Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                                          Jul 17 2013, 5:51 am
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

DOUGLAS R. DEMURE                                    JOSEPH D. HERBERGER
Aurora, Indiana                                      Castor & Hershberger, P.C.
                                                     Madison, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA


MICHAEL STRATTON, PERSONAL                           )
REPRESENTATIVE OF THE ESTATE OF                      )
IDA C. GROW, DECEASED,                               )
                                                     )
        Appellant-Plaintiff,                         )
                                                     )
               vs.                                   )      No. 69A01-1212-CT-543
                                                     )
MARJORIE ANN MILLER,                                 )
                                                     )
        Appellee-Defendant.                          )


                       APPEAL FROM THE RIPLEY CIRCUIT COURT
                            The Honorable Carl H. Taul, Judge
                              Cause No. 69C01-1111-CT-18


                                            July 17, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                     Case Summary

       Michael Stratton, the personal representative of the Estate of Ida Grow (“the

Estate”), appeals the trial court’s award of damages following a bench trial. We affirm in

part, reverse in part, and remand.

                                          Issue

       The Estate raises one issue, which we restate as whether the trial court’s award of

damages was inadequate.

                                          Facts

       Ida and her husband, Arval Grow, purchased property in what is now the Town of

Napoleon in 1948. In 1956, the eastern border of their property abutted property owned

by James and Francis Venable. That year, Arval erected a four foot high woven wire

fence along the property line separating the two properties. Both the Grows and the

Venables used their property for agricultural purposes and, for more than forty years, the

Grows and Venables accepted the location of the fence as their common property line. In

2002, the Venable property was sold to sisters, Mary Kohlman and Marjorie Ann Miller.

In 2003, Miller hired Jeffrey French to prepare a retracement survey of their property.

The survey noted that portions of the fence were located as much as one foot over onto

Miller’s property. Arval died in 2004. In 2009, Kohlman conveyed her interest in the

property to Miller.

       The relationship between Miller and Ida became acrimonious. At one point, Ida

cut off limbs from a spruce tree and other trees near the fence. On August 19, 2011,

Miller, under the impression that the fence was on her property, tore down the fence.

                                            2
       On November 4, 2011, Ida filed a complaint for trespass and sought a permanent

injunction. In the complaint, Ida requested compensatory damages, punitive damages,

attorney fees, and costs. Miller answered the complaint and counterclaimed alleging

trespass and seeking punitive damages and a permanent injunction. Miller also requested

attorney fees and costs. On September 27, 2012, after a bench trial, the trial court issued

an order finding in part:

              16.    On the 19th day of August, 2011, the defendant
              intentionally tore down, destroyed and removed
              approximately 215 feet of the plaintiff’s fence.

              17.   The property line was established by the fence erected
              in 1956 by the acquiescence of landowners, Grow and
              Venable, over a period of (40) years.

              18.    Defendant/Counter Claimant is responsible for the
              destruction of 212 feet of fence which resulted in damages in
              the amount of Five Hundred Eighty Dollars ($580.00) and
              committed trespass in doing so.

              19.    Plaintiff cut off limbs from a spruce tree on her land
              next to the fence as well as other trees, but committed
              trespass in doing so.

              20.    For each parties’ trespass, the Court assesses damages
              in the amount of One Dollar ($1.00) against Defendant in
              favor of Plaintiff and One Dollar ($1.00) against Plaintiff in
              favor of Defendant.

              21.    Other damages claimed by both parties rely on
              insufficient evidence or are too speculative for the Court to
              consider.

              22.     The true common property line separating the
              plaintiff’s land from the defendant’s land was established in
              1956 and remained so by acquiescence on the part of the
              plaintiff and her husband and the defendant’s predecessors in
              title, extending over a period of forty (40) years, as

                                            3
             established by a woven wire fence erected by Arval F. Grow
             in 1956.

             23.    The 2003 French retracement survey was a
             retracement survey and not a legal survey in accordance with
             I.C. 36-2-12-10 for purposes of establishing a new legal
             property line.

             24.    The Grow fence was erected in 1956 before the Grow
             lands and the then adjoining Venable lands were incorporated
             into the Town of Napoleon and were used and have
             continuously been used for agriculture, farming, animal
             raising, and/or grazing purposes and, therefore, the fence in
             question was and has remained a legal partition fence.

             25.     The defendant intentionally tore down, destroyed and
             removed the plaintiff’s fence without legal authority or
             justification.

             26.     As a result of the defendant’s conduct, the plaintiff is
             entitled to compensatory damages against the defendant in the
             sum of Five Hundred Eighty One Dollars ($581.00).

             27.    As a result of Plaintiff’s conduct, Defendant is entitled
             to recover compensatory damages in the sum of One Dollar
             ($1.00).

             28.    The Court grants judgment in favor of Plaintiff and
             against Defendant in the sum of Five Hundred Eighty One
             Dollars ($581.00) and against Plaintiff and in favor of
             Defendant in the sum of One Dollar ($1.00), denies the
             Defendant’s counterclaim and both parties’ claims for
             attorney’s fees.

             29.     The Court finds no threat of any irreparable injury
             justifying the issuance of an injunction.

Appellant’s App. pp. 9-11.

      On October 25, 2012, Ida filed a motion to correct error challenging the trial

court’s finding that she committed trespass and arguing that she should have been


                                            4
awarded additional compensatory damages, costs, attorney fees, and punitive damages.

The trial court did not rule on the motion and, on December 10, 2012, Ida filed a notice

of appeal.    On February 15, 2013, Ida died, and Michael Stratton, the personal

representative of the Estate, was substituted as the Appellant.

                                         Analysis

       It appears that the trial court entered its findings and conclusions sua sponte.

Under these circumstances, special findings entered by the trial court sua sponte control

only as to the issues they cover. Harrison v. Thomas, 761 N.E.2d 816, 819 (Ind. 2002).

“As to issues on which the trial court has not made findings, or on which the findings are

inadequate, we treat the judgment as a general one and we examine the record and affirm

the judgment if it can be sustained upon any legal theory the evidence supports.” Id. As

to the findings the trial court did make, we first must determine whether the evidence

supports the findings and then whether those findings support the trial court’s

conclusions. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). Findings will only

be set aside if they are clearly erroneous, which occurs only when the record contains no

facts to support them either directly or by inference or if the trial court applies the wrong

legal standard to properly found facts. Id. “In order to determine that a finding or

conclusion is clearly erroneous, an appellate court’s review of the evidence must leave it

with the firm conviction that a mistake has been made.” Id.

       The Estate argues that the trial court’s award of damages was insufficient. “The

computation of damages is a matter within the discretion of the trial court, and

mathematical certainty is not required.”         Ponziano Const. Servs. Inc. v. Quadri

                                             5
Enterprises, LLC, 980 N.E.2d 867, 873 (Ind. Ct. App. 2012). “However, the amount

awarded must be supported by evidence in the record, and may not be based on mere

conjecture, speculation, or guesswork.” Id. When the specific issue on review relates to

a question of inadequate damages, we will not reverse a damage award if it is within the

scope of the evidence before the trial court, and we will not reweigh the evidence or

judge the credibility of the witnesses. Id.

                                                I. Costs

        The Estate argues that the trial court should have awarded Ida costs because she

was “the prevailing party of the dominant issue in this case[.]”1 Appellant’s Br. p. 11. In

support of its argument, the Estate relies on Indiana Code Section 33-37-3-4, which

provides, “A party for whom judgment is entered in a civil action is entitled to recover

costs.” It also cites Indiana Code Section 34-52-1-1(a), the General Recovery Statute,

which provides “In all civil actions, the party recovering judgment shall recover costs,

except in those cases in which a different provision is made by law.” Indiana Trial Rule

54(D) also addresses costs and provides in part, “Except when express provision therefor

is made either in a statute or in these rules, costs shall be allowed as of course to the

prevailing party unless the court otherwise directs in accordance with any provision of

law . . . .”




1
  Contrary to Ida’s assertion that Finding 28 references the denial of Miller’s counterclaim, we believe
the trial court was referring to Miller’s counterclaim for punitive damages. Reading the trial court’s order
as a whole, it is clear that Miller prevailed on her trespass claim against Ida, and we reject the Estate’s
assertion that the trial court plainly denied Miller’s counterclaim for trespass.
                                                     6
       Miller asserts that an award of costs is not clearly authorized by statute here

because the trial court ruled for both Miller and Ida on their respective trespass claims

and entered judgment for Miller in the amount of $1.00 on her claim. She argues that

here, where both parties prevailed in some fashion, an award of costs should be

discretionary as it is for appellate costs. See Ind. Appellate Rule 67(C) (explaining in

part that, when a judgment or order is affirmed in whole or reversed in whole, the

prevailing party is entitled to recover costs and in “other cases, the recovery of costs shall

be decided in the Court’s discretion.”).

       Although both parties prevailed on their trespass claims, the trial court awarded

Miller $1.00 in damages and Ida $581.00. Under these circumstances, because the trial

court awarded Ida a net judgment of $580.00, we believe she is the prevailing party.

Thus, she was entitled to recover costs.

       Nevertheless, the Estate has not established that an award of costs necessarily

includes all of the fees for which it seeks reimbursement. Specifically, the Estate seeks

reimbursement for the trial court filing fee, the fee for the court reporter who prepared

Miller’s deposition, the surveyor’s fee to testify at trial, and the costs of transcribing

testimony to prepare proposed findings and conclusions.2 The Estate, however, provides

no authority for the notion that all of these fees are considered “costs.”

       Instead, “‘[t]he term ‘costs’ is an accepted legal term of art that has been strictly

interpreted to include only filing fees and statutory witness fees.’” Van Winkle v. Nash,


2
  Although the Estate also references various appellate costs it its brief, the procedure for recovering
appellate costs is provided in Indiana Appellate Rule 67.
                                                   7
761 N.E.2d 856, 861 (Ind. Ct. App. 2002) (quoting Midland–Guardian Co. v. United

Consumers Club Inc., 499 N.E.2d 792, 800 (Ind. Ct. App. 1986)). In the absence of

manifest contrary legislative intent, the term “costs” must be given its accepted meaning

and does not include litigation expenses. Id. We have held that the General Recovery

Statute limits the costs recoverable to filing fees and witness fees. Id. at 862. Thus, of

the various expenses the Estate references, only the filing fee and the statutory witness

fee described in Indiana Code Section 33-37-10-3 are within the accepted meaning of the

“costs” that the Estate may recover.

                               II. Compensatory Damages

       The Estate asserts that the trial court’s award of compensatory damages was

inadequate and should have included labor costs for the installation of the new fence and

veterinary bills for injuries to Ida’s horse after the fence was removed. As an initial

matter, however, the Estate does not cite any authority explaining the nature and extent of

damages recoverable in a tort action. To the extent the Estate is arguing that the trial

court’s award was improper as a matter of law, this issue is waived. See Dickes v.

Felger, 981 N.E.2d 559, 562 (Ind. Ct. App. 2012) (“A party waives an issue where the

party fails to develop a cogent argument or provide adequate citation to authority and

portions of the record.”); Ind. Appellate Rule 46(A)(8)(a).

       To the extent the Estate is challenging the trial court’s finding that the other

damages claimed by the parties were based on insufficient evidence or too speculative,

we are not convinced that the finding is clearly erroneous. Regarding the labor costs for

the installation of the new fence, although there was evidence that there would be labor

                                             8
costs in addition to the $580 in materials to replace the fence, the Estate acknowledges

that “no evidence was introduced pertaining to labor costs for the installation of a new

fence[.]” Appellant’s Br. p. 13. In the absence of any evidence regarding actual labor

costs, an award of labor costs would have been speculative.

        As for the $702.79 for veterinarian bills for Ida’s horse, the Estate argues that,

after Miller removed the fence, Ida had to confine her horse to a hot barn in August and

that she eventually installed an electric fence so her horse could graze in another part of

the property. According to Ida, when the horse first hit the electric fence, it reared back

and hurt its leg, requiring veterinary treatment.

        Miller, however, testified that two months before she removed the fence she sent

Ida a letter3 advising her that, according to the survey, the fence was on Miller’s property

and that she was going to tear it down. Miller informed Ida that she had sixty days to

contain the horse. Miller also testified that Ida had a pasture and corral in the back where


3
    According to the transcript, numerous exhibits, including letters, the survey, and pictures of the
property, the fence, the pasture, and the parties’ conduct were admitted into evidence. The volume of
exhibits prepared by the court reporter, however, includes only two exhibits, the veterinarian’s bill and an
itemized statement of Ida’s attorney fees. The Exhibit Index includes the notation, “request of plaintiff’s
counsel only 2 exhibits included.” In her notice of appeal, Ida stated, “no request is being made for all
exhibits to be included in Court Reporter’s transcript.” Indiana Appellate Rule 9(F)(5), which requires an
appellant to request a transcript of all the evidence when arguing that a finding of fact or conclusion
thereon is unsupported by the evidence or is contrary to the evidence, is disserved by the inclusion of only
select exhibits on appeal, and we strongly discourage such practice.
          “The burden is on appellant to establish a complete and accurate record.” Willett v. Review Bd.
of Indiana Dep’t of Employment & Training Servs., 632 N.E.2d 736, 740 (Ind. Ct. App. 1994). Further,
“[i]t is a cardinal rule of appellate review that the appellant bears the burden of showing reversible error
by the record, as all presumptions are in favor of the trial court’s judgment.” Marion-Adams Sch. Corp.
v. Boone, 840 N.E.2d 462, 468-69 (Ind. Ct. App. 2006). Although the trial court’s finding that Miller
intentionally removed the fence is not disputed, a complete review of the record is necessary to determine
whether the evidence supports the trial court’s award of damages. However, because Miller included
copies of many of the exhibits in her appendix, which even the Estate relied on in its reply brief, we are
able to adequately review the issues raised by the Estate.


                                                     9
“she would rotate graze anyway.” Tr. p. 136. She testified that Ida always fed and

watered the horse behind the barn and would “on occasion” have the horse in the front

pasture by the fence. Id. Miller testified that Ida had set up a corral prior to Miller

tearing the fence down and that she would not have torn down the fence unless the horse

was contained. In light of the photographic evidence of the property and the conflicting

testimony, it was within the trial court’s discretion to reject Ida’s claim that the horse’s

injuries were attributable to Miller’s removal of the fence.

                                   III. Mental Anguish

       The Estate argues that Ida was entitled to recover damages because the removal of

the fence caused her anxiety, worry, sleepless nights and mental anguish.

                     Indiana courts recognize . . . award compensatory
              damages in certain tort actions where mental anguish is
              unaccompanied by physical injury. When a tort involves the
              invasion of a legal right which by its very nature is likely to
              provoke an emotional disturbance or when the conduct
              causing the injury was inspired by fraud, malice, or like
              motives and the conduct was intentional, such emotional or
              mental anguish supports an award of compensatory damages.

Arlington State Bank v. Colvin, 545 N.E.2d 572, 576-77 (Ind. Ct. App. 1989) (citation

omitted).

       Although there is evidence that Ida was very upset about the removal of the fence,

there is also evidence that the more-than-fifty-year-old wire fence was in such disrepair

that Ida’s horse repeatedly broke through it, that the horse ate Miller’s vegetation on the

other side of the fence, and that in the years prior to the removal of the fence Ida had

repeatedly threatened Miller. There was also evidence that Miller was acting on the


                                             10
belief, albeit incorrect, that the survey represented the true property lines. Based on the

totality of the evidence, it was within the trial court’s discretion to determine that Miller’s

intentional removal of the fence was not by its very nature likely to provoke an emotional

disturbance or inspired by fraud, malice, or like motives. To the extent the Estate argues

otherwise, it is asking us to reweigh the evidence, which we cannot do.

                                   IV. Punitive Damages

       The Estate argues that “[a]ggravating circumstances, such as intentional and

oppressive conduct, are proper grounds for awarding punitive damages” and that, based

on Miller’s conduct, the evidence “overwhelmingly supports an award of punitive

damages . . . .” Appellant’s Br. p. 15. The Estate asserts that an award of punitive

damages is within the trial court’s discretion and cites Indiana Code Section 34-51-3-4

for the proposition that punitive damages may not be more than the greater of three times

the amount of compensatory damages or $50,000. Other than this statute, the Estate cites

no authority discussing the propriety of an award of punitive damages. The failure to

support this argument with citation to authority results in the waiver of the argument. See

Dickes, 981 N.E.2d at 562; App. R. 46(A)(8)(a).

       Waiver notwithstanding, Miller testified that she tore down the fence because she

believed she was the rightful owner of the property based on the survey and the advice of

the sheriff and the township trustee regarding the legal significance of the survey. There

was also evidence Miller advised Ida of her intention to remove the fence by letter sixty

days before she actually removed it and that the relationship between the parties was

mutually acrimonious. The conflicting evidence was weighed by the trial court, and it

                                              11
was within the trial court’s discretion to find that the evidence was insufficient to support

Ida’s request for punitive damages.

                                       V. Attorney Fees

       The Estate also suggests that the trial court should have awarded Ida punitive

damages, costs, and attorney fees pursuant to Indiana Code Section 34-24-3-1, the Crime

Victim’s Compensation Act (“CVCA”), which allows the recovery of treble damages,

costs, reasonable attorney fees, and other expenses for someone who suffers a pecuniary

loss as a result of the violation of certain criminal statutes. At issue here is criminal

trespass as defined by Indiana Code Section 35-43-2-2. As Miller points out, however,

Ida did not timely raise this statute as a basis for recovery of additional damages or

attorney fees.

       Generally a party is precluded from presenting an argument or issue to Indiana

appellate courts unless it first raised that argument or issue to the trial court. Thalheimer

v. Halum, 973 N.E.2d 1145, 1150 (Ind. Ct. App. 2012).

                 “This rule exists because trial courts have the authority to
                 hear and weigh the evidence, to judge the credibility of
                 witnesses, to apply the law to the facts found, and to decide
                 questions raised by the parties. Appellate courts, on the other
                 hand, have the authority to review questions of law and to
                 judge the sufficiency of the evidence supporting a decision.
                 The rule of waiver in part protects the integrity of the trial
                 court; it cannot be found to have erred as to an issue or
                 argument that it never had an opportunity to consider.
                 Conversely, an intermediate court of appeals, for the most
                 part, is not the forum for the initial decisions in a case.
                 Consequently, an argument or issue not presented to the trial
                 court is generally waived for appellate review.”



                                               12
Id. (quoting GKC Indiana Theatres, Inc. v. Elk Retail Investors, LLC., 764 N.E.2d 647,

651 (Ind. Ct. App. 2002) (citations omitted)).

        The Estate argues that Ida raised this issue in her complaint because she alleged

that Miller acted with malice, wanton, willful and/or oppressive conduct when she

trespassed on Ida’s property, that Miller’s intentional and inexcusable malicious conduct

resulted in trespass on Ida’s land, and that punitive damages should be awarded to punish

Miller and deter others, and because she requested attorney fees. Although Ida alleged

intentional wrongdoing by Miller and sought punitive damages and attorney fees, Ida’s

complaint does not reference the CVCA or criminal trespass as a statutory basis for

recovering treble damages and attorney fees, nor were these specific statutory provisions

litigated at trial.

        Further, the fact that Ida specifically raised the CVCA as a basis for recovering

attorney fees and costs in her motion to correct error is insufficient to preserve the issue

for appellate review. See Thalheimer, 973 N.E.2d at 1150 (“Arguments articulated in a

motion to correct error which were not made at trial do not preserve issues for appellate

review.”).     Otherwise, “motions to correct error might contain a bevy of untimely

objections, petty complaints regarding the logistical presentation of evidence, attempts to

rework trial strategies that did not work well, and other untimely arguments that would

distract from the purpose of a motion to correct error.” Id. Because this issue was not

timely raised, it is waived.

        Finally, the Estate argues that attorney fees may be awarded when obdurate or bad

faith behavior is shown. See Saint Joseph’s Coll. v. Morrison, Inc., 158 Ind. App. 272,

                                            13
279, 302 N.E.2d 865, 870 (1973) (explaining there are certain limited exceptions which

exist to the general rule denying the awarding of attorney’s fees, including for obdurate

behavior). According to the Estate, the trial court’s finding that Miller intentionally tore

down the fence without legal authority or justification clearly demonstrates her behavior

was obdurate and oppressive. We disagree that this finding required the trial court to

award Ida attorney fees. As Morrison went on to explain, “the conduct must be vexatious

and oppressive in the extreme before the court can impose special equitable sanctions.”

Id. at 280, 302 N.E.2d at 871. Although the trial court found that Miller intentionally tore

down the fence, it also rejected both parties’ requests for attorney fees, leading us to

conclude that the trial court did not find Miller’s conduct to be vexatious and oppressive

in the extreme. Miller has not established that the trial court’s refusal to award her

attorney fees was clearly erroneous.

                                       Conclusion

       Although the Estate has not established that Ida was entitled to recover litigation

expenses, additional compensatory damages, damages for mental anguish, punitive

damages, or attorney fees, we remand for the trial court award the Estate costs, which

include the filing fee and statutory witness fee. We affirm in part, reverse in part, and

remand.

       Affirmed in part, reversed in part, and remanded.

NAJAM, J., and BAILEY, J., concur.




                                            14
