LLC LLC v. Appellee-Plaintiff/Counterclaim Defendant (2025)

MEMORANDUM DECISION

Statement of the Case

[1] A near-complete lack of communication between Marco Rossainz and his next-door neighbor Washburne Properties LLC (“Washburne”) and its agent Aeion Group LLC (“Aeion”) led to Rossainz suing Washburne and Aeion (collectively, the “Neighbors”) for trespass and nuisance after they failed to stop using Rossainz's property for their construction activities. The trial court granted Rossainz summary judgment on his trespass claim, and after a bench trial, it entered judgment in favor of Rossainz on his nuisance claim. The trial court awarded Rossainz $11,025 in damages and $21,000 in attorneys’ fees. The Neighbors now appeal, raising several issues ¹ for our review:

1. Whether the trial court erred by granting summary judgment in favor of Rossainz on his trespass claim;

2. Whether the trial court erred in awarding Rossainz damages.

[2] We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[3] In May 2022, Washburne owned the property commonly known as 241-243 N. Tacoma Avenue, Indianapolis, Indiana (the “Washburne Property”), and CN Builders, LLC, owned the property commonly known as 245 N. Tacoma Avenue (the “Rossainz Property”), which is next door to the Washburne Property. Washburne contracted with Aeion to renovate the Washburne Property, and in May 2022, Aeion contacted CN Builders for permission to access the Rossainz Property as part of their renovation efforts. CN Builders authorized Aeion to access the Rossainz Property during the renovation. At that time, the Neighbors believed the renovation would take approximately four months.

[4] On June 14, CN Builders contacted the Neighbors about the presence of excavation dirt on the Rossainz Property. On June 25, CN Builders told the Neighbors it was “very upset” the Rossainz Property was not yet “cleaned up as ․ discussed.” Appellants’ App. Vol. II at 122. CN Builders informed the Neighbors that the Rossainz Property was “on the market” and that it believed “all the excavation and debris is a bad look for potential buyers.” Id. On July 1, the Neighbors notified CN Builders that they had “cleared and cleaned up” the Rossainz Property. Id. at 130.

[5] On October 21, Rossainz purchased the Rossainz Property from CN Builders. The next day, the Neighbors learned that the Rossainz Property had been sold to Rossainz, and they attempted to reach out to him on October 22 and 23 but were unsuccessful.

[6] Sometime in late October, after Rossainz purchased the Rossainz Property, the Neighbors began using it again for their construction activities. On November 7, Rossainz, by counsel, sent via Certified Mail a demand letter to the Neighbors. In this letter, Rossainz claimed the Neighbors were using “portions of the Rossainz Property for access to the Washburne Property, storage of materials for improvement of the Washburne Property, and a temporary fence has been placed upon the Rossainz Property from the Washburne Property.” Appellants’ App. Vol. II at 134. Rossainz further alleged that the Neighbors’ excavation work had crossed over onto the Rossainz Property and damaged it. Rossainz informed the Neighbors that he had not and did not authorize the Neighbors to access and use the Rossainz Property in these ways. Accordingly, Rossainz demanded the Neighbors “immediately remove all construction materials and equipment and other debris/rubbish from the Rossainz Property, remove the temporary fence from the Rossainz Property, and cease any further use of and/or access upon the Rossainz Property.” Id. Rossainz also demanded the Neighbors pay him $5,000 in damages. Rossainz warned the Neighbors that if they ignored the demands in his letter, he might take legal action:

Should you refuse to comply with these demands and fail to communicate with [Rossainz's counsel's] office about a resolution to this matter within fifteen (15) days of this letter, Rossainz will be forced to file its complaint and seek all appropriate relief provided under Indiana law ․ Accordingly, this offer is only open until November 22, 2022.

Id. at 135 (emphasis in original).

[7] The Neighbors did not contact Rossainz's counsel within the 15-day period. Instead, the Neighbors continued their renovation work. On November 28, the Neighbors “removed all construction materials, equipment, debris/rubbish and the temporary fence from the [Rossainz] Property and ceased all use thereof.” Appellants’ App. Vol. II at 100.

[8] Also on November 28, Rossainz sued the Neighbors for trespass and nuisance. The Neighbors countersued for an equitable easement over the Rossainz Property and tortious interference with the business relationship between Washburne and Aeion. Rossainz filed a motion for summary judgment on all claims. The Neighbors opposed this motion and filed their own cross-motion for summary judgment on all claims. After a hearing, the trial court granted summary judgment in favor of Rossainz on his trespass claim and denied Rossainz summary judgment on his nuisance claim because it determined there was a genuine issue of material fact. The trial court also denied the Neighbors’ cross-motion for summary judgment on all issues. The only issues pending after the trial court ruled on the summary judgment motions were (1) Rossainz's trespass-related damages, and (2) Rossainz's nuisance claim and any damages therefrom.

[9] The trial court held a combined bench trial on Rossainz's nuisance claim and his trespass-related damages. The trial court concluded that the Neighbors were liable for nuisance, but that they had abated that nuisance. The trial court also concluded “that the damages from the nuisance created and maintained by the [Neighbors] are materially of the same substance as the damages for trespass,” so “to avoid duplicative damages,” the trial court “reserve[d] damages to [Rossainz]’s trespass claims.” Appellants’ App. Vol. II at 30. The trial court awarded Rossainz $11,025 in compensatory damages and $21,000 in attorneys’ fees. The Neighbors now appeal.

Discussion and Decision

1. The Trial Court Did Not Err by Granting Summary Judgment in Favor of Rossainz on His Trespass Claim

[10] The Neighbors argue the trial court erred by granting summary judgment in favor of Rossainz on his trespass claim. We review summary judgment decisions de novo, Gierek v. Anonymous 1, 250 N.E.3d 378, 384 (Ind. 2025) (citing Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014)), which means we apply the same standard as the trial court, Wohlt v. Wohlt, 245 N.E.3d 611, 615 (Ind. 2024) (citing Red Lobster Rests. LLC v. Fricke, 234 N.E.3d 159, 165 (Ind. 2024)). Summary judgment is proper only “if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences.” Abbott v. State, 183 N.E.3d 1074, 1079 (Ind. 2022) (quoting Hughley, 15 N.E.3d at 1003).

[11] We consider only those portions of the pleadings, depositions, and any other matters specifically designated to the trial court by the parties for purposes of the summary judgment motion. T.R. 56(C), (H). We resolve “all factual inferences and all doubts as to the existence of a material issue” in favor of the nonmovant. Zaragoza v. Wexford of Ind., LLC, 225 N.E.3d 146, 151 (Ind. 2024) (internal quotation marks omitted) (quoting Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012)). In so doing, “we give careful scrutiny to make sure the nonmovant's day in court is not improperly denied.” Id. (internal quotation marks omitted) (quoting Siner v. Kindred Hosp. Ltd. P'ship, 51 N.E.3d 1184, 1187 (Ind. 2016)).

[12] “The party moving for summary judgment bears the burden of making a prima facie showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.” Abbott, 183 N.E.3d at 1079 (emphasis in original) (citing Sargent v. State, 27 N.E.3d 729, 731 (Ind. 2015)). The movant “can make this showing when undisputed evidence affirmatively negates a required element” of the nonmovant's claim. Cmty. Health Network, Inc. v. McKenzie, 185 N.E.3d 368, 377 (Ind. 2022) (citing Siner, 51 N.E.3d at 1187–88). Only if the movant meets this prima facie burden does the burden then shift to the nonmovant to “come forward with contrary evidence showing an issue for the trier of fact.” Abbott, 183 N.E.3d at 1079 (citing Hughley, 15 N.E.3d at 1003).

[13] Here, Rossainz filed a motion for and was granted summary judgment on his trespass claim. To succeed on the trespass claim, Rossainz had to show that (1) the Neighbors did not have a contractual interest in the Rossainz Property, and (2) the Neighbors knowingly or intentionally (a) entered the Rossainz Property after having been denied entry by Rossainz or his agent, (b) refused to leave the Rossainz Property after having been asked to leave, or (c) interfered with the possession or use of the Rossainz Property without Rossainz's consent. See Ind. Code § 35-43-2-2(b)(1), (2), (4). A property owner or his agent may deny entry by oral or written communication. Id. § 35-43-2-2(c)(1).

[14] It is undisputed that Rossainz owned the Rossainz Property beginning on October 21, 2022, and the Neighbors do not assert that they did not enter the Rossainz Property knowingly or intentionally. The parties’ dispute centers on whether the Neighbors’ entry upon the Rossainz Property was unauthorized.²

[15] Rossainz's designated evidence shows that once he took possession of the Rossainz Property on October 21, 2022, he did not give the Neighbors permission to use it in any manner and on November 7, he demanded the Neighbors stop using it. Additionally, the Neighbors continued using the Rossainz Property “for roughly three months” after Rossainz's November 7 demand. Appellants’ App. Vol. II at 55. However, at the summary judgment hearing, Rossainz conceded that the Neighbors’ use of the Rossainz Property continued through only November 29, 2022.

[16] The Neighbors’ designated evidence confirms that on November 7, they received the demand letter from Rossainz. However, the Neighbors contend the demand letter gave them until November 22 to remove their things from the Rossainz Property. The demand letter stated in relevant part as follows:

․ Rossainz respectfully demands that you immediately remove all construction materials and equipment and other debris/rubbish from the Rossainz Property, remove the temporary fence from the Rossainz Property, and cease any further use of and/or access upon the Rossainz Property. As for past damages caused to and Washburne's unauthorized use of the Rossainz Property, Rossainz demands that you immediately pay to Rossainz $5,000.00 to cover his attorney's fees incurred to date and for damage caused [to] the Rossainz Property.

* * *

․ Again, at this time, Rossainz respectfully demands that you immediately remove all construction materials and equipment and other debris/rubbish from the Rossainz Property, remove the termporary fence from the Rossainz Property, cease any further use of and/or access upon the Rossainz Property, and that you immediately pay to Rossainz $5,000.00.

․ Should you refuse to comply with these demands and fail to communicate with [Rossainz's counsel's] office about a resolution to this matter within fifteen (15) days of this letter, Rossainz will be forced to file its complaint and seek all appropriate relief provided under Indiana law ․ Accordingly, this offer is only open until November 22, 2022.

Appellants’ App. Vol. II at 134–35 (fourth emphasis in original, all other emphases added). Based on the plain language of the demand letter, the Neighbors's use of the Rossainz Property was unauthorized beginning on November 7. Pursuant to the demand letter, the Neighbors were required to immediately vacate the Rossainz Property and then call Rossainz's counsel within 15 days to discuss Rossainz's monetary demand.

[17] The Neighbors’ designated evidence also shows that on November 28, 2022, they “removed all construction materials, equipment, debris/rubbish and the temporary fence from the [Rossainz] Property and ceased all use thereof.” Appellants’ App. Vol. II at 100. A picture of the Rossainz Property from that date confirms this.

[18] The Neighbors argue that they could not remove their things by November 22 because doing so “presented a safety risk,” particularly regarding dirt work that needed to be completed before they could remove the safety fence.³ Appellant's App. Vol. II at 100; see also id. at 88–89. That is, the Neighbors contend their presence on and use of the Rossainz Property after November 22 was necessary such that they cannot be liable for trespass.⁴

[19] To establish a necessity defense, the Neighbors needed to show that (1) they accessed and used the Rossainz Property after November 22 to prevent a significant evil, (2) there was no adequate alternative to doing so, (3) the harm caused by this access and use is not disproportionate to the harm avoided, (4) they had a good-faith belief that their access and use of the Rossainz Property after November 22 was necessary to prevent greater harm, (5) their belief was objectively reasonable under all the circumstances, and (6) they did not substantially contribute to the creation of the emergency. See Toops v. State, 643 N.E.2d 387, 390 (Ind. Ct. App. 1994) (citing People v. Pena, 149 Cal.App.3d Supp. 14, 197 Cal.Rptr. 264, 271 (1983), overruled in part on other grounds); Hernandez v. State, 45 N.E.3d 373, 376–77 (Ind. 2015) (approving of Toops’s 6-factor necessity defense). Even if we assume that the Neighbors’ designated evidence satisfies the first five factors, it is undisputed that the Neighbors were the sole cause of the “emergency” that allegedly existed here.

[20] First, if the Neighbors had not excavated part of the Washburne and Rossainz Properties to start with, there would have been no need for them to continue accessing and using the Rossainz Property after November 22 to complete that excavation work and make the Rossainz Property safe again. Second, the Neighbors’ designated evidence shows that once they received the demand letter, they chose to continue working on the Washburne Property by completing foundation, footing, block, and waterproofing projects; it was not until November 28 that the Neighbors made any efforts to remedy their trespass of the Rossainz Property. Regardless of whether these projects were truly necessary—the designated evidence does not demonstrate they were—the Neighbors chose to ask for forgiveness rather than permission at every turn, thereby creating the alleged “emergency.” The Neighbors’ necessity defense must therefore fail.⁵

[21] Construing the designated evidence in favor of the Neighbors as the nonmovants, we conclude the Neighbors entered the Rossainz Property without authorization from November 7 to November 28. Therefore, the trial court did not err by granting summary judgment in favor of Rossainz on his trespass claim.⁶

2. The Trial Court Clearly Erred in Awarding Rossainz Trespass-Related Compensatory Damages, But It Did Not Clearly Err in Awarding Him Attorneys’ Fees

[22] The Neighbors next challenge the trial court's decision to award Rossainz damages. In awarding damages to Rossainz, the court entered findings and conclusions thereon, so we review for clear error. See Salyer v. Washington Regular Baptist Church Cemetery, 141 N.E.3d 384, 386 (Ind. 2020) (citing Town of Fortville v. Certain Fortville Annexation Territory Landowners, 51 N.E.3d 1195, 1198 (Ind. 2016)). Under the clearly erroneous standard, we consider whether the evidence supports the findings and whether the findings support the judgment. State ex rel. Dep't of Nat. Res. v. Leonard, 226 N.E.3d 198, 202 (Ind. 2024) (citing T.R. 52(A); Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016)). For any issues not covered by the findings, “we apply our general judgment standard, meaning we ‘should affirm based on any legal theory supported by the evidence.’ ” Id. (quoting Steele-Giri, 51 N.E.3d at 123–24) (citing T.R. 52(D)).

[23] The trial court awarded Rossainz damages pursuant to the Indiana Crime Victims Relief Act ⁷ (“CVRA”) because it determined the Neighbors committed criminal trespass ⁸ . Pursuant to the CVRA, Rossainz could recover, among other things, (a) no more than three times the amount of his actual loss, and (b) reasonable attorneys’ fees. I.C. § 34-24-3-1(1)(A), (3). The Neighbors argue the trial court erred in awarding Rossainz (a) compensatory damages and (b) attorneys’ fees. We address each argument in turn.

a. Compensatory Damages

[24] In awarding Rossainz compensatory damages on his trespass claim, the trial court made the following relevant findings and conclusions:

7. [Rossainz] was unable to use the [Rossainz] Property from the time of purchase on October 21, 2022, due to dirt and debris from the Washburne Property stored on the [Rossainz] Property.

․

* * *

9. Continuing past November 7, 2022 and despite [Rossainz]’s demand that they immediately cease use of and access upon the [Rossainz] Property, [the Neighbors] continued to use and access the [Rossainz] Property, including placing rubbish, debris, temporary fencing, machinery, vehicles, and various construction materials upon the [Rossainz] Property․

10. The [Neighbors] removed debris from the [Rossainz] Property and deposited fill dirt and gra[d]ed the [Rossainz] Property the evening of November 28, 2022.

* * *

11. No other work has occurred on the [Rossainz] Property since the time this dispute arose․

15. The use of vehicles upon the [Rossainz] Property by agents and contractors of [the Neighbors] caused ruts and inconsistent grading upon the [Rossainz] Property․

16. [Rossainz] testified that he did not request [the Neighbors] place fill dirt upon the [Rossainz] Property, and that such placement caused damages to the [Rossainz] Property by creating uncompacted and loose dirt not ideal for development․

17. Aerial photographs provided by Marion County GIS and Google Streetview photographs submitted into evidence identify workers and vehicles accessing the [Rossainz] Property on March 12, 2024 and in May 2024 respectively․

18. Photographs taken at the direction of [the Neighbors] timestamped August 15, 2024, specifically the photograph timestamped 5:17 PM, was taken from within the [Rossainz] Property, thereby consisting of a further trespass upon the [Rossainz] Property․

19. [The Neighbors’] unauthorized and continued use of the [Rossainz] Property has prevented [Rossainz] from utilizing and developed the [Rossainz] Property․

20. [Rossainz] has not been able to make any advances on development of the [Rossainz] Property due to [the Neighbors’] unauthorized and continuous use of the [Rossainz] Property․

21. As the owner of the [Rossainz] Property, [Rossainz] testified that a reasonable rental value of his [Rossainz] Property was $525.00 per month․

* * *

41. Here, [Rossainz] is entitled to compensatory damages for the unauthorized use of the [Rossainz] Property in the amount of $525.00 per month, which is what [Rossainz], as the owner of the [Rossainz] Property, has testified to being the reasonable rental value for the [Neighbors]’ use of the Marco Property.

42. [The Neighbors] failed to submit any evidence or competent testimony to address the value of their use of the [Rossainz] Property, or to rebut [Rossainz]’s testimony that a reasonable rental value of his [Rossainz] Property was $525.00 per month.

43. [Rossainz] has provided evidence that [the Neighbors] used the [Rossainz] Property without right and without notice thereof on November 7, 2022, and the evidence indicates trespasses upon the [Rossainz] Property from November 2022 to August 2024, consisting of 21 months․ Accordingly, the evidence before the Court indicates that [Rossainz] is entitled to $11,025.00 for the [Neighbors’] unlawful use of the [Rossainz] Property.

Appellants’ App. Vol. II at 26–28, 31.

[25] The Neighbors argue that the trial court's damages award was “based on a trespassing period and valuation method that was not supported by the evidence.” Appellants’ Br. at 22. Concerning the trespassing period, we must agree. The trial court determined the trespassing period began on November 7 and continued through August 2024. As we explained above, the trespassing period began on November 7 and lasted until the Neighbors removed their things from the Rossainz Property on November 28, thereby making the trespass period 22 days—November 7 through November 28.

[26] At the combined bench trial and damages hearing, Rossainz presented evidence that the Neighbors had entered the Rossainz Property without his permission on March 12, 2024, on an unspecified day in May 2024, and on August 15, 2024. There was no evidence that the Neighbors remained on or consistently were present on the Rossainz property from 2022 through 2024; instead, the evidence showed that after November 28, 2022, there were three additional dates the Neighbors were present on the Rossainz Property without consent. This evidence does not support the trial court's conclusion that the Neighbors trespassed on the Rossainz Property for 21 months; rather, the evidence supports the conclusion that the Neighbors trespassed on the Rossainz Property for a total of 25 days. The trial court's compensatory damages award must therefore be limited to this 25-day period.

[27] Regarding the Neighbors’ argument that the trial court used an incorrect valuation method for Rossainz's trespass damages, we cannot agree. Rossainz testified that for a three-month trespass period resulting in him not being able to use the Rossainz Property, his damages were $1575. This amount breaks down to $525 per month, which was the value the trial court used. We therefore cannot say that the trial court's valuation method is unsupported by the evidence.

b. Attorneys’ Fees

[28] The CVRA provides for an award of attorneys’ fees if the plaintiff proves pecuniary loss as the result of the relevant property offense. See Wysocki v. Johnson, 18 N.E.3d 600, 605 (Ind. 2014) (quoting Citizens Nat'l Bank of Evansville v. Johnson, 637 N.E.2d 191, 195 (Ind. Ct. App. 1994)). Here, Rossainz proved pecuniary loss as the result of the Neighbors’ criminal trespass, so he is entitled to reasonable attorneys’ fees under the CVRA. See I.C. § 34-24-3-1(3).

[29] In awarding Rossainz attorneys’ fees, the trial court made the following relevant findings and conclusions:

46. [Rossainz] presented evidence that as of September 9, 2024, he had incurred Seventeen Thousand One Hundred Fifty-Nine and 71/100 Dollars ($17,159.71) in attorney's fees and costs.

47. On October 18, 2024, counsel for [Rossainz] filed a supplemental attorney's fees affidavit indicating that from September 9, 2024 to October 18, 2024, which included the Bench Trial and preparation therefor, [Rossainz] incurred an additional Thirteen Thousand Fifteen and 99/100 Dollars ($13,015.99) in attorney's fees and costs.

48. The Court finds that Plaintiff [Rossainz]’s attorney fees affidavit and supplemental attorney fee affidavit do not contain an hourly rate or the amount of time spent on each task․ Therefore, considering the attorney fee affidavit and supplemental attorney fee affidavit and accompanying exhibit, the Court FINDS a reasonable combined attorney fee is twenty-one thousand dollars and no cents ($21,0000.00).

Appellants’ App. Vol. II at 32.

[30] The Neighbors argue that the trial court's attorneys’ fee award was erroneous because the trial court refused to award Rossainz treble damages. However, under the CVRA, “trial courts have wide discretion not to award any damages in excess of the actual loss.” Wysocki, 18 N.E.3d at 605 (citing Schrenger v. Caesars Ind., 825 N.E.2d 879, 884 (Ind. Ct. App. 2005), trans. denied; Ballard v. Harman, 737 N.E.2d 411, 418 n.5 (Ind. Ct. App. 2000); Burgett v. Haynes, 572 N.E.2d 1296, 1298 (Ind. Ct. App. 1991)). A trial court's refusal to award treble damages “amounts to an ‘implicit finding that the conduct was not so heinous as to require exemplary damages’—even when the court awards attorney fees as the statute requires.” Id. (alterations omitted) (quoting Johnson, 637 N.E.2d at 195). Thus, a trial court can award compensatory damages and attorneys’ fees under the CVRA, but doing so does not require it to also award treble damages. See id. (quoting Johnson, 637 N.E.2d at 195). And a trial court need not determine that the complained-of conduct was “heinous” before it can award attorneys’ fees pursuant to the CVRA. See id. (quoting Johnson, 637 N.E.2d at 195). Accordingly, the trial court's refusal to award Rossainz treble damages does not undercut its decision to award him attorneys’ fees, and we cannot say it clearly erred in awarding attorneys’ fees.

Conclusion

[31] In sum, the trial court did not err in granting summary judgment in favor of Rossainz on his trespass claim, and it did not clearly err in awarding him attorneys’ fees. We affirm the trial court's decisions on those matters. However, the trial court clearly erred in awarding Rossainz trespass-related compensatory damages because the 21-month trespass period it used to calculate those damages was unsupported by the evidence. We reverse the trial court's compensatory damages award and remand with instructions to award Rossainz trespass-related compensatory damages for the 25-day period outlined above.

[32] Affirmed in part, reversed in part, and remanded with instructions.

FOOTNOTES

1.   The Neighbors list four issues in their Statement of Issues, but they address only three of those issues in their Argument. We address only those issues actually argued.

2.   In support of their summary judgment arguments, the parties improperly cite to evidence presented at the bench trial. See Appellant's Br. at 17 (citing Tr. Vol. II at 39–40); id. at 20 (citing Tr. Vol. II at 39–40); Appellee's Br. at 20 n.48 (citing Tr. Vol. II at 34–61, 113, 123); id. at 20 n.49 (citing Tr. Vol. II at 34–61, 113, 123); id. at 22 n.51 (citing Tr. Vol. II at 34–61, 113, 123). We are limited to only the designated evidence, so we will not consider any material that was not designated at the trial level. See T.R. 56(C), (H); Wohlt v. Wohlt, 245 N.E.3d 611, 615 (Ind. 2024) (citing Red Lobster Rests. LLC v. Fricke, 234 N.E.3d 159, 165 (Ind. 2024))

3.   The Neighbors assert that Rossainz “refused” to speak with them, Appellants’ App. Vol. II at 85, or otherwise “ignored” them, Appellants’ Reply Br. at 9, which resulted in them not being “able to communicate with Rossainz to explain that they need[ed] more time to complete the work and that abandoning their work before completion would present a safety risk or nuisance,” Appellants’ Br. at 19. The Neighbors’ designated evidence shows only that the Neighbors tried to communicate with Rossainz on October 22 and 23, Appellants’ App. Vol. II at 99, 132–33; there is no evidence demonstrating that the Neighbors made any attempt on or after November 7 to communicate with Rossainz or his counsel.

4.   Rossainz argues that the Neighbors have waived their necessity defense by failing to raise it at the trial level. However, the Neighbors claimed necessity in their summary judgment briefing, see Appellants’ App. Vol. II at 88–89, and argued necessity at the summary judgment hearing, see Tr. Vol. II at 16–17, 19. We therefore decline to deem the Neighbors’ necessity argument waived for failure to raise it below.

5.   At the trial level, the Neighbors also argued that they had a prescriptive easement over the Rossainz Property. The Neighbors do not reassert this argument on appeal, nor do they challenge the trial court's ruling that they failed to prove the existence of such an easement. Even if the Neighbors had presented the issue for our review, we agree with the trial court that they failed to designate evidence sufficient to establish a prescriptive easement for their benefit over the Rossainz Property.

6.   In a single sentence at the end of their argument concerning the trial court's compensatory damages decision, the Neighbors challenge the “trial court's grant of summary judgment in favor of Rossainz on his nuisance claim.” Appellants’ Br. at 22–23. The trial court did not grant summary judgment in favor of Rossainz on his nuisance claim; instead, it determined that a genuine issue of material fact precluded summary judgment thereon. Appellants’ App. Vol. II at 23–24. The parties then had a bench trial on Rossainz's nuisance claim, Tr. Vol. II at 44–140, after which the trial court entered judgment in favor of Rossainz, Appellants’ App Vol. II at 25–33. To the extent the Neighbors are challenging the trial court's final judgment on Rossainz's nuisance claim, they have failed to support that challenge with cogent argument, see Ind. Appellate Rule 46(A)(8)(a), such that we cannot address its merits. See Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015).

7.   I.C. § 34-24-3-1.

8.   I.C. § 35-43-2-2(b).

Felix, Judge.

Judges Mathias and Foley concur. Mathias, J., and Foley, J., concur.