                                                                                   FILED
                                                                             Apr 13 2020, 8:41 am

                                                                                   CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANTS                                     ATTORNEY FOR APPELLEES
      Jerry E. Smith                                              Glen E. Koch II
      Jerry E. Smith, Attorney CPA, P.C.                          Boren, Oliver & Coffey, LLP
      Indianapolis, Indiana                                       Martinsville, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Mike Dow and                                                April 13, 2020
      Midwest Logging and Veneer,                                 Court of Appeals Case No.
      Appellants-Defendants,                                      19A-PL-1709
                                                                  Appeal from the Morgan Superior
              v.                                                  Court
                                                                  The Honorable Peter R. Foley,
      John Hurst and Linda Hurst,                                 Judge
      Appellees-Plaintiffs.                                       Trial Court Cause No.
                                                                  55D01-1608-PL-1257



      Mathias, Judge.


[1]   Mike Dow (“Dow”) d/b/a Midwest Logging and Veneer appeals the judgment

      of the Morgan Superior Court in favor of John Hurst and Linda Hurst in the

      Hursts’ action for trespass and conversion. On appeal, Dow presents three

      issues, which we restate as:


      I.      Whether the trial court clearly erred in concluding that Dow was
              liable for the actions of independent contractors;

      Court of Appeals of Indiana | Opinion 19A-PL-1709 | April 13, 2020                              Page 1 of 20
      II.      Whether the trial court clearly erred in awarding the Hursts
               damages in the amount of $80,826.47; and

      III.     Whether the trial court abused its discretion in the admission of
               alleged hearsay evidence.


[2]   We affirm.


                                    Facts and Procedural History
[3]   The facts most favorable to the trial court’s judgment1 reveal that the Hursts

      own approximately fifteen acres in Morgan County, Indiana. On this heavily

      wooded land is the Hursts’ home, a garage, a barn, and other smaller

      outbuildings. The property is bordered on the north side by land owned by the

      Andrews family.2 On June 30, 2015, Mr. Andrews entered into a Timber

      Purchasing Contract (“the Contract”) with Dow to purchase timber on the

      Andrewses’ land. Pursuant to this Contract, Dow and the Andrews would split

      the proceeds from the logging equally, but with a minimum guarantee of $4200

      to be paid to the Andrews. Prior to logging, Dow walked the property with Mr.

      Andrews. Dow also spoke with Linda Hurst, who told him to make sure the




      1
        Dow’s statement of facts is replete with references to evidence that is favorable to his position, e.g., his own
      trial testimony, but which is not favorable to the judgment reached by the trial court. We remind counsel for
      Dow that the Statement of Facts contained in an Appellant’s Brief must be “stated in accordance with the
      standard of review appropriate to the judgment or order being appealed.” Ind. Appellate Rule 46(a)(6)(b).
      2
        The first names of the Andrews family members are not contained in the transcript. The exhibits admitted
      at trial indicate that Mr. Andrews’s name is William but give no name for Mrs. Andrews. As necessary, we
      simply refer to them as Mr. Andrews or Mrs. Andrews.

      Court of Appeals of Indiana | Opinion 19A-PL-1709 | April 13, 2020                                    Page 2 of 20
      logging took place north of the Andrews-Hurst property line. John Hurst had

      previously placed metal posts along the property line to demark the boundary.


[4]   Dow contracted with Robert Parker to cut down the trees and harvest the

      timber, and Robert Parker hired his grandson James Parker to assist him in

      cutting down the trees and removing them from the property. Dow also

      contracted with two others to run a skidder and cut trees.


[5]   While the trees were being harvested, Mr. Hurst heard the sound of chainsaws

      that appeared to be coming from his property. He investigated and determined

      that trees were being cut on his side of the property line. Mr. Hurst instructed

      the logger to stop but permitted him to finish felling the tree he was cutting. Mr.

      Hurst then informed Dow that no trees should be taken from the Hurst

      property. Mr. Hurst pointed out the boundary markers to Dow. Despite this,

      Mr. Hurst later observed trees being harvested from his property and again

      instructed Dow to stay off his property.


[6]   The cutting activity caused significant damage to the Hurst property, including

      the loss of trees, erosion, and ruts caused by heavy equipment. It also left

      stumps and tree debris on the property. The Hursts hired Duane McCoy

      (“McCoy”), a forester with the Indiana Department of Natural Resources

      (“DNR”) to assess the damage to their property. McCoy determined that trees

      harvested from the Hurst property included nine tulip poplar, eight hickory, five

      black walnut, five white oak, three red oak, three sugar maple, two ash, two

      black oak, two American beech, one Chinkapin oak, one American sycamore,


      Court of Appeals of Indiana | Opinion 19A-PL-1709 | April 13, 2020        Page 3 of 20
      and one red maple. McCoy estimated that these forty-two trees contained

      17,521 board feet of lumber with a total value of $6,248.47. The Hursts also

      hired Mark Allison (“Allison”), the owner of Allison Farms, Lawn and

      Landscaping Services, to provide an estimate of the cost of remediating the

      damage done to the Hurst property. Allison estimated that it would cost

      $74,578 to clean up tree debris by cutting all fallen tree tops, chipping limbs and

      scattering the chips, sawing and stacking wood, cleaning up debris in the creek

      that runs on the property, and raking the ruts left by the logging equipment.


[7]   On August 11, 2016, the Hursts filed a complaint against Dow alleging trespass

      and conversion and seeking treble damages under Indiana Code section 25-

      36.5-1-3.2. A bench trial was held on February 13, February 15, and March 28,

      2019. At trial, the trial court permitted Mrs. Hurst to testify as to what Dow

      subcontractor James Parker told her. On June 26, 2019, the trial court entered

      findings of fact and conclusions of law in favor of the Hursts, which provided in

      relevant part as follows:


                                II. FINDINGS AND CONCLUSIONS

                                                        ***

              12. Hurst observed Dow’s crew again cutting and removing trees
              from the Hurst property. At the second meeting John Hurst
              reiterated to Dow that he didn’t want Dow or his crew on his
              property.

              13. Hurst has met his burden of proof as to the claims of trespass
              and conversion. The evidence establishes that Dow’s crew
              entered and cut trees on Hurst’s property. The crew left damage
              to the real estate (ruts from their skidder and erosion) and left

      Court of Appeals of Indiana | Opinion 19A-PL-1709 | April 13, 2020        Page 4 of 20
        several tree tops and other debris on the Hurst property. The
        crew also removed several Hurst trees during the harvest. At no
        time did Dow or his crew have permission or authority to enter
        upon the Hurst property or harvest trees from Hurst’s property.
        The area of the trespass is depicted on the Drapalik survey. The
        Area of Disturbance is consistent with the observations of the
        Court on its site visit and as depicted in the photographs entered
        into evidence.

        14. Dow claims that he did not convert or trespass, but that any
        liability for the Hursts’ claims should be borne by the individual
        members of his crew; the Parkers and the Bixlers. Dow claims
        that the Parkers and the Bixlers are independent contractors and
        as a result he is not liable for their actions.

        15. Dow has a non-delegable duty not to cut or cause to be cut
        timber he has not purchased. Pursuant to [Ind. Code] 25-36.5-1-1
        Dow is a “Timber Buyer”. It is unlawful for a Timber Buyer to
        cut or cause to be cut or appropriate any timber not purchased by
        the Timber Buyer. I.C. 25-36.5-1-4(b). A Timber Buyer who
        violates Section 4 commits a Class A Misdemeanor. I.C. 25-36.5-
        1-10.

        16. As a general rule, a principal is not liable for the negligence
        of an independent contractor; however, an exception to the
        general rule exists where the principal is obligated by law or
        contract with performing a specific duty. Bagley v. Insight
        Communications Co., LP., 658 N.E.2d 584, 586 (Ind. 1995). This
        exception applies to Dow. Dow has a legal duty and obligation
        as a Timber Buyer to not cut or cause to be cut timber he has not
        purchased. In this instance, Dow cut Hurst’s timber without
        purchasing Hurst’s timber. Under the Timber Buyer Statute (I.C.
        25-36.5-1) Dow is not permitted to transfer his duties under the
        statute to his crew, whether they be deemed to be employees or
        independent contractors.

        17. Having concluded that Dow is liable for the trespass and
        conversion, the Court next turns to the issue of damages. There

Court of Appeals of Indiana | Opinion 19A-PL-1709 | April 13, 2020           Page 5 of 20
        are two (2) separate categories of damages presented by the
        evidence. First is the value of the timber harvested from Hurst’s
        property by Dow, and second are the damages resulting from the
        trespass (removal of tree tops/debris and restoration).

        18. The measure of damages in a case of injury to real property
        depends upon whether the damages are temporary or permanent.
        Sheek v. Mark A. Morin Logging, Inc., 993 N.E.2d 280, 288 (Ind.
        [Ct.] App. 2013). The injury is permanent when the cost of
        restoration exceeds the market value of the land before the injury.
        For a permanent injury, the measure of damages is the difference
        between the fair market value of the property before and after the
        injury, based upon a theory that economic waste occurs when the
        cost of restoration exceeds the economic benefit. If the injury is
        temporary, then the measure of damages is the cost of repair.

        19. Here, the Court must conclude that the injury is temporary.
        There is no evidence that the remediation costs exceed the fair
        market value of the Hurst real estate. The Hurst real estate
        consists of two (2) separate tax parcels. The Court considers the
        Hurst real estate to be one (1) integrated parcel of real estate for
        this specific analysis. Based upon the tax assessment value, the
        Hurst real estate has a total assessed value for real estate taxes of
        $257,900.00. John Hurst estimated the value of the real estate to
        be between $500,000.00 to $600,000.00. The estimated cost to []
        restore the damage to the Hurst real property was estimated to be
        $74,578.00. The value of the real estate clearly exceeds the cost to
        restore.

        20. The Court determines the value of Hurst’s timber cut and
        harvested by Dow to be the sum of $6,248.47, as calculated by
        Duane McCoy.

        21. The only credible evidence offered as to the cost to restore
        the Hurst party was the Allison Farms Lawn & Landscaping
        Services, LLC estimate. James Parker did testify that he would
        do the work to remove the tops of [trees] on the Hurst property
        and restore the damage for about $5,000.00 to $7,000.00. The

Court of Appeals of Indiana | Opinion 19A-PL-1709 | April 13, 2020          Page 6 of 20
              Court does not find James Parker’s testimony to be credible. This
              only leaves the Allison Farms estimate as the evidence of the cost
              to restore the Hurst property. Dow failed to provide the Court
              with any credible evidence to the contrary. The Court determines
              that the cost to restore the damage to the Hurst real estate caused
              by Dow’s trespass to the sum of $74,578.00.

              22. The total damages suffered by Hurst is the sum of
              $80,826.47.

              23. Hurst’s claims for treble damages and attorney’s fees are
              denied, as Hurst is not entitled to the damages under I.C. 25-
              36.5-1-3.2.

                                                  III. Judgment

              24. A judgment is granted in favor of John Hurst and Linda
              Hurst and against Mike Dow and Midwest Logging and Veneer
              in the sum of $80,826.47, plus costs in the sum of $191.00, for a
              total judgment in the sum of $81,017.47. Interest to accrue at the
              statutory rate until paid in full.


      Appellant’s App. pp. 18–20 (record citations omitted).


                                           Standard of Review
[8]   In cases where the trial court enters findings of fact and conclusions of law, our

      standard of review is well settled:


              First, we determine whether the evidence supports the findings
              and second, whether the findings support the judgment. In
              deference to the trial court’s proximity to the issues, we disturb
              the judgment only where there is no evidence supporting the
              findings or the findings fail to support the judgment. We do not
              reweigh the evidence but consider only the evidence favorable to
              the trial court’s judgment. Challengers must establish that the
              trial court’s findings are clearly erroneous. Findings are clearly
      Court of Appeals of Indiana | Opinion 19A-PL-1709 | April 13, 2020           Page 7 of 20
              erroneous when a review of the record leaves us firmly convinced
              a mistake has been made. However, while we defer substantially
              to findings of fact, we do not do so to conclusions of law.
              Additionally, a judgment is clearly erroneous under Indiana Trial
              Rule 52 if it relies on an incorrect legal standard. We evaluate
              questions of law de novo and owe no deference to a trial court’s
              determination of such questions.


      RCM Phoenix Partners, LLC v. 2007 E. Meadows, LP, 118 N.E.3d 756, 759–60

      (Ind. Ct. App. 2019) (quoting Estate of Kappel v. Kappel, 979 N.E.2d 642, 652

      (Ind. Ct. App. 2012)), trans. denied. “Moreover, ‘[w]e may affirm a judgment on

      any legal theory, whether or not relied upon by the trial court, so long as the

      trial court’s findings are not clearly erroneous and support the theory adopted.’”

      Id. at 760.


                           I. Liability for Actions of Independent Contractors

[9]   Dow first claims that the trial court erred by holding him liable for the actions

      of the independent contractors3 he hired to harvest the timber. Dow notes that

      there is no evidence that he assisted in the felling of the trees on the Hurst

      property and that he therefore cannot be held responsible for what the

      independent contractors did.




      3
        Dow argues at length that the individuals he hired to harvest the timber were independent contractors, and
      not Dow’s employees or agents. The trial court agreed that the harvesters were independent contractors but
      concluded that the independent contractor defense was inapplicable under these circumstances—a conclusion
      that we affirm infra.

      Court of Appeals of Indiana | Opinion 19A-PL-1709 | April 13, 2020                             Page 8 of 20
[10]   Dow correctly notes the long-standing rule in Indiana that a principal will

       generally not be held liable for the negligence of an independent contractor.

       Ryan v. TCI Architects/Engineers/Contractors, Inc., 72 N.E.3d 908, 913 (Ind. 2017)

       (citing Bagley v. Insight Commc’ns Co., L.P., 658 N.E.2d 584, 586 (Ind. 1995)).

       There are, however, five exceptions to this general rule: (1) where the contract

       requires the performance of intrinsically dangerous work; (2) where the principal

       is by law or contract charged with performing the specific duty; (3) where the act will

       create a nuisance; (4) where the act to be performed will probably cause injury

       to others unless due precaution is taken; and (5) where the act to be performed

       is illegal. Bagley, 658 N.E.2d at 586 (emphasis added).


[11]   The Hursts argued, and the trial court agreed, that the second exception applied

       here because Indiana Code chapter 25-36.5-1 (the “Timber Buyers Act”)

       imposed on Dow a non-delegable duty not to harvest timber from property

       without permission of the property owner. Section 4 of the Timber Buyers Act

       provides that “[i]t shall be unlawful and a violation of this chapter . . . [f]or any

       timber buyer to cut or cause to be cut or appropriate any timber not purchased.”

       Ind. Code § 25-36.5-1-4(b). A person who violates any of the provisions of

       chapter 25-36.5-1 commits a Class A misdemeanor, or a Level 6 felony if the

       person has a prior conviction under this chapter. Ind. Code § 25-36.5-1-10.


[12]   The trial court concluded that, even though Dow hired independent contractors

       to perform the actual cutting and harvesting of the trees, Dow was charged by

       Indiana Code section 25-36.5-1-4(b) to perform a specific duty, i.e., not to cut or

       cause to be cut or appropriate any timber not purchased. We agree.

       Court of Appeals of Indiana | Opinion 19A-PL-1709 | April 13, 2020             Page 9 of 20
[13]   Section 4 of the Timber Buyers Act clearly imposes a duty on timber buyers to

       not “cut or cause to be cut or appropriate any timber not purchased.” Id.

       Violation of this duty is not only a violation of the Timber Buyers Act but is

       also “unlawful.” Id. We therefore conclude that Section 4 of the Timber Buyers

       Act imposes a specific duty on timber buyers, such as Dow, and that the second

       exception to the general rule that a principal will not be held responsible for the

       negligence of an independent contractor is applicable. Accordingly, the trial

       court did not err in holding Dow responsible for the acts of his independent

       contractors, i.e., for trespassing on the Hurst property and harvesting timber

       from their land.4


[14]   Dow nevertheless argues that the Timber Buyers Act is inapplicable because the

       Hursts did not ask the DNR to bring an adjudicative proceeding under Indiana

       Code section 25-36.5-1-3.2, which provides in relevant part:


                (b) The department may under IC 4-21.5-3-8 commence a
                proceeding against a timber buyer or a timber cutter if there is
                reason to believe that:

                     (1) the timber buyer or timber cutter has acquired timber
                     from a timber grower under a written contract for the sale of




       4
         Dow argues that the trial court erred in relying on our supreme court’s opinion in Bagley in support of its
       conclusion that Dow cannot avail himself of the independent contractor defense. Dow contends that Bagley
       was limited to cases in which a principal sought to avoid liability for physical harm by using independent
       contractors to perform tasks that pose a particular risk of physical harm to others. Even if we were to agree
       with Dow that Bagley is inapposite, we nevertheless agree with the trial court’s conclusion that Section 4 of
       the Timber Buyers Act imposes a particular duty on principals such that the independent contractor defense
       is unavailable to Dow under these circumstances.

       Court of Appeals of Indiana | Opinion 19A-PL-1709 | April 13, 2020                               Page 10 of 20
              the timber without payment having been made to the timber
              grower as specified in the contract; or

              (2) if:

                    (A) there is no written contract for the sale of the
                    timber; or

                    (B) there is a written contract for the sale of the timber
                    but the contract does not set forth the purchase price for
                    the timber;

              the timber buyer or timber cutter has cut timber or acquired
              timber from the timber grower without payment having been
              made to the timber grower equal to the value of the timber as
              determined under IC 26-1-2.

        (c) A proceeding may be commenced under this section at the
        request of a timber grower.

        (d) The necessary parties to a proceeding initiated under this
        section are:

              (1) the timber grower; and

              (2) the timber buyer or timber cutter.

                                                     ***

        (f) The complaint served under IC 4-21.5-3-8 to commence a
        proceeding under this section may seek the following:

              (1) Damages in compensation for damage actually resulting
              from the wrongful activities of a timber buyer or timber
              cutter.

              (2) Damages equal to three (3) times the stumpage value of
              any timber that is wrongfully cut or appropriated without
              payment.

                                                  ***
Court of Appeals of Indiana | Opinion 19A-PL-1709 | April 13, 2020           Page 11 of 20
               (j) A final agency action in a proceeding under this section must
               address all issues of damage and responsibility and, after the
               completion of the opportunity for judicial review, may be
               enforced in a civil proceeding as a judgment.


       Ind. Code § 25-36.5-1-3.2. (emphases added)


[15]   First, we are not convinced that this statute governs the situation before us. This

       statute appears to be concerned with situations where the timber cutter or buyer

       and the property owner have come to an agreement, either a written or

       unwritten contract. See I.C. § 25-36.5-1-3.2(b)(1), (2). It does not explicitly apply

       to situations, such as the one before us, where a timber cutter or buyer

       trespasses onto the land of a person with whom the cutter or buyer has no

       contract. Cf. Ind. Code § 25-36.5-1-17 (predecessor statute, repealed in 1993,

       providing for treble damages if a person, or an agent of a person, “cuts or

       causes to be cut any timber which the person, or a representative of the person

       has not previously purchased . . . .”).


[16]   More importantly, even if Section 3.2 is applicable, and the Hursts could have

       asked the DNR to conduct an adjudicative proceeding against Dow and his

       subcontractors, there is nothing in this statute suggesting that such an

       adjudicative action is the exclusive avenue of relief for land owners whose trees

       have been harvested without their permission. The plain language of Section

       3.2 states that the DNR “may” conduct an adjudicative proceeding if it believes

       that the buyer has acquired timber without payment. It also states that

       proceedings under this section “may” be commenced at the request of a timber


       Court of Appeals of Indiana | Opinion 19A-PL-1709 | April 13, 2020         Page 12 of 20
       grower, such as the Hursts. The use of this permissive language indicates that

       this statute is not intended to be the exclusive avenue of relief. Otherwise, if the

       DNR declined to conduct such an adjudicative proceeding, a property owner

       would be without remedy.


[17]   To hold that a landowner must request that the DNR conduct an adjudicative

       proceeding against a timber buyer before the landowner can seek recovery for

       the wrongful taking of timber would be to read language into the statute that is

       simply not there. It would also place a serious impediment to the common-law

       remedies of trespass and conversion. We have explained before:


               [S]tatutes in derogation of common law will be strictly construed,
               particularly when the statute affects a common-law right or duty.
               We presume that when the legislature enacts a statute, it is aware
               of the common law and does not intend to make any change in it
               beyond what it declares either in express terms or by
               unmistakable implication. Thus, in cases of doubt, we will
               construe a statute as not changing the common law.


       Demming v. Underwood, 943 N.E.2d 878, 888 (Ind. Ct. App. 2011) (citing

       Bartrom v. Adjustment Bureau, Inc., 618 N.E.2d 1, 10 (Ind. 1993)), trans. denied.


[18]   Because Section 3.2 does not explicitly provide that it is the exclusive remedy

       for the taking of timber from a landowner’s property without the landowner’s

       permission, we do not construe this statute as a limitation on the common-law

       remedies of trespass and conversion in situations, such as the present case,

       where a timber buyer, or his agents, have trespassed and taken timber from a

       landowner without the landowner’s permission.

       Court of Appeals of Indiana | Opinion 19A-PL-1709 | April 13, 2020        Page 13 of 20
[19]   In summary, the trial court did not err by concluding that Dow was responsible

       for the actions of his independent contractors because the Timber Buyers Act

       imposes a duty on Dow not to harvest, or cause to be harvested, timber he has

       not purchased.


                                      II. Sufficient Evidence of Damages

[20]   Dow next contends that the Hursts failed to prove the number and types of trees

       that were taken from his property. Specifically, he argues that “[t]he Record in

       this case is devoid of any specificity as to what or which trees belonging to the

       Hursts, if any, were actually cut and removed by the independent contractors

       that were hired by Mr. Dow or MLV to log the Andrews property.” Appellant’s

       Br. at 32. Dow acknowledges that DNR forester McCoy testified that he

       identified forty-two trees that had been harvested, but Dow claims that McCoy

       did not testify that these trees were taken from the Hurst property. This is

       inaccurate. McCoy testified that he used the county GIS map, GPS, and the

       property markers placed by Mr. Hurst to determine whether the trees he

       cataloged were on the Hurst property. The Hursts also presented evidence of a

       survey of their property that showed the area of their property from which trees

       were harvested.


[21]   Dow also claims that the trial court erred by awarding damages for both the

       value of the taken trees and the cost to remediate the damage to the Hurst

       property. There is some authority for this position. In Hire v. Pinkerton, 126 Ind.

       App. 23, 29, 127 N.E.2d 244, 247 (1955), the court held that “[w]here timber is

       destroyed by the wrongful act of another, the owner may bring an action either
       Court of Appeals of Indiana | Opinion 19A-PL-1709 | April 13, 2020       Page 14 of 20
       for the value of the destroyed timber or for the injury to the real estate.”

       (emphases added).5 To the extent that Hire can be read to mean that damages

       for the taking of trees must be limited to either the value of the timber taken or

       the damage done to the real property, we disagree. The Hursts suffered two

       distinct injuries: (1) the taking of valuable timber; and (2) damage done to their

       real property caused during the taking of the timber. To limit them to only the

       value of the timber taken would leave them without remedy for damage done to

       the real property, i.e., the abandoned tree tops, stumps, and other debris, and

       the ruts caused by the logging equipment. And to limit them only to the cost of

       remediating the damage to the real property would leave them without a

       remedy for the value of the timber taken.


[22]   We agree with the trial court that the Hursts should be permitted to recover for

       both of these distinct damages. To hold otherwise would be to permit a windfall

       to the tortfeasor, permitting the tortfeasor to either profit from the value of the

       timber taken or shield the tortfeasor from liability for the injury to the real

       property caused by the taking of the timber. We therefore reject Dow’s position




       5
         The Hire court also noted that “where damages are sought for trespass on land, the action may be in two
       forms, (a) trespass quare clausum fregit, or (b) trespass de bonis asportatis[.]” Id. at 29, N.E.2d at 247. Trespass
       quare clausum fregit, which translated from Latin means, “why he broke the close,” is “[a] person’s unlawful
       entry on another’s land that is visibly enclosed.” Trespass, Black’s Law Dictionary (11th ed. 2019). The tort of
       trespass quare clausum fregit consists of any of the following: “(1) entering on to land in the possession of
       another, (2) remaining on the land, or (3) placing or projecting any object on it.” Id. In contrast, trespass de
       bonis asportatis, which translated from Latin means, “for carrying goods away,” is “[a] wrongful taking of
       chattels.” Id.

       Court of Appeals of Indiana | Opinion 19A-PL-1709 | April 13, 2020                                    Page 15 of 20
       that the Hursts are limited to recover damages for either the injury to their real

       property or for the value of the timber taken.


[23]   Dow next argues that the amount of damages awarded by the trial court was

       improper. We disagree because there was evidence supporting the trial court’s

       calculation of damages. McCoy testified and presented evidence that the value

       of the trees taken from the Hurst property was $6,248.47. And Allison, who

       owned a landscaping company, estimated that it would cost $74,578 to

       remediate the damage caused by the logging. Dow notes that James Parker

       testified that he could restore the Hurst property for considerably less than the

       Allison estimate, between $5,000 and $6,000, and that the disparity between the

       restoration estimates should render Allison’s estimate suspect. But the trial

       court specifically found Parker’s testimony unworthy of credit, and Dow’s

       argument is nothing more than a request that we reweigh the evidence and

       judge the credibility of witnesses, which we will not do.


[24]   Dow also contends that the Hursts cannot recover damages for the cost to

       remediate their property unless they can also show a diminution in the value of

       the property before and after the logging, citing case law from other

       jurisdictions for support. In Indiana, however, the measure of damages of injury

       to real property


               depends on whether the injury is permanent or temporary.
               Permanent injury to unimproved land occurs where the cost of
               restoration exceeds the market value before the injury. If the
               injury is permanent, the measure of damages is limited to the
               difference between the fair market value of the property before

       Court of Appeals of Indiana | Opinion 19A-PL-1709 | April 13, 2020        Page 16 of 20
               and after the injury, based on the rationale that economic waste
               results when restoration costs exceed the economic benefit. But if
               the injury is temporary, the proper measure of damages is the
               cost of repair.


       Sheek v. Mark A. Morin Logging, Inc., 993 N.E.2d 280, 288 (Ind. Ct. App. 2013)

       (citations and internal quotation marks omitted).


[25]   Here, Mr. Hurst testified that his property was worth approximately $500,000

       to $600,000, and the estimated cost to restore the property was $74,578. The

       cost to restore the property is much less than the market value of the property,

       and the injury to the property is not permanent. Therefore, the trial court

       correctly determined that the cost of restoration is the proper measure of

       damages. We also reject Dow’s claim that the cost to restore the Hurst property

       was unreasonable compared to the value of the property. As noted, Mr. Hurst

       testified that his property was worth up to $600,000. The cost of restoring the

       property was $74,578, which is only 12.43% of $600,000. We do not consider

       this unduly excessive.


                                           III. Admission of Evidence

[26]   Lastly, Dow argues that the trial court abused its discretion by permitting Mrs.

       Hurst to testify as to what independent contractor James Parker told her

       regarding what Dow told Parker.6 Dow claims that this testimony was




       6
        Dow contends that the inadmissible hearsay included a statement by an unknown logger to Mr. Hurst that
       Dow informed him to harvest trees on a side of a ridge that included the Hurst property. But Dow


       Court of Appeals of Indiana | Opinion 19A-PL-1709 | April 13, 2020                         Page 17 of 20
       inadmissible hearsay. Questions regarding the admission or exclusion of

       evidence lie within the sound discretion of the trial court, and we will not

       disturb the trial court’s decision absent a showing of an abuse of that discretion.

       Kimbrough v. Anderson, 55 N.E.3d 325, 333–34 (Ind. Ct. App. 2016), trans.

       denied. A trial court abuses its discretion only if its decision is clearly against the

       logic and effect of the facts and circumstances before the court. Id. at 334.


[27]   Hearsay is defined by Indiana Evidence Rule 801(c) as “a statement that: (1) is

       not made by the declarant while testifying at the trial or hearing; and (2) is

       offered in evidence to prove the truth of the matter asserted.” Hearsay is

       generally inadmissible.7 Ind. Evidence Rule 802. There are, however, some out-

       of-court statements offered to prove the truth of the matter asserted that are

       excluded from the definition of hearsay. Specifically, Indiana Evidence Rule

       801(d)(2) provides that a statement is not hearsay if the statement is offered

       against a party opponent and “(C) was made by a person whom the party

       authorized to make a statement on the subject” or “(D) was made by the party’s




       acknowledges that the trial court sustained his hearsay objection to this testimony. See Appellant’s Br. at 13
       (“Judge Foley correctly sustained hearsay objections to Mr. Hurst’s testimony as to the alleged statements
       that were made to him by an unknown logger. But, Judge Foley allowed the hearsay testimony by Mrs.
       Hurst.”). We therefore consider only the alleged hearsay that the trial court admitted over Dow’s objection,
       i.e., the statements made by James Parker to Mrs. Hurst.
       7
         Even if hearsay, Mrs. Hurst’s testimony was not hearsay-within-hearsay or “double hearsay” because
       Dow’s statements to Parker were the statement of a party opponent and therefore not hearsay as defined by
       Indiana Evidence Rule 801(d)(1). See Ind. Evidence Rule 805 (“Hearsay within hearsay is not excluded by
       the rule against hearsay if each part of the combined statements conforms with an exception to the rule.”).

       Court of Appeals of Indiana | Opinion 19A-PL-1709 | April 13, 2020                                Page 18 of 20
       agent or employee on a matter within the scope of that relationship and while it

       existed.” Evid. R. 801(d)(2)(C), (D).


[28]   Dow argues that these provisions are inapplicable to the statements made by

       Parker. The Hursts argue that Parker’s statements were not hearsay because

       they were made by Dow’s agent or employee on a matter within the scope of

       that relationship and while it existed. We need not decide whether Parker’s

       statements were hearsay because, assuming arguendo that they should have been

       excluded, the admission of the statements was, at most, harmless error. As we

       stated in Kimbrough:


               Even if an evidentiary decision is an abuse of discretion, we will
               not reverse if the ruling constituted harmless error. An error is
               harmless when the probable impact of the erroneously admitted
               or excluded evidence on the factfinder, in light of all the evidence
               present, is sufficiently minor so as not to affect a party’s
               substantial rights.


       55 N.E.3d at 334.


[29]   Here, Mrs. Hurst testified that James Parker told her that “he was instructed [by

       Dow] to get what logs were already cut, even though he was told not to [by the

       Hursts].” Tr. Vol. 3, pp. 17–18. We fail to see how this brief statement

       prejudiced Dow’s substantial rights. The trial court did not mention this

       statement or rely upon it in its findings and conclusions. There was other

       evidence showing that trees were harvested from the Hurst property, and Dow’s

       liability was not based on the fact that he told Parker to take logs that had

       already been cut. It was based on the fact that the trees were felled in the first
       Court of Appeals of Indiana | Opinion 19A-PL-1709 | April 13, 2020         Page 19 of 20
       place. We therefore conclude that the admission of Parker’s statement to Mrs.

       Hurst was harmless.


                                                   Conclusion
[30]   The trial court properly concluded that Dow was responsible for the actions of

       his independent contractors because the Timber Buyers Act imposes a duty on

       Dow not to harvest, or cause to be harvested, timber he has not purchased. The

       trial court also did not err in awarding the Hursts damages for both the cost to

       restore their damaged property and for the value of the trees taken from their

       property, and there was sufficient evidence to support the trial court’s award of

       damages. Lastly, any error in the admission of a statement alleged to be hearsay

       was harmless. We therefore affirm the judgment of the trial court.


[31]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 19A-PL-1709 | April 13, 2020      Page 20 of 20
