TRICE v. KIDWELL (2024)

MEMORANDUM DECISION

Case Summary

[1] Marva Trice appeals the small claims court's judgment in favor of Phyliss Kidwell, David Wray, Barbara Wray, Troy Bultman, Christopher Hindman, and Branching Out Tree Service LLC (collectively, the “Defendants”) on Trice's complaint for trespass and conversion. We affirm.

Issues

[2] Trice raises several issues for our review, which we consolidate and restate as the following:

1. Whether the trial court clearly erred when it entered judgment in favor of the Defendants on Trice's complaint.

2. Whether the court erred when it denied Trice's request for a copy of the audio recording of the fact-finding hearing.

[3] In addition, both parties raise the following issue for our review:

3. Whether they are entitled to appellate attorneys’ fees.

Facts and Procedural History

[4] Trice owns property on Calumet Street in Kokomo that has a large pine tree on it. Phyliss Kidwell owns a neighboring property. Kidwell does not reside in her house but instead allows her son, David Wray (“David”), and his wife, Barbara Wray (“Barbara”), to live there. David and Barbara handle the routine maintenance of the home. At some point, limbs from Trice's pine tree began to grow over the property line and onto David and Barbara's.

[5] On August 28, 2023, David and Barbara hired Branching Out Tree Service LLC (“Branching Out”), which is co-owned by Troy Bultman and Christopher Hindman, to trim the limbs that were hanging over their property line. After Branching Out cut the limbs, Trice believed that they had gone beyond the Wray's property line and had cut branches that were over her property. She also believed that they had cut the tree in such a way that caused it to start dying and that the individuals from Branching Out had entered her property without her permission. As such, on January 5, 2024, Trice filed a complaint in small claims court against the Defendants. In her complaint, Trice alleged that David and Barbara had hired Branching Out, that Branching out had “cut [her] tree in a way to destroy the tree,” and that the tree “would die” as a result. She also alleged that the individuals from Branching Out had entered her property without permission and had committed conversion when they failed to return the cut tree branches to Trice. Appellant's App. Vol. 2 at 21. Trice sought $10,000 in damages.

[6] The court held a hearing on Trice's complaint on March 5. During the hearing, Trice testified that her pine tree was “healthy” before Branching Out trimmed it but that it will now “die.” Tr. at 4, 12. In support of her argument, Trice had admitted as exhibits several photographs of the tree before and after it was cut. She also testified that the workers had cut the tree “beyond the property line” and “damaged [her] tree. Id. at 45. She also had admitted a quote from a tree service that indicated that the tree “will not survive long term due to damage.” Ex. at 14. And she testified that no one returned the cut branches to her.

[7] In response, David testified that he had instructed the individuals from Branching Out to cut the tree “straight up” from his fence line and that he “never did cut past the property line.” Tr. at 23-24. Similarly, Bultman testified that he cut “straight up” from the fence and that he never went onto Trice's property. Id. at 29. He also testified that, after Trice had filed her complaint, he spoke with an arborist who informed him that “the tree was perfectly fine.” Id. at 30. When asked if any of the cut branches had fallen into Trice's yard, Bultman replied that “there may have been a couple of little ones that fell over” and that they had “used [their] rake to grab it so [they] didn't leave trash on her lawn.” Id. at 36.

[8] Barbara also testified at the hearing. She testified that she had watched the Branching Out workers “the whole time” that they cut the limbs and that the workers “[a]bsolutely” did not “go onto [Trice's] property[.]” Id. at 40. She further testified that the workers did not cut the limbs beyond their property line.

[9] Following the hearing, the court entered findings of fact and conclusions thereon. In relevant part, the court found as follows:

5. Branching Out was instructed to only cut the limbs from a line parallel from the top of the Wray's fence upwards.

6. Numerous pictures of the tree have been submitted into evidence depicting the tree before, during, and after the tree was trimmed.

7. While the pictures do depict a bare spot in the middle of the tree and numerous fresh[-]cut branches, there is no evidence that any branch was cut in the area above the fence on the side of the yard owned by Trice.

8. Trice provided hearsay testimony that the tree was dead and needed cut down and replaced.

9. The Wrays provided hearsay testimony that the tree was not dead and that the limbs would grow back.

Appellant's App. Vol. 2 at 7.

[10] The court then noted that the only evidence Trice had presented included “photographs taken at a distance that are vague, at best[,] as to where each cut was made.” Id. at 8. The court concluded that there was “no way” that it would “award a $10,000[-]judgment based upon the evidence that was presented to the court.” Id. The court further found “that there is insufficient evidence to show that the Defendants cut limbs located above Trice's property” but that, even if the Defendants had cut those limbs, “there is insufficient proof to establish that the tree has died.” Id. Accordingly, the court entered judgment in favor of the Defendants.

[11] Thereafter, Trice submitted a written request to the court seeking a copy of the audio recording of the hearing. On April 1, the court issued an order in which it found that it “is not allowed to provide a copy of the audio recording” to Trice but that Trice “would be allowed to request a transcript of the bench trial[.]” Id. at 9. This appeal ensued.

Discussion and Decision

Issue One: Judgment

[12] Trice first contends that the small claims court clearly erred when it entered judgment in favor of the Defendants. We will not reverse a small claims court's judgment unless it is clearly erroneous. Spainhower v. Smart & Kessler, LLC, 176 N.E.3d 258, 264 (Ind. Ct. App. 2021). Thus, a party appealing from a negative small claims court judgment “must establish that the evidence is without conflict and, as a whole, unmistakably and unerringly points to a conclusion contrary to the trial court's judgment.” Id. This standard of review “is particularly deferential in order to preserve the speedy and informal process for small claims.” Heartland Crossing Found. Inc. v. Dotlich, 976 N.E.2d 760, 762 (Ind. Ct. App. 2012). “The small claims court is the sole judge of the evidence and the credibility of witnesses, and on appeal we neither reweigh the evidence nor assess the credibility of the witnesses.” Id. While Indiana Trial Rule 52(A), which governs the effect of findings of fact entered by the trial court, does not apply in small claims proceedings, a small claims court's findings are nevertheless helpful to this court in reviewing the judgment. See Kalwitz v. Kalwitz, 934 N.E.2d 741, 748 (Ind. Ct. App. 2010). However, we review the court's conclusions of law de novo. Herren v. Dishman, 1 N.E.3d 697, 702 (Ind. Ct. App. 2013).

Judicial Admissions

[13] Trice contends that the court clearly erred when it failed to make certain findings of fact based on “judicial admissions” she contends were made by certain parties. Appellant's Br. at 14. Judicial admissions are voluntary and knowing concessions of a fact by a party or a party's attorney occurring at any point in a judicial proceeding. Stewart v. Alunday, 53 N.E.3d 562, 568 (Ind. Ct. App. 2016). A judicial admission is an express waiver in court or preparatory to trial by a party or his attorney conceding for the purposes of the trial the truth of some alleged fact. Id. To constitute a judicial admission, a “party must testify clearly and unequivocally to a fact peculiarly within his knowledge[.]” Vigus v. Dinner Theater of Ind., L.P., 153 N.E.3d 1150, 1158 (Ind. Ct. App. 2020) (quotation omitted). In determining whether a party has made a judicial admission, we review the matter de novo and consider the party's statements and admissions as a whole. Stewart, 53 N.E.3d at 570-71.

[14] On this issue, Trice first asserts that the court should have found that the tree cutters had trespassed onto property because Bultman had “testified at trial that the tree cutters entered onto [her] property to remove timber and debris that had fallen[.] Id. To support her assertion, Trice relies on the portion of Bultman's testimony where he testified that “there may have been a couple of little” branches that fell into her yard and that they had “used [their] rake to grab [them.]” Tr. at 36.

[15] We cannot agree with Trice that Bultman's testimony constituted a judicial admission. First, that statement is not clear and unequivocal testimony that anyone had entered Trice's property. Indeed, Bultman merely stated that there “may” have been branches that they needed to retrieve with a rake. Tr. at 36. Second, in considering Bultman's testimony as a whole, it is clear that he did not make a knowing and voluntary concession that anyone from Branching Out had trespassed onto Trice's property. Indeed, Bultman also testified that no one had walked onto Trice's property and that none of their tools had gone “onto [Trice's] property.” Id. at 30. Bultman's statement that they “may” have used a rake to get fallen limbs off of her property is not a judicial admission of trespass. Id. at 36.

[16] Next, Trice asserts that the court erred when it failed to find that her tree is dying because the Wray's attorney had admitted it was dying during the trial. Trice is correct that, toward the end of the trial, the parties were discussing one of the photographs that Trice had admitted as evidence. The following colloquy occurred:

[Wray's attorney]: You've got exhibit two, it shows the dead tree right after they cut it.

The Court: Well, it's not a dead tree, but ․

[Wray's attorney]: It's dying.

[The court]: ․ there's some bald spots in there. Again, I'm going to have to make a determination as to how that occurred or when it occurred.

Tr. at 45. According to Trice, this was a judicial admission that the tree was dying such that the court was obligated to make a finding to that effect.

[17] But, again, we cannot say that this brief statement by the attorney constituted a judicial admission. Taken in context, it is clear that the attorney was discussing one picture of the tree right after the branches were cut that clearly shows that part of the tree is bare. His statement was not an unequivocal and express statement intended to admit that the tree was dead. This is especially true given that the attorney elicited testimony from numerous witnesses that the tree was not dead. In any event, as the trial court noted, the relevant question is not whether the tree was dead. Rather, the question was whether the Defendants had taken any action to cause the tree to die. Thus, even if the attorney's statement constituted an admission that the tree was dead or dying, it was not an admission that the Defendants has caused the tree to die.

Court's Conclusions

[18] Trice next contends that the court clearly erred when it concluded that she did not prove her claims for trespass and conversion by a preponderance of the evidence. Regarding the trespass claim, we have held that “to show common law civil trespass, it is necessary for the plaintiff to prove only that he was in possession of the land and that the defendant entered thereon without right.” Dyer v. Hall, 928 N.E.2d 273, 280. Trice contends that she proved that the Defendants entered her property. But Trice's entire argument on this issue rests on her claim that she “proved her civil tort of trespass claims when Bultman admitted in open court to trespass[.]” Appellant's Br. at 19. But, as discussed above, Bultman did not admit to having trespassed on Trice's property. To the contrary, Bultman testified that no one walked on Trice's property and that none of his equipment went onto her property. Contrary to Trice's argument, there is evidence in the record to support the court's findings that no one from Branching Out had trespassed onto her property. Trice's argument is simply a request for this Court to reweigh the evidence, which we cannot do. The court's findings support its conclusion that Trice had not met her burden to show civil trespass.¹

[19] Trice also contends that the court erred when it concluded that she had not met her burden of proof on her claims for conversion. She argues that she “established” her first claim when she showed that the Defendants had “knowingly and intentionally” removed and disposed of tree limbs that had fallen to the ground. Appellant's Br. at 22. She also contends that she proved her second claim when she proved that the tree was dying as a result of the Defendant's actions.

[20] As to her first claim, as discussed above, the evidence most favorable to the court's judgment demonstrates that Branching Out, at the direction of the Wrays, only cut limbs that were above the Wrays; property and not any of the branches that were over Trice's property. Indeed, David, Troy, and Barbara all testified that Branching Out had only cut the branches directly above the fence line. And Trice has not submitted any argument or authority to demonstrate that she was entitled to have the branches that were above the Wrays’ property returned to her or that they had any value.

[21] As for her claim that the Defendants had caused the tree to die, as the court found, the evidence on this question was conflicting. See Appellant's App. Vol. 2 at 7. Trice testified that the tree was healthy before Branching Out trimmed it and that it was now dying. The Defendants presented evidence that the tree was healthy and that nothing the individuals from Branching Out had done caused any damage to the tree. It was up to the court, as fact-finder, to decide which evidence to credit. And the court clearly chose to credit the Defendants’ evidence over Trice's. Because there was evidence to support the court's finding that the tree was not dead, its finding to that effect was not clearly erroneous. And that finding supports the court's conclusion that the Defendants did not kill the tree.

[22] Trice also contends that the court erred when it concluded that she was “required” to have an expert testify as to whether Branching Out had killed the tree. Appellant's Br. at 25. Trice is correct that a small claims court can base its decision entirely on hearsay evidence. See Hitchens v. Collection Specialists, Inc., 5 N.E.3d 418, 423 (Ind. Ct. App. 2014) (holding that hearsay evidence is admissible and that it was permissible for the small claims court to base its judgment on the hearsay evidence).

[23] Here, the trial court concluded:

Trice also asserts that the tree is dead. Her only evidence to this effect is a third party that provided her an estimate to remove a tree. Typically, hearsay evidence is not going to be sufficient to establish a fact that requires an expert opinion. The fact that the Defendants provided their own hearsay testimony to rebut [Trice's] only further reinforces the fact that Trice has failed to establish by a preponderance of the evidence that the tree is dead.

Appellant's App. Vol. 2 at 8.

[24] There is nothing in that conclusion that required Trice to submit expert testimony. Instead, it is clear that the court noted that the parties had presented conflicting hearsay evidence, with both Trice and Bultman presenting hearsay evidence in the form of what an expert had said to them. The court's conclusion was simply a statement that, had Trice presented something more than hearsay evidence, such as expert testimony, it would have helped her meet her burden of proof. Contrary to Trice's testimony, the court was not saying that small claims plaintiffs can never prevail if they submit hearsay evidence; it only stated that, under the facts of this case and the conflicting hearsay evidence, Trice did not meet her burden without expert testimony. Trice has not shown that the court erred in this regard.

Issue Two: Audio Recording

[25] Trice next contends that the trial court erred when it denied her request for a copy of the audio recording of the fact-finding hearing. We must agree. Indiana Trial Rule 74(D) clearly provides that a party “may request an audio recording of matters occurring during a hearing or trial by filing a written request” and that a court reporter or designee “shall produce a copy of the audio recording in accordance with” various statutes and rules.² Based on the plain language of the rule, the court was required to provide Trice with a copy of the audio recording following her written request.

[26] However, we hold that the issue is now moot. “[A]n issue is deemed moot when no effective relief can be rendered to the parties before the court.” McDaniel v. McDaniel, 150 N.E.3d 282, 292 (Ind. Ct. App. 2020). Here, while we agree that the court should have given Trice the audio recording, we are unable to render her any effective relief. Indeed, Trice's entire reason for wanting the audio recording is because a denial of a party's right to the recording and a requirement that a party pay and then wait for a transcript “may effectively prevent litigants from making an informed decision as to whether to appeal an adverse judgment.” Appellant's Br. at 28. As Trice has already decided to appeal the adverse judgment and paid for the cost of the transcript, there is no further relief we can grant her. As such, this issue is moot.³

Issue Three: Appellate Attorneys’ Fees

[27] Finally, both parties have requested an award of attorneys’ fees. Indiana Appellate Rule 66(E) authorizes the award of appellate attorneys’ fees when an appeal is “frivolous or in bad faith.” This Court's discretion to award attorneys’ fees is limited to instances when an appeal is “permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.” Knowledge A-Z, Inc. v. Sentry Ins., 891 N.E.2d 581, 586 (Ind. Ct. App. 2008). We use extreme restraint when exercising our discretionary power to award damages because of the potential chilling effect on the exercise of the right to appeal. Bergerson v. Bergerson, 895 N.E.2d 705, 716 (Ind. Ct. App. 2008). A strong showing is required to justify an award of appellate damages. Id.

[28] Here, both parties request appellate attorneys’ fees based on their contention that the other party acted improperly. But despite their contentions, neither party has made a showing of meritlessness, bad faith, or any other factor required to support an award of appellate attorneys’ fees. We therefore decline both parties’ request.

Conclusion

[29] The trial court did not clearly err when it entered judgment in favor of the Defendants. Further, while the court should have provided Trice with a copy of the audio recording, we are unable to provide her with effective relief on that issue. And we decline both parties’ requests for appellate attorneys’ fees. We therefore affirm the trial court.

[30] Affirmed.

FOOTNOTES

1.   In addition to arguing that she had met her burden to prove her claim for civil trespass, Trice also asserts that she established that the Defendants had committed criminal trespass. See Appellant's Br. at 18-20. However, Trice cannot bring criminal charges against the Defendants, and there is no indication in the record to show that the State filed charges against the Defendants for criminal trespass. See Ind. Code § 35-34-1-1(b) (stating “all prosecutions of crimes shall be instituted by the filing of an information or indictment by the prosecuting attorney[.]” As such, the question of whether the Defendants committed criminal trespass was not presented to the small claims court.

2.   This rule went into effect on January 1, 2024.

3.   To the extent she briefly asserts that a copy of the recording would allow litigants to compare the audio file with the written transcript to ensure that the transcript is complete, she makes no assertion that the transcript in this case may be incomplete.

Bailey, Judge.

Bradford, J., and Foley, J., concur.