      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                              FILED
      this Memorandum Decision shall not be
                                                                                      Mar 12 2020, 9:14 am
      regarded as precedent or cited before any
      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                                   ATTORNEY FOR APPELLEE
      Adam M. Sworden                                          Adrian Guzman Sr.
      Sworden Law, P.C.                                        Law Office of Adrian Guzman
      Valparaiso, Indiana                                      Lake Station, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Juana Maria Ambriz de                                    March 12, 2020
      Williams,                                                Court of Appeals Case No.
      Appellant-Plaintiff,                                     19A-SC-691
                                                               Appeal from the
              v.                                               Porter Superior Court
                                                               The Honorable
      Adrian Guzman Jr.,                                       David L. Chidester, Judge
      Appellee-Defendant                                       Trial Court Cause No.
                                                               64D04-1807-SC-2580



      Vaidik, Judge.



                                          Case Summary
[1]   A plaintiff in a trespass action must prove that she was in possession of the land

      and that the defendant entered the land without right. If the plaintiff proves
      Court of Appeals of Indiana | Memorandum Decision 19A-SC-691 | March 12, 2020                     Page 1 of 12
      both elements, she is entitled to nominal damages without proof of injury.

      Here, the trial court entered judgment for Adrian Guzman Jr. on Juana Maria

      Ambriz de Williams’s trespass claim. Although we agree with Williams that

      she proved that Guzman entered her land without right, entitling her to

      nominal damages, we do not reverse a trial court’s judgment if the only purpose

      is to award nominal damages. Accordingly, we affirm the trial court’s

      judgment in favor of Guzman.



                            Facts and Procedural History
[2]   In 2018, Williams lived on Blarney Stone Drive in Valparaiso. Williams owned

      a German Shepherd named Zeke, who mainly stayed in her fenced-in backyard.

      Williams posted a “private property” sign on her fence. Tr. pp. 34, 79-80. In

      the spring of 2018, Williams hired Guzman to mow her lawn. While mowing

      Williams’s lawn on June 25, Guzman was concerned about Zeke’s health and

      took a picture of him. He sent the picture to his mother, who then sent it to one

      of Williams’s neighbors. The next day, June 26, Porter County Animal Control

      contacted Guzman and told him that they had received “multiple complaints”

      about Zeke. Id. at 64. They asked Guzman if he could “take pictures” of Zeke

      and “write a letter” so that they could “build up evidence” in order to “seize the

      dog.” Id. at 63.


[3]   Without permission from Williams, Guzman returned to her house on June 26

      and took pictures of Zeke from “over the fence,” as the gate to Williams’s

      backyard was locked. Id. at 64. Later that day, a different neighbor told

      Court of Appeals of Indiana | Memorandum Decision 19A-SC-691 | March 12, 2020   Page 2 of 12
      Williams that someone had been in her yard. Williams viewed her security-

      camera footage and suspected that it was Guzman. She then texted Guzman,

      and he said that he had been in her side yard looking for a part that had fallen

      off his mower.


[4]   The next day, June 27, Williams unlocked the gate to her backyard so that

      Guzman could “try and find [the] lost part that he represented.” Id. at 11.

      Later that day, Guzman entered Williams’s fenced-in backyard using the

      unlocked gate and took pictures of Zeke. Guzman then sent the pictures and a

      letter to Animal Control. In the letter, Guzman explained that Zeke’s health

      had recently declined and that he could see Zeke’s “rib cage clearly.” Ex. 5.

      Guzman also said that there was no dog food in sight and that the only water

      was out of Zeke’s reach.


[5]   Animal Control went to Williams’s house on the morning of June 29. It was

      around 80 degrees and Zeke was in the backyard. Animal Control told

      Williams that they had received a complaint about Zeke “a few days prior.” Tr.

      p. 23. In addition, Animal Control was concerned about how long Zeke had

      been outside that day and “about water, shelter, temperature,” and food for

      Zeke. Id. at 28. Animal Control seized Zeke, who weighed sixty-five pounds.

      On July 5, the State charged Williams with cruelty to an animal and harboring

      a non-immunized dog. See 64D03-1807-CM-6318.


[6]   On July 13, Williams filed a trespass complaint against Guzman in Porter

      County small claims court. A hearing was held in January 2019. At the time,


      Court of Appeals of Indiana | Memorandum Decision 19A-SC-691 | March 12, 2020   Page 3 of 12
Zeke was still in the custody of Animal Control, and they were charging

Williams $450/month to board him. Williams presented records from her

veterinarian that Zeke was healthy and not malnourished at that weight.

Guzman admitted entering Williams’s property on June 26 and 27 to take

pictures of Zeke and that he lied to Williams about why he was at her house on

June 26. Williams asked the court to award her $5,650.35 in damages: $300 for

the purchase price of Zeke, $3,150 to board Zeke for seven months, and

$2,220.35 in legal fees and costs. Ex. 11. The court concluded as follows:


        The tort of trespass is confined to damage[] done to the
        land/property. Prosser § 13, page 66-67. [Guzman] did not
        damage [Williams’s] property. He came upon the property.
        Judgment for [Guzman].


                                             *****


        [Williams’s] primary claim is that [Guzman’s] trespass and deceit
        caused her dog, Zeke, to be taken by animal control, wrongfully
        she argues, which has caused her [to suffer the] loss of her pet,
        attorney fees and criminal charges to be defended.


        However, [Guzman’s] actions are not the proximate cause of
        [Williams’s] injuries. The actions of Porter County Animal
        Control caused the taking of her dog, not [Guzman’s] actions.
        Animal Control could have discounted or rejected [Guzman’s]
        complaints of Zeke being abused.


Appellant’s App. Vol. II p. 7. Accordingly, the court entered judgment for

Guzman. Williams filed a motion to correct error, which the court denied.



Court of Appeals of Indiana | Memorandum Decision 19A-SC-691 | March 12, 2020   Page 4 of 12
       Thereafter, the criminal charges against Williams were dismissed, and Zeke

       was returned to her.


[7]    Williams now appeals.



                                  Discussion and Decision
[8]    Williams appeals the trial court’s judgment for Guzman. Because the court’s

       decision was not in Williams’s favor, she is appealing from a negative

       judgment. On appeal, we will not reverse a negative judgment unless it is

       contrary to law. LTL Truck Serv., LLC v. Safeguard, Inc., 817 N.E.2d 664, 667

       (Ind. Ct. App. 2004). To determine whether a judgment is contrary to law, we

       consider the evidence in the light most favorable to the appellee, together with

       all the reasonable inferences to be drawn therefrom. Id. A judgment will be

       reversed only if the evidence leads to but one conclusion and the trial court

       reached the opposite conclusion. Id.


[9]    Williams argues that the record “clearly shows” that Guzman trespassed on her

       land and that therefore the trial court should have entered judgment in her

       favor. Appellant’s Br. p. 11. In addition, she claims that the court should have

       awarded her compensatory damages for $5,650.35 or, at the very least, nominal

       damages. See id. at 13.


[10]   A plaintiff in a trespass action must prove that she was in possession of the land

       and that the defendant entered the land without right. Duke Energy of Ind., LLC

       v. City of Franklin, 69 N.E.3d 471, 482 (Ind. Ct. App. 2016); Ind. Mich. Power Co.

       Court of Appeals of Indiana | Memorandum Decision 19A-SC-691 | March 12, 2020   Page 5 of 12
       v. Runge, 717 N.E.2d 216, 227 (Ind. Ct. App. 1999), reh’g denied. “If the plaintiff

       proves both elements [s]he is entitled to nominal damages without proof of

       injury.” Sigsbee v. Swathwood, 419 N.E.2d 789, 799 (Ind. Ct. App. 1981); see also

       28 Ind. Law Encyc. Trespass § 19 (Dec. 2019 update) (“Every trespass to real

       property is considered to result in legal injury, entitling the plaintiff to at least

       nominal damages.”). “If the plaintiff proves any additional injury, proximately

       resulting from the trespass, the plaintiff is entitled to compensatory damages.”

       Sigsbee, 419 N.E.2d at 799.


[11]   We agree with Williams that she proved that Guzman entered her land without

       right and therefore was entitled to nominal damages. However, this doesn’t

       necessarily require reversal. We do not reverse an erroneous judgment if the

       only purpose is to award nominal damages. See Schneider v. Town of Princes

       Lake, 145 Ind. App. 66, 249 N.E.2d 508, 510 (1969) (“Even if it be conceded

       that appellant was entitled to nominal damages, we cannot reverse the case for

       failure to assess such damages.” (quotation omitted)).


[12]   Williams also argues that she is entitled to compensatory damages, not just

       nominal damages. We disagree. To be entitled to compensatory damages,

       Williams had to prove that Guzman’s trespass proximately caused her

       additional injury. In other words, Williams had to prove that Guzman’s

       trespass proximately caused Zeke to be taken from her. “Proximate cause

       requires, at a minimum, that the harm would not have occurred but for the

       defendant’s conduct.” Bader v. Johnson, 732 N.E.2d 1212, 1218 (Ind. 2000).

       While Guzman’s trespass might have proximately caused Animal Control to go

       Court of Appeals of Indiana | Memorandum Decision 19A-SC-691 | March 12, 2020   Page 6 of 12
       to Williams’s house, it did not proximately cause Animal Control to seize

       Zeke. As Williams herself testified, Animal Control didn’t seize the dog until it

       observed the conditions of her property and Zeke and spoke to Williams. See

       Tr. pp. 27-28. If Animal Control thought everything looked okay, it could have

       left Zeke there and gone on its way. See Appellant’s App. Vol. II p. 7 (trial

       court noting that Animal Control could have “discounted or rejected”

       Guzman’s complaint). Because Guzman’s trespass did not proximately cause

       the seizure of Zeke, Williams is not entitled to compensatory damages from

       him.1 We therefore affirm the trial court’s judgment in favor of Guzman.


[13]   Affirmed.


       Najam, J., concurs in result with separate opinion.


       Tavitas, J., concurs.




       1
         Williams also suggests that Guzman committed “trespass to chattel,” i.e., Zeke. See Appellant’s Br. pp. 10,
       13. To prove trespass to chattel, the plaintiff must show that (1) the defendant dispossessed the plaintiff of
       the plaintiff’s chattel; (2) the defendant impaired the chattel’s condition, quality, or value; (3) the defendant
       deprived the plaintiff of the use of the chattel for a substantial time; or (4) the defendant harmed some other
       thing in which the plaintiff had a legally protected interest. Coleman v. Vukovich, 825 N.E.2d 397, 407 (Ind.
       Ct. App. 2005); Terrell v. Rowsey, 647 N.E.2d 662, 666 (Ind. Ct. App. 1995). There are two problems with
       this argument. One, Williams only alleged trespass to land in her complaint. See Complaint for Damages,
       No. 64D04-1807-SC-2580 (July 13, 2018) (“Guzman was not licensed to be on the Property [defined earlier
       in the complaint as Williams’s house] on June 26, 2018 and June 27, 2018[.] Guzman trespassed on
       Williams’ Property on June 26, 2018 and June 27, 2018[.] As a result of Guzman’s trespass, Williams has
       been damaged in an amount to be shown at trial[.]” (formatting altered)). Two, if anyone trespassed on
       Williams’s chattel (Zeke), it was Animal Control, not Guzman.
       Williams alternatively frames her claim for relief as fraudulent misrepresentation—that Guzman lied to her
       about why he was at her house on June 26 in order to get access to her backyard to take more pictures of
       Zeke. That claim fares no better than the trespass claim. Animal Control’s actions—not Guzman’s lie—
       proximately caused Williams’s alleged damages. Accordingly, we affirm the trial court’s judgment in favor
       of Guzman on the misrepresentation claim.

       Court of Appeals of Indiana | Memorandum Decision 19A-SC-691 | March 12, 2020                        Page 7 of 12
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Juana Maria Ambriz de                                    Court of Appeals Case No.
       Williams,                                                19A-SC-691

       Appellant-Plaintiff,

               v.

       Adrian Guzman,
       Appellee-Defendant



       Najam, Judge, concurring in result.


[14]   I concur in the majority’s decision to affirm the trial court but not in its

       qualification of the trial court’s judgment for Guzman on Williams’ trespass

       claim. The majority affirms yet departs from the judgment when it agrees that

       (1) Williams proved her trespass claim and (2) she is entitled to nominal

       damages, except that this court does not reverse a trial court’s judgment if the

       only purpose is to award nominal damages. Instead, I would affirm the trial

       court’s judgment without any such reservation or qualification.




       Court of Appeals of Indiana | Memorandum Decision 19A-SC-691 | March 12, 2020        Page 8 of 12
[15]   The evidence shows and the trial court found that when Guzman entered onto

       Williams property, he was acting for and on behalf of Porter County Animal

       Control. Under the doctrine of respondeat superior, Porter County Animal

       Control rather than Guzman would be accountable if the alleged trespass is not

       subject to qualified immunity. Thus, Williams has sued the wrong party, and

       Guzman is not liable individually, even for nominal damages.


[16]   As we have explained: “Under the doctrine of respondeat superior, vicarious

       liability will be imposed upon an employer whose employee commits a tort

       while acting within the scope of employment.” Ali v. Alliance Home Health Care,

       LLC, 53 N.E.3d 420, 434 (Ind. Ct. App. 2016). “By definition, respondeat

       superior requires that there be an underlying tort in the first place and that the

       underlying tort be incidental to the employee’s authorized conduct or, to an

       appreciable extent, done to further the employer’s business.” Id. (emphasis

       added). Whether an employment relationship exists “is a question of fact.”

       Konkle v. Henson, 672 N.E.2d 450, 457 n.8 (Ind. Ct. App. 1996).


[17]   The trial court here found that the Guzman was not acting on his own account

       but, in effect, was employed as an agent of animal control when the court found

       that animal control had “asked . . . [Guzman to] go back to [Williams’]

       property and get more pictures (a quasi-informal deputization), which he did.”

       Appellant’s App. Vol. II at 6. In other words, Guzman’s conduct is attributable

       to animal control, and the court so held when it said it was “[t]he actions of

       Porter County Animal Control [that] caused the taking of [Williams’] dog, not

       [Guzman’s] actions.” Id. at 7. Thus, when the trial court states that Guzman’s

       Court of Appeals of Indiana | Memorandum Decision 19A-SC-691 | March 12, 2020   Page 9 of 12
       “actions are not the proximate cause of [Williams’] injuries” and that “Porter

       County Animal Control caused the taking of her dog,” the court is also saying

       that Guzman’s conduct was not that of a private citizen but was attributable to

       the government.


[18]   The court’s findings and judgment are supported by the record. Guzman, a

       young neighbor whom Williams had hired to mow her yard, had concerns that

       Williams’ dog was malnourished and abused. He took a photograph of the dog

       and sent it to his mother, which Williams does not suggest was inappropriate in

       any way. That photograph found its way to animal control, and an animal

       control officer then sent Guzman a text message stating that animal control

       “need[ed Guzman] to . . . build up evidence . . . to seize the dog.” Tr. at 63.

       With that direction, Guzman then entered onto Williams’ property on June 26

       and June 27 to obtain more photographs of the dog, which resulted in animal

       control’s subsequent seizure of the dog. Animal control held the dog for seven

       months, and criminal charges were filed against Williams.


[19]   Although the unauthorized entry onto the land of another constitutes a trespass,

       that does not mean that Guzman’s entry onto Williams’ land on June 26 and

       June 27 was “unauthorized.” Reed v. Reid, 980 N.E.2d 277, 294 (Ind. 2012).

       To the contrary, animal control officers recruited and directed Guzman to enter

       onto Williams’ land to gather evidence to save the dog. Both the law and the

       facts support the trial court’s finding that, in effect, Guzman was acting

       “incidental to [animal control’s] authorized conduct” when he entered onto



       Court of Appeals of Indiana | Memorandum Decision 19A-SC-691 | March 12, 2020   Page 10 of 12
       Williams’ property for the purpose of preventing or mitigating an apparent

       charge of animal neglect. See Ali, 53 N.E.3d at 434.


[20]   Accordingly, if Williams were to have a trespass claim, it would run against

       Porter County Animal Control, not Guzman. If Williams believes animal

       control committed a tort by sending an agent onto her property, she must first

       give notice under the Indiana Tort Claims Act. And, under that act, a

       government employee acting within the scope of the employee’s employment is

       not liable if a loss results from “[e]ntry upon any property where the entry is

       expressly or impliedly authorized by law.” Ind. Code § 34-13-3-3(13) (2019).

       In other words, to demonstrate that the trial court’s judgment is contrary to law,

       Williams must show either (1) that the court’s findings are not supported by the

       evidence, which, again, she cannot do, or (2) that the Indiana Tort Claims Act

       does not apply here, which she does not attempt to do. See Ind. Appellate Rule

       46(A)(8)(a). Thus, Williams fails to show any error in the trial court’s

       judgment.


[21]   I would also affirm the trial court’s rejection of Williams’ claim that Guzman

       committed fraudulent misrepresentation when he gave a false pretext as his

       reason for entering onto her property on June 27. Animal control placed

       Guzman in an untenable position when it requested that he do animal control’s

       work. Guzman apparently thought that meant he had to come up with a cover

       story, but that alone is not grounds for liability against him.




       Court of Appeals of Indiana | Memorandum Decision 19A-SC-691 | March 12, 2020   Page 11 of 12
[22]   In sum, Guzman was recruited and deputized to do the government’s work. As

       such, any trespass claim Williams may have or assert would be against Porter

       County Animal Control under the doctrine of respondeat superior. I would

       affirm the trial court in all respects. Thus, I concur in the result to affirm the

       trial court’s judgment.




       Court of Appeals of Indiana | Memorandum Decision 19A-SC-691 | March 12, 2020   Page 12 of 12
