                                                                      Apr 14 2015, 9:58 am




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE ERIC J.
                                                                SPICKLEMIRE
      George M. Plews
      Brianna J. Schroeder                                      Thomas F. O’Gara
      Jonathan Penn                                             Bradley R. Sugarman
      Plews Shadley Racher & Braun                              Jeffrey D. Stemerick
      LLP                                                       Taft Stettinius & Hollister, LLP
      Indianapolis, Indiana                                     Indianapolis, Indiana



                                                  IN THE
                             COURT OF APPEALS OF INDIANA


      5200 Keystone Limited Realty,                             April 14, 2015
      LLC,                                                      Court of Appeals Case No.
      Appellant-Defendant,                                      49A02-1403-CT-188

              v.                                                Appeal from the Marion
                                                                Superior Court
                                                                Cause No. 49D07-0310-
      Filmcraft Laboratories, Inc., Eric                        CT-003394
      J. Spicklemire, Portrait America,                         The Honorable Michael D.
      Inc., A.C. Demaree, Inc., Clean                           Keele, Judge
      Car, Inc., and The Wax Museum
      & Auto Sales, Inc.,
      Appellee-Plaintiff



      Friedlander, Judge.


[1]   This litigation involves a dispute over responsibility for the costs of

      environmental cleanup of commercial real estate (the Site) located near the

      Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015                Page 1 of 26
corner of 52nd St. and Keystone Avenue in Indianapolis. 5200 Keystone

Limited Realty, LLC (KLR) acquired the subject property from Apex Mortgage

Corporation (Apex) after Apex had acquired the property through foreclosure

proceedings against Eric Spicklemire, who purchased the property in 1981.

Apex filed its complaint against Filmcraft Laboratories, Inc. (Filmcraft), a

company owned by Spicklemire. The complaint alleged causes of action under

these three statutes: 1) Ind. Code Ann. § 13-11-2-70.3 (West, Westlaw current

with legislation of the 2015 First Regular Session of the 119th General

Assembly effective through March 24 2015) (creating an “environmental legal

action” (ELA), which is a legal action “brought to recover reasonable costs

associated with removal or remedial action involving a hazardous substance or

petroleum released into the surface or subsurface soil or groundwater that poses

a risk to human health and the environment”); 2) Ind. Code Ann. § 13-30-3-

13(d) (West, Westlaw current with legislation of the 2015 First Regular Session

of the 119th General Assembly effective through March 24, 2015) (creating an

action to recover reasonable expenses and attorney fees incurred by a

landowner on whose land solid waste has been illegally dumped); and 3) Ind.

Code Ann. § 6-1.1-22-13 (West, Westlaw current with legislation of the 2015

First Regular Session of the 119th General Assembly effective through March

24 2015) (liability for back property taxes). KLR was substituted as plaintiff

after it purchased the Site from Apex. Shortly thereafter, KLR amended its

complaint, adding as defendants Spicklemire, Portrait America, Inc., A.C.

Demaree, Inc., Russ Dellen, Inc. (RDI), Clean Car, Inc., and The Wax

Museum & Auto Sales. KLR appeals the grant of Spicklemire’s motion to
Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015   Page 2 of 26
      dismiss with respect to KLR’s statutory causes of action, and a grant of

      summary judgment with respect to certain common-law claims presented by

      KLR at trial. KLR presents the following consolidated, restated issues for

      review:

              1.       Did the trial court err in excluding expert testimony
                       regarding whether the Wax Museum & Auto Sales and
                       Clean Car caused or contributed to the contamination at
                       the Site?
              2.       Did the trial court err in entering summary judgment
                       against KLR on its common-law claims?
              3.       Did the trial court err in dismissing KLR’s complaint
                       pursuant to Trial Rule 41(B) on grounds that KLR failed
                       to present sufficient evidence to show Spicklemire caused
                       or contributed to chlorinated solvent and petroleum
                       hydrocarbon contamination of the Site?
[2]   We affirm.


[3]   In order to understand the issues involved in this case, we must first set out in

      detail the history of the ownership and activity on the Site. A.C. Demaree Inc.

      (Demaree) owned and operated a commercial dry cleaning business on the Site

      from at least 1948 to 1973. It is undisputed that during this time, dry cleaners

      used two solvents to clean textiles: perchloroethylene, a chlorinated solvent,

      and Stoddard solvent, a petroleum hydrocarbon. Demaree stored these solvents

      in tanks at the Site.

[4]   In 1973, Demaree sold the Site to Robert Dellen, who in turn conveyed the Site

      in 1979 to Dellen Realty, Inc. (Dellen Realty), a predecessor of RDI. From

      1974 to 1981, Filmcraft leased the Site from Dellen and Dellen Realty. In
      Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015      Page 3 of 26
      January 1981, Spicklemire and his father purchased the Site from Dellen

      Realty, and from 1981 to 2000, Spicklemire leased the site to Filmcraft.

      Spicklemire was a shareholder, officer, and employee of Filmcraft, and became

      the company’s president in 1994, when he became sole owner of Filmcraft and

      the Site. He remained in this position until the company ceased operation.

      Portrait America, also a Spicklemire-owned entity, leased the Site from 2000 to

      2001. During its years of operation, Filmcraft sublet the back of the Site to

      several auto-detailing operations. These included Clean Car, Inc. and The Wax

      Museum & Auto Sales (collectively, the Detailers).

[5]   During the time its business was located on the Site, i.e., 1974 to 2000 or 2001,

      Filmcraft operated a commercial photo-processing operation. This process was

      accomplished by the use of machines, which ran approximately eight to twelve

      hours per day. These machines processed film and printed images on paper.

      The processing generally involved the feeding of paper through a machine that

      sent the film or paper through a series of chemical baths and water-wash tanks.

      The chemicals used in this process included bleaches, fixers, and stabilizers

      manufactured by Kodak and other suppliers. Such chemicals were highly

      diluted by water. None of these chemicals contained chlorinated solvents.

      Filmcraft documents indicate that the only petroleum hydrocarbon used in

      Filmcraft’s operation were white grease and photographic lacquer. White

      grease was used to lubricate a single piece of equipment, and a single, three- to

      four-inch tube lasted the entire time that Filmcraft was in operation on the Site.




      Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015   Page 4 of 26
[6]   During his ownership of the Site, Demaree had installed trench drains

      throughout the Site that connected to the sewer. Later, photo-processing

      chemicals spent in Filmcraft’s operations were discharged from its machines

      through a silver recovery device in the form of an effluent and, per

      manufacturer recommendations and standard industry practice, discharged into

      the trenches Demaree had installed. This effluent contained minute amounts of

      silver but did not contain chlorinated solvents or petroleum hydrocarbons.

      Subsequent testing indicated the presence of silver in a sediment sample

      collected from inside the trench where photo-processing effluent was

      discharged. No silver above regulatory action levels, however, was found in the

      soil and groundwater samples taken at the Site in 2013. On occasion, paper

      from the paper processor would clog the drain and form a sludge. This sludge

      did not contain chlorinated solvents or petroleum hydrocarbons. In 2013, the

      sewer lines were scoped by Gurney Bush, Inc. (GBI) with a video camera,

      which revealed certain offset joints in the sewer line, but no leaks were found.1

      Also, GBI’s investigation confirmed that the sewer on the Site was usable and

      that water sent down the pipes went into the city’s main sewer line.

[7]   Filmcraft used small cans of aerosol lacquer that were approximately the size of

      a can of spray paint. Each can would last approximately one month, and the

      aerosol lacquer was applied directly to photographs in a ventilated area on the

      Site. Any overspray ended up on a peg board that was used to hold the



      1
          Indeed, GBI indicated that its procedure was not intended to look for leaks.


      Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015            Page 5 of 26
      photographs or was vented out of the building through an exhaust fan. The

      testing indicated that no lacquer was released to the soil or groundwater at the

      Site.


[8]   As indicated, the rear part of the Site was sublet to various auto-detail

      companies during Filmcraft’s operation. The rear of the Site was separated

      from Filmcraft’s operation by a wall and a windowless door. The Detailers had

      their own main entrance to the Site on the outside of the building. Spicklemire

      was not in any way involved with the Detailers’ operations and had no

      knowledge of whether they used chemicals in their operations, much less what

      those chemicals would have been if indeed any were used. His interaction with

      those tenants was confined primarily to going to the rear of the Site to collect

      rent when it was overdue. Also, on occasion, Spicklemire would go to the

      Detailers and asked them to stop running cars inside the building when that

      occurred. On four or five occasions, Spicklemire brought photo-processing

      machinery through the garage door located in the Detailers’ space. Spicklemire

      claimed to have no knowledge of any chemical releases by the Detailers.

[9]   In 2001, Spicklemire defaulted on the mortgage and abandoned the Site. Apex

      foreclosed and acquired title via a sheriff’s deed, purchasing the Site via a credit

      bid of $240,000. After it acquired the property, Apex hired Keramida

      Environmental, Inc. (Keramida) in 2002 to conduct soil and groundwater

      samples at the Site. Keramida issued a report detailing the contamination it

      had discovered and suggesting further evaluation. Keramida’s report estimated

      that the cost of remediation for the problems it discovered would exceed

      Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015     Page 6 of 26
       $150,000. On October 9, 2003, Apex filed this action against Filmcraft. After

       the lawsuit was filed, Portrait America paid Patriot Environmental &

       Engineering, Inc. (Patriot) to inventory and remove all chemicals from the Site.

       The chemicals removed included a gas can, motor oil, and various paints.

       None of these chemicals were used in Filmcraft’s operations.

[10]   “After full and complete disclosure of all potential environmental issues known

       to Apex as a result of the Keramida [inspection]”, Apex sold the Site to KLR

       for $20,000 in 2014. Exhibit 8B, paragraph 6, Admitted Exhibits Binder2

       (Exhibits Binder). “Apex accepted the $20,000 sale price for the Site from

       [KLR] as a discount from the earlier appraised value of $400,000 because of the

       potential environmental contamination at the Site discussed in Keramida’s

       Phase II report [.]” Id. At this point, KLR was substituted for Apex as plaintiff

       in the present lawsuit. In 2013, KLR hired Terra Environmental Corporation

       (Terra) to perform additional tests on the Site. Terra’s test results essentially

       duplicated those of the tests performed earlier by Keramida in that they

       revealed the presence of chlorinated solvents and petroleum hydrocarbons in

       soil and groundwater samples.

[11]   As indicated above, the original and amended complaints alleged three

       statutory causes of action, including an ELA complaint under I.C. § 13-11-2-

       70.3 to recover costs associated with remediation of hazardous substances



       2
        The pages in the Admitted Exhibits Binder (two volumes) are not numbered. The exhibits are, however,
       arranged in numerical order and tabbed, which expedited our review.

       Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015                     Page 7 of 26
       released into the soil or groundwater on the Site, an action under I.C. § 13-30-3-

       13(d) to recover expenses and attorney fees incurred because solid waste was

       illegally dumped on the Site, and an action under I.C. § 6-1.1-22-13 against

       Spicklemire for back taxes owed on the Site. Ultimately, default judgments

       were entered in favor of KLR against Demaree, the Wax Museum & Auto

       Sales, and Clean Car. Claims against Portrait America were settled before trial.

       Russ Dellen, Inc. prevailed on summary judgment. Therefore, all that

       remained were the claims presented in a second amended complaint filed by

       KLR against Filmcraft and Spicklemire.


[12]   On March 28, 2013, KLR filed its Plaintiff’s Preliminary Contentions,

       Itemization of Damages, and Witness/Exhibit Lists (Plaintiff’s Preliminary

       Contentions), setting out for the first time among its “preliminary itemization of

       damages” common-law claims for lost rent and lost use. In response,

       Spicklemire sought summary judgment on KLR’s common-law claims on

       grounds that they were never pleaded and that in any event they are not

       available to a property owner against a prior owner of the same property. KLR

       challenges the trial court’s grant of this motion, which the trial court entered

       upon its finding that KLR was not entitled to recover economic damages under

       the ELA and that KLR had not pleaded any common-law claims.

[13]   Trial commenced against the remaining parties on the remaining counts on

       February 19-21, 2014. At the conclusion of KLR’s case-in-chief, Spicklemire

       and Filmcraft moved for involuntary dismissal under Trial Rule 41(B), arguing

       that upon the weight of the evidence presented by KLR, there had been no

       Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015   Page 8 of 26
       showing of a right to relief. The trial court granted this motion and dismissed

       the complaint. KLR appeals the grant of the T.R. 41(B) motion and the grant of

       summary judgment on KLR’s common-law claims, as well as the exclusion of

       certain expert testimony.

                                                           1.

[14]   We begin with KLR’s evidentiary claim that the trial court erred in disallowing

       KLR’s expert, Douglas Zabonick, Keramida’s president, to testify about his

       opinion regarding whether the auto-detailing operations conducted on the Site

       during Spicklemire’s ownership more likely than not used petroleum

       hydrocarbons and chlorinated solvents. During Zabonick’s direct testimony, he

       was asked whether he had an opinion regarding whether the Detailers’

       operations more likely than not caused or contributed to the contamination at

       the Site. Spicklemire’s counsel objected and asked the following preliminary

       question: “You don’t have any knowledge whatsoever as to what chemicals

       these particular auto detailers were using at any time, do you?” Transcript at

       909. Zabonick responded, “That would be correct.” Id. Counsel objected to

       this line of questioning on the basis that Zabonick’s testimony would be “just

       speculation.” Id. KLR’s counsel then proceeded to question Zabonick about

       whether his (Zabonick’s) car had ever been to an auto detailing shop, and he

       responded that it had. When Zabonick was asked to describe that process,

       Spicklemire’s counsel objected on grounds that “whatever nice experience Mr.

       Zabonick may have had with the detailing of his car is utterly irrelevant to what

       was going on with these auto detailers.” Id. at 912. Spicklemire’s counsel again

       Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015   Page 9 of 26
       objected on grounds that Zabonick’s testimony as it applied to the facts of the

       present case was “inherently speculative.” Id. KLR contends the trial court

       erred in sustaining the objection.

[15]   Indiana Evidence Rule 702 governs the admissibility of expert testimony, and

       provides as follows:

               (a) A witness who is qualified as an expert by knowledge, skill,
               experience, training, or education may testify in the form of an
               opinion or otherwise if the expert’s scientific, technical, or other
               specialized knowledge will help the trier of fact to understand the
               evidence or to determine a fact in issue.
               (b) Expert scientific testimony is admissible only if the court is
               satisfied that the scientific principles upon which the expert
               testimony rests are reliable.
[16]   The admissibility of expert testimony under Evid. R. 702 is a matter within the

       trial court’s broad discretion and we will reverse such determinations only for

       an abuse of that discretion. Estate of Borwald v. Old Nat’l Bank, 12 N.E.3d 252

       (Ind. Ct. App. 2014). Expert testimony admitted under Rule 702 requires more

       than subjective belief or unsupported speculation. Armstrong v. Cerestar USA,

       Inc., 775 N.E.2d 360 (Ind. Ct. App. 2002), trans. denied. In conducting our

       review, we presume the trial court’s decision is correct, and the party

       challenging that decision bears the burden of persuading us that the trial court

       abused its discretion. Id.


[17]   Citing Vaughn v. Daniels Co., 841 N.E.2d 1133 (Ind. 2006), KLR argues that the

       trial court’s ruling improperly requires that in order to be admissible, an expert’s

       testimony must be based on first-hand experience. In Vaughn, the trial court

       Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015      Page 10 of 26
       struck a paragraph in an affidavit completed by an expert and submitted by the

       opponent of a motion for summary judgment. Among other things, the

       proponents of the affidavit contended that the trial court erred in excluding that

       paragraph on grounds that the opinion lacked the requisite foundation. The

       trial court’s ruling was premised upon the fact that the expert did not view the

       equipment in question, but rather reviewed only documents setting forth the

       defendant’s proposal with respect to the equipment. Our Supreme Court

       reversed, holding that the expert’s prior experience and review of documents

       relating to the proposal provided a sufficient foundation for the expert opinion

       and that it was not necessary for the expert to have actually seen the equipment

       in question for him to render an expert opinion.

[18]   Although it is true that the Vaughn expert was permitted to offer opinion

       testimony even though he had not seen the equipment in question, it cannot

       fairly be said that the resulting opinion was based on “pure speculation.” The

       expert’s opinion as to the safety of the equipment at issue was based upon his

       review of a design drawing of that equipment rendered by its creator, who also

       happened to be a defendant. We reiterate, however, that in the present case,

       Zabonick admitted that he did not have “any knowledge whatsoever as to what

       chemicals these particular auto detailers were using at any time [.]” Transcript

       at 909. Thus, it appears that the only evidence that the Detailers could have

       caused or contributed to the particular contamination found at the Site involved

       pure speculation on Zabonick’s part as to what chemicals they used. This is not

       legally sufficient. See Estate of Dyer v. Doyle, 870 N.E.2d 573, 581 (Ind. Ct. App.


       Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015   Page 11 of 26
       2007) (the appellant challenged the admission of expert testimony regarding the

       faked left syndrome,3 arguing that there was no evidence that the factual

       scenario occurred in which the syndrome would be applicable; the court

       reversed upon observing that the plaintiff “admitted during cross-examination

       that there was no evidence that [the decedent] was ever in [the defendant’s]

       lane” and that “there must be some evidence other than the opinion itself that

       there was a ‘faked left’ occurrence for the opinion to pass muster”), trans. denied.

       The trial court did not err in excluding this evidence.

                                                           2.

[19]   KLR contends the trial court erred in granting summary judgment in favor of

       Spicklemire on KLR’s common-law claims of lost rent and loss of use. The

       trial court held, in pertinent part:

               The Second Amended Complaint makes no mention of any
               common law claims. Nor are the operative facts asserted against
               Spicklemire sufficient for a reasonable person to be on notice that
               [KLR] is making claims under any common law theories. The
               facts pled in [KLR’s] Second Amended Complaint are simply not




       3
           This was explained in Smith v. Yang, 829 N.E.2d 624, 627 (Ind. Ct. App. 2005) as follows:

               This syndrome is seen near curves and/or hill crests where an initial vehicle
               enters the area left of center and the other driver steers to the left, now being
               left of center in avoidance, when the initial vehicle steers back to the right
               and a head-on collision occurs in the initial vehicle’s traveling lane.



       Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015                 Page 12 of 26
               sufficient to put a reasonable person on notice that [KLR] is
               asserting common law claims against Spicklemire.
       Appellant’s Appendix at 40.


[20]   Summary judgment is appropriate where the moving party shows there are no

       genuine issues of material fact with respect to a particular issue or claim. Ind.

       Trial Rule 56(C); Bleeke v. Lemmon, 6 N.E.3d 907 (Ind. 2014). We review a

       summary judgment order de novo. Hughley v. State, 15 N.E.3d 1000 (Ind. 2014).

       Considering only the facts supported by evidence designated to the trial court

       by the parties, we must determine whether there is a “genuine issue as to any

       material fact” and whether “the moving party is entitled to a judgment as a

       matter of law.” T.R. 56(C); see also TP Orthodontics, Inc. v. Kesling, 15 N.E.3d

       985 (Ind. 2014). Where the moving party designates material demonstrating

       there are no genuine issues of material fact with respect to a particular issue or

       claim, the burden shifts to the non-moving party to come forward with

       designated evidence showing the existence of a genuine issue of material fact.

       Bleeke v. Lemmon, 6 N.E.3d 907. Upon review, we will accept as true those facts

       alleged by the nonmoving party. Sees v. Bank One, Ind., N.A., 839 N.E.2d 154

       (Ind. 2005). “All designated evidence and reasonable inferences must be

       construed in favor of the non-moving party, and doubts resolved against the

       moving party.” Bleeke v. Lemmon, 6 N.E.3d at 917. The appellant bears the

       burden of demonstrating that the grant of summary judgment was erroneous.

       Hughley v. State, 15 N.E.3d 1000. Finally, we will affirm a grant of summary

       judgment on any theory supported by the record. Holiday Hospitality

       Franchising, Inc. v. AMCO Ins. Co., 983 N.E.2d 574 (Ind. 2013).
       Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015   Page 13 of 26
[21]   KLR argues that the grant of the summary judgment was improper on the

       stated grounds because Indiana is a notice-pleading state, and as such requires

       only a short, plain statement of the claim showing an entitlement to relief, and a

       demand for relief to which the pleader is entitled. See Ind. Trial Rule 8(A).

       KLR claims that its complaint met these criteria because its second amended

       complaint “pled the operative facts to support claims for lost rent and reduced

       property value [.]” Appellant’s Brief at 41. In other words, the common-law

       claims were tried by consent.

[22]   In resolving this issue, it is important to note that at the time KLR filed its

       Plaintiff’s Preliminary Contentions, the only claims that remained unresolved

       were those presented in the second amended complaint against Filmcraft and

       Spicklemire. In an introductory paragraph of the Plaintiff’s Preliminary

       Contentions, KLR described its lawsuit against Spicklemire as an ELA action

       (i.e., “[KLR] brought this Environmental Legal Action (“ELA”) against the

       defendants for the payment of costs to delineate and remediate this Site”).

       Appellant’s Appendix at 103. It was in this document that KLR referenced for the

       first time its claim for lost rent and lost use. In response, Spicklemire filed a

       motion for summary judgment on grounds that the ELA permits recovery only

       of reasonable costs of removal or remedial action, and does not authorize

       claims for lost rent or loss of use. See I.C. § 13-30-9-2 (West, Westlaw current

       with legislation of the 2015 First Regular Session of the 119th General

       Assembly effective through March 24, 2015). In its brief opposing

       Spicklemire’s motion for summary judgment, KLR asserted that those costs


       Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015    Page 14 of 26
       were recoverable under various common-law theories. This was the first time

       that KLR mentioned common-law remedies, or indeed described this lawsuit in

       terms other than an ELA action. This was approximately ten years after the

       onset of this litigation. Nevertheless, KLR contends these issues were tried by

       consent because the second amended complaint pleaded operative facts

       sufficient to support claims for lost rent and reduced property value, i.e., “these

       substances were deposited in the soil and groundwater during the Defendant’s

       ownership and/or operations at the Site and remained there after the

       Defendants ceased ownership and/or operation at the Site and continue to

       cause property damage.” Appellant’s Appendix at 59.


[23]   We first observe that the foregoing language cannot be deemed to have

       expressly presented the common-law claims in question. Not only are the

       concepts of “lost rent” and “loss of use” not pleaded with specificity, but the

       reference to continuing property damage is made in a complaint identified

       explicitly as an ELA action. This leaves only the possibility that the common-

       law claims were tried by implied consent of the parties, which is the main thrust

       of KLR’s argument on this point.

[24]   Trial Rule 15 (B) provides: “[w]hen issues not raised by the pleadings are tried

       by express or implied consent of the parties, they shall be treated in all respects

       as if they had been raised in the pleadings.” Generally, we consider two factors

       when determining whether a party has impliedly consented to a non-pleaded

       issue at trial. First, did the opposing party have notice of the issue? Second, did

       the opposing party object to the issue being litigated at trial? Mercantile Nat’l

       Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015   Page 15 of 26
       Bank of Ind. v. First Builders of Ind., Inc., 774 N.E.2d 488 (Ind. 2002). Our

       Supreme Court has stated, “[i]f the opposing party both had notice and failed to

       object at trial, then that party will have impliedly consented to the non-pleaded

       issue at trial.” Id. at 492-93. Both elements must be met in order for a party to

       be deemed to have impliedly consented to a non-pleaded issue. See id. at 493

       (“[w]e find that Owner validly objected to the personal liability issue being

       litigated, and although Owner had notice of this issue, Owner did not impliedly

       consent to it being litigated within the meaning of Trial Rule 15(B)”).

[25]   Even assuming Spicklemire had notice of the common-law claims, his objection

       to the presentation of those claims when denominated as such for the first time

       in Plaintiff’s Preliminary Contentions constituted a valid objection to those

       issues being litigated. Therefore, Spicklemire did not impliedly consent to

       litigating those issues at trial within the meaning of T.R. 15(B). The trial court

       did not err in granting summary judgment in favor of Spicklemire on KLR’s

       common-law claims.

                                                           3.

[26]   KLR contends the trial court erred in dismissing its complaint pursuant to Trial

       Rule 41(B) on grounds that KLR failed to present sufficient evidence to show

       Spicklemire caused or contributed to chlorinated solvent and petroleum

       hydrocarbon contamination of the Site.

[27]   When reviewing a ruling on a T.R. 41(B) motion to dismiss, we apply the

       following standard of review:

       Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015   Page 16 of 26
               The grant or denial of a motion to dismiss made under Trial Rule
               41(B) is reviewed under the clearly erroneous standard. In
               reviewing a motion for involuntary dismissal, this court will not
               reweigh the evidence or judge the credibility of the witnesses.
               We will reverse the trial court only if the evidence is not
               conflicting and points unerringly to a conclusion different from
               the one reached by the lower court.
       Todd v. State, 900 N.E.2d 776, 778 (Ind. Ct. App. 2009) (quoting Thornton–

       Tomasetti Eng’rs v. Indianapolis–Marion Cnty. Pub. Library, 851 N.E.2d 1269,

       1277 (Ind. Ct. App. 2006)).

[28]   In this particular case, in granting Spicklemire’s T.R. 41(B) motion, the trial

       court ruled that KLR failed to establish a viable ELA claim. In order to

       establish such a case, KLR was required to prove that Spicklemire “caused or

       contributed to the release of a hazardous substance or petroleum into the

       surface or subsurface soil or groundwater that poses a risk to human health and

       the environment.” I.C. § 13-30-9-2. The parties stipulated before trial that

       “chlorinated solvents and petroleum hydrocarbons [had] been detected in the

       soil and groundwater at the Site.” Appellant’s Appendix at 45. Thus, in order to

       prevail, or, as the case may be, survive a T.R. 41(B) motion to dismiss, KLR

       was required to offer evidence that Spicklemire caused or contributed to the

       release of chlorinated solvents and petroleum hydrocarbons in the soil and

       groundwater at the Site.

[29]   KLR contends that it did present such evidence, and further that the trial court’s

       conclusion to the contrary is a result of the court applying the wrong legal

       standard. According to KLR, “[t]he ELA does not require a person who cleans

       Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015   Page 17 of 26
       up a contaminated property to prove specific contaminating incidents with

       direct evidence.” Appellant’s Brief at 12. Rather, according to KLR, it is enough

       “to show with direct or circumstantial evidence that the defendant more likely

       than not ‘had some involvement with the contaminants at issue’ or ‘helped

       bring about’ contamination of the property.” Id. (citing Reed v. Reid, 980

       N.E.2d 277, 289 (Ind. 2012), Gary v. Schafer 683 F. Supp.2d 836, 855 (N.D. Ind.

       2010), and Neal v. Cure, 937 N.E. 1227, 1234 (Ind. Ct. App. 2010), trans.

       denied)). KLR urges that “[e]ven if [Spicklemire] only helped spread

       contamination others put at the Site or contributed to one-half of 1 % of the

       contamination at the Site, he is liable under the ELA.” Id. at 12-13. KLR

       claims that it presented evidence that Spicklemire contributed to a release of the

       contaminants by having some involvement with the contaminants. In essence

       KLR contends that Spicklemire helped spread the contaminants that were

       brought to and released onto the Site by others. As KLR phrases it, “it is

       against the logic and effect of the evidence presented at trial to hold that

       Spicklemire’s 26 years of unlawful, chemical-laden operations and heavy daily

       discharges at the Site had absolutely no effect on the Site.” Id. at 13.


[30]   The standard to be applied in ELA cases alleging that a party “caused or

       contributed” to environmental contamination of the sort covered by the ELA

       was addressed by this court as follows:

               The phrase “caused or contributed” is not defined by statute, and
               we must give those words their plain and ordinary meaning.
               “Each term of the phrase ‘caused or contributed’ requires some
               involvement by the actor which produces a result.” Standard

       Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015    Page 18 of 26
               English dictionaries may also be consulted in determining the
               meaning of this phrase. A standard dictionary definition of
               “cause” is “‘a person, thing, fact, or condition that brings about
               an effect or that produces or calls forth a resultant action or
               state.’” “Among other things, ‘contribute’ means ‘to act as a
               determining factor; share responsibility for something.’” Our goal
               when construing the phrase “cause or contribute” should be to
               hold accountable all parties “responsible for creating
               environmental contaminations.”
       JDN Props., LLC v. VanMeter Enters., Inc., 17 N.E.3d 357, 360-61 (Ind. Ct. App.

       2014) (internal citations omitted). Therefore, KLR is correct in that “caused or

       contributed” in this context requires proof that the defendant was in some way

       involved in the contamination of the property in question.

[31]   In Neal v. Cure, 937 N.E.2d at 1234, the definition of “caused or contributed”

       was further refined for our particular purposes, i.e., in determining the liability

       of a landlord under the ELA. In Neal, the plaintiff sued a landlord under the

       ELA for contamination caused by its tenant. The landlord submitted a motion

       for summary judgment, arguing that it was not responsible for the

       contamination, nor was it aware that the contamination was occurring or had

       occurred. On appeal, the plaintiff argued only that the evidence demonstrated

       that the landlord “contributed” to (versus “caused”) the contamination. The

       trial court granted the motion upon its conclusion that the plaintiffs had

       presented no evidence demonstrating an affirmative act on the part of the

       landlord that caused or contributed to the contamination. The court further

       concluded, “any alleged inaction on the part of [the landlord] … cannot form

       the basis for determining that the [landlord] caused or contributed to the


       Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015   Page 19 of 26
       contamination.” Id. at 1233. The court on appeal thus undertook to determine

       the meaning of “contributed” in this context and concluded that “the plain

       language of the statute does not permit an ELA action against landlords who

       ‘by all accounts were not involved in the alleged release of hazardous

       substances and had no knowledge of the release.’” Id. at 1235 (quoting City of

       Martinsville v. Masterwear Corp., 2006 WL 2710628, slip op. at 4 (S.D. Ind.

       2006)).


[32]   In the present case, the parties stipulated that Demaree was responsible for the

       chlorinated solvent and petroleum hydrocarbon contamination at the Site. The

       court found that subsequent purchaser Spicklemire had no involvement in the

       day-to-day operations of Filmcraft’s subtenants, i.e., the Detailers, nor did he

       have knowledge regarding whether those subtenants used chemicals in their

       operations. Moreover, there was no evidence that the Detailers used any

       chlorinated solvents or petroleum hydrocarbons in their operations. Therefore,

       the evidence supported the determination that Spicklemire was not liable by

       virtue of his status as landlord vis-à-vis the Detailers and their operations on the

       Site.

[33]   As for liability by virtue of Filmcraft’s own activities, the direct evidence

       indicated that, with but one very minor exception, its operations did not involve

       the use of chlorinated solvents or petroleum hydrocarbons. The exception

       involved the use of a single tube of white grease – about three to four inches in

       size – which contained petroleum hydrocarbon. That single tube was used so

       sparingly that it lasted the entire time Filmcraft was in operation. This supports

       Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015   Page 20 of 26
       the trial court’s finding that Filmcraft’s operations did not contribute to the

       petroleum hydrocarbon or chlorinated solvent contamination on the Site.

[34]   We note also that sometime around 1980, Filmcraft purchased a fifty-five-

       gallon drum of photographic lacquer. Filmcraft also purchased four one-gallon

       cans of lacquer. None of these containers were ever used, or apparently even

       opened, because Filmcraft did not have enough lacquer orders to justify it. The

       full fifty-five-gallon drum was found during Patriot’s chemical

       decommissioning, and was described by Patriot as sealed and not leaking.

       Patriot properly disposed of it. The evidence also showed that Filmcraft used

       small cans of aerosol lacquer, which was applied to photographs in a ventilated

       booth. Overspray ended up on the pegboard used to hold the photographs at

       the time, or was vented out of the building through an exhaust fan. Filmcraft

       used approximately one can (about the size of a can of spray paint) per month.

       This evidence supports the trial court’s finding that Filmcraft’s operations did

       not contribute to the petroleum hydrocarbon or chlorinated solvent

       contamination on the Site.

[35]   Those chemicals that Filmcraft did use were heavily diluted with water, and

       effluent from the photo-processing operations was discharged into a trench

       drain that led to city sewers. Zabonick testified that the photo-processing

       effluent did not contain chlorinated solvents or petroleum hydrocarbons, and

       that discharge of photo-processing effluent to the trench did not cause

       contamination at the Site. The effluent did contain silver, but not in amounts

       above regulatory action levels in the soil or groundwater. A test of the soil

       Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015   Page 21 of 26
       around the drain did not reveal the presence of silver in the soil. Moreover, we

       must bear in mind that this testing of the drain and sewer lines occurred in

       2013, which was fully twelve or thirteen years after Filmcraft ceased operations

       on the Site. Again, this evidence supports the trial court’s finding that

       Filmcraft’s operations did not actively contribute to the petroleum hydrocarbon

       or chlorinated solvent contamination on the Site.

[36]   We understand that the gist of KLR’s argument is that the trial court applied an

       impossibly high standard in determining whether KLR had proven its case

       under the ELA. According to KLR, “the ‘contributed’ element of the ELA

       should not be interpreted to require an ELA plaintiff to produce direct evidence

       that the defendants released specific contaminants on specific dates, which

       caused the contamination driving the remediation decades later.” Appellant’s

       Brief at 8. It seems that KLR reads into the court’s findings and conclusions the

       view that, in order to prevail under the ELA, KLR was required to present

       evidence that on a specific date Spicklemire contributed to the release of a

       particular contaminant into the soil or groundwater. We do not interpret the

       trial court’s findings and conclusions to convey such an exacting standard.

[37]   For purposes of this litigation, the important dates were those dates for which

       KLR could establish that Spicklemire was present on the Site, or had

       knowledge of or bore some responsibility for what was occurring on the Site.

       KLR adduced such evidence, establishing the date range of Spicklemire’s

       ownership of the Site, the date range of Filmcraft’s operations, and the date

       range of the operations of the subtenants, i.e., the Detailers. It was then up to

       Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015     Page 22 of 26
       KLR to present evidence linking Spicklemire to the particular contaminants

       discovered to be present at the Site via the inspections performed by Keramida

       in 2002 and Terra in 2013, i.e., chlorinated solvents or petroleum hydrocarbons.

       As explained above, KLR’s evidence did not establish that Filmcraft used

       products containing those contaminants in its operations, nor did Filmcraft’s

       subtenants, the Detailers.

[38]   KLR points to the testimony of its expert, Zabonick, to the effect that “the

       historical operations of the Site have contributed to the contamination present

       at the Site.” Transcript at 854. He went on to include Filmcraft as a contributor

       to that contamination on grounds that some of the chemicals used in the film

       processing operation “more likely than not would have contributed to the

       contamination or cause some additional contamination.” Id. at 855. Yet,

       Zabonick also testified on this subject as follows:

               Q        Now, let’s talk about your opinion that Filmcraft’s photo
                        and film processing operations contributed to the
                        contamination at the site. You understand that Filmcraft
                        used chemicals to develop film and photographs, correct?
               A        Correct.
               Q        You understand that these chemicals included developers,
                        fixes, bleaches, as well as some other -- as well as water,
                        correct?
               A        Correct.
               Q        You also understand that Filmcraft used a variety of
                        machines when they developed film and photographs,
                        correct?
               A        Correct.

       Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015   Page 23 of 26
        Q        But it’s not your opinion that day-to-day effluent or
                 discharge from these machines contained any chlorinated
                 solvents or petroleum hydrocarbons, is it?
        A        That would be correct.
        Q        In fact, you agreed with me that introducing chlorinated
                 solvents would be detrimental to that photographic or film
                 processing, didn’t you?
        A        I believe so.
        Q        So rather you believe that Filmcraft may have conducted
                 other activities at the site that contributed to that -- to the
                 petroleum hydrocarbon and chlorinated solvent
                 contamination, correct?
        A        By “contributed to”, are you meaning adding additional
                 chlorinated and petroleum hydrocarbons or contributing to
                 the migration of the existing contamination?
        Q        Let’s stick with your old opinion. Just contributing to the
                 chlorinated solvent and petroleum hydrocarbon
                 contamination at the site and then we’ll talk about this
                 migration.
        A        Okay. Can you ask the question again, please.
        Q        So you believe that Filmcraft conducted some other
                 activities at the site other than discharging effluent that
                 added something to the petroleum hydrocarbon and
                 chlorinated solvent contamination at the site, correct?
        A        Yes.
        Q        And you believe these activities could have included
                 cleaning the film and the developing equipment, is that
                 right?
        A        That’s correct.
        Q        Even though you have no knowledge of whether or not
                 they used chlorinated solvents or petroleum hydrocarbons
                 in that process?


Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015            Page 24 of 26
        A        That’s correct.
        Q        You also believe that these activities could have included
                 cleaning film, correct?
        A        Correct.
        Q        What film cleaners did the photo processing, the photo
                 and film processing operations use?
        A        This specific operation?
        Q        Yes.
        A        I have no knowledge of any specific cleaners that they
                 would have used.
        Q        So you don’t know the company that manufactured it,
                 correct?
        A        That would be correct.
        Q        You don’t know the chemical that they supplied, correct?
        A        That would be correct.
        Q        You don’t know how Filmcraft may have used that
                 chemical, is that correct?
        A        That would be correct.
        Q        How do you know that these operations could have
                 contributed?
        A        I guess I’m not sure – [.]
Transcript at 940-43. In light of this testimony, among other things, Zabonick’s

opinion as to Spicklemire’s responsibility for the contamination was not so

irrefutably supported by the direct and circumstantial evidence presented during

KLR’s case-in-chief that, in rejecting it, the trial court committed clear error.

See Todd v. State, 900 N.E.2d 776. In the end, the evidence cited by KLR as




Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015       Page 25 of 26
       crossing the minimum threshold4 is just too speculative to mandate a different

       result. We cannot say that the evidence pertaining to whether Spicklemire

       caused or contributed to contamination at the Site is non-conflicting and points

       unerringly to a conclusion different from the one reached by the trial court. See

       id.


[39]   Judgment affirmed.


       Kirsch, J., and Crone, J., concur.




       4
         E.g. “The contaminants found at the Site are consistent with some of the petroleum hydrocarbons and
       chlorinated solvents typically used by photo processors during Filmcraft’s operations.” Appellant’s Brief at 5
       (emphasis supplied).

       Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015                               Page 26 of 26
