                                                                               FILED
                                                                          May 18 2016, 8:12 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Patti J. Taylor                                           Stephen R. Snyder
Taylor Law Office, P.C.                                   Randall L. Morgan
Warsaw, Indiana                                           Snyder Morgan LLP
                                                          Syracuse, Indiana
Karl L. Mulvaney
Margaret M. Christensen
Jessica Whelan
Bingham Greenebaum Doll LLP
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Craig Neibert,                                            May 18, 2016
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          43A03-1503-CC-99
        v.                                                Interlocutory Appeal from the
                                                          Kosciusko Superior Court
Jody A. Perdomo,                                          The Honorable Joe V. Sutton,
Appellee-Respondent                                       Judge
                                                          Trial Court Cause No.
                                                          43D03-1202-CC-100



Crone, Judge.




Court of Appeals of Indiana | Opinion 43A03-1503-CC-99 | May 18, 2016                         Page 1 of 18
                                              Case Summary
[1]   In this interlocutory appeal, Craig Neibert challenges the trial court’s grant of

      involuntary dismissal of his implied contract and unjust enrichment claims

      against his ex-girlfriend Jody A. Perdomo, arising out of the renovation of one

      house and the construction of another. He submits that the trial court erred in

      (1) granting Perdomo’s motion for involuntary dismissal before he had rested

      his case; (2) concluding that he had not presented evidence of breach of implied

      contract and/or unjust enrichment sufficient to survive Perdomo’s motion for

      involuntary dismissal; (3) excluding an expert witness’s report concerning the

      value of Neibert’s renovation, excavation, and construction services; (4) failing

      to issue special findings of fact as part of its interlocutory order; and (5) failing

      to address his claim for replevin in its interlocutory order. 1 Finding that the

      uncontroverted evidence is sufficient to support Neibert’s contractual claims,

      we conclude that the trial court clearly erred in granting Perdomo’s motion for

      involuntary dismissal. Finding this issue dispositive, we need not address the

      remaining issues, except for the admissibility of Neibert’s expert witness’s

      report, as it relates to the record on remand. As such, we reverse and remand

      for proceedings consistent with this opinion.




      1
        Perdomo concedes the replevin issue and agrees that Neibert’s replevin claim is appropriate for
      consideration on remand.

      Court of Appeals of Indiana | Opinion 43A03-1503-CC-99 | May 18, 2016                               Page 2 of 18
                              Facts and Procedural History                        2




[2]   In 2000, childhood friends Neibert and Perdomo began a romantic relationship.

      At that time, Perdomo resided in Florida and worked as a hairstylist. Neibert

      resided in Indiana and worked mainly in construction, while also performing

      side jobs at his parents’ mobile home park. In 2001, Perdomo and her daughter

      moved to Indiana to reside with Neibert and his daughter in Neibert’s home. A

      year later, Perdomo and Neibert spent a few weeks in Florida fixing up

      Perdomo’s house to prepare it for sale. Neibert later described his work on the

      Florida house as a “gift,” in recognition that neither he nor Perdomo was

      wealthy or “blessed with extra money.” Tr. at 59.


[3]   In 2003, Neibert bought Perdomo a ring and asked her to be his “best friend

      and partner.” Id. at 26, 146. Later that year, Perdomo’s father passed away

      and left her cash, his house (“Father’s House”), and a sixty-five-acre plot of

      farmland with some dilapidated structures on it. In recognition of his

      friendship with Neibert, he left Neibert $15,000. At the end of that year,

      Perdomo and Neibert began a renovation project on Father’s House, which had

      been deemed uninhabitable and uninsurable and had a value of about $71,000.

      Perdomo paid for most of the materials, and Neibert provided the vast majority

      of the labor, with some help from his son and a few friends. The renovation

      project took over a year to complete, after which Father’s House was listed for




      2
        We held oral argument at Valparaiso University Law School on April 15, 2016. We commend counsel on
      their excellent advocacy and thank our hosts for their hospitality.

      Court of Appeals of Indiana | Opinion 43A03-1503-CC-99 | May 18, 2016                    Page 3 of 18
      sale for between $150,000 and $160,000. Perdomo believed it to be worth

      around $180,000. A sale was never consummated, and Perdomo leased

      Father’s House at $200 per week. She did not share the rental proceeds with

      Neibert or pay him for his work on Father’s House.


[4]   In 2006, Neibert and Perdomo decided to build a home on the farmland (“the

      New House”). Their plan was to live there together and make it their dream

      home. After researching plans on the Internet, the couple settled on a plan for

      the New House. Perdomo applied for a building permit and listed Neibert as

      the contractor. The project also required excavation work, which Neibert

      performed. The project took five years to complete, but the couple moved from

      Neibert’s house into the largely unfinished New House in 2007. Neibert

      continued to work almost full time on the project and averaged around $7000 to

      $10,000 in annual income from other sources. In the ensuing years, the

      couple’s relationship began to sour, and, at one point, Perdomo threw her ring

      at Neibert and told him to keep it. Neibert continued to reside with Perdomo

      and to work on the New House. In August 2011, with the New House ninety-

      percent finished, the couple ended their relationship and Neibert moved out.

      He did not receive payment for any construction or excavation services

      performed on the New House.


[5]   Neibert filed an action against Perdomo, seeking damages based on implied

      contract or unjust enrichment for labor, equipment, and materials he provided

      in renovating Father’s House and in constructing the New House. He also

      sought replevin, claiming that Perdomo was in possession of several items of his

      Court of Appeals of Indiana | Opinion 43A03-1503-CC-99 | May 18, 2016    Page 4 of 18
      personal property at the New House and had threatened him with violence if he

      entered the property. Perdomo filed a counterclaim, alleging that Neibert had

      been unjustly enriched by living rent-free in the New House.


[6]   At the ensuing bench trial, Neibert presented evidence concerning the couple’s

      relationship, their decade of cohabitation, and his expectation of co-ownership

      of the properties. He also presented evidence regarding his customary rates and

      work hours connected to both the renovation of Father’s House and the

      excavation and construction on the New House project, as well as evidence that

      Perdomo receives rental income from Father’s House. He testified that

      Perdomo had not paid him rent while living in his house and that he had not

      paid Perdomo rent while living in the New House. Id. at 178. Near the end of

      his case in chief, he stated his intent to call Perdomo as a witness but said that

      he would proceed out of order in the interest of efficiency and examine her

      during her presentation of evidence. The trial court said, “Okay it is your call,”

      and passed the case to Perdomo, who immediately moved for an involuntary

      dismissal pursuant to Indiana Trial Rule 41(B). Id. at 600. The trial court went

      off record and received legal authority from both parties concerning their

      respective positions on Perdomo’s motion. The court put the remainder of the

      trial on hold while it took the matter under advisement.


[7]   Two months later, the trial court sua sponte issued a notice granting Neibert

      time to file a response to Perdomo’s motion to dismiss. Thereafter, Neibert

      filed a “Response to Motion for Involuntary Dismissal and Request for

      Findings.” Appellant’s App. at 47. In his response, for the first time, he

      Court of Appeals of Indiana | Opinion 43A03-1503-CC-99 | May 18, 2016     Page 5 of 18
      submitted that he had not rested his case in chief but had reserved his

      examination of Perdomo until her testimony during her presentation of

      evidence. He also asserted that the evidence he presented was nevertheless

      sufficient to survive dismissal. Perdomo filed a response claiming that she

      never acquiesced to Neibert’s request to reserve her testimony as alleged.


[8]   The trial court subsequently issued a half-page interlocutory order granting

      Perdomo’s motion for involuntary dismissal and dismissing Neibert’s implied

      contract and unjust enrichment claims. The order did not include

      comprehensive findings of fact and conclusions thereon. Rather, the trial court

      specified that it found that Neibert “did rest on his case in chief,” that he had

      the “opportunity to call [] Perdomo … but elected to wait for cross

      examination,” and that Perdomo “did not agree to ‘reserve’ [her] testimony for

      cross examination … but remained silent.” Appellant’s App. at 60. With

      respect to Neibert’s substantive contract claims, the trial court stated, “[T]he

      Court adopts and reiterates [Perdomo’s] position with respect to no recovery

      under a contract theory and no recovery under a theory of unjust enrichment.”

      Id. The order did not address Neibert’s replevin claim or Perdomo’s

      counterclaim.


[9]   Neibert filed a motion for entry of final judgment, an alternative request for

      certification of the order for interlocutory appeal, and a request for stay

      pursuant to Indiana Trial Rule 54(B) and Appellate Rule 14(B). The trial court

      certified the order for interlocutory appeal, and we accepted jurisdiction.

      Additional facts will be provided as necessary.

      Court of Appeals of Indiana | Opinion 43A03-1503-CC-99 | May 18, 2016         Page 6 of 18
                                    Discussion and Decision

           Section 1 – Neibert presented evidence sufficient to
           survive the involuntary dismissal of his contractual
                                 claims.
[10]   Neibert contends that the trial court erred in granting Perdomo’s motion for

       involuntary dismissal pursuant to Trial Rule 41(B), which reads in pertinent

       part,

               After the plaintiff or party with the burden of proof upon an
               issue, in an action tried by the court without a jury, has
               completed the presentation of his evidence thereon, the opposing
               party, without waiving his right to offer evidence in the event the
               motion is not granted, may move for a dismissal on the ground
               that upon the weight of the evidence and the law there has been
               shown no right to relief. The court as trier of the facts may then
               determine them and render judgment against the plaintiff or may
               decline to render any judgment until the close of all the evidence.
               If the court renders judgment on the merits against the plaintiff or
               party with the burden of proof, the court, when requested at the
               time of the motion by either party shall make findings if, and as
               required by Rule 52(A). Unless the court in its order for
               dismissal otherwise specifies, a dismissal under this subdivision
               … operates as an adjudication upon the merits.


[11]   We review the grant or denial of a Trial Rule 41(B) motion to dismiss using a

       clearly erroneous standard. In re M.D., 906 N.E.2d 931, 932 (Ind. Ct. App.

       2009), trans. denied. In conducting such review, we neither reweigh evidence

       nor judge witness credibility. Id. We reverse only when the evidence is not

       conflicting and points unerringly to a conclusion different from the one reached


       Court of Appeals of Indiana | Opinion 43A03-1503-CC-99 | May 18, 2016     Page 7 of 18
       by the trial court. Id. “[I]n Indiana there is a marked judicial deference for

       deciding disputes on their merits and for giving parties their day in court,

       especially in cases involving material issues of fact, substantial amounts of

       money, or weighty policy determinations.” Wright v. Miller, 989 N.E.2d 324,

       328 (Ind. 2013) (citation omitted).


[12]   More specifically, Neibert maintains that he presented sufficient evidence of his

       contractual claims to survive the involuntary dismissal of those claims. Because

       the parties did not have a written contract, Neibert sought recovery under the

       theories of unjust enrichment and implied contract.


[13]   “Also referred to as quantum meruit or quasi-contract, unjust enrichment

       requires a party who has been unjustly enriched at another’s expense to make

       restitution to the aggrieved party.” Reed v. Reid, 980 N.E.2d 277, 296 (Ind.

       2012). To recover for unjust enrichment, the plaintiff must show that (1) he

       rendered a measurable benefit to the defendant at the defendant’s express or

       implied request; (2) he expected payment from the defendant; and (3) allowing

       the defendant to retain the benefit without restitution would be unjust. Id.

       Equitable principles prohibit the unjust enrichment of a person who accepts the

       unrequested benefits provided by another despite having the opportunity to

       decline those benefits. Bright v. Kuehl, 650 N.E.2d 311, 316 (Ind. Ct. App.

       1995).


[14]   Similarly, to recover under implied contract, the plaintiff generally must

       establish that the defendant impliedly or expressly requested the benefits


       Court of Appeals of Indiana | Opinion 43A03-1503-CC-99 | May 18, 2016     Page 8 of 18
       conferred. Id. at 315. “Any benefit, commonly the subject of pecuniary

       compensation, which one, not intending it as a gift, confers upon another who

       accepts it, is an adequate foundation for a legally implied or created promise to

       render back its value.” Id.


[15]   A contract can be implied from the relationship between parties. Id. at 313.

       Here, the parties were involved in a romantic relationship during the relevant

       timeframe, having cohabited for approximately one decade. A person who

       cohabits with another person without ever marrying is entitled to relief if he

       establishes an express contract, an implied contract, or unjust enrichment.

       Turner v. Freed, 792 N.E.2d 947, 950 (Ind. Ct. App. 2003).


[16]   Historically, couples who cohabited without marriage were excluded from

       equitable relief upon a showing of the expectation of shared ownership of

       property acquired during their cohabitation. The seminal cases allowing

       recovery for cohabiting couples involved circumstances in which the couples

       cohabited either before marriage or after divorce. See Glasgo v. Glasgo, 410

       N.E.2d 1325 (Ind. Ct. App. 1980) (with court narrowly tailoring its holding to

       circumstances where couple cohabited after divorce and evidence supported an

       agreement to share ownership of possession acquired during cohabitation

       portion of relationship), trans. denied; see also Chestnut v. Chestnut, 499 N.E.2d

       783, 787 (Ind. Ct. App. 1986) (where couple cohabited before marriage and

       court expressly “reserve[d] for another day the question of whether premarital

       cohabitation without subsequent marriage gives rise to potential relief.”). Later,

       the Bright court would expressly eliminate the exclusion from relief for couples

       Court of Appeals of Indiana | Opinion 43A03-1503-CC-99 | May 18, 2016       Page 9 of 18
       who cohabit without ever marrying. 650 N.E.2d at 315. However, the court

       found that the cohabitant was not entitled to relief under the facts of that case.

       Id. Thereafter, the Turner court granted equitable relief based on the parties’

       expectation of shared ownership of property acquired during a cohabitation that

       did not result in marriage. 792 N.E.2d at 950. We emphasize that Glasgo and

       its progeny do not create a new legal theory of recovery. Rather, these cases

       simply eroded and eventually eliminated an exclusion for cohabitants seeking

       relief on theories of implied contract and unjust enrichment in a previously

       prohibited context. Therefore, while we resolve the case based on the elements

       of unjust enrichment and implied contract, we note that the cohabitation

       relationship is important to the extent that it provides evidence of the couple’s

       relative expectations.


[17]   In Turner, Freed filed a petition for palimony after the end of her ten-year

       cohabitation with Turner. She claimed that she was entitled to part of the value

       of Turner’s business under a theory of unjust enrichment for the domestic

       services that she had provided him during their cohabitation. Id. at 948. The

       trial court agreed and awarded her $18,000. Turner appealed, and another

       panel of this Court found that Freed had presented evidence sufficient to

       support the trial court’s finding that Turner would be unjustly enriched if Freed

       were awarded no part of the value of the assets that Turner had acquired solely

       in his name during their cohabitation. 792 N.E.2d at 951. The Turner court

       reasoned that although Turner had provided more financially during the

       relationship, he also had received a substantial benefit in the form of Freed’s


       Court of Appeals of Indiana | Opinion 43A03-1503-CC-99 | May 18, 2016    Page 10 of 18
       homemaking and housekeeping services, childcare for their child and

       sometimes for Turner’s other child, and her help with Turner’s delivery routes,

       all of which enabled him to develop his business. Id. at 950.


[18]   Turner is procedurally distinct in that it involves the appeal of a final judgment

       rather than an interlocutory appeal of an involuntary dismissal order.

       However, it is factually similar to this case in that it also involves the alleged

       unjust enrichment of one cohabitant who holds assets solely in his/her name

       but whose ability to acquire and grow those assets has been greatly enhanced by

       the contributions from the other. Both Freed and Neibert conferred a

       substantial benefit in the form of services, equipment, and materials contributed

       in furtherance of the relationship. If anything, Neibert’s services, in the nature

       of renovation, excavation, and construction, were more easily quantifiable in

       dollars and cents than were Freed’s (though Freed’s were certainly no less

       important). Perhaps most importantly, Turner illustrates that to prevail, the

       aggrieved party need not establish an expectation of monetary payment for the

       services rendered.


[19]   Here, Neibert admits that he never asked Perdomo for monetary compensation

       for his services in renovating Father’s House and in excavating and constructing

       the New House. Perdomo maintains that Neibert performed these services

       gratuitously. She cites as support Neibert’s testimony that he had previously

       helped her fix up her Florida home as a “gift,” in recognition that neither of

       them was wealthy or “blessed with extra money.” Tr. at 59. However, he

       made no similar statement of donative intent when he performed the labor on

       Court of Appeals of Indiana | Opinion 43A03-1503-CC-99 | May 18, 2016      Page 11 of 18
       Father’s House and the New House. 3 In fact, he specifically testified that he did

       not intend these services to be a gift, insisting rather that he performed these

       services with the expectation of being a joint owner in the property based on his

       relationship with Perdomo. Id. at 58, 146. When asked whether he could have

       afforded to spend the hours and money for materials on Father’s House and the

       New House without any compensation, he responded, “No.” Id. at 60.

       Neibert also recounted an incident after he moved out when he went to the

       New House to get one of the couple’s three grills: “[Perdomo] came running

       out of the house pushing around on me, telling me not to get worked up and

       she says it would be worth at least two hundred thousand dollars to get rid of

       my .… A-S-S.” Id. at 530.


[20]   Ron Speigle, a friend with whom Neibert bartered services, testified about a

       conversation in which Perdomo had told him, “I told [Neibert] he gets half the

       farm.” Id. at 231. He also testified that both Neibert and Perdomo used the

       term “our property” when referencing the New House. Id. at 234. Michael

       Atkinson testified concerning conversations in his presence in which Perdomo

       and Neibert indicated their intent to live together in the New House and that

       “they were building it large enough to when they got older to have the bottom

       [floor] suitable for wheelchair access.” Id. at 257-58. Due to Perdomo’s motion




       3
          “A gift will be valid only if the donor had the present intent to make a gift—if, that is, the donor intended to
       make a gift at the time of delivery.” Lucas v. Frazee, 471 N.E.2d 1163, 1169 (Ind. Ct. App. 1984) (Young, J.
       dissenting) (citing Lewis v. Burke, 248 Ind. 297, 304, 226 N.E.2d 332, 336 (1967)).




       Court of Appeals of Indiana | Opinion 43A03-1503-CC-99 | May 18, 2016                                Page 12 of 18
       for involuntary dismissal, Perdomo did not testify at trial and thus did not

       controvert any of this testimony on the record.


[21]   As for the value of his services, Neibert presented evidence concerning his

       normal hourly rate and his estimated number of hours spent on the two

       projects. He also presented evidence showing that Father’s House went from

       previously uninhabitable and uninsurable and worth about $71,000 to worth at

       least $155,000 after he renovated it. An insurance policy application listed the

       value of the previously nonexistent New House at $261,000. Moreover,

       Neibert’s expert Roger Bruce testified extensively concerning the value of

       Neibert’s labor. He described the unique features of the New House, including

       the roof slopes, forty-five-degree corners, tile work, and framing, and provided

       detailed figures concerning the value of the structure and labor, beginning with

       the foundation and working upwards. Id. at 304-23, 355. He estimated that he

       could sell the New House project for $269,601.51. Id. at 348. This included

       adjustments for aspects of the job that had not been completed when Neibert

       moved out and ceased work on the project. Bruce’s extensive testimony

       concerning the number of hours to complete the New House spanned over a

       hundred pages of transcript and provided in-depth analysis of the photographic

       exhibits. We acknowledge Perdomo’s claim that Neibert’s friends provided

       some of the labor on the projects, but we also note the friends’ testimony that

       they had a practice of helping each other without remuneration in exchange for

       services on their respective projects.




       Court of Appeals of Indiana | Opinion 43A03-1503-CC-99 | May 18, 2016   Page 13 of 18
[22]   In sum, the uncontroverted evidence shows with respect to Neibert’s unjust

       enrichment claim that he (1) rendered a measurable benefit to Perdomo in the

       form of construction and excavation services, materials, and equipment at

       Perdomo’s implied request as evidenced on the building permit application, in

       her selection of plans, and in her continued participation in purchasing

       materials and cleaning up the job site; (2) he expected a proprietary interest in

       the property in exchange; and (3) allowing Perdomo to retain (a) the rental

       income and/or increase in value due to the renovation of Father’s House and

       (b) the sole ownership of the New House, without restitution would be unjust.

       Similarly, with respect to his implied contract claim, the evidence shows that

       Neibert (1) conferred a benefit; (2) in the form of services commonly the subject

       of pecuniary compensation; (3) not intending the services as a gift; (4) and

       which services were accepted by Perdomo, thus laying “an adequate foundation

       for a legally implied or created promise to render back its value.” Bright, 650

       N.E.2d at 315.


[23]   Based on the foregoing, we conclude that Neibert presented uncontroverted

       evidence sufficient to survive involuntary dismissal of his contractual claims,

       and as such, the trial court clearly erred in granting Perdomo’s Rule 41(B)

       motion. Consequently, we reverse and remand for completion of the trial on

       the merits.




       Court of Appeals of Indiana | Opinion 43A03-1503-CC-99 | May 18, 2016    Page 14 of 18
          Section 2 – The trial court abused its discretion in
       excluding Neibert’s expert witness’s report on the value
                        of Neibert’s services.
[24]   Because of its implications on remand, we address Neibert’s challenge to the

       trial court’s exclusion of Plaintiff’s Exhibit 15, Roger Bruce’s written report

       concerning the value of Neibert’s renovation, excavation, and construction

       services. We use an abuse of discretion standard when reviewing a trial court’s

       ruling on the admissibility of expert testimony. Estate of Borgwald v. Old Nat’l

       Bank, 12 N.E.3d 252, 256 (Ind. Ct. App. 2014). Indiana Evidence Rule 702(a)

       states, “If scientific, technical, or other specialized knowledge will assist the

       trier of fact to understand the evidence or to determine a fact in issue, a witness

       qualified as an expert by knowledge, skill, experience, training, or education,

       may testify thereto in the form of an opinion or otherwise.” The trial court is to

       control the admission of proffered expert testimony rather than admitting what

       is offered and leaving it to the trier of fact to determine weight to be accorded to

       the testimony. WESCO Distrib., Inc. v. ArcelorMittal Ind. Harbor LLC, 23 N.E.3d

       682, 696 (Ind. Ct. App. 2014), trans. dismissed (2015). Once the expert’s opinion

       is deemed admissible under Rule 702, “then the accuracy, consistency, and

       credibility of the expert’s opinions may properly be left to vigorous cross-

       examination, presentation of contrary evidence, argument of counsel, and

       resolution by the trier of fact.” Estate of Borgwald, 12 N.E.3d at 257 (quoting

       Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 461 (Ind. 2001)).




       Court of Appeals of Indiana | Opinion 43A03-1503-CC-99 | May 18, 2016      Page 15 of 18
[25]   Here, the trial court was the trier of both law and fact. After extended

       questioning and argument on the record, the trial court qualified Bruce as an

       expert concerning the value of renovation, excavation, and construction

       services, and Bruce was examined at length. However, when it came to ruling

       on Exhibit 15, Bruce’s written estimate of the value of Neibert’s services, the

       trial court was clearly concerned that Bruce had not personally inspected the

       quality of Neibert’s workmanship or even visited the New House and thus

       lacked personal knowledge. Neibert maintains that because the trial court

       deemed Bruce an expert, it should have admitted Exhibit 15 and accorded it

       weight commensurate with its method of preparation. We agree.


[26]   As for the trial court’s concern that Bruce had not personally inspected the New

       House, such is the nature of an expert witness. See Bunch v. Tiwari, 711 N.E.2d

       844, 848 (Ind. Ct. App. 1999) (“an expert may utilize hearsay information in

       forming his opinion.”); see also Ind. Evidence Rule 703 (“An expert may base an

       opinion on facts or data in the case that the expert has been made aware of or

       personally observed. Experts may testify to opinions based on inadmissible

       evidence, provided that it is a type reasonably relied upon by experts in the

       field.”) (emphasis added). Bruce testified at length concerning his extensive

       experience estimating projects. See Tr. at 185-92 (testifying that out of the two

       to three houses he built per year and the ten to twenty remodels he had done

       per year, about half of the projects had required him to submit a written

       estimate). He described his process for compiling an estimate, stating that he

       used a formal checklist and that, in the case of his estimate for Neibert, he


       Court of Appeals of Indiana | Opinion 43A03-1503-CC-99 | May 18, 2016      Page 16 of 18
       actually had “more information because it was already built and … we didn’t

       have to guess.” Id. at 189, 92. He later detailed his experience at valuing

       projects within the county and explained the sources of the figures contained in

       Exhibit 15, which included not only information obtained directly from Neibert

       but also blueprints, photos of the exterior, and aerial site photos. Id. at 277-89.

       When asked whether he needed to see the actual work in person in order to

       determine a project’s value, he replied, “No.” Id. at 280.


[27]   The trial court also expressed concern that Bruce had not prepared the final

       written document himself but instead had delegated the data entry to Carl Siler,

       a former employee with a software program that would compile the

       information and calculate the figures listed in the estimate. Perdomo objected

       to Exhibit 15 based in part on her inability to examine Siler concerning the

       reliability of the software program that he used to generate the estimate. In

       response, Neibert cited Bruce’s testimony that he had personally supplied all the

       data used in generating the estimate and that Siler’s role was merely to input

       Bruce’s figures into the program, which merely did “the math.” Id. at 345.

       Bruce also explained that he had reviewed the estimate and made corrections

       after Siler generated the initial report. He likened the arrangement to a real

       estate appraiser providing all the information to an employee or agent, who

       actually prepares the appraisal.


[28]   In short, as trier of both law and fact, the trial court accepted Bruce as an

       expert, heard his extensive testimony concerning his written estimate, and



       Court of Appeals of Indiana | Opinion 43A03-1503-CC-99 | May 18, 2016     Page 17 of 18
       should have admitted the estimate and weighed it accordingly. The trial court

       abused its discretion in excluding Exhibit 15.


[29]   Reversed and remanded.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 43A03-1503-CC-99 | May 18, 2016   Page 18 of 18
