
      O.R., 16 N.E.3d 965, 971 (Ind. 2014), which held that the failure to timely file a notice of appeal results in
      forfeiture of the right to appeal but does not deprive the court on appeal of jurisdiction.
      4
       The following day, Webber filed an identical motion that had also been signed personally by Webber.
      Appellee’s App. pp. 8–10.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019                   Page 20 of 27
       correct error under Trial Rule 59, then “a Notice of Appeal must be filed within

       thirty (30) days after the court’s ruling on such motion is noted in the

       Chronological Case Summary or thirty (30) days after the motion is deemed

       denied under Trial Rule 53.3, whichever occurs first.” Ind. Appellate Rule 9(A).


[10]   However, there is no similar provision for extending the time in which a party

       must file a notice of appeal following a motion for relief from judgment under

       Trial Rule 60(B). See In re Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind. 2010)

       (holding that the propriety of a trial court’s order can only be challenged by way

       of a timely notice of appeal or a timely motion to correct error) (citing App. R.

       9(A)(1)). Indeed, it is well settled that “a motion for relief from judgment under

       Indiana Trial Rule 60(B) is not a substitute for a direct appeal.” Id. (citing Gertz

       v. Estes, 922 N.E.2d 135, 138 (Ind. Ct. App. 2010)). “‘Trial Rule 60(B) motions

       address only the procedural, equitable grounds justifying relief from the legal

       finality of a final judgment, not the legal merits of the judgment.’” Id. (quoting

       Mid-West Fed. Sav. Bank v. Epperson, 579 N.E.2d 124, 129 (Ind. Ct. App. 1991)).


[11]   Here, Kuebler argues that Webber’s post-judgment motion should be

       considered a motion for relief from judgment, not as a motion to correct error.

       Kuebler notes that Webber cited Trial Rule 60(B)(1) as the basis for her motion

       and made no mention of Trial Rule 59.


[12]   But Webber also ambiguously titled her motion a “motion for relief from

       judgment to correct error.” Appellee’s App. p. 5 (emphasis added). Moreover, the

       grounds for relief listed in the motion were:


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 21 of 27
               1. Defendant’s acts and/or omissions by Defendant were the
               proximate cause of damages to Plaintiff’s home, in that Kenneth
               Keubler stated in his deposition (among other statements) to the
               effect that he, in fact, did make a mistake when installing
               Plaintiff’s air unit.

               2. Kenneth Keubler agreed in his testimony that the damage to
               Plaintiff s floor could have been caused by Defendant’s
               acts/omissions, as follows: a. condensation which rotted out
               Plaintiff’s floor was caused by Defendant’s failure to insulate the
               supply plenum; b. the unit was not level when it was installed,
               which caused the A-coil to drain out onto Plaintiff’s floor.

               3. Kenneth Keubler stated that the air unit was not level (and/or
               that he did not check whether it was level) after the installation,
               which is against applicable building codes that Defendant must
               follow.

               4. Petitioner’s witness, Ethan Gresham, was not viewed by the
               Court as an expert witness, although the Court should have due
               to Mr. Gresham’s years of experience and also a certification in
               HVAC, and therefore, Mr. Gresham is an expert witness, due to
               his expert knowledge in HVAC that an ordinary lay witness
               would not have.

               5. Kenneth Keubler testified that he did not read the installation
               instructions prior to the unit’s installation.

               6. Plaintiff s witness, Mike Morrow, had an illness, which kept
               him from being deposed or being a witness at the trial.


       Appellee’s App. pp. 5–6.

[13]   None of these claims for relief allege any mistake, surprise, or excusable neglect

       as set forth in Trial Rule 60(B)(1) as grounds for relief from judgment. Instead,

       they simply allege error in the trial court’s judgment. Therefore, despite the fact

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 22 of 27
       that Webber’s post-judgment motion refers to Trial Rule 60(B), the substance of

       her motion was to correct alleged error in the trial court’s judgment. We

       therefore consider Webber’s post-judgment motion to be, in substance, a

       motion to correct error, which acted to extend the time within which Webber

       had to file her notice of appeal. See Hubbard v. Hubbard, 690 N.E.2d 1219, 1221

       (Ind. Ct. App. 1998) (declining to favor form over substance and treating

       appellee-respondent’s motion, captioned as a motion to reconsider, as a motion

       to correct error).


                                                  II. Negligence

[14]   Turning to Webber’s claims, she argues that the trial court clearly erred by

       failing to conclude that Kuebler was negligent per se because of his failure to

       install the air-conditioning unit pursuant to the applicable Posey County

       residential building codes.


       A. Standard of Review

[15]   The parties requested that the trial court enter findings of fact and conclusions

       of law. Accordingly, on appeal we


               determine whether the evidence supports the findings and
               second, whether the findings support the judgment. In deference
               to the trial court’s proximity to the issues, we disturb the
               judgment only where there is no evidence supporting the findings
               or the findings fail to support the judgment. We do not reweigh
               the evidence, but consider only the evidence favorable to the trial
               court’s judgment. Challengers must establish that the trial court’s
               findings are clearly erroneous. Findings are clearly erroneous
               when a review of the record leaves us firmly convinced a mistake

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 23 of 27
               has been made. However, while we defer substantially to findings
               of fact, we do not do so to conclusions of law. Additionally, a
               judgment is clearly erroneous under Indiana Trial Rule 52 if it
               relies on an incorrect legal standard. We evaluate questions of
               law de novo and owe no deference to a trial court’s
               determination of such questions.


       McCauley v. Harris, 928 N.E.2d 309, 313 (Ind. Ct. App. 2010), trans. denied.


[16]   Additionally, as the party who bore the burden of proof, Webber appeals from a

       negative judgment. See Smith v. Dermatology Assocs. of Fort Wayne, P.C., 977

       N.E.2d 1, 4 (Ind. Ct. App. 2012). On appeal, we will reverse a negative

       judgment only if it is contrary to law. Id. In determining whether a judgment is

       contrary to law, we consider only the evidence in the light most favorable to the

       appellee, together with all the reasonable inferences to be drawn therefrom. Id.

       The party appealing from a negative judgment must demonstrate that the

       evidence points unerringly to a conclusion other than that reached by the trial

       court. Id.


[17]   Our supreme court recently explained the difference between the clearly-

       erroneous standard and the negative-judgment standard as follows: “In [the

       former], the inquiry is essentially whether there is any way the trial court could

       have reached its decision. In the [latter], it is whether there is no way the court

       could have done so.” Town of Brownsburg v. Fight Against Brownsburg Annexation,

       124 N.E.3d 597, 602 (Ind. 2019) (citation and internal quotation marks




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 24 of 27
       omitted) (emphasis in original).5 It is under this limited standard that we review

       Webber’s claims of error.


       B. Negligence Per Se

[18]   “The unexcused or unjustified violation of a duty proscribed by a statute or

       ordinance constitutes negligence per se if the statute or ordinance is intended to

       protect the class of persons in which the plaintiff is included and to protect

       against the risk of the type of harm which has occurred as a result of its

       violation.” Am. United Life Ins. Co. v. Douglas, 808 N.E.2d 690, 704 (Ind. Ct.

       App. 2004), trans. denied (citing Town of Montezuma v. Downs, 685 N.E.2d 108,

       112 (Ind. Ct. App. 1997), trans. denied). For the violation of a statute or

       ordinance to constitute negligence per se, the trier of fact must first determine

       whether the statute or ordinance is applicable. Id. (citing Dawson ex rel. Dawson

       v. Long, 546 N.E.2d 1265, 1268 (Ind. Ct. App. 1989), trans. denied). If the statute

       or ordinance is applicable, the trier of fact must determine whether a violation

       of the statute or ordinance occurred. Id. If there was such a violation, the

       question then becomes whether the violation proximately caused the plaintiff’s

       injury. Id. “Negligence per se supplies liability, but the plaintiff must still prove

       causation and damages just as in any other negligence claim.” Id. (citing City of

       Gary ex rel. King v. Smith & Wesson, Corp., 801 N.E.2d 1222, 1245 (Ind. 2003)).




       5
         Our supreme court observed that the distinction between the clearly-erroneous standard and the negative-
       judgment standard is “[a]rguably . . . a distinction without a difference.” Id. (citation and internal quotation
       marks omitted).

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019                     Page 25 of 27
[19]   Here, Webber contends that there was clear evidence that the building code

       applied, that Kuebler violated this ordinance, and that her damages resulted

       from this violation. Kuebler contends that Webber waived any reliance upon

       the doctrine of negligence per se by failing to include such a claim in her

       complaint and by failing to argue such before the trial court.


[20]   Even if we were to assume that negligence per se applied under these facts and

       circumstances, Webber would not prevail, as there was ample evidence

       supporting the trial court’s conclusion that the air-conditioning unit as installed

       by Kuebler did not proximately cause the damage to Webber’s flooring.

       Kenneth testified that he found no evidence of moisture in the unit, did not find

       any signs of an overflow in the drain pan, and did not see any condensation

       when he ran the air conditioner. Cammack’s extensive investigation also found

       no evidence that the air-conditioning unit installed by Kuebler contributed to

       the damage to Webber’s flooring. Webber’s appellate argument is little more

       than a request that we consider the evidence favoring her claim, disregard the

       evidence favoring the trial court’s judgment, and come to a conclusion opposite

       that reached by the trial court. This is not within our prerogative as an appellate

       court.


                                                 Conclusion
[21]   Because Webber’s post-judgment motion was, in substance, a motion to correct

       error, her notice of appeal was timely filed. And even assuming that Kuebler’s

       installation of the air-conditioning unit in Webber’s home was contrary to the

       controlling ordinance and constituted negligence per se, there was still evidence
       Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 26 of 27
       from which the trial court, acting as the trier of fact, could conclude that the

       manner in which Kuebler installed the unit did not proximately cause the

       damage to Webber’s flooring. Accordingly, we affirm the judgment of the trial

       court.


[22]   Affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-274 | October 24, 2019   Page 27 of 27
