                                                                            Apr 21 2015, 8:25 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
      John J. Schwarz, II                                        Eric H. Burns
      Schwarz Law Office, PC                                     Reid D. Murtaugh
      Hudson, Indiana                                            Withered Burns, LLP
                                                                 Lafayette, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Pamela Frazee,                                             April 21, 2015

      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 79A04-1406-PL-269
              v.                                                 Appeal from the Tippecanoe Superior
                                                                 Court

      Douglas J. Skees and                                       The Honorable Gregory J. Donat,
      Angela D. Skees,                                           Judge
      Appellees-Defendants.                                      Cause No. 79D04-1205-PL-18




      Najam, Judge.


                                         Statement of the Case
[1]   Pamela Frazee filed a complaint against Douglas and Angela Skees (“the

      Skeeses”), which arose out of a dispute regarding a subsurface drain running

      through the parties’ properties in Tippecanoe County. In her complaint, Frazee

      Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015                      Page 1 of 35
alleged property damage, nuisance, and criminal trespass. The Skeeses filed a

counterclaim alleging negligence, nuisance, criminal trespass, and invasion of

privacy. All parties sought damages pursuant to the Crime Victim’s Relief Act,

Indiana Code Section 34-24-3-1. Following a bench trial, the trial court found

in favor of Frazee on her nuisance claim and in favor of the Skeeses on their

trespass claim. The trial court awarded attorney’s fees to both parties, and it

awarded treble damages to the Skeeses. Frazee now appeals, and the Skeeses

cross-appeal. Collectively, they present several issues for our review, which we

revise and restate as follows:

        1. Whether the trial court erred when it concluded that the
        subsurface drain was a mutual drain.

        2. Whether the trial court erred when it concluded that the
        Skeeses did not abandon their rights in the subsurface, mutual
        drain.

        3. Whether the trial court erred when it concluded that the
        Skeeses did not trespass when they connected a perimeter drain
        to the subsurface drain.

        4. Whether the trial court erred when it concluded that Frazee
        was solely responsible for the costs of repairs made to a broken
        portion of the subsurface drain that ran through her property.

        5. Whether the trial court erred when it determined that Frazee
        committed a criminal trespass and when it awarded treble
        damages and attorney’s fees to the Skeeses pursuant to the Crime
        Victim’s Relief Act.

        6. Whether the trial court abused its discretion when it awarded


Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015    Page 2 of 35
              attorney’s fees to Frazee.


[2]   We affirm the trial court’s conclusions that the subsurface drain was a mutual

      drain and that the Skeeses did not abandon the drain. Thus, we also affirm its

      judgment that the Skeeses did not trespass when they connected their perimeter

      drain to the subsurface drain. Further, we affirm the court’s conclusion that

      Frazee was solely responsible for the costs of the repairs that she had made to

      the portion of the subsurface drain that ran through her property. However, we

      reverse the trial court’s judgment that Frazee committed a criminal trespass,

      and, therefore, we also reverse the award of treble damages and attorney’s fees

      to the Skeeses. Finally, we reverse the trial court’s award of attorney’s fees to

      Frazee.


                                  Facts and Procedural History
[3]   Frazee and the Skeeses are neighbors with a contentious relationship. Their

      properties border the southbound side of U.S. Highway 52 (“Highway 52”) in

      Tippecanoe County. The Skeeses’ property (“the Skees Parcel”), which they

      acquired in 1997, sits north of Frazee’s property (“the Frazee Parcel”), which

      she purchased in 2006. A portion of the Frazee Parcel extends north and west,

      parallel to the Skees Parcel. A strip of land owned by Tippecanoe County (“the

      County Parcel”) divides the eastern boundary of this part of the Frazee Parcel

      and the western boundary of the Skees Parcel. The Skees Parcel has a higher

      elevation than the County Parcel, and the County Parcel has a higher elevation

      than the Frazee Parcel. All properties sit atop a high water table, and, in 2011,


      Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015   Page 3 of 35
      when the current dispute arose, the area had received more rain than normal.

      Surface water naturally drains westward along a natural swale from the Skees

      Parcel at Highway 52, across the County Parcel and towards the Frazee Parcel.


[4]   Approximately seventy to eighty years before the current dispute, a clay tile

      drain (“the subsurface drain” or “the drain”) was placed under the property

      now owned by the Skeeses, the County, and Frazee. The subsurface drain

      began, as four-inch pipe, on the Skees Parcel at Highway 52, and it traveled

      along the path of the swale. Near the point where the Skees Parcel intersected

      the County Parcel, the subsurface drain expanded from a four-inch clay tile

      drain to a six-inch clay tile drain. The six-inch clay tile drain then traveled

      through the Frazee Parcel and, eventually, emptied into a nearby stream.


[5]   At some point,1 Frazee installed an open-loop geothermal system on her

      property, which discharged its waste water into the six-inch subsurface drain.

      During the installation of the geothermal system, Frazee discovered that a

      portion of the subsurface drain under her property had been crushed by tree

      roots and, as a result, did not function properly. Thus, to properly complete the

      geothermal system, Frazee had to repair the subsurface drain. Her repair

      replaced the broken section of the clay tile drain with new, six-inch plastic drain

      pipe, which connected at a blowout.




      1
        The record is not well developed with respect to the times various events occurred. As such, we simply
      refer to a number of events as having occurred “at some point” after a prior event.

      Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015                         Page 4 of 35
[6]   Subsequently, in March 2011, Frazee began construction on the second of two

      barns on her property, both of which now sit southwest of the County Parcel

      and west of the Skeeses’ home. The second barn sits directly atop the natural

      swale. When Frazee began construction on the second barn, on March 11,

      2011, she revisited the blowout to check the functionality of the subsurface

      drain. When she did, she found free-flowing toilet paper and sewage in the

      subsurface drain. Frazee called the Tippecanoe County Health Department

      (“Health Department”) to report her findings.


[7]   Ron Noles, the Chief Environmentalist at the Health Department, received

      Frazee’s call. Noles went to the Frazee Parcel, and, after he had viewed the

      blowout to confirm the presence of sewage in the subsurface drain, Noles

      searched the County’s records for the septic systems of the homes immediately

      adjacent to the Frazee Parcel. Noles discovered Frazee’s record but could not

      find records for the Skeeses’ home or for another of Frazee’s neighbors, the

      Dearths.2 Consequently, Noles ordered dye tests of those septic systems, which

      involves the flushing of florescent green dye down a toilet within a home.

      Noles conducted the dye test at the Skeeses’ home on March 22, and the dye

      appeared at the blowout on the Frazee Parcel that same day, indicating a

      positive test for sewage from the Skeeses’ home.




      2
          The Dearths are not now, and have never been, a party to this action.

      Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015     Page 5 of 35
[8]   The Health Department confirmed that the Skeeses’ system was inadequate,

      which had resulted in the discharge of sewage onto the Frazee Parcel.3 At the

      time of the dye test, the Skeeses’ home operated on its original septic system,

      which lacked an absorption field and was deemed to be too small. The Skeeses’

      home was also found to be improperly plumbed. The sewage from only one

      bathroom emptied into the old septic system, but the remainder of the home

      emptied into its basement floor drain, a four-inch clay tile drain. The basement

      floor drain, in turn, connected to the subsurface drain. The Skeeses had

      inspected their septic system when they purchased their home, but that

      inspection did not reveal any problems. Before the dye test, the Skeeses did not

      know about the sewage discharging into the subsurface drain and onto the

      Frazee Parcel.


[9]   As a result of the investigation, the Health Department issued abatement orders

      to the Skeeses and the Dearths, which directed them to fix their septic systems

      in order to stop the discharge of sewage onto Frazee’s land.4 The Health




      3
        Noles performed a dye test at the Dearths on March 31, which also indicated a positive test for sewage at
      the blowout. The septic system for the Dearths’ home was also inadequate, but the Dearths had another,
      compliant septic system on an adjacent property that they owned. They connected their home to that system
      and fixed their sewage problem. After that, the Dearths had no further involvement with the Health
      Department.
      4
        The presence of sewage in a subsurface drain violates an Indiana State Department of Health Rule, see 410
      Ind. Admin. Code 6-8.3, and Tippecanoe County Ordinance 99-30-CM. The ordinance incorporates Title
      410, Article 6, Rule 8.1 of the Indiana Administrative Code, a provision repealed on January 1, 2011. See
      Ind. Reg. LSA Doc. No. 09-7 (Aug. 19, 2010). Although that provision was repealed before the dispute arose
      in this case, the parties also cite to Rule 8.1. Rule 8.1 was repealed and replaced by Rule 8.2, which has also
      since been repealed and replaced by Rule 8.3. See Ind. Reg. LSA Doc. No. 12-156 (Oct. 19, 2012).
      Nevertheless, Rule 8.3 considers a failure of “residential on-site sewage system” to be a violation of the
      Indiana State Department of Health Rules. 410 I.A.C. 6-8.3-55. A failure includes “discharge[] from the on-

      Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015                           Page 6 of 35
       Department issued its order to the Skeeses on March 24, and it demanded the

       installation of a compliant septic system by April 25. However, due to the large

       amounts of rain the area had received in early 2011, the Skeeses were unable to

       install a new septic system, which should be placed in dry soil, by April 25. In

       the interim, the construction of Frazee’s second barn continued, and, during

       that process, an auger struck the subsurface drain, which caused sewage to

       discharge onto the construction site. Rather than repair the subsurface drain

       along its original line, Frazee rerouted the drain around the north side of the

       barn and swale.


[10]   To remediate the problems with their septic system, the Skeeses first re-plumbed

       their home to route all waste water to the new septic system, once installed.

       The Skeeses, however, kept their furnace’s condensation pipe connected to the

       basement floor drain. Next, when the rain relented in July, the Skeeses

       installed a new septic system with a finger absorption field. At the same time,

       the Skeeses’ contractor dug a hole at the end of the septic’s finger system, near

       the County Parcel, and severed the Skeeses’ connection to the subsurface drain.

       The contractor placed a boulder inside of the hole over the now-severed

       connection to prevent a future reconnection but left the hole open and the




       site sewage system causing contamination of a potable water supply, ground water, or surface waters.” 410
       I.A.C. 6-8.3-33.

       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015                        Page 7 of 35
       boulder exposed to allow ground water to continue to flow into the hole and,

       ultimately, leach into the subsurface drain through its clay. With the

       connection severed, the hole would fill with water and eventually overflow into

       the swale.


[11]   On July 27, the Health Department found that the Skeeses’ new septic system

       made their home legally compliant. Initially, the Skeeses’ new system worked

       properly and Frazee had no more issues. However, the disconnection of the

       Skees Parcel from the subsurface drain, in conjunction with the accumulation of

       rain, made the already high water table rise higher, which interfered with the

       proper functioning of the new septic system. For the septic system to function

       correctly, the water table had to be lowered. Consequently, to lower the water

       table, the Skeeses placed a submersible sump pump into the hole near the

       County Parcel, where the contractor had severed the Skeeses’ connection to the

       subsurface drain.


[12]   Subsequently,5 on November 28, Frazee discovered flooding in one of her

       barns. Frazee followed the water flowing into her barn to the hole on the Skees

       Parcel and the sump pump. She called Noles but could not reach him, and so

       she called the police. Someone with the police department called Douglas

       Skees, who explained the situation, and the police allowed Douglas to continue




       5
         It is not clear how much time passed between the Skeeses’ placement of their sump pump and the flooding
       on the Frazee Parcel.

       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015                       Page 8 of 35
       pumping. Frazee disagreed with the police, and she entered onto the Skees

       Parcel and unplugged the pump.


[13]   When Douglas came home from work that afternoon, he found the pump

       unplugged, and he plugged it back in. But, that night while the Skeeses slept,

       Frazee again entered onto their property and unplugged the pump a second

       time. As a result, the water table rose, which caused water to back up through

       the basement floor drain inside the Skeeses’ house and flood the Skeeses’

       basement with eight to ten inches of water.6 Several of the Skeeses’ household

       items were damaged by the water. Shortly thereafter, the Skeeses resumed

       pumping from the hole. The Skeeses also had to install a pump in their

       basement to remove the standing water.


[14]   Noles returned to the Skees Parcel twice in December. On December 6, Noles

       went to the Skees Parcel to determine whether they were pumping sewage

       effluent from the hole. To do so, Noles placed dye directly into the septic

       system via its outside cleanout. The dye appeared in the hole on December 15,

       which indicated that sewage was still traveling to the Frazee Parcel by means of

       the swale into which the water from the hole was being pumped. As a result,

       the Skeeses were directed to stop pumping from the hole. They did so but,

       nevertheless, the ground water containing the septic effluent would eventually

       fill the hole, run over into the swale, and make its way to the Frazee Parcel.

       Thus, Noles determined that more work was needed to remediate the Skeeses’


       6
           The water also flooded the new septic system, and, consequently, the Skeeses had to have it pumped.

       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015                          Page 9 of 35
       sewage problem. As a result, the Health Department filed a lawsuit seeking to

       enjoin the Skeeses’ discharge of sewage onto the Frazee Parcel.


[15]   In the interim, on December 9, Noles met with Douglas Skees and an

       excavator, Mark Remley, at the Skees Parcel. Noles observed ponding in the

       hole, which would then overflow into the swale and discharge offsite onto the

       Frazee Parcel. In an effort to find a pipe that might be feeding the now-

       disconnected subsurface drain, Remley dug two more holes on the Skees

       Parcel. He dug the first that day near Highway 52 but did not find any drain

       pipe. However, a hole dug near the Skeeses’ home revealed the clay tile drain

       that led to the basement floor drain. The basement floor drain connected to the

       otherwise-severed subsurface drain.


[16]   To ensure compliance and to find a solution to the Skeeses’ septic problem,

       Noles involved the State Board of Health and a soil consultation firm. The

       consultation firm determined that the area’s

               soil has a seasonal high water table at or above the surface during
               wet periods.

               Because of the wetness characteristics, a perimeter or curtain
               drain is needed to help make this [septic] system function
               properly during wet periods. Surface water should also be
               directed around this system to keep water from flowing across it.


       Frazee Exh. 58. Accordingly, pursuant to a Stipulation of Agreement between

       the Health Department and the Skeeses, the Skeeses agreed to install a

       perimeter drain around the septic system’s absorption field, which would

       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015   Page 10 of 35
       “significantly reduce migration of ground water into the real estate’s septic

       absorption field . . . [and] enhance the functioning of the septic system.”

       Appellees’ App. 4-5. The perimeter drain would then connect to the portion of

       the subsurface drain located on the County Parcel, thereby reestablishing a

       connection between the Skeeses’ drainage and the subsurface drain. The

       perimeter drain would collect the same amount of water as the subsurface drain

       originally had before it had been disconnected. Therefore, the perimeter drain

       would not increase the downstream burden placed on the subsurface drain.


[17]   On January 11, 2012, with the Indiana State Department of Health, the

       Tippecanoe County Sheriff’s Department, Noles, the Skeeses’ attorneys, and

       Frazee present, the Skeeses installed a four-inch perimeter drain around their

       septic system’s absorption field. However, when they attempted to tie into the

       subsurface drain on the County Parcel, Frazee sat down in the way of the

       backhoe and blocked access to the necessary dig site for two hours. The

       contractor continued to bill the Skeeses for the time that work was delayed.

       The Sheriff warned Frazee that she would be arrested for trespass if she

       continued to block access to the subsurface drain after a certain time, and she

       moved only when that time expired. When work resumed, at the direction of

       the Health Department, the Skeeses severed their basement’s connection to the

       subsurface drain. Further, at two locations, they capped with concrete the

       portion of the subsurface drain that ran underneath the new septic system.


[18]   After the Skeeses’ connected the perimeter drain to the subsurface drain, Frazee

       claimed that her barns flooded more often, and, at some later time, she installed

       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015   Page 11 of 35
       a curtain drain on the barns’ eastern side, near the County Parcel’s property

       line, and she also replaced the remainder of the original subsurface drain west

       of her barns to its outlet at a nearby creek with six-inch plastic drain pipe.7


[19]   On March 29, Frazee filed an action in Tippecanoe Superior Court. Frazee

       filed an amended complaint on May 29. In her amended complaint, Frazee

       alleged a nuisance claim based on the discharge of sewage onto the Frazee

       Parcel. And, based on the connection of the perimeter drain to the subsurface

       drain, Frazee alleged that the Skeeses had committed criminal trespass, and she

       sought damages under the Crime Victim’s Relief Act. In particular, Frazee

       alleged that the connection of the perimeter drain to the subsurface drain caused

       the subsurface drain to collect more water than it originally captured from the

       Skees Parcel, which resulted in a greater downstream burden on the drain and

       more frequent flooding of her barns.8


[20]   The Skeeses filed an answer and counterclaim on June 29, which alleged

       negligence, nuisance, criminal trespass, and invasion of privacy, and they also

       sought damages under the Crime Victim’s Relief Act. However, at trial, the

       Skeeses pursued only their allegation of criminal trespass and damages under

       the Crime Victim’s Relief Act. The Skeeses alleged that Frazee had committed



       7
         To run the subsurface drain to the creek, Frazee had to alter the original route of the drain. The owner of
       the land where the subsurface drain historically had discharged into the creek would not allow Frazee to run
       the new drain through his property, but Frazee received permission from another landowner and ran the
       drain through that property instead.
       8
        Frazee also alleged a claim for property damage based on the Skeeses’ “filling [a sinkhole] with various
       materials, which subsequently washed into Frazee’s subsurface drainage system.” Appellant’s App. at 33.

       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015                         Page 12 of 35
       criminal trespass when she entered onto their property to disconnect the sump

       pump the second time, which resulted in the flooding of their home.9


[21]   The trial court held a two-day bench trial on February 27 and March 18, 2014.

       In relevant part, the trial court entered the following findings of fact and

       conclusions thereon pursuant to Indiana Trial Rule 52(A):


               1. [Frazee], [the Skeeses], and Tippecanoe County (County)
               each own parcels of real estate in Tippecanoe County[,] which
               are located generally to the south and [west] of US 52 South.

                                                         ***

               9. Many years prior to the parties’ purchase[s of their respective
               parcels], the Skees Parcel, the County Parcel, and [the] Frazee
               Parcel had all been served by a single[,] four[-]inch diameter[,]
               clay subsurface drain[] . . . starting at or near US 52 at the
               northeast and draining all three (3) parcels toward the southwest
               into the open drainage ditch located offsite of all (3) parcels.

               10. The drain[] . . . was a mutual drain when originally installed
               and at all times thereafter.

                                                         ***

               12. Frazee was responsible to repair any breaks in the mutual
               [drain] on her property.

                                                         ***




       9
          The Skeeses also alleged that Frazee trespassed on their land when she blocked access by the perimeter
       drain to the subsurface drain. However, Frazee was located on the County Parcel at the time of this alleged
       trespass.

       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015                        Page 13 of 35
        37. Frazee also chose to replace the original 4” clay drain pipe
        on her property with a 6’ [sic] plastic pipe to the southwest of her
        second pole barn. [The] Skees[es] are not liable for claimed
        damages on this issue since the repairs to her mutual drain on her
        property were her responsibility and done for her own
        convenience.

        38. . . . [The] Skees[es] were violating the law by draining their
        septic through the [subsurface drain].

        39. Frazee never gave the Skees[es] . . . permission to pump
        sewage onto or through her property. . . . The Tippecanoe
        County Health Department ordered [the Skeeses] to remediate
        within 30 days.

        40. The Skees[es] did not remediate the problem within 30
        days[.]

                                                  ***

        43. During this time frame, the area in which the Skees[es] and
        Frazee lived was experiencing record[-]breaking levels of rain. It
        was the rainiest and wettest that [the] Skees[es] had
        seen . . . since the[y] first moved into the home.

        44. The Skees[es] pumped water [from] the open hole closer to
        Frazee’s property onto the surface in the direction of Frazee’s
        property.

                                                  ***

        46. . . . It was established that . . . the water was effluent coming
        from the Skees[es] septic system. Effluent is water that has
        drained from a septic system. . . . Ron Noles ordered the
        Skees[es] to stop pumping. . . . However, the effluent had been
        pumped on[to] Frazee’s property for approximately 10 days.


Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015      Page 14 of 35
                                                  ***

        Conclusion[s] of Law[]

        1. A Nuisance is defined as “[w]hatever is; (1) injurious to
        health; (2) indecent; (3) offensive to the senses; or (4) an
        obstruction to the free use of property; so as essentially to
        interfere with the comfortable enjoyment of life or property is a
        nuisance, and the subject of an action.” Ind[.] Code [§] 32-30-6-
        6. The discharge of sewage under the property of Frazee and the
        pumping of ground water containing effluent and sewage onto
        the surface of Frazee’s property is a nuisance per se. . . .

                                                  ***

        3. The original four[-]inch clay drain . . . running under and
        draining the Skees, County, and Frazee [P]arcels wa[s,] and at all
        times and remained, a mutual drain under Indiana Code
        [Section] 36-9-27[-2.]

        4. The mutual drain’s use continued throughout the time period
        at issue [because] at least two (2) of the three (3) original property
        owners used and were benefited by the mutual drain at all times
        without interruption or abatement.

        5. [The] Skees[es] never abandoned the use of the mutual drain
        but suspended its use temporarily at the direction of the
        Tippecanoe County Health Department while intending to
        resume normal use when the septic problem was solved.

        6. Pursuant to [Indiana Code Section] 36-9-27[-2], a property
        owner is obligated to fix an obstruction, or break, in the portion
        of mutual drain on their [sic] property.

                                                  ***



Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015      Page 15 of 35
               8. [The] Skees[es are] entitled to the receipt of compensatory
               damages . . . as follows:

               a. Delay due to work stoppage for two (2) hours[:] $400.00

               b. Flood damages to personal property and furnishing[:] $899.00

                   Total Compensatory Damages[:] $1299.00

               9. [The] Skees[es are] entitled to three (3) times the amount of
               compensatory damages outlined in paragraph 8 above pursuant
               to [Indiana Code Section] 34-24-3-1 and [Indiana Code Section]
               35-43-2-2(a)(1) and (2)(version a) for a total amount of treble
               damages [of] $3897.00

               10. Pursuant to [Indiana Code Section] 34-24-3-1[](3) [the]
               Skees[es] are also entitled to a reasonable attorney fee[,] which is
               found to be in the amount of $1299.00

               The Court finds for [Frazee] [a]s to her claim in the sum of
               $5,000 together with attorney[’s] fees of $1667.00 for a total of
               $6667.00[. A]fter set off for Defendant[s’] counter-claim[,]
               judgment is entered for [Frazee] against [the Skeeses] in the sum
               of $1471.00 plus court cost[s] of $104.00.


       Appellant’s App. at 13-21. This appeal ensued.


                                       Discussion and Decision
                                       Overview & Standard of Review

[22]   Frazee challenges the trial court’s findings and conclusions thereon, which it

       entered pursuant to Trial Rule 52(A).

               When a party has requested specific findings of fact and
               conclusions thereon pursuant to Ind. Trial Rule 52(A), the
       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015   Page 16 of 35
               reviewing court may affirm the judgment on any legal theory
               supported by the findings. In addition, before affirming on a
               legal theory supported by the findings but not espoused by the
               trial court, the appellate court should be confident that its
               affirmance is consistent with all of the trial court's findings of fact
               and the inferences drawn from the findings. In reviewing the
               judgment, we must first determine whether the evidence supports
               the findings and second, whether the findings support the
               judgment. The judgment will be reversed only when clearly
               erroneous. Findings of fact are clearly erroneous when the record
               lacks any evidence or reasonable inferences from the evidence to
               support them. To determine whether the findings or judgment
               are clearly erroneous, we consider only the evidence favorable to
               the judgment and all reasonable inferences flowing therefrom,
               and we will not reweigh the evidence or assess witness
               credibility.


       Capps v. Abbott, 897 N.E.2d 984, 986 (Ind. Ct. App. 2008) (citations omitted).


[23]   Frazee’s arguments on appeal involve various aspects of Indiana’s drainage

       statutes but primarily concern how Indiana Code Section 36-9-27-2 defines a

       “mutual drain” and a “private drain.” That provision states:


               “Mutual drain” means a drain that:

                        (1) is located on two (2) or more tracts of land that are
                        under different ownership;

                        (2) was established by the mutual consent of all the
                        owners; and

                        (3) was not established under or made subject to any
                        drainage statute.

                                                         ***

       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015      Page 17 of 35
               “Private drain” means a drain that:

                        (1) is located on land owned by one (1) person or by two
                        (2) or more persons jointly; and

                        (2) was not established under or made subject to any
                        drainage statute.


       Ind. Code § 36-9-27-2.


[24]   Thus, this appeal requires that we interpret a statute. As we have explained,


               [s]tatutory interpretation is a function for the courts, and our goal
               in statutory interpretation is to determine, give effect to, and
               implement the intent of the legislature as expressed in the plain
               language of its statutes. The first rule of statutory construction is
               that words and phrases shall be taken in their plain, or ordinary
               and usual, sense.


       Clark Cnty. Drainage Bd. v. Isgrigg, 966 N.E.2d 678, 680 (Ind. Ct. App. 2012),

       aff’d on reh’g, 966 N.E.2d 678.


[25]   In previously interpreting Indiana Code Section 36-9-27-2, we have held that “a

       mutual drain is an artificial drain, actually constructed, built[,] or created by the

       mutual consent of the landowners through whose property it runs.” Suburban

       Homes Corp. v. Harders, 404 N.E.2d 629, 632 (Ind. Ct. App. 1980). A natural

       watercourse is not a mutual drain. Id. And we have concluded that a private

       drain constructed on a common estate, which is subsequently subdivided,

       transforms into a mutual drain at the moment of subdivision. Johnson v.

       Kosciusko Cnty. Drainage Bd., 594 N.E.2d 798, 803 (Ind. Ct. App. 1992).
       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015     Page 18 of 35
[26]   With this in mind, Frazee presents us with a plethora of arguments. Distilled,

       Frazee asserts that the trial court erred when it concluded that the subsurface

       drain was a mutual drain. Instead, she contends the Skeeses unlawfully

       connected an illegal sewage drain to her private drain. But even if the

       subsurface drain was a mutual drain when established, she contends, the

       Skeeses abandoned their rights to that drain. Thus, Frazee reasons, the

       subsurface drain was either (1) always her private drain or (2) became her

       private drain when the Skeeses allegedly abandoned it. As such, her argument

       continues, the Skeeses trespassed when they later connected their perimeter

       drain to the subsurface drain.

[27]   In light of the above, we address Frazee’s specific arguments as follows: (1)

       whether the subsurface drain was a mutual drain when it was established; (2)

       whether the Skeeses abandoned any interests they had in the subsurface, mutual

       drain; (3) whether the Skeeses trespassed onto Frazee’s property when they

       connected their perimeter drain to the subsurface drain; and (4) whether Frazee

       alone is responsible for the costs to repair the portion of the mutual drain

       located under her property. After addressing those arguments, we also consider

       (5) whether the trial court erred when it concluded that Frazee had committed a

       criminal trespass when she disconnected the Skeeses’ sump pump the second

       time, and (6) whether the trial court abused its discretion when it awarded

       attorney’s fees to the Skeeses.




       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015   Page 19 of 35
                              Issue One: Mutual Drain When Established

[28]   Frazee contends that the trial court’s conclusion that the subsurface drain was a

       mutual drain when established is clearly erroneous. In this regard, she asserts

       that the trial court’s conclusion is inextricably premised upon the following

       purportedly erroneous findings of fact: (1) a single, four-inch, clay-tile drain

       had historically served the three properties involved; (2) the subsurface drain

       began at or near Highway 52; and (3) the subsurface drain diverted water from

       the Skees Parcel. In addition, Frazee asserts that the trial court erred as a

       matter of law when it determined that the subsurface drain was a mutual drain

       when established because no evidence was offered that the subsurface drain was

       created by the mutual consent of all landowners served by the drain.


[29]   Frazee’s first two claims of error challenge two of the trial court’s findings of

       fact: (1) a single, four-inch, clay-tile drain had historically served the three

       properties involved; and (2) the subsurface drain began at or near Highway 52.

       However, these findings do not implicate the statutory definition of a mutual

       drain, which speaks only of property ownership, consent, and establishment of

       the drain. See I.C. § 36-9-27-2. The statute does not concern the diameter of a

       drain pipe or its exact starting point on a particular tract of land. See id. Thus,

       even if the trial court’s findings in this regard were clearly erroneous, the

       findings do not warrant reversal because “they amount to mere surplusage and

       add nothing to the trial court’s decision.” Bell v. Clark, 653 N.E.2d 483, 489

       (Ind. Ct. App. 1995). We, therefore, do not consider them further.



       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015    Page 20 of 35
[30]   Frazee’s next argument, that the subsurface drain diverted water from the Skees

       Parcel, presents a mixed question of law and fact. With regard to the facts,

       Frazee contends that the portion of the subsurface drain located on the Skees

       Parcel diverted only sewage, not water, from the Skeeses’ property. Instead,

       she asserts, the swale—a natural watercourse, which is not a mutual drain, see

       Harders, 404 N.E.2d at 632—provided the sole method of water drainage from

       the Skees Parcel. Frazee reasons that this fact, as a matter of law, precluded the

       classification of the subsurface drain as a mutual drain. In other words, Frazee

       contends that the subsurface drain was not a single mutual drain but actually

       two separate, connected drains: an illegal sewage drain on the Skees Parcel that

       unlawfully connected to a separate private drain on the Frazee Parcel. We

       disagree in both respects.


[31]   Although the natural swale did drain surface water from the Skees Parcel, the

       evidence before the trial court showed that the subsurface drain also diverted

       ground water from the property. Indeed, when the Skeeses disconnected from

       the subsurface drain, the water table rose, in part, because ground water could

       not drain as effectively. Thus, the trial court properly determined that the

       subsurface drain diverted water, not simply sewage, from the Skees Parcel. We,

       therefore, hold that the subsurface drain was a single drain that happened to




       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015   Page 21 of 35
       contain illegal sewage. It was not the combination of a private drain and an

       illegal sewer.10


[32]   Finally, Frazee contends no evidence was offered that the subsurface drain was

       created by the mutual consent of all owners when originally installed and, as a

       result, that the trial court’s conclusion is clearly erroneous as a matter of law.11

       However, we hold that the trial court was presented with sufficient evidence to

       determine that the subsurface drain, when established, satisfied the statutory

       definition of a mutual drain under Indiana Code Section 36-9-27-2, which,

       again, defines a subsurface drain as a drain that:

                  (1) is located on two (2) or more tracts of land that are under
                  different ownership;

                  (2) was established by the mutual consent of all the owners; and

                  (3) was not established under or made subject to any drainage
                  statute.


[33]   The parties agree that the subsurface drain was not made subject to any

       drainage statute. And, in 2011, the subsurface drain was located on more than

       two tracts of land: the Frazee Parcel, the Skees Parcel, and the County Parcel.12




       10
          To the extent Frazee argues that the presence of illegal sewage in a drain automatically converts that drain
       into a sewer, we disagree.
       11
          Frazee also asserts that no evidence was offered that the present owners consented to the mutual drain.
       But Indiana Code Section 36-9-27-2 does not require present consent; it requires consent when established.
       See I.C. § 36-9-27-2.
       12
            Again, the Dearths also had tied into the subsurface drain.

       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015                          Page 22 of 35
       Thus, Frazee disputes whether the drain was established with the mutual

       consent of all owners.


[34]   Although no evidence was offered regarding original ownership of the land,

       much less whether all original owners consented to the establishment of a

       mutual drain, the trial court could nevertheless infer the element of consent to

       establish a mutual drain. The evidence before the trial court demonstrated that

       the subsurface drain was installed, as one contiguous system, approximately

       seventy to eighty years prior to 2011, long before either the Skeeses or Frazee

       acquired their respective properties. And, in 2011, the drain passed through the

       land of three separate property owners, all of whom benefitted from the

       drainage provided.


[35]   It is reasonable to conclude that a nonregulated, subsurface drain that predates

       the current, diverse ownership of the serviced parcels was, when placed, either

       (1) a mutual drain established by the mutual consent of all affected owners or

       (2) a private drain on a common estate. If the drain was originally created as a

       private drain on a once-common estate, it converted to a mutual drain when the

       land was subdivided. See Johnson, 594 N.E.2d at 803. And, as our holding in

       Johnson suggests, once a private or mutual drain is established, its benefits run

       with the properties it serves. See id. at 803. Thus, we do not find Frazee’s

       argument persuasive, and we affirm the trial court’s conclusion that the

       subsurface drain was a mutual drain when originally installed.




       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015   Page 23 of 35
                                            Issue Two: Abandonment

[36]   Next, Frazee contends that, even if the trial court correctly concluded that the

       subsurface drain was a mutual drain when established, it erred when it

       concluded that the Skeeses did not abandon their rights to that drain when they

       severed their connection in July 2011 with the installation of their new septic

       system.13 She asserts that, in contrast to the trial court’s finding that the

       severance was temporary, the evidence illustrates an intent to permanently

       abandon the subsurface drain. Specifically, to support her argument, Frazee

       references the placement of the boulder inside of the hole and atop the severed

       drain and the approximately six-month period when the Skees Parcel was

       disconnected from the subsurface drain.


[37]   But Frazee does not identify the legal right—for example, a contractual right, a

       property right, or an easement—that the Skeeses purportedly abandoned.

       Irrespective of the legal theory upon which Frazee’s argument is premised, a

       showing of abandonment requires that one prove an intent to abandon, and

       intent is ordinarily a question of fact for the trial court. See, e.g., Rogier v. Am.

       Testing and Eng’g Crop., 734 N.E.2d 606, 619 (Ind. Ct. App. 2000), trans. denied;

       Right Reason Publ’ns v. Silva, 691 N.E.2d 1347, 1351 (Ind. Ct. App. 1998);

       Consol. Rail Corp., Inc. v. Lewellen, 682 N.E.2d 779, 783 (Ind. 1997).



       13
          Insofar as Frazee contends that the subsurface drain ceased to be a mutual drain when the Skeeses severed
       their connection, her argument is not supported by cogent reasoning. Ind. Appellate Rule 46(A)(8)(a). And,
       as the trial court found, the subsurface drain continued to service the County Parcel, in addition to the Frazee
       Parcel, after the Skeeses disconnected in July 2011, which means that the subsurface drain was still “located
       on two (2) or more tracts of land that are under different ownership.” I.C. § 36-9-27-2.

       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015                           Page 24 of 35
[38]   From the evidence presented, the trial court could reasonably conclude that the

       Skeeses did not intend to permanently abandon their rights in the subsurface

       drain. First, the Skeeses left the hole open where they disconnected the

       subsurface drain to allow water to continue to flow into the hole at least in part

       to gauge whether the drain still actively serviced their property. And, second,

       while ground water on the Skees Parcel could not openly flow into the

       subsurface drain after the disconnection, it could leach into the drain through

       the clay tile. Finally, the Skeeses reconnected to the subsurface drain when

       they constructed their perimeter drain in January 2012. This evidence supports

       the reasonable inference and, therefore, the trial court’s conclusion that the

       Skeeses’ severance from the subsurface drain in July 2011 did not evince an

       intent to permanently abandon their access to that drain. Therefore, the trial

       court’s conclusion that the mutual drain remained a mutual drain at all relevant

       times is not clearly erroneous.14


                             Issue Three: Trespass and the Perimeter Drain

[39]   Because we affirm the trial court’s conclusions that the subsurface drain was

       and remained a mutual drain, we also affirm the court’s conclusion that the

       Skeeses did not commit a trespass when they connected their perimeter drain to

       the subsurface drain.




       14
          We, therefore, reject Frazee’s argument that the subsurface drain was a private drain instead of a mutual
       drain. See I.C. § 36-9-27-2 (defining a private drain, in relevant part, as one that “is located on land owned by
       one (1) person or by two (2) or more persons jointly.”).

       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015                            Page 25 of 35
                                           Issue Four: Costs of Repair

[40]   Next, Frazee contends that the trial court erred when it concluded that she was

       solely responsible for the costs of the repairs made to the portion of the

       subsurface drain on her property.15 In this respect, the trial court found and

       concluded:


                12. Frazee was responsible to repair any breaks in the mutual
                [drain] on her property.

                                                          ***

                36. During the time the problem was being solved, Frazee built a
                second pole barn in her barn lot in a location [that] sits atop the
                mutual drain on her property and sits in the path of the natural
                drainage swale[,] which has long existed on the Frazee Parcel.

                                                          ***

                37. Frazee also chose to replace the original 4” clay drain pipe
                on her property with a 6’ [sic] plastic pipe to the southwest of her
                second pole barn. Skees[es] are not liable for claimed damages
                on this issue since the repairs to her mutual drain on her property
                were her responsibility and done for her own convenience.

                                                          ***




       15
          We reject Frazee’s argument that, under Indiana Code Chapter 36-9-27.4, a landowner must always
       petition the drainage board before repairing a mutual drain. That provision provides a landowner benefited
       by a mutual drain with a mechanism to have an obstruction, “located outside the person’s tract” but affecting
       the drainage on that tract, removed if the owner of the land on which the obstruction is found refuses, after a
       request, to remove it. I.C. § 36-9-27.4-9. The statute does not require Frazee to petition the drainage board
       to remove obstructions found on her own land, and the Skeeses, whose drainage was not affected by the
       obstructions to the subsurface drain on the Frazee Parcel, did not need to petition the local drainage board.

       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015                          Page 26 of 35
                Conclusion[s] of Law[]

                                                           ***

                6. Pursuant to [Indiana Code Section] 36-9-27[-2], a property
                owner is obligated to fix an obstruction, or break, in the portion
                of mutual drain on their property.


       Appellant’s App. at 14, 17, 19-20.


[41]   Frazee asserts that the trial court erred as a matter of law because Indiana Code

       Chapter 36-9-27 does not contain a provision “that obligates a property owner

       to fix an obstruction or break in a mutual [drain] on their [sic] property.”

       Appellant’s Br. at 37. We agree with Frazee that a property owner is not

       necessarily liable for the full costs of repairs performed on a portion of a mutual

       drain located on that person’s land. In this respect, although the subsurface

       drain is not a regulated drain,16 we find instructive our supreme court’s opinion

       in Crowel v. Marshall County Drainage Board, 971 N.E.2d 638 (Ind. 2012), which

       considered the assessment of costs for the maintenance of a regulated drain to

       the property owners benefited by that drain.


[42]   When a regulated drain is deemed in need of periodic maintenance under

       Indiana Code Section 36-9-27-38, the local drainage board must “prepare a

       schedule of assessments” that, among other things, apportions costs to the



       16
         A regulated drain is “an open drain, a tiled drain, or a combination of the two.” I.C. § 36-9-27-2. An
       open drain is “a natural or artificial open channel that: (1) carries surplus water; and (2) was established
       under or made subject to any drainage statute,” and a tiled drain is “a tiled channel that: (1) carries surplus
       water; and (2) was established under or made subject to any drainage statute.” Id.

       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015                            Page 27 of 35
       landowners benefited by the drain “based upon the benefit accruing to each

       tract of land from the maintenance.” I.C. § 36-9-27-39(2). In creating the

       schedule and in apportioning costs, the drainage board may consider:


               (1) the watershed affected by the drain to be constructed,
               reconstructed, or maintained;

               (2) the number of acres in each tract;

               (3) the total volume of water draining into or through the drain to
               be constructed, reconstructed, or maintained, and the amount of
               water contributed by each land owner;



               (4) the land use;

               (5) the increased value accruing to each tract of land from the
               construction, reconstruction, or maintenance;

               (6) whether the various tracts are adjacent, upland, upstream, or
               downstream in relation to the main trunk of the drain;

               (7) elimination or reduction of damage from floods;

               (8) the soil type; and

               (9) any other factors affecting the construction, reconstruction, or
               maintenance.


       I.C. § 36-9-27-112.


[43]   In Crowel, the drainage board assessed costs to Crowel for the repair of a

       regulated drain that did not touch his property, and he appealed. 971 N.E.2d at


       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015   Page 28 of 35
       639. Crowel’s property sat at the high end of the drain’s watershed, and his

       property had not flooded in the past. Id. at 641. Thus, he argued that he

       received no benefits from the regulated drain, and, therefore, the local drainage

       board, as a matter of law, could not assess any costs to him for periodic

       maintenance of the drain. Id. at 643.


[44]   Our supreme court, however, rejected Crowel’s claims. In so doing, the court

       noted that surface water runoff originating at Crowel’s property contributed to

       flooding in the watershed, which the regulated drain was designed to

       ameliorate, and held that “a parcel of land at the high end of a watershed that

       has adequate drainage due to natural surface-water runoff can be benefited by

       the reconstruction of a regulated drain at the lower end of the watershed.” Id.

       at 646. Further, the court stated that, “the fact that the Legislature included

       these criteria on the [Indiana Code Section 36-9-27-112 factors] list expresses its

       understanding that all property in a watershed is benefited when a drain serving

       that area is reconstructed, as well as its intent to spread the assessment across all

       of those benefited properties.” Id.


[45]   Although mutual drains are not subject to Indiana Code Chapter 36-9-27 and

       although a mutual drain’s repairs are not assessed by a local drainage board,

       nonetheless, our supreme court’s logic in Crowel applies equally to mutual

       drains. Thus, we hold that, at the least, the tracts of land under which a mutual

       drain is located benefit from the existence of that drain. Thus, a landowner is

       not necessarily responsible for the total cost of repairs made to the portions of

       the drain underlying that landowner’s property, provided that other landowners

       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015   Page 29 of 35
       receive a benefit from those repairs. And a trial court may exercise its equitable

       authority to apportion the costs of a needed repair among the owners of the

       land under which the mutual drain lies. In apportioning costs, the trial court

       could consider, but is not limited to, the factors delineated by the legislature in

       Indiana Code Section 36-9-27-112.


[46]   We disagree with Frazee, however, that the trial court here concluded that a

       landowner is always solely responsible for repairs made to a portion of a mutual

       drain located on his or her property. Instead, the trial court exercised its

       equitable authority when it assigned the full cost of the repairs made to the

       subsurface drain to Frazee. The evidence most favorable to the judgment

       demonstrates that the Skeeses were not actually affected by the broken portion

       of the subsurface drain on the Frazee Parcel or by the route that drain, once

       repaired, traveled. In contrast, Frazee needed to repair the subsurface drain to

       complete the installation of her geothermal system. At that time, Frazee did

       not know that the Skeeses’ sewage was leaking onto her property through the

       break in the drain. And, moreover, Frazee built her second barn directly in the

       path of the swale, and Frazee damaged the drain with an auger during the

       construction of her barn and then rerouted the drain around the barn.


[47]   Despite this evidence, Frazee asserts that she rerouted the subsurface drain

       because the Skeeses had not complied with the abatement order during the

       remediation period, which meant that sewage was flowing into the barn’s

       construction zone. This, she maintains, delayed construction. And she states



       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015   Page 30 of 35
       that she had to replace the length of the subsurface drain because more water

       was sent to her property by the Skeeses’ new perimeter drain.


[48]   But these arguments require us to reweigh the evidence, which we will not do.

       Indeed, Frazee does not explain why she could not simply have repaired or

       replaced the existing subsurface drain in the same location where she had

       damaged it, which also would have kept sewage out of her construction zone.

       Moreover, the evidence most favorable to the judgment indicates that the

       Skeeses’ installation of the perimeter drain did not increase the downstream

       burden placed on the subsurface drain. And, finally, with respect to the curtain

       drain that Frazee installed around her barns after the connection of the

       perimeter drain to the subsurface drain, the court could reasonably infer that the

       curtain drain’s purpose was to divert the surface water collected by the swale,

       which would otherwise have traveled directly to Frazee’s barns.


[49]   Thus, the evidence and reasonable inferences support the trial court’s finding

       that Frazee made repairs and changes to the subsurface drain for her own

       convenience—to construct the barn in the path of the swale. Further, the

       court’s findings support its conclusion that Frazee was solely responsible for the

       repairs made to the subsurface drain.


                                 Issue Five: Frazee’s Criminal Trespass,
                                  Treble Damages, and Attorney’s Fees
[50]   Frazee next challenges the trial court’s conclusion that she had committed

       criminal trespass when she entered onto the Skees Parcel and disconnected the

       sump pump the second time. The trial court concluded that Frazee committed

       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015   Page 31 of 35
       trespass as defined by Indiana Code Section 35-43-2-2(a)(1), which, in 2011,

       stated:


                 (a) A person who:

                        (1) not having a contractual interest in the property,
                        knowingly or intentionally enters the real property of
                        another person after having been denied entry by the other
                        person or that person’s agent;

                                                         ***

                 commits criminal trespass . . . .


       In relevant part, a person is denied entry under subdivision (a)(1) when “the

       person has been denied entry by means of . . . [a] personal communication, oral

       or written.” I.C. § 35-43-2-2(b)(1).


[51]   Frazee asserts that the trial court’s conclusion is clearly erroneous because the

       record contains no evidence that the Skeeses denied Frazee entry onto their

       land. The Skeeses counter this argument by noting that Frazee testified at trial

       on cross-examination that, on November 28, she trespassed to unplug the pump

       both times. Further, they contend that they warned Frazee to not unplug the

       sump pump after she did so the second time because they were pumping water

       from the hole by order of the Health Department.


[52]   But the record does not demonstrate that the Skeeses denied Frazee access onto

       their property before she entered on November 28 to unplug the pump the

       second time, a prerequisite to criminal trespass. Instead, when Frazee was

       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015   Page 32 of 35
       asked by opposing counsel whether she “trespassed on the Skees[es’] property,”

       Frazee answered, “Yes, I did.” Tr. at 74. However, a colloquial utterance of

       the word “trespass”—namely, her agreement that she entered onto the Skees

       Parcel without the Skeeses’ consent—does not suffice to prove all of the

       elements of the multifaceted criminal trespass statute. Moreover, the record is

       clear that the Skeeses told Frazee not to unplug the sump pump only after

       Frazee had unplugged it for the second time on November 28. But for that

       entry to have been the criminal trespass, the statute required the personal

       communication to precede the entry. I.C. § 35-43-2-2(b)(1). Thus, the trial

       court’s conclusion that Frazee committed criminal trespass pursuant to IC § 35-

       43-2-2(a)(1) is not supported by the record and is clearly erroneous.17


[53]   Because the trial court erred when it concluded that Frazee committed criminal

       trespass, it also erred when it awarded treble damages and attorney’s fees to the

       Skeeses under the Crime Victim’s Relief Act in that an award of attorney’s fees

       under the Act requires proof of a criminal offense by a preponderance of the

       evidence. See Harlan Bakeries, Inc. v. Muncy, 835 N.E.2d 1018, 1037 (Ind. Ct.

       App. 2005). The trial court erred when it concluded that Frazee had committed

       a criminal trespass and, thus, also erred when it awarded treble damages and




       17
          Indiana Code Section 35-43-2-2(a)(4) also defines a criminal trespass as “knowingly or intentionally
       interfer[ing] with the possession or use of the property of another person without the person’s consent.”
       Although this court can affirm the trial court on any legal theory supported by the findings, the parties have
       not briefed this issue for our consideration. We, therefore, decline to consider it. See Mitchell v. Mitchell, 695
       N.E.2d 920, 923-24 (Ind. 1998) (“[B]oth parties expressed their views [in their briefs] on the correct rule of
       law to the Court of Appeals. Under these circumstances, there is no surprise and no risk of the appellate
       court’s introducing an unvetted legal theory.”).

       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015                              Page 33 of 35
       attorney’s fees to the Skeeses based on a trespass. We, therefore, reverse the

       court’s judgment on this issue.


                                     Issue Six: Frazee’s Attorney’s Fees

[54]   The Skeeses cross-appeal and contend that the trial court abused its discretion

       when it awarded attorney’s fees to Frazee in the absence of legal authority to do

       so. An award of attorney’s fees is typically unavailable “absent an agreement

       between the parties, statutory authority, or other rule to the contrary.” Smyth v.

       Hester, 901 N.E.2d 25, 32 (Ind. Ct. App. 2009), trans. denied. An additional

       exception to this rule is a party’s “obdurate behavior,” which occurs when

       another party is “dragged into baseless litigation” or the initial party “fail[s] to

       dismiss [a] suit once its baseless nature is discovered.” Wernke v. Halas, 600

       N.E.2d 117, 123 (Ind. Ct. App. 1992).18


[55]   In light of these rules, we hold that the trial court abused its discretion when it

       awarded attorney’s fees to Frazee. The parties did not have an agreement that

       provided for attorney’s fees, and, because the trial court held that the Skeeses

       did not trespass onto Frazee’s property, a conclusion which we affirm above,

       the court lacked statutory authority under the Crime Victim’s Relief Act to

       award attorney’s fees. Further, the trial court found that the Skeeses had

       complied with all orders from the Health Department and were fully

       cooperative in addressing the issues with their septic system. Thus, the



       18
          Frazee’s attempts to distinguish this authority are not supported by cogent reasoning. See App. R.
       46(A)(8)(a).

       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015                         Page 34 of 35
       obdurate behavior exception also does not apply here. Therefore, we reverse

       the award of attorney’s fees to Frazee.


                                                   Conclusion
[56]   We affirm the trial court’s conclusions that the subsurface drain was and

       remained a mutual drain and that the Skeeses did not trespass when they

       connected their perimeter drain to the subsurface drain. However, we reverse

       the trial court’s conclusion that Frazee committed criminal trespass, and,

       therefore, we also reverse its award of treble damages and attorney’s fees to the

       Skeeses. Finally, we reverse the trial court’s award of attorney’s fees to Frazee

       as contrary to law.


       Affirmed in part and reversed in part.

       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 79A04-1406-PL-269| April 21, 2015   Page 35 of 35
