                                                                        FILED
                                                                    Jun 18 2020, 5:53 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
Amy E. Romig                                               Richard A. Cook
Jonathan P. Emenhiser                                      Yosha, Cook & Tisch
Christopher E. Kozak                                       Indianapolis, Indiana
Plews Shadley Racher & Braun LLP
Indianapolis, Indiana                                      Steven D. Liddle
                                                           Nicholas A. Coulson
                                                           Liddle & Dubin, P.C.
                                                           Detroit, Michigan



                                            IN THE
    COURT OF APPEALS OF INDIANA

Clark-Floyd Landfill, LLC,                                 June 18, 2020
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-CT-2680
        v.                                                 Appeal from the Clark Circuit
                                                           Court
Ricky Gonzalez, Yvonne                                     The Honorable Bradley B. Jacobs,
Gonzalez, Robert Scoles, and                               Judge
Tamara Scoles, on Behalf of                                The Honorable Kenneth R.
Themselves and All Others                                  Abbott, Magistrate
Similarly Situated,                                        Trial Court Cause No.
Appellees-Plaintiffs.                                      10C02-1608-CT-131




Najam, Judge.




Court of Appeals of Indiana | Opinion 19A-CT-2680 | June 18, 2020                           Page 1 of 19
                                         Statement of the Case
[1]   In August of 2016, Ricky Gonzalez, Yvonne Gonzales, Robert Scoles, and

      Tamara Scoles (“the Homeowners”) filed a putative class-action complaint

      against Clark-Floyd Landfill, LLC (“CFL”) based on noxious odors emanating

      from a landfill operated by CFL. On interlocutory appeal from the trial court’s

      certification of the complaint as a class action, CFL raises four issues for our

      review, which we restate as the following five issues:


              1.       Whether the trial court applied an incorrect legal standard
                       in determining whether to certify the class action.


              2.       Whether the trial court’s adoption of the Homeowners’
                       class definition is supported by substantial evidence.


              3.       Whether the trial court abused its discretion when it found
                       that the class members would have common questions of
                       law or fact.


              4.       Whether the court erred when it found that the class’s
                       common questions of law or fact would predominate over
                       any questions affecting only individual members.


              5.       Whether the trial court abused its discretion when it
                       denied CFL’s motion to strike the Homeowners’
                       designated evidence.


[2]   We affirm.




      Court of Appeals of Indiana | Opinion 19A-CT-2680 | June 18, 2020          Page 2 of 19
                                  Facts and Procedural History
[3]   In August of 2016, the Homeowners filed their putative class-action complaint,

      which the Homeowners later amended. According to the amended complaint:


              8. On frequent recurrent and intermittent occasions too
              numerous to identify individually, [the Homeowners’]
              propert[ies] including [their] neighborhoods, residences and
              yards have been and continue to be physically invaded by
              noxious odors, pollutants and air contaminants.


              9. The noxious odors, pollutants, and air contaminants which
              entered [their] propert[ies] originated from [CFL’s] Landfill
              [(“the landfill”)], located [in Jeffersonville, Indiana].


              10. It is [the Homeowners’] informed belief that [CFL] either
              constructed or directed the construction of the facilities and
              exercised control and/or ownership over the landfill.


              11. The Indiana Department of Environmental [Management,
              or “IDEM,”] has received numerous complaints from residents
              concerning the noxious odors emitted from [the] landfill.


              12. On at least one occasion, [CFL] has been cited by [IDEM]
              for failing to adequately control the landfill gas generated by
              decomposing waste . . . .


              13. The invasion of [the Homeowners’] propert[ies] by
              pollutants, noxious odors, and air contaminants has caused [the
              Homeowners] to suffer injuries including, but not limited to,
              exposure to pollutants, horrific odors, and air contaminants.


              14. The invasion of [the Homeowners’] propert[ies] by
              pollutants, noxious odors, and air contaminants has interfered
      Court of Appeals of Indiana | Opinion 19A-CT-2680 | June 18, 2020         Page 3 of 19
              with [the Homeowners’] use and enjoyment of their propert[ies],
              resulting in damages . . . .


      Appellant’s App. Vol. II at 52-53.


[4]   Further, the Homeowners alleged that they were appropriate representatives of

      a class of plaintiffs consisting of “[a]ll persons who have been owner/occupants

      and/or renters of residential property within three miles of the property

      boundary of the . . . landfill at any time between August 12, 2010[,] and the

      present,” which they believed captured “thousands of residents.” Id. at 54.

      And, after reciting allegations relevant to the demand for a class action, the

      complaint claimed that CFL both had created a nuisance and had acted

      negligently. Specifically, the complaint alleged in relevant part:


              27. The odors, pollutants and air contaminants invading [the
              Homeowners’] propert[ies] are indecent and/or offensive to the
              senses[] and obstruct the free use of their propert[ies] so as to
              substantially and unreasonably interfere with the comfortable
              enjoyment of life and/or property, including in . . . the following
              ways:


                   a.     causing [the Homeowners] to remain inside their
              homes and forego use of their yards;


                    b.      causing [the Homeowners] to keep doors and
              windows closed when weather conditions otherwise would not
              so require; and


                     c.    causing [the Homeowners] embarrassment and
              reluctance to invite guests to their homes.


      Court of Appeals of Indiana | Opinion 19A-CT-2680 | June 18, 2020         Page 4 of 19
                                                   ***


              31. The injuries and damages suffered by [the Homeowners] are
              specially injurious to [them] as opposed to the general public
              because they uniquely suffer harm relating to the use and
              enjoyment of their land and property, and decreased property
              values, which are not harms suffered by the general public.


                                                   ***


              45. As a direct and proximate result of the failure of [CFL] to
              exercise ordinary care, [the Homeowners’] residences were
              invaded by noxious odors, pollutants, and air contaminants.


                                                   ***


              WHEREFORE, [the Homeowners], individually and on behalf
              of the proposed Class, pray for . . . compensatory and punitive
              damages, and . . . temporary, preliminary, and permanent orders
              for injunctive relief . . . .


      Id. at 57-61.


[5]   In December of 2018, the Homeowners moved to certify their complaint as a

      class action and designated evidence in support of that motion. CFL opposed

      that motion, objected to the admissibility of the Homeowners’ designated

      evidence, and designated its own evidence in opposition. After a hearing in

      which the parties presented oral argument to the court, the court granted the

      Homeowners’ motion and certified the class using the Homeowners’ proposed

      class definition.


      Court of Appeals of Indiana | Opinion 19A-CT-2680 | June 18, 2020         Page 5 of 19
[6]   In particular, after overruling CFL’s objections to the designated evidence, in its

      written class-certification order the court related the designated evidence to the

      requirements necessary to maintain a class action in relevant part as follows:


          • “joinder of over 1,200 plaintiffs would . . . be impracticable.”
          • “[CFL’s] actions or inactions have resulted in a common legal question
            of whether [CFL] has failed to comply with law and ha[s] allowed odor
            and emissions to escape from the landfill.”
          • “[The Homeowners’] claims are similar . . . to what all residents would
            have to prove regarding the operation of the landfill[] as well as the
            inconvenience, frustration, and expected monetary loss calculations.”
          • “[The Homeowners] have pursued this litigation vigorously for over two
            years, and [they] have the same interest in the outcome as would be
            expected from other members of the class. The counsel for the
            [Homeowners] ha[s] ample experience in class action cases[] and ha[s]
            exhibited skill in arguing the issues in this matter.”
          • “[The Homeowners] sustained very common injuries during the same or
            similar periods, in the same vicinity, and their damages are likely to be
            determined in the same manner without many variances in the type of
            relief sought. . . . Because the number of individualized issues is
            expected to be minimal among the class members, those issues would not
            overwhelm any common issues.”

      Id. at 25-28. The court also stated that class litigation of the Homeowners’

      claims “will be more streamlined and efficient . . . than litigating these odor-

      based claims on individual bases.” Id. at 30. And, in a preamble of relevant

      class action legal standards, the court stated as follows:


              10. “Determination of the propriety of class certification,
              however, should not turn on likelihood of success on the merits.”
              Payton v. County of Kane, 308 F.3d 673, 677 (7th Cir. 2002).
              Indeed, a court may not engage in [an] analysis of the merits of
              the allegations in order to determine whether a class action may

      Court of Appeals of Indiana | Opinion 19A-CT-2680 | June 18, 2020         Page 6 of 19
               be maintained. Eggleston v. Chicago Journeyman Plumbers, Local
               Union No. 130, 657 F.2d 890, 895 (7th Cir. 1981). The inquiry is
               limited to whether the requirements of [Trial] Rule 23 have been
               satisfied. E.g., Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178
               (1974).


      Id. at 22 (footnote omitted). The court then certified its order for interlocutory

      appeal, which we accepted.


                                        Discussion and Decision
                                  Standard of Review and Trial Rule 23

[7]   CFL appeals the trial court’s certification of the Homeowners’ complaint as a

      class action. As the Indiana Supreme Court has explained:


               The determination of whether an action is maintainable as a class
               action is committed to the sound discretion of the trial court.
               Appellate courts reviewing a class certification employ an abuse
               of discretion standard.[ 1] The trial court’s certification
               determination will be affirmed if supported by substantial
               evidence. A misinterpretation of law, however, will not justify
               affirmance under the abuse of discretion standard.


      Associated Med. Networks, Ltd. v. Lewis, 824 N.E.2d 679, 682 (Ind. 2005)

      (quotation marks and citations omitted).




      1
         In its class-certification order, the trial court purported to enter findings of fact and conclusions thereon.
      However, the court held no evidentiary hearing on the motion to certify the class action. Rather, the court
      based its judgment only on paper evidentiary designations and a hearing at which the parties presented only
      oral argument. As such, we review the court’s class-certification order under our usual abuse-of-discretion
      standard and not the clearly erroneous standard we would have applied in an appeal from an evidentiary fact-
      finding hearing.

      Court of Appeals of Indiana | Opinion 19A-CT-2680 | June 18, 2020                                   Page 7 of 19
[8]   To maintain a class action, Indiana Trial Rule 23(A) requires the putative class-

      action plaintiffs to show each of the following four requirements:


              (1) the class is so numerous that joinder of all members is
              impracticable;


              (2) there are questions of law or fact common to the class;


              (3) the claims or defenses of the representative parties are typical
              of the claims or defenses of the class; and


              (4) the representative parties will fairly and adequately protect
              the interests of the class.


[9]   In addition to those four requirements, Trial Rule 23(B) requires the plaintiffs to

      show one of the following:


              (1) the prosecution of separate actions by or against individual
              members of the class would create a risk of:


                       (a) inconsistent or varying adjudications with respect to
                       individual members of the class which would establish
                       incompatible standards of conduct for the party opposing
                       the class, or


                       (b) adjudications with respect to individual members of
                       the class which would as a practical matter be dispositive
                       of the interest of the other members not parties to the
                       adjudications or substantially impair or impede their
                       ability to protect their interests; or




      Court of Appeals of Indiana | Opinion 19A-CT-2680 | June 18, 2020             Page 8 of 19
        (2) the party opposing the class has acted or refused to act on
        grounds generally applicable to the class, thereby making
        appropriate final injunctive relief or corresponding declaratory
        relief with respect to the class as a whole; or


        (3) the court finds that the questions of law or fact common to
        the members of the class predominate over any questions
        affecting only individual members, and that a class action is
        superior to other available methods for the fair and efficient
        adjudication of the controversy. The matters pertinent to the
        findings include:


                 (a) the interest of members of the class in individually
                 controlling the prosecution or defense of separate actions;


                 (b) the extent and nature of any litigation concerning the
                 controversy already commenced by or against members of
                 the class;


                 (c) the desirability or undesirability of concentrating the
                 litigation of the claims in the particular forum;


                 (d) the difficulties likely to be encountered in the
                 management of a class action.


Here, after finding that the Homeowners had successfully satisfied the four

requirements of Trial Rule 23(A), the court additionally found that they had

satisfied Trial Rule 23(B)(3).




Court of Appeals of Indiana | Opinion 19A-CT-2680 | June 18, 2020              Page 9 of 19
                                   Issue One: Whether the Trial Court
                                   Applied an Incorrect Legal Standard

[10]   On appeal, CFL first asserts that, in one sentence of paragraph 10 of the trial

       court’s class-certification order, a legal preamble, the trial court erroneously

       stated that it “may not engage in [an] analysis of the merits of the allegations in

       order to determine whether a class action may be maintained.” Appellant’s

       App. Vol. II at 22. Again, a trial court abuses its discretion if it applies an

       incorrect legal standard. Associated Med. Networks, Ltd., 824 N.E.2d at 682.


[11]   CFL’s argument is not well taken. Paragraph 10 of the trial court’s order begins

       by noting that a “[d]etermination of the propriety of class

       certification . . . should not turn on likelihood of success on the merits.”

       Appellant’s App. Vol. II at 22 (quotation marks and citation omitted). The

       sentence CFL complains of follows that statement. In other words, the trial

       court’s point in this paragraph was that its class-certification decision does not

       turn on whether the court thinks the plaintiffs will ultimately succeed on the

       merits of their claims at trial. See id.


[12]   CFL does not suggest that paragraph 10 as a whole is an incorrect assessment of

       the law. Indeed, the trial court’s commentary in paragraph 10 of its

       certification order is wholly consistent with Indiana law. As we have

       explained:


               “Class certification is essentially a procedural order and carries
               no implication about the merits of the case.” NIPSCO v. Bolka,
               693 N.E.2d 613, 617 (Ind. Ct. App. 1998), trans. denied. Thus,
               “in making a determination regarding class certification, a trial
       Court of Appeals of Indiana | Opinion 19A-CT-2680 | June 18, 2020            Page 10 of 19
               court may not conduct a preliminary inquiry into the merits of
               the suit.” Rene ex rel. Rene v. Reed, 726 N.E.2d 808, 816 (Ind. Ct.
               App. 2000). As a “certification hearing is not intended to be a
               trial on the merits,” “Trial Rule 23 does not require a potential
               class representative to show a likelihood of success on the merits
               in order to have his claim certified as a class action.” Bolka, 693
               N.E.2d at 617. Instead, assuming the merits of an action, a trial
               court must determine whether the plaintiff has satisfied the
               requirements for class certification under Trial Rule 23. Eggleston
               v. Chicago Journeymen Plumbers, 657 F.2d 890, 895 (7th Cir. 1981),
               cert. denied, 455 U.S. 1017, 102 S. Ct. 1710, 72 L. Ed. 2d 134
               (1982).


       LHO Indianapolis One Lessee, LLC v. Bowman, 40 N.E.3d 1264, 1268 (Ind. Ct.

       App. 2015). Although CFL asserts that federal authority on this question has

       shifted since Eggleston, Indiana authority has not, and we cannot say that the

       trial court abused its discretion by following this Court’s precedent. See, e.g.,

       Bogner v. Bogner, 29 N.E.3d 733, 743 (Ind. 2015).


[13]   In any event, CFL’s ultimate argument on this issue is that one sentence in the

       court’s class-certification order shows that the court failed to properly consider

       any of the designated evidence in certifying the class. But the court’s order

       plainly shows otherwise: the court consistently and specifically cited or referred

       to the designated evidence throughout the order. Thus, even if the one sentence

       CFL complains about were an erroneous legal statement, the order as a whole

       makes clear that the court considered the designated evidence when it entered

       its judgment. Accordingly, we reject CFL’s argument that the court applied an

       erroneous legal standard when it certified the class.


       Court of Appeals of Indiana | Opinion 19A-CT-2680 | June 18, 2020         Page 11 of 19
                                    Issue Two: Definiteness of the Class

[14]   CFL next asserts on appeal that the trial court erred in certifying the class

       because no evidence supports the Homeowners’ definition of the class as all

       residents living within a three-mile radius of the landfill. Although Trial Rule

       23 does not address it, in addition to the express requirements of that Rule:


               there is an implicit “definiteness” requirement. A properly
               defined class is necessary at the outset because a judgment in a
               class action has a res judicata effect on absent class members. The
               class definition must be specific enough for the court to determine whether
               or not an individual is a class member.


       Wal-Mart Stores, Inc. v. Bailey, 808 N.E.2d 1198, 1201 (Ind. Ct. App. 2004)

       (emphasis added), trans. denied. Again, we review this issue for an abuse of the

       trial court’s discretion, under which “[t]he trial court’s certification

       determination will be affirmed if supported by substantial evidence.” Associated

       Med. Networks, Ltd., 824 N.E.2d at 682.


[15]   Although the trial court’s certification order does not expressly discuss the

       definiteness requirement, we cannot say that the court’s adoption of the

       Homeowners’ definition was an abuse of the court’s discretion. There is no

       reasonable question as to whether a three-mile radius is specific enough to

       determine whether a given individual is a class member. It plainly is. As such,

       the court properly applied Indiana law here.


[16]   CFL nonetheless asks that we invent new rules to heighten the evidentiary

       burden under Trial Rule 23’s implicit definiteness requirement. We decline to

       Court of Appeals of Indiana | Opinion 19A-CT-2680 | June 18, 2020                Page 12 of 19
       do so, but we do note that the record is replete with designated evidence that

       identifies residents who complained of odors emanating from the landfill to

       IDEM or in response to a survey distributed by the Homeowners’ counsel. In

       each case, the residents provided their home addresses. While there is not a

       map in the record that plots specifically where each address falls relative to a

       three-mile radius around the landfill, the trial court was within its discretion to

       take notice of those addresses and their locations relative to the landfill, and

       “[w]e presume the trial court correctly followed the law.” Perkins v. Brown, 901

       N.E.3d 63, 65 (Ind. Ct. App. 2009).


[17]   It is CFL’s burden on appeal to show that the numerous addresses in the record

       would not be captured by the Homeowners’ class definition, that other residents

       who should have been captured by the definition were omitted by the

       Homeowners’ definition, that the Homeowners’ definition is somehow

       inappropriately overinclusive, or, most significantly, that the Homeowners’

       definition is not specific enough to allow the court to determine whether a given

       individual is a class member. CFL fails to do any of those things and instead

       simply, and erroneously, asserts that the definition here is “untethered to any

       actual evidence.” Appellant’s Br. at 32. Accordingly, we conclude that CFL

       has not met its burden on appeal to show that the trial court erred in adopting

       the Homeowners’ definition of the class.


                                  Issue Three: Evidence of Commonality

[18]   Next, CFL asserts that the Homeowners failed to show commonality—that is,

       that the designated evidence does not support the Homeowner’s requirement
       Court of Appeals of Indiana | Opinion 19A-CT-2680 | June 18, 2020         Page 13 of 19
       under Trial Rule 23(A)(2) that there are “questions of law or fact common to

       the class.” In particular, CFL argues that the Homeowners have not designated

       evidence to show the “odors suffered by the class area can be traced to a

       common defendant.” Appellant’s Br. at 39.


[19]   This assertion is not credible. Numerous IDEM reports in the designated

       evidence identify complaints of odors from the landfill, with the complaining

       residents identified by name and address. Moreover, again, numerous survey

       responses by residents near the landfill also complained of odors from the

       landfill. At best, CFL’s argument on this issue points out what CFL perceives

       to be inconsistencies in the evidence, but such purported inconsistences are not

       relevant to our review. We will not reweigh the evidence but instead will affirm

       if there is substantial evidence that supports the court’s judgment, which there

       is. Thus, we reject this argument.


                                  Issue Four: Evidence of Predominance

[20]   In addition to Trial Rule 23(A)(2)’s commonality requirement, Rule 23(B)(3)

       requires that the common questions of law or fact “predominate over any

       questions affecting only individual members.” As our Supreme Court has

       explained:


               there must be more than a mere nucleus of facts in common with
               the plaintiff class. Predominance requires more than
               commonality. Predominance cannot be established merely by
               facts showing a common course of conduct, but the common
               facts must also actually “predominate over any questions
               affecting only individual members.” T.R. 23(B)(3).

       Court of Appeals of Indiana | Opinion 19A-CT-2680 | June 18, 2020       Page 14 of 19
        Indiana’s Trial Rule 23 is based upon Rule 23 of the Federal
        Rules of Civil Procedure, and it is thus appropriate to consider
        federal court interpretations when applying the Indiana rule. The
        text of 23(B)(3) is identical in both rules. The Federal Advisory
        Committee Notes, which supported the adoption of Rule 23, in
        discussing the predominance requirement, states, “It is only
        where this predominance exists that economies can be achieved
        by means of the class-action device.” Published in William F.
        Harvey, 2 INDIANA PRACTICE, RULES OF PROCEDURE
        ANNOTATED 464. It is generally accepted that the analogous
        federal Rule 23(b)(3) “is designed to be a means of achieving
        economies of time, effort, and expense.” James Wm. Moore, 5
        MOORE’S FEDERAL PRACTICE § 23.44[1], at 23-207, and
        cases cited therein at footnote 4. Other noted commentators
        explain:


                 Thus the predominance test really involves an attempt to
                 achieve a balance between the value of allowing individual
                 actions to be instituted so that each person can protect his
                 own interests and the economy that can be achieved by
                 allowing a multiple party dispute to be resolved on a class
                 action basis.


        Charles Alan Wright, Arthur Miller, Mary Kay Kane, 7A
        FEDERAL PRACTICE AND PROCEDURE § 1777, at 518-19.
        Professor Moore’s treatise provides a helpful look at the problems
        of determining predominance under the heading “No Bright Line
        Test Measures Predominance; Each Case Is Measured by Its
        Own Facts:”


                 In a Rule 23(b)(3) class action, common questions of law
                 or fact must predominate over questions affecting only
                 individual members. There is no precise test for
                 determining whether common questions of law or fact
                 predominate, however. Instead, the Rule requires a
                 pragmatic assessment of the entire action and all the issues
Court of Appeals of Indiana | Opinion 19A-CT-2680 | June 18, 2020          Page 15 of 19
                 involved. In making that assessment, courts have
                 enunciated a number of standards, finding . . .
                 predominance if:


                 ● The substantive elements of class members’ claims
                 require the same proof for each class member;


                 ● The proposed class is bound together by a mutual
                 interest in resolving common questions more than it is
                 divided by individual interests.


                 ● The resolution of an issue common to the class would
                 significantly advance the litigation.


                 ● One or more common issues constitute significant parts
                 of each class member’s individual cases.


                 ● The common questions are central to all of the members’
                 claims.


                 ● The same theory of liability is asserted by or against all
                 class members, and all defendants raise the same basic
                 defenses.


                 Courts generally agree that the predominance of common
                 issues does not mean that common issues merely
                 outnumber individual issues. Nor should a court
                 determine predominance by comparing the time that the
                 common issues can be anticipated to consume in the
                 litigation to the time that individual issues will require.
                 Otherwise, only the most complex common issues could
                 predominate, because only complex issues tend to require
                 more time to litigate.


Court of Appeals of Indiana | Opinion 19A-CT-2680 | June 18, 2020               Page 16 of 19
               5 MOORE’S FEDERAL PRACTICE § 23.45[1], at 23-210 to
               212 (footnotes omitted).


       Associated Med. Networks, LLC, 824 N.E.2d at 685-86 (some citations omitted).

       In other words, the predominance requirement directs that the common

       questions of law or fact be questions the resolution of which would make the

       class action a more efficient trial procedure than individualized actions.


[21]   Here, the trial court found that the questions common to the class would

       predominate over any individualized questions. The court’s conclusion is

       plainly correct: “[t]he proposed class is bound together by a mutual interest in

       resolving common questions” regarding the emanation of odors from the

       landfill “more than it is divided by individual interests” or variances in the

       specific measure of damages from those emanations, and the resolution of those

       questions “would significantly advance the litigation.” Id. at 686. That is,

       proceeding as a class action is readily more efficient than proceeding

       individually. Accordingly, the trial court did not err in concluding that the

       Homeowners met the predominance requirement of Trial Rule 23(B)(3).


[22]   Still, CFL asserts that there is no evidence that the class members’ “damages

       are similar or that their damages will be assessed in the same manner . . . .”

       Appellant’s Br. at 41. That is, CFL asserts that there is no evidence the class

       representatives agree on “the nature” of the odor or how specifically the odor

       interfered with each of their quiet enjoyments of life and property, with some

       complaining about not being able to open windows and others complaining

       about not inviting company over.
       Court of Appeals of Indiana | Opinion 19A-CT-2680 | June 18, 2020        Page 17 of 19
[23]   But the class members are those who suffered noxious intrusions from the

       landfill’s odors—that is the damage, and that is a common question, which

       predominates over individualized concerns. CFL would replace the need to

       show a common question with the need for each class member to show identical

       questions. Such a conclusion would obviate Trial Rule 23, and we reject it.

       CFL has not met its burden to show that the court abused its discretion on this

       issue.


                                     Issue Five: Admission of Evidence

[24]   Finally, CFL asserts that the trial court abused its discretion when it refused to

       strike numerous exhibits designated by the Homeowners in support of their

       motion for class certification. CFL’s motion to strike raised numerous concerns

       with the form and substance of the Homeowners’ designations. In denying

       CFL’s motion to strike, the trial court stated that the Homeowners’

       designations were “sufficient at the Class Certification stage.” Appellant’s App.

       Vol. IV at 68.


[25]   According to CFL, the court’s statement was error as a matter of law because,

       CFL asserts, the court’s statement shows that it failed to properly apply our

       Evidence Rules with the same measure the court would have given them during

       a civil trial. But we agree with the trial court’s assessment. In the summary

       judgment context, the Indiana Supreme Court has made clear that “an affidavit

       that would be inadmissible at trial may be considered at the summary judgment

       stage of the proceedings if the substance of the affidavit would be admissible in

       another form at trial.” Reeder v. Harper, 788 N.E.2d 1236, 1241-42 (Ind. 2003).
       Court of Appeals of Indiana | Opinion 19A-CT-2680 | June 18, 2020        Page 18 of 19
       That is, designated evidence at summary judgment must “set forth facts as

       would be admissible at trial”; Trial Rule 56 “does not require that the [evidence

       as designated] itself be admissible.” Id. at 1242.


[26]   There is no good reason to impose a more stringent standard for a class-

       certification decision. As such, the trial court’s rejection of CFL’s motion to

       strike the Homeowners’ designations on various objections to the form of those

       designations, such as concerns CFL had with the authentication of third-party

       statements, was correct motions practice.


[27]   As for the substantive objections CFL raised to the Homeowners’ designations,

       the most relevant argument on appeal is that the IDEM reports and survey

       results from other nearby residents are inadmissible hearsay. We cannot agree.

       Those designations were offered to prove the requirements of class certification,

       not the truth of the matters of nuisance or negligence. We affirm the trial

       court’s admission of that evidence. As for CFL’s other arguments regarding the

       designated evidence, we conclude that any error in the admission of that

       evidence was harmless.


                                                   Conclusion
[28]   In sum, we affirm the trial court’s certification of the class.


[29]   Affirmed.


       Kirsch, J., and Brown, J., concur.



       Court of Appeals of Indiana | Opinion 19A-CT-2680 | June 18, 2020       Page 19 of 19
