FOR PUBLICATION
                                                     FILED
                                                   May 25 2012, 8:53 am


                                                          CLERK
                                                        of the supreme court,
                                                        court of appeals and
                                                               tax court




ATTORNEY FOR APPELLANT:                     ATTORNEY FOR APPELLEE:

ALAN D. WILSON                              WILLIAM E. BECK, II
Kokomo, Indiana                             Kokomo, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

CODY DALLAS,                                )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )     No. 80A02-1110-CT-925
                                            )
BRANDON CESSNA,                             )
                                            )
     Appellee-Plaintiff.                    )


                    APPEAL FROM THE TIPTON CIRCUIT COURT
                        The Honorable Thomas R. Lett, Judge
                           Cause No. 80C01-0905-CT-215


                                   May 25, 2012

                            OPINION - FOR PUBLICATION

RILEY, Judge
                                  STATEMENT OF THE CASE

          Appellant-Defendant, Cody Dallas (Dallas), appeals the trial court’s judgment

finding Dallas jointly and severally liable to the Appellee-Plaintiff, Brandon Cessna

(Cessna), for damages following intentional acts of battery.

          We affirm.

                                             ISSUES

          Dallas raises two issues on appeal, which we restate as:

          (1) Whether the trial court erred when it imposed joint and several liability for an

             intentional tort that originated in a crime; and

          (2) Whether Dallas’ intentional touching of Cessna was a proximate cause of

             Cessna’s injuries.

                           FACTS AND PROCEDURAL HISTORY

          In the Fall of 2007, Cessna, a freshman at Indiana University in Bloomington, was

dating Kayla Schoultz (Schoultz).          Schoultz had previously dated Cody Lewellen

(Lewellen), a student at IUPUI. In September of 2007, Schoultz was visiting with Cessna

when she received a phone call from Lewellen. Cessna took the phone and told Lewellen

that Schoultz did not want to talk to him. He also used Facebook to tell Lewellen not to

have any more contact with Schoultz. In turn, Lewellen posted derogatory language on

Cessna’s Facebook Wall. At some point, Cessna called Lewellen telling him that “he

wanted [Lewellen] to come to Bloomington so he could fight [him].” (Appellant’s App.

p. 61).



                                                2
      Around midnight, on September 28, 2007, Lewellen, together with Dallas and

another friend, Kyle Morris (Morris), drove to Bloomington to pick up Dallas’ car which

had been left in Bloomington after a sporting event the previous weekend. On the way to

Bloomington, Dallas learned for the first time that Lewellen and Cessna planned to fight.

Lewellen told Dallas that there was a girl he used to talk to and “Cessna was with her

now[.]” He also informed his friends about Cessna’s phone call. Lewellen and Dallas

started texting Cessna, telling him that “he was going to get his butt kicked.”

(Appellant’s App. p. 69). Cessna responded “Oh, you can think whatever you want. I’m

drunk, so that’s the only way you’ll be able to beat me up.” (Appellant’s App. p. 69).

Arrangements were made to meet up at the Eigenmann Quad.

      Outside the Eigenmann Quad, Morris and Dallas hid out of sight behind an air

conditioning unit as Lewellen faced off against Cessna. Cessna and Lewellen had words

and began arguing. They pushed and shoved each other. Lewellen threw a left hook and

hit Cessna on the right side of the face. Cessna fell straight to the ground. Lewellen

“dragged him a little ways, straddled him, and then gave him a bunch of blows to the

head and face.” (Transcript p. 173). Cessna never hit Lewellen. As Dallas and Morris

emerged from behind the air conditioning unit, Morris noticed that Cessna was on his

back, bleeding out of his nose, and appeared to be unconscious. Lewellen turned and

started to walk to the car with Morris. When Lewellen looked back, he saw Dallas

kicking Cessna right in the face.     Immediately after the fight, Lewellen contacted

Schoultz and told her that he had just left Cessna “in a puddle of his own blood.”

(Appellant’s App. p. 142).


                                           3
        Later that night, Lewellen was contacted by the police and gave a statement. On

September 29, 2007, the State filed an Information, charging him with battery resulting in

serious bodily injury, a Class C felony. After Lewellen was charged, he agreed to contact

Dallas to get a tape recorded statement. During this telephone conversation, Dallas

admitted that he “only kicked [Cessna] one time. And it was a good kick though, I broke

his nose, I’m sure of that.” (Appellant’s App. p. 81). On July 1, 2008, the State charged

Dallas with disorderly conduct, a Class B misdemeanor. Both Lewellen and Dallas

entered into plea agreements with the State. On January 13, 2009, Lewellen pled guilty

to battery resulting in serious bodily injury, a Class C felony, and was sentenced to four

years with three years suspended to probation. On February 27, 2009, Dallas pled guilty

to disorderly conduct, a Class B misdemeanor, and was ordered to pay court costs and a

fine.

        Following the beating, Cessna was taken to the hospital where he remained for

twelve hours. He suffered cuts and abrasions to his head, bruising around his eyes and

face, a fractured nose, and a subarachnoid bleed in his brain. He was addled and had

trouble thinking. Cessna’s family members indicated that he has undergone a personality

change because of the assault: he is anxious and has trouble coping with multiple voices.

        On May 26, 2009, Cessna filed a Complaint against Lewellen and Dallas alleging

that Lewellen and Dallas had intentionally battered him and seeking damages for his

personal injuries. On June 29, 2009, a default judgment was entered against Lewellen,

which was affirmed by this court on November 29, 2010. See Lewellen & Dallas v.

Cessna, No. 80A05-1005-CT-330 (Ind. Ct. App. Nov. 29, 2010). On July 26, 2011, a


                                            4
bench trial was conducted. On September 13, 2011, the trial court entered Special

Findings of Fact, Conclusions of Law and Judgment, concluding, in pertinent part, that

      2. Both [Lewellen and Dallas] committed intentional acts of battery upon
      Cessna that injured him.

      3. Dallas and Lewellen’s intentional acts of battery against Cessna
      combined for one indivisible injury, namely the physical damages and
      personal injuries to Cessna.

      ***

      10. Lewellen was contacted by the IU police and gave a statement.
      Lewellen agreed to call [Dallas] and tape record the statement. In that
      telephone call he recalled that Dallas said, “Oh, I . . . I only kicked him one
      time.” And he said, “And, it was a good kick though, I broke his nose. I’m
      sure of that.”

      11. Lewellen, in his deposition and at trial, described a discussion in the
      car after the attack on Cessna where he saw blood on the shoe Dallas had
      on. The blood was from the kick to Cessna’s face. There was a discussion
      about Cessna’s blood on Dallas’ shoe.

      12. Dallas denied at trial that he “. . . kicked Cessna in the face . . .”
      choosing instead to describe a more gentle touching of Cessna with his foot
      while Cessna was unconscious or nearly unconscious on the ground. That
      testimony was not credible.

      ***

      20. [Lewellen] pled guilty to battery resulting in serious bodily injury with
      respect to the beating of [Cessna] in Monroe Circuit Court . . . The [c]ourt
      finds that the plea of Lewellen was based upon the same evidence as the
      civil proceeding herein.

      21. [Dallas] pled guilty to disorderly conduct in connection with the
      beating of [Cessna] . . . The [c]ourt finds that the plea of Dallas was based
      upon the same evidence as the civil proceeding herein.

      ***




                                            5
          3. That [Lewellen and Dallas] are jointly and severally liable to [Cessna]
          for damages for intentional acts of battery inflicted upon [Cessna] on the
          29th day of September 2007.

          IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that
          [Cessna] should be and hereby is awarded a JUDGMENT of damages
          against [Lewellen] and [Dallas], jointly and severally, in the sum of
          Seventy Five Thousand Dollars ($75,000), plus the costs of this action.

(Appellant’s App. pp. 10-12, 15).

          Dallas now appeals.1 Additional facts will be provided as necessary.

                                     DISCUSSION AND DECISION

                                           I. Standard of Review

          Here, the trial court entered special findings of fact and conclusions of law

pursuant to Ind. Trial Rule 52(A). Therefore, our standard of review is two-tiered: we

first determine whether the evidence supports the trial court’s findings and second, we

determine whether the findings support the judgment. Briles v. Wausau Ins. Companies,

858 N.E.2d 208, 212 (Ind. Ct. App. 2006). Findings of fact are clearly erroneous when

the record lacks any reasonable inference from the evidence to support them, and the trial

court’s judgment is clearly erroneous if it is unsupported by the findings and the

conclusions which rely upon those findings. Id. In establishing whether the findings or

the judgment are clearly erroneous, we consider only the evidence favorable to the

judgment and all reasonable inferences to be drawn therefrom. Id.

          While conducting our review, we cannot reweigh the evidence or judge the

credibility of any witness, and must affirm the trial court’s decision if the record contains


1
    Lewellen did not appeal the trial court’s entry against him.


                                                        6
any supporting evidence or inferences. Id. However, while we defer substantially to

findings of fact, we do not do so for conclusions of law. Id. We evaluate conclusions of

law de novo and owe no deference to a trial court’s determination of such questions. Id.

        We note that in this case, the trial court adopted Cessna’s proposed findings and

conclusions verbatim.         Although wholesale adoption is not prohibited, we do not

encourage trial courts to engage in this practice. See Carpenter v. Carpenter, 891 N.E.2d

587, 593 (Ind. Ct. App. 2008). We have recognized that “this practice weakens our

confidence as an appellate court that the findings are the result of considered judgment by

the trial court. Id. Although we do not apply an altered standard of review when a trial

court adopts a party’s findings verbatim, “near verbatim reproductions may appropriately

justify cautious appellate scrutiny.” Id.

                                   II. Joint and Several Liability2

        Dallas contends that the trial court erred when it imposed joint and several liability

following the intentional tort he committed on Cessna. Referencing our supreme court’s

opinion in Ind. Dept. of Ins. v. Everhart, 960 N.E.2d 129 (Ind. 2012), Dallas asserts that

the enactment of the Comparative Fault Act abrogated the old rule of joint and several

liability in suits to which the Act applies. As such, Dallas requests us to reverse the trial




2
 Cessna asserts that Dallas waived his argument on joint and several liability because he failed to raise it
during trial. We disagree. In his proposed findings of fact and conclusions of law submitted to the trial
court, Dallas requested the trial court to assess fault between the parties, with 45% allocated to Cessna,
55% allocated to Lewellen, and 0% allocated to Dallas. Because counsel elected to forego closing
argument at trial and instead chose to submit proposed findings and conclusions, we find that Dallas’
argument, contesting the joint and several liability, was properly raised by way of his proposed findings
and conclusions, and therefore not waived.


                                                     7
court’s judgment against him and to remand for determination of his share of the nominal

damages.

       Indiana’s Comparative Fault Act governs “any action based on fault that is

brought to recover damages for injury or death to a person or harm to property.” Ind.

Code § 34-51-2-1. At common law, joint tortfeasors were jointly and severally liable for

the indivisible harm they caused a plaintiff. Hoesel v. Cain, 53 N.E.2d 165 (Ind. 1944).

A plaintiff could sue any of the joint tortfeasors and recover damages in the amount of

the entire harm even though another joint tortfeasor had a hand in the injury. Id. at 170-

71. The Comparative Fault Act changed this landscape when it abrogated the common

law rule by requiring the jury to allocate a percentage of responsibility for the plaintiff’s

injuries to each defendant and any nonparty who contributed to those injuries and each

defendant need only pay his proportional share. I.C. § 34-51-2-7; -8. Although the

purpose behind the comparative fault theory is to ameliorate the harsh effects of the

common law theory of contributory negligence, the Act applies even in cases of

intentional torts. Coffman v. Rohrman, 811 N.E.2d 868, 872 (Ind. Ct. App. 2004). “In

the case of intentional torts, the Act does not affect a defendant’s liability but operates to

decrease the amount of damages a plaintiff recovers if he has not appropriately mitigated

his damages.” Id. As such, in intentional torts originating in a crime, the Comparative

Fault Act explicitly provides that:

       In the case of an intentional tort, the plaintiff may recover one hundred
       percent (100%) of the compensatory damages in a civil action for
       intentional tort from a defendant who was convicted after a prosecution
       based on the same evidence.



                                              8
I.C. § 34-51-2-10.

       Here, the trial court used the same evidence to find Dallas civilly liable for

Cessna’s damages as the State presented to prosecute and convict Dallas for Cessna’s

assault. Dallas pled guilty to disorderly conduct, a Class B misdemeanor. In order to

convict Dallas of this misdemeanor, the State was required to prove beyond a reasonable

doubt that Dallas intentionally engaged in fighting. See I.C. § 35-45-1-3(a). During the

civil proceedings in the instant cause, the detective investigating Cessna’s assault in the

criminal case testified that as a result of Dallas beating Cessna on the night of September

28, 2007, a criminal charge was filed against him. Dallas admitted that he was charged

with a misdemeanor resulting from the fight with Cessna. He told the court that he did

not know until 2009, when he was pulled over for speeding, that he had been charged

with a criminal act for “this incident involving [Cessna].” (Tr. p. 63). Even though

Dallas pled guilty, the record reflects that the same evidence used in his prosecution and

plea agreement was also presented at trial during the civil proceeding. Consequently,

Dallas may be held liable for 100% of Cessna’s damages.

       Nevertheless, in support of his argument that he only should be held liable for the

damages specifically caused by him, Dallas now directs this court’s attention to our

supreme court’s recent opinion in Ind. Dept. of Ins. v. Everhart, 960 N.E.2d 129 (Ind.

2012). Dallas contends that in Everhart, our supreme court interpreted the Comparative

Fault Act as abrogating the old rule of joint and several liability in suits to which the Act

applies. While we agree that the Act changed the old common law rule of joint and

several liability, this abrogation only relates to liability grounded in negligence.


                                              9
       A leading effect of the Act was to abolish the rules that contributory
       negligence constituted a complete bar to recovery in most suits for
       negligence. Instead, the Act requires a jury to allocate a percentage of
       responsibility for the plaintiff’s injures to each defendant and any nonparty
       who contributed to those injuries, and each defendant need only pay his
       proportional share. In exchange for giving negligent plaintiffs greater
       access to the courts, however, the Act abrogates the old rule of joint and
       several liability in suits to which the Act applies.

Everhart, 960 N.E.2d at 138 (emphasis added). In a related vein, we noted in Becker v.

Fisher, 852 N.E.2d 46, 49 (Ind. Ct. App. 2006), that a jury instruction by which the jury

is instructed to assign percentages of liability, as proclaimed by Everhart, “is irrelevant to

intentional tort cases.”

       It is well settled that in examining a statutory provision, we look at the statute as a

whole and give common and ordinary meaning to the words employed.                  Palmer v.

Comprehensive Neurologic Services, P.C., 864 N.E.2d 1093, 1098 (Ind. Ct. App. 2007),

trans. denied. Our legislature does not intend by a statute to make any change in the

common law beyond what it declares either in express terms or by unmistakable

implication. Id. As a statute in derogation of the existing common law, the Act must be

strictly construed. Id.

       The Act clearly stipulates that Cessna may recover one hundred percent of his

damages for the intentional tort from Dallas, as Dallas pled guilty after a prosecution

based on the same evidence used in the civil proceedings.           See I.C. § 34-51-2-10.

Because both Dallas and Lewellen were involved in the battery on Cessna and both were

held liable after a criminal prosecution based on the same evidence, the imposition of




                                             10
joint and several liability for Cessna’s damages complies with the statutory requirement

of I.C. § 34-51-2-10. Therefore, we affirm the trial court.

                                     III. Proximate Cause

          Additionally, Dallas contends that the trial court erred when it found that Dallas’

touching of Cessna proximately caused Cessna’s head and facial injuries. Although the

trial court explicitly included in its findings that Dallas’ trial testimony describing “a

more gentle touching of Cessna with his foot” was not credible, Dallas now urges us to

adopt the incredible dubiosity rule in civil proceedings by pointing out that “Lewellen’s

testimony is full of inconsistencies motivated by his own self-interests.” (Appellant’s Br.

p. 22).

          Within the narrow confines of the incredible dubiosity rule, a court may impinge

upon a jury’s function to judge the credibility of a witness. Love v. State, 761 N.E.2d

806, 810 (Ind. 2002). If a sole witness presents inherently improbable testimony and

there is a complete lack of circumstantial evidence, a defendant’s conviction may be

reversed. Id. Application of this rule is rare and the standard to be applied is whether the

testimony is so incredibly dubious or inherently improbable that no reasonable person

could believe it. Id.

          The incredible dubiosity rule represents an exception to the general prohibition

against reweighing a witness’ testimony in criminal proceedings and its application is

extremely limited and sporadic. In this light—and even discounting the disparity in

burden of proof between criminal and civil proceedings—we decline Dallas’ invitation to

extend the applicability of the rule to civil proceedings. Therefore, because Dallas’


                                              11
argument amounts to a reweighing of witness credibility, we refrain from addressing his

argument.

                                     CONCLUSION

      Based on the foregoing, we conclude that the trial court properly imposed joint

and several liability. We will not address Dallas’ argument on proximate cause as it

amounts to a reweighing of a witness’ credibility.

      Affirmed.

NAJAM, J. and DARDEN, J. concur




                                            12
