MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Dec 21 2018, 10:06 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEES
John A. Kraft                                            Mark J. Crandley
Young Lind Endres & Kraft                                Barnes & Thornburg, LLP
New Albany, Indiana                                      Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Wayne Zollman and Teresa                                 December 21, 2018
Zollman,                                                 Court of Appeals Case No.
Appellants-Defendants,                                   18A-PL-1537
                                                         Appeal from the Clark Circuit
        v.                                               Court
                                                         The Honorable Joseph P. Weber,
James Albert Costello and Lisa                           Judge
Renee Costello,                                          Trial Court Cause No.
Appellees-Plaintiffs.                                    10C03-0901-PL-1




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-1537 | December 21, 2018                Page 1 of 11
                                STATEMENT OF THE CASE
[1]   Appellants-Defendants, Wayne and Teresa Zollman (collectively, Zollman),

      appeal the trial court’s findings of fact and conclusions thereon in favor of

      Appellee-Plaintiffs, James Albert and Lisa Renee Costello (collectively,

      Costello) awarding Costello damages in the amount of $41,543 after Zollman

      destroyed 31 trees on Costello’s property.


[2]   We affirm.


                                                   ISSUES
[3]   Zollman presents us with three issues on appeal, which we restate as:


          (1) Whether the trial court abused its discretion by finding that Zollman’s

              maintenance of a lime pile uphill from Costello’s property line and trees

              was the direct cause of the destruction of the trees;

          (2) Whether the trial court abused its discretion by admitting expert

              testimony in the form of an opinion pursuant to Indiana Rule of

              Evidence 703; and

          (3) Whether the trial court’s damage award was supported by sufficient

              evidence.


                      FACTS AND PROCEDURAL HISTORY
[4]   Zollman and Costello are neighbors, both owning adjacent farming properties

      in Clark County, Indiana. The boundary line between the two contiguous

      properties is marked by a fence. The Costello property included 31 mature ash

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1537 | December 21, 2018   Page 2 of 11
      trees, clustered near each other close to the Zollman land, which created an

      “arboreal setting” in the back of Costello’s property. (Transcript p. 6). At a

      certain point, Costello noticed that the trees began to rot, wither, and die, while,

      at the same time, Zollman had piled lime dust uphill from the Costello’s

      property line and the tree cluster. After noticing the trees’ deterioration,

      Costello took soil samples from around the tree trunks for testing. Eventually,

      the trees rotted from the ground up and the entire cluster died and had to be

      removed.


[5]   On October 20, 2005, Costello filed his initial Complaint against Zollman to

      resolve a dispute pertaining to the boundary line between the two properties.

      On August 15, 2011, Costello amended his Complaint, adding a claim for

      trespass and a request for damages due to the destruction of the 31 ash trees.

      On January 14, 2013, Costello filed his motion for summary judgment, which

      was denied by the trial court on August 26, 2013. Approximately a year later,

      on August 14 and 20, 2014, the trial court conducted a bench trial. On October

      28, 2014, the trial court issued its judgment, granting Zollman the property east

      of the fence line and awarding a monetary judgment against Costello. As to the

      trespass claim, the trial court concluded that there was no evidence to support

      Costello’s damage claim for the 31 ash trees.


[6]   Costello appealed the trial court’s judgment. In our memorandum opinion in

      Costello v. Zollman, 2016 WL 3060139 (May 31, 2016), trans. denied (Costello I),

      we determined that there was sufficient evidence to support Costello’s trespass

      claim, and we reversed the trial court on that issue. On October 20, 2017, the

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1537 | December 21, 2018   Page 3 of 11
      trial court held a hearing on the remanded issue. Two months later, on

      December 20, 2017, the trial court entered its Order, finding that “Zollman

      caused the loss of Costello’s trees and that the trees were appropriately valued

      at $41,543 and that amount is hereby awarded to [Costello].” (Appellant’s

      App. Vol. II, p. 28). After Zollman moved for reconsideration of the Order due

      to lack of findings and conclusions of law, Costello tendered his proposed

      findings. The trial court adopted these findings and reaffirmed its judgment

      award in favor of Costello.


[7]   Zollman now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
                                            I. Standard of Review


[8]   Where, as here, the trial court enters findings of fact and conclusions thereon

      pursuant to Indiana Trial Rule 52(A), our standard of review is well-settled.

      First, we determine whether the evidence supports the findings and second,

      whether the findings support the judgment. Kwolek v. Swickard, 944 N.E.2d 564,

      570 (Ind. Ct. App. 2011), trans. denied. In deference to the trial court’s

      proximity to the issues, we disturb the judgment only when there is no evidence

      supporting the findings or the findings fail to support the judgment. Id. We do

      not reweigh the evidence, but consider only the evidence favorable to the trial

      court’s judgment. Id. Challengers must establish that the trial court’s findings

      are clearly erroneous. Id. Findings are clearly erroneous when a review of the

      record leaves us firmly convinced a mistake has been made. Id. However,

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       while we defer substantially to findings of fact, we do not do so to conclusions

       of law. Id. Additionally, a judgment is erroneous under Indiana Trial Rule 52,

       if it relies on an incorrect legal standard. Id. We evaluate questions of law de

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

       Id.


[9]    We note that in this case, the trial court adopted Costello’s proposed findings

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

       trial courts to engage in this practice. Dallas v. Cessna, 968 N.E.2d 291, 296

       (Ind. Ct. App. 2012). We have recognized that “this practice weakens our

       confidence as an appellate court that the findings are the result of the

       considered judgment by the trial court.” Id. (quoting Carpenter v. Carpenter, 891

       N.E.2d 587, 593 (Ind. Ct. App. 2008)). While 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. Cause of Damages


[10]   Zollman contends that the trial court erred in concluding that Zollman’s

       trespass on Costello’s property was responsible for the destruction of the trees.

       Specifically, in Costello I, this court addressed Costello’s claim of trespass

       against Zollman and articulated certain findings before reversing the trial

       court’s conclusion that there was no evidence to support a trespass claim and




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1537 | December 21, 2018   Page 5 of 11
       remanding to the trial court. Zollman now requests this court to revisit this

       evidence.


[11]   At common law, a plaintiff bringing a trespass action must establish two

       elements: (1) the plaintiff must show he possessed the land when the alleged

       trespass occurred, and (2) the plaintiff must demonstrate the alleged trespasser

       entered the land without legal right. Holland v. Steele, 961 N.E.2d 516, 525 (Ind.

       Ct. App. 2010), trans. denied. Relying on Lever Bros. Co. v. Langdoc, 655 N.E.2d

       577, 582 (Ind. Ct. App. 1995), we concluded in Costello I, that “a trespass could

       occur if there was a direct causal relation between the actor’s conduct and the

       intrusion of the foreign matter upon the possessor’s land that caused the harm.”

       Costello I, at *9. After reviewing the record of the trial court’s proceedings, we

       found that:


               It was undisputed the Zollmans stored lime dust piles near their
               barn, the trees were downhill from the barn, the Costellos have
               never used lime on their property, lime increases the pH levels in
               soil, and high pH levels harm trees. Based on these undisputed
               facts, the laboratory results [Costello] provided to Mills [the
               Costellos’ certified arborist], and Mills’ experience as a certified
               arborist, Mills concluded—in his professional opinion—there
               was a causal connection between the lime on the Zollman Real
               Estate and the death of the Costellos’ trees. Because we conclude
               the trial court’s findings are clearly erroneous, coupled with the
               fact the trial court made no other findings pertaining to the issue,
               we remand to the trial court to enter further findings on this issue
               consistent with the evidence presented.


       Costello I, at *11.


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[12]   Any action taken upon remand must conform to the opinion and order

       promulgated by the court of appeals. Muncy v. Harlan Bakeries, Inc., 930 N.E.2d

       591, 600 (Ind. Ct. App. 2010). Nevertheless, upon remand some discretion is

       vested in the lower court, depending on the circumstances of the case and the

       terms of the opinion ordering further action. Id. Therefore, an order, like here

       ‘to enter further findings on this issue consistent with the evidence presented,’

       “requires action consistent with the terms of the opinion.” Id.


[13]   Upon remand, the trial court entered findings, supporting Costello I’s analysis,

       and concluding in turn that “[b]y maintaining a large lime pile directly uphill

       from the tress and allowing it to run downhill into [Costello’s] property,

       [Zollman] committed the very tort described in Lever Bros., and in the [c]ourt of

       [a]ppeals’ opinion in this case.” (Appellant’s App. Vol. II, p. 27). As the trial

       court’s findings of fact and conclusion thereon are in line with our opinion in

       Costello I, we decline Zollman’s invitation to reweigh the evidence yet again and

       we affirm the trial court’s conclusion of Zollman’s trespass as the cause of

       damages.


                                            III. Opinion Testimony


[14]   Not disputing the admissibility of Costello’s expert testimony on the issue of

       valuation, Zollman contends that the trial court incorrectly admitted the

       expert’s testimony on the issue of causation. Zollman maintains that because

       the expert’s opinions about the soil’s pH composition were based on a report




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1537 | December 21, 2018   Page 7 of 11
       generated by an independent company and the expert had not personally taken

       or tested the soil samples, it was inappropriate to rely on his testimony.


[15]   We review a trial court’s decision on the admissibility of the evidence for an

       abuse of discretion, which occurs when the decision is against the logic and

       effect of the facts and circumstances before the court. Weinberger v. Boyer, 956

       N.E.2d 1095, 1104 (Ind. Ct. App. 2011), trans. denied. Even where the trial

       court’s decision is erroneous; however, we will not reverse the judgment where

       the decision does not prejudice the substantial rights of the parties. Id.


[16]   Although inadmissible evidence typically cannot be introduced at trial,

       inadmissible evidence may nevertheless be relied upon for the purposes of

       expert-rendered opinion testimony. Indiana Rule of Evidence 703 provides that


               An expert may base an opinion on facts or data in the case that
               the expert has been made aware of or personally observed.
               Experts may testify to opinions based on inadmissible evidence
               provided that it is of the type reasonably relied upon by experts in
               the field.


       There are limits however to the extent that a party proffers opinion testimony

       that is merely a “conduit” for placing inadmissible evidence before the court

       without meaningful opportunities for cross-examination. See Barrix v. Jackson,

       973 N.E.2d 22, 26 (Ind. Ct. App. 2012), trans. denied. As our supreme court has

       recognized,


               Some experts customarily gather information from a variety of
               other experts and authoritative sources and rely upon it in

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1537 | December 21, 2018   Page 8 of 11
               reaching their opinions. When an expert witness’ own
               independent opinion is arrived at in this manner and it is
               introduced into evidence and the expert witness is subject to
               cross-examination, that part of the substrata of information
               which aided in the formation of the opinion, though hearsay in
               nature and though not falling within any hearsay exception, may
               nevertheless be admissible for use by the trier of fact in judging
               the weight of the opinion.


       Id. (quoting Miller v. State, 575 N.E.2d 272, 274 (Ind. 1991)). However, such

       hearsay is inadmissible where it is merely a restatement of another’s conclusion

       “as a conclusory answer to an ultimate fact in issue,” such that the veracity of

       the statement is not “subject to the test of cross-examination.” Id.


[17]   The evidence reflects that, upon first noticing the trees’ deterioration, Costello

       took soil samples from around the trunks which she had tested by an

       independent company. At trial, Costello introduced Greg Mills (Mills), a

       certified arborist—whose credentials were not challenged by Zollman—as her

       expert. Mills explained that the “compounds of the soil” are included in the

       “field of arbor culture.” (Tr. First Trial, Vol. II, p. 90). He elaborated that even

       though he occasionally performs soil tests for customers, Costello only engaged

       him to calculate the value of the damaged trees. During the bench trial, Mills

       testified that Costello sent him the report of the soil sample analysis by certified

       mail. Based on his review of the test results, Mills reached his own independent

       conclusions. He explained that the test results of the soil indicated a high pH,

       in “the category called alkaline.” (Tr. First Trial, Vol. II, p. 112). Offering his

       own study of the test results performed by the testing company, Mills explained


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1537 | December 21, 2018   Page 9 of 11
       the results’ meaning and reached his conclusion as to what happened to the

       trees based on his evaluation of the test results, opining that the pH content of

       the soil killed the trees.


[18]   Instead of being a mere conduit to introduce the report and to regurgitate the

       report’s information, Mills interpreted and explained the test results. Subjecting

       these results to his independent analysis, Mills reached his own conclusions,

       which were subject to cross-examination by Zollman. Accordingly, we cannot

       conclude that the trial court abused its discretion by admitting Mills’ testimony

       with respect to the cause of the trees’ deterioration.


                                              IV. Damage Award


[19]   Lastly, Zollman challenges the damage award in the amount of $41,543 granted

       to Costello by the trial court. Zollman contends that although Mills testified

       about the general valuation of the trees, no evidence was introduced “as to the

       value of each tree purportedly lost.” (Appellant’s Br. p. 18).


[20]   During the bench trial, Costello offered Mills’ report into evidence identifying

       the value of each of the 31 ash trees. Mills testified on the commonly-used

       calculation method, explaining that he measured the diameter of each tree

       stump, examined the cost of replacement for a tree with that specific diameter,

       determined the price per square inch from that amount, calculated the

       difference between the replacement trunk and the trunk of the existing tree, and

       applied certain adjustments based on the condition of the tree, location, and

       species. Mills explained that he employed this methodology for each of the

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1537 | December 21, 2018   Page 10 of 11
       trees. Based on his calculations, the total value of the trees amounted to

       $41,543. Zollman did not object to Mills’ evaluation testimony or to the

       introduction of his report into evidence, nor did Zollman cross-examine Mills

       on the calculations or offer rebuttal evidence. Therefore, as Costello introduced

       sufficient evidence to support Mills’ valuation of the trees, the trial court

       properly entered the damage award in favor of Costello.


                                             CONCLUSION
[21]   Based on the foregoing, we hold that the trial court did not abuse its discretion

       by finding that Zollman’s maintenance of a lime pile uphill from Costello’s

       property line and trees was the direct cause of the destruction of the trees; the

       trial court properly admitted expert testimony in the form of an opinion; and

       the trial court’s damage award was supported by sufficient evidence.


[22]   Affirmed.


[23]   Vaidik, C. J. and Kirsch, J. concur




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