MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Sep 20 2017, 8:47 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
James E. Ayers                                           Ian L. Stewart
Wernle, Ristine & Ayers                                  Stephenson Morow & Semler
Crawfordsville, Indiana                                  Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Donald Miller and Dorothy                                September 20, 2017
Miller,                                                  Court of Appeals Case No.
Appellants-Plaintiffs,                                   54A01-1608-PL-2048
                                                         Appeal from the Montgomery
        v.                                               Circuit Court
                                                         The Honorable Harry A. Siamas,
Crawfordsville Electric Light and                        Judge
Power and City of                                        Trial Court Cause No.
Crawfordsville,                                          54C01-1409-PL-767
Appellees-Defendants.




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 54A01-1608-PL-2048 | September 20, 2017        Page 1 of 12
[1]   Donald and Dorothy Miller appeal the trial court’s order dismissing their

      complaint and raise two issues which we revise and restate as whether the court

      erred in dismissing their complaint.1 We affirm.


                                           Facts and Procedural History

[2]   On June 20, 2013, Bryan Gee, who was employed as a line clearance supervisor

      for Crawfordsville Electric Light and Power (“CELP”), a municipal utility

      owned by the City of Crawfordsville (the “City”), went onto certain real

      property on Main Street in Crawfordsville, Indiana, and applied herbicide to

      trees. The property was conveyed to the Miller’s on August 9, 2013. The

      herbicide was “applied as a basal bark application which entails spraying the

      herbicide with a hand held sprayer or backpack sprayer around the diameter of

      the tree of about sixteen inches to the earth.” Transcript at 5. Gee wore a

      backpack sprayer to apply the herbicide and completed a daily application

      report. He met with Donald Miller in the later part of July 2013, “walked the

      property and looked at the trees that had been affected by the herbicide and

      spoke with him about his concerns,” and offered to “take down the trees and

      clean them up free of charge . . . and then also give him a voucher to the local

      Pro-Green.” Id. at 9. Gee observed that, at that point, the trees “looked dead,

      browned out.”2 Id. He met with Donald Miller again a couple of weeks later




      1
          The appellants’ brief indicates that Donald Miller is now deceased.
      2
       When asked at the evidentiary hearing if he would agree that he killed five trees, Gee responded
      affirmatively.

      Court of Appeals of Indiana | Memorandum Decision 54A01-1608-PL-2048 | September 20, 2017       Page 2 of 12
      and “told him that . . . was as far as [he] could go with offering him the taking

      down the trees and cleaning them up and a voucher.” Id. at 10.


[3]   In August 2013, Robert Stephens, who was the operations superintendent for

      CELP at the time, met and spoke with the Millers, and offered payment and “to

      remove the trees and clean up the damaged trees.”3 Id. at 17. The trees were

      scheduled to be cut down on August 26, 2013. However, prior to the scheduled

      removal, Donald Miller called and left a message for Stephens stating “that the

      agreement that [they] had to remove all the trees that were damaged and for the

      compensation that was offered was no longer agreeable and that he wanted to

      speak to [Stephens’s] manager.” Id.


[4]   On August 29, 2013, Donald Miller, Stephens, and Phillip Goode, the General

      Manager for CELP, “walked the property to again look at the damage and

      discuss a resolution” but were unable to reach an agreement. Id. at 19. Donald

      Miller pointed out the trees with the brown leaves as they walked the property.

      On August 30, 2013, Stephens took photographs at the property showing the

      power line and the dead trees as indicated by their brown leaves and sent an

      email with the photographs attached to Goode so that CELP could forward

      them to its attorney.




      3
        When asked at the evidentiary hearing “[w]hen you were there did you make a personal inspection to see
      that there were five trees and only five trees that had been killed,” Stephens replied “I made an inspection of
      the trees that Mr. Miller identified and myself. I couldn’t tell you the exact count,” and when asked “[f]ive
      sound about right,” Stephens answered “[i]t’s probably in the area, five six.” Transcript at 29.

      Court of Appeals of Indiana | Memorandum Decision 54A01-1608-PL-2048 | September 20, 2017           Page 3 of 12
[5]   On March 3, 2014,4 the Millers filed a Notice of Claim Against Political

      Subdivision and served it upon CELP. The notice stated that, “on or about the

      13th day of September 2013 [CELP] did trespass onto the property of Donald

      and Dorothy Miller . . . where they proceeded to by means of chemical

      treatment, destroy several trees located on the property” and “thereafter did

      also fail to remove the dead trees and stumps and clean up the residential

      property after such destruction.” Appellants’ Appendix Volume II at 47;

      Appellees’ Appendix Volume II at 33. Nathan Miller, a friend of Donald and

      Dorothy Miller, met with Donald Miller and observed the grove in the Millers’

      back yard in the spring of 2014. Nathan Miller observed that, as the area was

      greening, several of the trees throughout the entire grove were dead, and

      noticed “[t]he failure to bud and the tops of them started coming apart, the tops

      of the trees.” Transcript at 42. On May 5, 2015, he observed the grove again

      and counted eighteen dead trees on the property.5


[6]   Meanwhile, on September 19, 2014, the Millers filed a complaint alleging that,

      “on or about the 13th day of September 2013, the agents and employees of

      [CELP] did trespass” onto their property, that “the employees of [CELP] did

      then and there by means of chemical treatment kill several trees located on the




      4
        The trial court’s August 1, 2016 order indicates the Millers filed their notice of claim on March 3, 2014. In
      its brief, CELP states that “the stamp marks on the envelope indicate that it was not mailed until March 10,
      2014,” but that “for purposes of this appeal it will be assumed the notice was served on March 3, 2014.”
      Appellees’ Brief at 8 n.1.
      5
        When asked at the evidentiary hearing where the trees were located relative to the power line, Nathan
      Miller testified “[t]hey were all, every one of the trees was beyond fourteen feet which is the easement from
      the middle of the line.” Transcript at 44.

      Court of Appeals of Indiana | Memorandum Decision 54A01-1608-PL-2048 | September 20, 2017          Page 4 of 12
      property,” and that the actions of CELP “caused damage to the property

      owners, for loss of value of said trees and the cost to remove debris.”

      Appellants’ Appendix Volume II at 6-7. CELP filed a motion for summary

      judgment arguing in part that the Millers’ complaint failed as a matter of law

      because they did not file a timely notice of claim as required by Ind. Code § 34-

      13-3-8 together with designated evidence, and the Millers filed a response and

      designated evidence. The court entered an order denying CELP’s motion for

      summary judgment, finding that resolution of the issue of the timeliness of the

      Millers’ tort claim notice involved credibility of witnesses and weight of

      testimony and scheduling an evidentiary hearing on the issue.


[7]   On July 27, 2016, the court held the scheduled evidentiary hearing at which it

      heard testimony from Gee, Stephens, Nathan Miller, and Dorothy Miller,

      admitted exhibits, and took the matter under advisement. Gee testified that the

      materials he sprayed were already mixed, that he was not familiar with the

      characteristics of the materials and had not studied their chemical

      characteristics, and that he had an applicator’s license. He indicated that he did

      not have a conversation with Donald Miller about the way herbicide worked or

      the amount of time it would take for the herbicide to become inert or

      ineffective, nor did he know how long it would take to become ineffective.

      When Stephens was asked if he knew how the chemicals worked, he testified he

      has not been licensed or trained in how the chemicals are put together. When

      asked if he was aware of the limits of the effect of the chemicals in terms of how

      long they last, how they travel through the ground, and what they kill, Stephens


      Court of Appeals of Indiana | Memorandum Decision 54A01-1608-PL-2048 | September 20, 2017   Page 5 of 12
      replied “[t]hat’s a basal bark treatment so my limited understanding is that it’s

      for that tree only, but no beyond that I’ve not been trained in that.” Transcript

      at 28. Nathan Miller testified that he and Donald Miller collected samples from

      the ground to be tested by a laboratory, and that he started noticing changes in

      the grove in the spring of 2014 including and the failure of the trees to bud.


[8]   On August 1, 2016, the trial court entered an order dismissing the Millers’

      complaint on the basis that they had not timely filed their notice of claim. The

      order provides in part:

              The evidence establishes that the injury occurred in June 2013
              and the Millers knew about the injury no later than August 2013.
              Mr. Miller had at least five meetings with CELP representatives
              in August 2013. Mrs. Miller was present at least at the beginning
              of some of those meetings. Mr. Miller walked the easement with
              the CELP representatives and they discussed removing the five
              dead trees and cleaning up the site as well as compensation. Mr.
              Miller refused settlement and on August 29, 2013 told Stephens
              and Goode of CELP that he was referring the matter to his
              attorney to file suit. Based on this evidence clearly the Millers
              failed to comply with the time requirements of I.C. 34-4-16.5-7
              (now I.C.34-13-3-8).

                                                   *****

              The Millers knew that CELP had sprayed herbicide on some of
              their trees and that quickly these trees died. They were
              concerned that their damages were more than what CELP
              offered to fix so they elected suit rather than settlement. All of
              this was known to them prior to August 30, 2013. . . . It is not
              necessary that the Millers knew the extent of the damage or even
              that the extent of the damage was ascertainable. The law
              requires only that some ascertainable damage has occurred.

      Court of Appeals of Indiana | Memorandum Decision 54A01-1608-PL-2048 | September 20, 2017   Page 6 of 12
                  Based on the foregoing the Court finds that [the Millers’] claim is
                  barred because they failed to file their tort claim notice with
                  [CELP] within 180 days of the date that they became aware of
                  their loss pursuant to I.C. 34-4-16.5-7 (now I.C.34-13-3-8).


       Appellants’ Appendix Volume II at 116-118 (citation omitted).


                                                       Discussion

[9]    The issue is whether the trial court erred in dismissing the Millers’ complaint

       based on Ind. Code § 34-13-3-8 of the Indiana Tort Claims Act (“ITCA”).6 The

       Millers maintain that there were two discrete events, the first of which consisted

       of the death of six trees in the fall of 2013, and the second consisted of the death

       of additional trees in the spring of 2014 and later, and argue their notice of

       claim was timely as to the second group. They further argue that there is

       nothing an earlier tort claim notice would have provided CELP to assist it to

       timely investigate the claim for the second group of trees killed. They also

       assert that the trial court failed to recognize that inverse condemnation may be

       an alternate claim which justifies relief.


[10]   CELP and the City argue that the Millers were aware of ascertainable damages

       by August 2013, knew of the application of herbicide, and knew that as a result

       of the herbicide application there were dead trees on the property. They assert

       that the Millers’ alleged damages can be traced back to one event, the June 20,




       6
           The ITCA is found at Ind. Code §§ 34-13-3-1 through -25.


       Court of Appeals of Indiana | Memorandum Decision 54A01-1608-PL-2048 | September 20, 2017   Page 7 of 12
       2013 herbicide application. They also argue that the Millers never alleged

       below, and thus have waived, any inverse condemnation claim.


[11]   The Millers did not present a claim of inverse condemnation in their complaint

       and do not point to the record to show they raised the claim at the evidentiary

       hearing. Accordingly, they have waived any inverse condemnation claim. See

       Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013) (“[A]ppellate

       review presupposes that a litigant’s arguments have been raised and considered

       in the trial court.”); Franklin Bank & Trust Co. v. Mithoefer, 563 N.E.2d 551, 553

       (Ind. 1990) (“A party cannot change its theory and on appeal argue an issue

       which was not properly presented to the trial court.”).


[12]   The ITCA provides that a tort claim against a political subdivision is barred

       unless notice is filed with the governing body of that subdivision within 180

       days after the loss occurs. Ind. Code § 34-13-3-8; Ind. Code § 34-13-3-1;

       Waldrip v. Waldrip, 976 N.E.2d 102, 110 (Ind. Ct. App. 2012). A loss occurs for

       purposes of the ITCA when the plaintiff knew or, in the exercise of ordinary

       diligence, could have discovered that an injury had been sustained as a result of

       the tortious act of another. Waldrip, 976 N.E.2d at 110 (citing Reed v. City of

       Evansville, 956 N.E.2d 684, 691 (Ind. Ct. App. 2011) (citing Wehling v. Citizens

       Nat’l Bank, 586 N.E.2d 840, 843 (Ind. 1992); Irwin Mortg. Corp. v. Marion Cnty.

       Treasurer, 816 N.E.2d 439, 447 n.8 (Ind. Ct. App. 2004) (applying the discovery

       rule to determine when the loss occurred for purposes of tort claim notice under

       the ITCA)), trans. denied). The Indiana Supreme Court has clarified that a claim

       subject to the discovery rule accrues when a plaintiff is informed of a reasonable

       Court of Appeals of Indiana | Memorandum Decision 54A01-1608-PL-2048 | September 20, 2017   Page 8 of 12
       possibility, if not a probability, that an injury was sustained as a result of the

       tortious act of another, and that a person’s mere suspicion or speculation as to

       causation of an injury is insufficient to trigger accrual. Reed, 956 N.E.2d at 691

       (citing Degussa Corp. v. Mullens, 744 N.E.2d 407, 411 (Ind. 2001), reh’g denied).

       The Court has held that, for an action to accrue, it is not necessary that the full

       extent of the damage be known or even ascertainable, but only that some

       ascertainable damage has occurred. Cooper Indus., LLC v. City of S. Bend, 899

       N.E.2d 1274, 1280 (Ind. 2009). The exercise of reasonable diligence means that

       an injured party must act with some promptness where the acts and

       circumstances of an injury would put a person of common knowledge and

       experience on notice that some right of his has been invaded or that some claim

       against another party might exist. Barrow v. City of Jeffersonville, 973 N.E.2d

       1199, 1206 (Ind. Ct. App. 2012), reh’g denied, trans. denied.


[13]   We observe that the Millers’ notice of claim and their subsequent complaint

       alleged that, “on or about the 13th day of September 2013,” CELP by means of

       chemical treatment did destroy or kill several trees on their property.

       Appellants’ Appendix Volume II at 6, 47. However, the trial court found, and

       the evidence including Gee’s completed daily application report establishes,

       that the herbicide was applied on the Millers’ property on June 20, 2013. The

       record reveals that Gee applied herbicide to certain trees on June 20, 2013, and

       that, at the times the Millers met with Gee in late July of 2013, with Stephens in

       August 2013, and with Stephens and Goode on August 29, 2013, the parties

       discussed the damage to trees on the property caused by the herbicide


       Court of Appeals of Indiana | Memorandum Decision 54A01-1608-PL-2048 | September 20, 2017   Page 9 of 12
       application. The evidence demonstrates that the Millers knew, prior to

       September 4, 2013, that trees on their property had been sprayed, that injury or

       loss had occurred, and that some claim against CELP might exist.

       Nevertheless, the Millers did not file their notice of claim until at least March 3,

       2014, after the expiration of the 180-day period under the ITCA.


[14]   To the extent the Millers assert there is nothing an earlier tort claim notice

       would have provided CELP, we note that the Indiana Supreme Court has

       observed that “mere actual knowledge of an occurrence, even when coupled

       with routine investigation, does not constitute substantial compliance.”

       Schoettmer v. Wright, 992 N.E.2d 702, 707 (Ind. 2013). The Millers’ discussions

       with CELP regarding tree damage on their property did not satisfy the ITCA’s

       filing requirement. Further, to the extent the Millers, in the spring of 2014,

       observed that additional trees on their property had died or were dying, the

       Court has held that, for an action to accrue, it is not necessary that the full

       extent of the damage be known or even ascertainable, but only that some

       ascertainable damage has occurred. Cooper Indus., 899 N.E.2d at 1280. While

       the Millers may not have observed the full extent of the damage to the trees on

       their property by August of 2013, the evidence demonstrates that some

       ascertainable damage had occurred by then and that they knew or in the

       exercise of ordinary diligence could have discovered that an injury had been

       sustained as a result of the June 20, 2013 herbicide application. The Millers

       met with CELP several times by August of 2013 and had observed that at least

       some trees had died. CELP offered compensation to the Millers in August


       Court of Appeals of Indiana | Memorandum Decision 54A01-1608-PL-2048 | September 20, 2017   Page 10 of 12
2013, and after initially agreeing Donald Miller later informed Stephens that the

offered compensation was no longer agreeable. The Millers’ notice of claim

was not filed within the period required by the ITCA and thus their claim is

barred. See Peniel Grp., Inc. v. Bannon, 973 N.E.2d 575, 583 (Ind. Ct. App. 2012)

(holding the appellants’ predecessor-in-interest became aware of soil

contamination as early as 1997 and certainly no later than 2000, eight years

before the action was commenced, and thus that the appellants were barred

from bringing their claim), trans. denied.7




7
  The Millers also argue that the treatment by CELP “created a repetitive and continuing wrong, causing new
damage as the chemical spread,” Appellant’s Brief at 10, and cite Kerr v. City of South Bend, 48 N.E.3d 348,
355 (Ind. Ct. App. 2015) (noting the plaintiff claimed gases entering his home were the result of the
defendant’s continued failure to properly maintain its sewer line and each time interfered with the use and
enjoyment of his property and holding that the plaintiff suffered recurring losses rather than one individual
loss and his claim for injury to his property was not entirely barred), and Stickdorn v. Zook, 957 N.E.2d 1014,
1022-1024 (Ind. Ct. App. 2011) (noting the plaintiffs alleged in part that the defendants’ ongoing animal
waste storage and disposal constituted a nuisance and holding that the defendants’ manure pit became a
continuing nuisance through its use and the recurring and continuing spreading of waste on their fields
amounted to an intermittent and continuing nuisance and that the plaintiffs’ property claims were not time-
barred). The damage to the Millers’ trees can be traced to one event, namely, the herbicide application by
Gee on June 20, 2013. Gee testified that he did not apply chemicals on the Millers’ property after that date.
The evidence does not demonstrate that CELP’s herbicide application was recurring or continual as
contemplated by Kerr and Stickdorn. The Millers also cite Monsanto Company v. Miller, in which the court
stated in part, in discussing the possible accrual dates of the plaintiffs’ cause of action, that under Indiana law
the presence of PCBs in a feed storage area would not have given rise to a right of action until the PCBs
produced a prohibited contaminating effect and an insignificant amount of PCBs in milk would not create a
cause of action, that the plaintiffs’ cause of action did not accrue until the level of PCBs in the herd’s milk
first reached an impermissible level in violation of applicable tolerance levels, and that no damages were
ascertainable until the plaintiffs’ dairy products became unsaleable. 455 N.E.2d 392, 397 (Ind. Ct. App.
1983). As noted, the Millers knew by August 2013 that the herbicide application by CELP killed trees on
their property and were on notice by then that some claim against CELP might exist. We find the cases to
which the Millers cite to be distinguishable.

Court of Appeals of Indiana | Memorandum Decision 54A01-1608-PL-2048 | September 20, 2017            Page 11 of 12
                                                   Conclusion

[15]   Based upon the record, we affirm the trial court’s order dismissing the Millers’

       complaint.


[16]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 54A01-1608-PL-2048 | September 20, 2017   Page 12 of 12
