Tammy Webber v. Kenneth Kuebler Heating & Air Conditioning, Inc. (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

FILED

this Memorandum Decision shall not be

regarded as precedent or cited before any Oct 24 2019, 7:43 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 APPELLANT ATTORNEYS FOR APPELLEE

Darin Higgs Scott L. Tyler

Evansville, Indiana Natalie Short

Waters, Tyler, Hofmann & Scott,

LLC

New Albany, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Tammy Webber, October 24, 2019

Appellant-Plaintiff, Court of Appeals Case No.

19A-CT-274

v. Appeal from the Posey Superior

Court

Kenneth Kuebler Heating & Air The Honorable Keith A. Meier,

Conditioning, Inc., Senior Judge

Appellee-Defendant. Trial Court Cause No.

65D01-1707-CT-267

Mathias, Judge.

[1] Tammy Webber (“Webber”) appeals the judgment of the Posey Superior Court

in favor of Kenneth Kuebler Heating & Air Conditioning, Inc. (“Kuebler”) in

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Webber’s negligence action against Kuebler. On appeal, Webber claims that the

trial court clearly erred by concluding that Kuebler was not negligent per se.

[2] We affirm.

Statement of Facts

[3] In 2014, Webber hired Kuebler to install a new air-conditioning unit in her

home in Posey County, Indiana. Kuebler installed the unit on July 8, 2014,

replacing an aging unit that had been in the house for decades.

[4] Three years later, in April 2017, Webber replaced the vinyl flooring in the

utility room where the air-conditioning unit was located alongside her washing

machine, water heater, and freezer. When she removed the flooring, she

noticed that the subfloor had water damage. Webber believed that some of this

water damage was caused by a clog in the drain for her washing machine. This

clog apparently occurred in July 2014, when Webber did some laundry for a

neighbor who had a fire in her house. The neighbor’s laundry contained cinders

which clogged the washing machine drain. Webber did not discover this clog

until she removed the vinyl flooring. Webber replaced the damaged subflooring

around the washing machine. Webber also found additional water damage to

the subflooring, which she attributed to the air-conditioning unit installed by

Kuebler.

[5] On July 25, 2017, Webber filed her complaint against Kuebler, alleging breach

of contract, negligence, unjust enrichment, and fraudulent inducement. A

bench trial was held on August 1, 2018. The trial court entered findings of fact

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and conclusions of law on December 6, 2018, finding in favor of Kuebler on all

counts. The trial court’s extensive findings and conclusions provide in pertinent

part:

8. Kuebler is a small company in the business of maintaining

and installing heating and air systems since 1980. It is owned and

operated by Kenneth, who had installed his first furnace in 1960

and who had installed as many as 150 units in one year.

9. [Webber] had known Kenneth for several years prior to the

events alleged in her Complaint and Kuebler had serviced

[Webber]’s old air handling system which came with the house—

which [Webber] believed to be original to the house.

10. In early to mid-2014, [Webber] called Kuebler regarding a

problem with the original air handler unit, which was located in

the utility room.

ACQUISITION OF THE UNIT:

11. Kenneth suggested [Webber] replace the old air handling unit

to save on energy bills and avoid increasingly frequent servicing

of the old unit. [Webber] agreed to purchase a new unit from

Kuebler for $6,418.00

***

15. The unit installed by Kuebler is a “down flow” configuration

and consists of several basic components which, starting towards

the top of the unit and going down are: the A-coil (also called an

evaporator, is used to transfer heat from inside the home to the

outside of the home) is toward the top of the unit; a condensate

drip pan is located below the A-coil and above the blower and

plenum and is used to catch condensation from the A-coil; a

blower is located below the A-coil; the plenum (also referred to in

the evidence as the transition or supply plenum) is located at the

base of the unit at the floor and is used to connect the unit to the

duct work below it in the crawl space. There is also a plastic

drain line connected to the drip pan which drains water from the

pan to outside the house.

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16. Kenneth and two of Kuebler’s employees installed the unit

on or about July 8, 2014 in the same location in the utility room

as the original unit. The installation included a modification

made by Kuebler which included fabricating a short plenum to

adapt to the existing plenum in the floor to support the coil and

the unit. The plenum was screwed to the floor to secure the unit

rather than being connected directly to the metal ductwork,

leaving the subfloor protruding into the ductwork. Silicone was

placed under the plenum to stop air leaks which could cause

condensation if air leaked. When he was initially installing this

unit, he saw the subfloor but did not remember what it looked

like, yet he also testified that he saw no damage to the edge of the

sub-flooring when the new plenum was installed and testified he

would probably see damage if it were there but did not know if

the floor looked like the damage shown in Exh. 19.

17. The laundry room floor was not level, but the evidence did

not support a finding as to what caused the floor to be unlevel

nor the extent and effects of that condition (except as specifically

set forth herein).

18. Kenneth did not review the manufacturer installation

instructions prior to this job because he felt he was familiar with

them. The evidence appeared to be in conflict. The [e]vidence did

not specifically disclose whether he had previously installed this

particular model and, if he had, the date he last reviewed the

instructions. Because the floor was not level, Kenneth installed the unit

tilting to the front although the manufacturer specified the unit was to be

level. He did not normally install an air handler which was not level

because of possible water leakage from the drip pan. He was not

concerned, however, because the tilt was to the front, where the pan is

located, but admitted this style could cause condensation.

19. The original plenum was located under the home. Kenneth

never checked the temperature of the unconditioned plenum to

make sure it would not cause condensation. He did not insulate

the plenum which he had added to the unit because it was in a

conditioned area although the crawl space under the unit was

unconditioned space. He estimated the cost to insulate the

plenum would be $5.00 to $10.00.

20. [Webber] was pleased with the new unit unit’s energy

efficiency and its ability to heat and cool her home. She did not

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experience any malfunctions with the unit and had no complaints

about how it worked. It lowered her utility bills, as Kenneth had

predicted.

21. The utility room shares walls with the kitchen, guest

bedroom, and living room and has one exterior wall. Since

Kuebler’s installation of the unit, [Webber]’s utility room has

housed the unit and deep freeze next to each other on one wall,

which separated it from the kitchen where the stove and

refrigerator were located behind the unit and the washing

machine, dryer and water heater on the opposite wall. All

appliances in the utility room were removed to perform the work

but the evidence did not disclose where they were stored (except

the unit was stored on the porch) during the floor replacement

nor whether any repairs or modifications were made to them.

22. In July 2014 [Webber]’s neighbor had a fire and [Webber]

laundered 32 to 35 loads of their clothing using her washing

machine in her utility room. Unbeknownst to [Webber] at that

time, the cinders from the clothing accumulated in the overflow

drain from the washing machine and solidified over time,

clogging the drain. The evidence did not clearly disclose whether

this was before or after the installation of the unit by Kuebler[.]

FUNKS CARPET:

23. The utility room floor had been covered with vinyl flooring

since the purchase of the house. Generally, there were two

flooring layers below the vinyl floor—a particle board as the

upper layer and plywood beneath. In the corner, where the deep

freeze was located, there was plywood but no particle board,

although the evidence did not support the reason for that

condition. The floor joists were under the plywood.

24. Although the evidence did not state why, in April of 2017,

[Webber] hired a local flooring company, Funks Carpet and

Warehouse (“Funks”), to replace all of the vinyl flooring in the

utility room. The evidence was not clear as to whether or not the

entire floor area was covered with vinyl and, if not, exactly which

areas were covered with vinyl. There was not sufficient evidence

to determine the condition of the existing vinyl floor such as

whether or not it had any tears, holes, significant wear or

scuffing, etc. where water could have flowed on top of the vinyl

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and then seeped through the holes or tears to the subfloor and

then to other areas of the room.

25. When the Funks’ employees began removing the old vinyl

flooring, they discovered water damaged subflooring and black

mold. It was only then that [Webber] realized water had been

leaking into the utility room subfloor from the clogged washing

machine drain and the subfloor under and around the washing

machine had been damaged from the water leakage. [Webber]

did not know how long the water stains had been on the subfloor

because they were covered by the vinyl flooring.

26. The evidence was not clear as to when, but [Webber] had

seen water on the linoleum twice and removed it but did not

investigate the floor for damage and she did not know how many

times the washing machine had overflowed onto the floor.

MIKE MORROW:

27. [Webber] hired [a] contractor, Mike Morrow, to remediate

the water damage caused by the clogged washing machine drain

and to replace the damaged subfloor. Morrow inspected the

damage and noted that “the subfloor” was saturated with water

from the washing machine.” Morrow also discovered water-

damaged subflooring around the unit which was also previously

hidden by the vinyl flooring. Photographs of the subfloor show

what appears to be a few inches of space between the watermark

in the subflooring around the washing machine and the

watermark in the subflooring near the unit. The floor crumbled

when it was being removed.

BAYLOR/GRESHAM:

28. [Webber] hired Baylor Heating & Air, a company similar to

Kuebler, to remove and reinstall the unit. Baylor then re-installed

the unit. When Baylor removed the unit, they placed it on

[Webber]’s front porch for one to two weeks while Morrow

removed, replaced and attempted to level the utility room floor

and Funks laid a new vinyl floor.

29. Ethan Gresham[] (“Gresham”), a Baylor employee,

performed the reinstallation work. During the reinstallation, he

took additional measures to decrease the likelihood of leaking

and condensation from the unit, including insulating the plenum

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in the floor because it would be more likely to lessen any

condensation in the duct work. He testified that it is his practice

to insulate the supply plenum transition unless the air handling

unit is in a conditioned space, but he was not aware of any

building code or installation instruction requiring such insulation.

There was no evidence suggesting that the utility room was an

unconditioned space.

30. While he was there, [Webber] asked Gresham to attempt to

locate the cause of the water damage. Although Gresham did not

investigate to determine if the unit had been installed by Kuebler

with a slight tilt toward the front side, he felt a tilt of the unit

would be proper because the drip pan is located in the front and

one wants any condensation water to flow to that location;

however, he made sure the unit was level to prevent water

drainage issues. He did not know whether the manufacturer

required the unit be level but, to his knowledge, the building

codes required [it].

31. Gresham gave possible causes for the water damage in

[Webber]’s home:

A.) Water coming from the unit. He did not, however, run

the unit to view any condensation which may be occurring

because he was simply reinstalling it, but he would have if he

were attempting to rule out water damage from the unit. He

noted the unit, with this style of air flow and with the A-coil

above the blower, is highly prone to getting so cold that the

metal will sweat with condensation. He opined that, based

solely on a visual inspection of the damage around the unit,

the unit’s A-coil caused the water damage, although he was

not sure how this occurred, or alternatively, the water

damage could have been caused by a failure to insulate the

plenum at the base of the unit and/or a failure to insulate the

ductwork underneath the house.

B.) Water penetrating the foundation and then seeping

through the crawl space and then rising up to damage the

floor because the subfloor was less than four cinder blocks off

the ground. Gresham did not recall if he inspected

[Webber]’s crawl space or how it looked but he would have

done so if he were conducting an investigation to determine

the cause of the water damage;

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C.) A roof leak; and

D.) Other appliances, such as refrigerators, washing

machines, freezers, and water heaters, or other causes, such

as leaks from plumbing.

32. Gresham made no effort to investigate these or alternate sources of the

leak and was unaware of the clogged washing machine drain nor did he

conduct any investigation to determine whether there had been other

appliances located in the utility room. When he performed the

reinstallation work, the other appliances —which were

previously located in the utility room—had been removed. Thus,

Gresham had no opportunity to inspect those possible alternative

causes of the water damage, including the leak from the washing

machine drain.

33. Gresham’s opinions on the causes of the water damage lack an

adequate factual foundation. He had never been specially retained to

render an opinion on water damage. He testified that in fewer

than six instances during the course of repairing or replacing a

unit, the customer asked him to opine as to the cause of a

potentially leaky unit. In these instances he did not follow any

scientific method for investigating water damage prior to

rendering his opinion. He was able to ascertain the cause by

turning on the unit and actually observing and identifying the

water leaking or dripping from a part of that air handling unit,

often the A-coil. He acknowledged that, if the A-coil was the cause of

the leak, he would have been able to observe the leak had he only turned

on the unit prior to removal. Contrary to his prior practice, he admitted

he did not turn on this unit before it was removed. As such, he could not

determine whether, in fact, water leaked from this unit due to

condensation or otherwise. Moreover, he failed to inquire into

pertinent facts, such as the age of the unit, when the unit was

installed, or the condition of the previously-replaced air handling

unit when it was removed. He admitted he lacked the

qualifications to conduct a forensic investigation to determine the

cause of the water damage, and he failed to attempt to rule out

potential causes of the water damage he had identified through his

previous work experience. Although there was no evidence

suggesting he was not competent to perform the regular duties of

his job, he has no education beyond high school and no training

in forensics, property damage losses, or investigations of water

intrusion issues. He had never testified as an expert in HVAC or

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a related matter. He admitted he would defer to the opinion of a

forensic investigator as to the cause of water damage on a floor.

34. In his experience, Gresham had seen A-coils dripping water

and had seen calcium buildup in drip parts which was an

indicator of water buildup from the A-coil.

35. Gresham was unable to verify his theory that the water problem was

caused by the supply plenum not being insulated. He admitted he was

not in court to testify that the way the unit was installed by

Kuebler was in violation of any code or installation instruction

nor that any water problem in [Webber]’s home resulted from the

unit not being level.

36. The floor work and reinstallation of the unit took 44 days to

complete. During that time, the home was in disarray and the

living conditions were difficult.

KENNETH:

37. Kenneth has had to replace some flooring when replacing old

air handling units. Although he recognized that drain issues are

possible when an air handling unit is installed with a tilt and he

did not usually install them with a tilt because water could

possibly leak from the drip pan and the manufacturer had

instructed the unit should be level, in this case, the floor was not

level so he installed it with a tilt to the front where the drip pan is located

so it would drain better.

38. Kenneth had never seen any air handler, similar to this unit,

installed inside a house where the lack of insulation on a plenum

located in a conditioned area caused moisture to escape resulting

in a problem. He was aware there are different temperatures

interacting in an area where conditioned and unconditioned

spaces meet, which can cause condensation. He was also aware

down flow air handling units, like the unit in this case, are prone

to getting cold enough to create condensation around an un-

[insulated] supply plenum and there is a lot of condensation

running from it in the summer. In this case, he did not check the

temperature of the plenum in the unconditioned area to ensure

the temperature differential was not high enough to create

condensation. He did not insulate the supply plenum mainly

because it was located in a conditioned space.

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39. After [Webber] discovered the water problems and filed a

complaint, Kenneth came to her home and looked inside the

unit, which was prior to Rimkus and Cammack being involved in

this case. He could not see inside the plenum modification he

had added to the unit to determine if there was any discoloration.

He saw no sign of moisture and the drip pan showed no evidence of

overflow and he found the water mark in the pan to be way below [the]

top edge of the pan. He also operated the unit for approximately 30 to 60

minutes and found no condensation in the unit nor any water running

on the floor.

40. Kenneth testified that Posey County adopted the

International Residential Code, but the evidence did not indicate

whether it was adopted prior to or after Kuebler installed

[Webber]’s unit. It provides, in pertinent part:

Section M1401.1 Installation. Heating and cooling

equipment and appliances shall be installed in accordance

with the manufacturer’s installation instructions and the

requirements of this code.

Section M1411.3 Condensate Disposal. Condensate from

all cooling coils and evaporators shall be conveyed from the

drip pan outlet to an approved place of disposal. . . .

Section M1411.3.1 Auxiliary and secondary drain systems.

In addition to the requirements of Section M1411.3, a

secondary drain or auxiliary drip pan shall be required for

each cooling or evaporator coil where damage to any

building components will occur as a result of overflow from

the equipment drip pan or stoppage in the condensate drain

piping. . . .

***

41. The “Installation Instructions” for the unit provide, in

pertinent part:

Plenums & Air Ducts

• Plenums and air ducts should be installed in accordance

with . . . all applicable local codes . . . .

Unconditioned Spaces

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• All duct work passing through unconditioned space must be

properly insulated to minimize duct losses and prevent

condensation . . . . .

CAUTION:

The air handler must be level to ensure proper

condensation drainage. An unlevel installation may

result in structural damage, premature equipment

failure, or possible personal injury.

• To ensure proper condensate drainage, the unit must be

installed in a level position. . . .

• If the air handler is located in . . . a living space where

damage may result from condensate overflow, an auxiliary

drain line should extend from the pan to a conspicuous

point and serve as an alarm indicating that the primary

drain is restricted.

42. The equipment warranty on the unit provides, in pertinent

part:

Warranty effective for equipment manufactured after

January 1, 2013.

This NORDYNE equipment and/or NORDYNE

accessories must be installed by a licensed or otherwise

qualified dealer or contractor and must be installed in

accordance with NORDYNE’S installation instructions and

in compliance with local codes. Improper installation may

endanger the occupants of the dwelling.

43. The evidence did not support a finding as to whether or not

the unit was manufactured after January 1, 2013 such that the

unit is covered under this warranty.

44. There would be no way to install an auxiliary drip pan under

this unit because air would be flowing through that space and the

pan would block the air flow.

CAMMACK:

45. On April 26, 2017, shortly after the discovery of the damaged

subflooring, Marc Cammack (“Cammack”), a Senior Consultant

with Rimkus Consulting Group, personally inspected [Webber]’s

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house and the damage, and conducted an investigation in an

attempt to determine the cause or causes of the water damage.

He was accompanied by Steve Weber, a licensed civil engineer

with Rimkus and a graduate of the Rose Hulman Institute of

Technology with a B.S. in Civil Engineering. Weber is registered

as a Professional Engineer in 16 states, including Indiana and has

extensive experience in water and flood damage. He was not

called to testif[y] but he and Cammack consulted and formed a

consensus opinion.

46. Cammack has a degree in Agricultural Engineering with a

focus on machinery. As a registered professional mechanical

engineer in five states, including Indiana, Cammack has

conducted over 1000 forensic investigations in his career, with

100 or more concerning the cause of a water leak; although not

necessarily related to leaks related to HVAC. He testified as an

expert without objection as to his qualifications.

47. The vinyl flooring in the utility room had been removed prior

to Cammack’s investigation, except for under the water heater.

48. Cammack observed the water staining with black fungal

growth on the subfloor where the washer had sat and noted

“[t]he wood floor was severely stained where the door of the

freezer would have overlain.” It was across the room from where

the unit had been located. Although there was a gap between that

water staining and the water staining located towards the unit, he

opined that the water from the washer could have migrated on

the vinyl flooring towards the unit, especially if the vinyl floor

ran towards the unit. There were no single photos in evidence

which clearly showed the extent and exact location of the larger

water stain in the area where the unit sat—either in the utility

room or from underneath it in the crawlspace. Cammack also

opined that the missing particle board in the corner where the

deep freeze was located was consistent with a possible, prior floor

problem and repair.

49. Cammack was aware there had been a deep freeze in the

room but he did not investigate it for a leak because it was not in

the room. The evidence did not disclose where the deep freeze

was located at the time of this inspection.

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50. Although Cammack noted some degradation of the particle

board, with more degradation where the drain line is located than

around the plenum which had been added by Kuebler, he would

have expected to see more degradation if there were a water issue.

Although there were stains in the wood floor under the unit, . . .

“there was no evidence of fresh moisture intrusion.[”]

51. During Cammack’s inspection, he ran the unit for

approximately 30 minutes. He noted a Delta T (difference of

temperature between 2 measuring points) of approximately 18

degrees but did not explain the significance of that finding to his

conclusions. He observed the condensate drip pan in the unit did not

leak and that the condensate lines carried the condensate to outside the

house. Cammack’s forensic investigation also included an internal

inspection of the unit while it was in operation. The A-coil was in

good condition. Examination of the unit’s condensate drip pan

did not show signs of overflowing. It showed white stains left

behind by water, but, the white line created by those water stains

is near the bottom of the drip pan. He concluded the level of water in

the drip pan had never gotten very high and that the “water stains within

the pan revealed typical condensate levels well below the upper-edge of the

pan.” He also concluded that the absence of an auxiliary drip pan did not

cause water on the floor. He inspected the blower and although

there was some light speckling on it, it did not line up to the drip

pan nor was there significant corrosion suggesting ongoing water

leakage. He inspected the breakers and supply wires below the blower

housing and concluded that if the drip pan had overflowed, he would

have had expected to see evidence thereof, but they were in good

condition, very clean, had no corrosion and no water staining. He also

inspected the wiring and control board, which were also below

the A-coil and drip pan. He concluded that if there were

overflow, he would have expected to see some evidence of

overflow, but there was none. He also looked inside the plenum

and looked where the plenum was fastened to the subfloor. He

observed minimal degradation of the particle board, no water

staining, and no evidence of water damage. He would have expected

to see much darker coloration on the subfloor than he did if there had

been a leak. He saw no condensation from the plenum while he

was conducting his inspection. He also observed some

discoloration of the duct work under the house but it did not

change his opinion.

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52. The underside of the utility room floor, as seen from the

crawl space, in the area where the washer drain and supply lines

were located, showed a large amount of stain and “significant”

degradation of the plywood, which was more than the

degradation in other areas of the utility room. . . . Beneath the unit

there was no significant degradation of the plywood or floor joists and no

evidence of old moisture damage. He noted that if the plenum had

experienced significant condensation, he would have expected to

have seen some damage to the subfloor, but there was no

damage. He concluded there was no significant water intrusion in that

area.

53. Cammack found that the inside of the exterior wall of the

crawl space showed water intrusion from outside the house

including wet mortar joints and soil against the wall and multiple

wet locations, the significance of which was that water can

migrate up to the floor which can contribute to damage to the

subfloor. There was also no vapor barrier below the house. He

also observed erosion around the foundation.

54. Cammack noted that the original vinyl floor affected the

ability to determine the cause of the water problem because the

staining of the floor would not have been visible and because the

degradation was not to the point where there was rot nor was the

floor unsafe to the point where one would put their foot through

it.

55. Cammack did not have a specific opinion as to the cause of

[Webber]’s floor damage, due in part to the fact that the damaged

subfloor had been covered by vinyl flooring until the Spring of

2017, coupled with the fact that other appliances were located in

the utility room. He determined the unit was not the cause of any of the

water-damaged subflooring in [Webber]’s utility room.

56. Cammack identified the following possible causes of the

damage, with none of these more or less likely than another:

A. The old unit which was replaced by Kuebler.

B. Defrost of the deep freeze adjacent to the unit.

C. Long time condensation from the crawl space conditions,

although the evidence did not disclose whether there was

water damage to the flooring in other areas of the house.

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D. He could not say the washer drain leak did not cause the

floor damage around the unit since the water from the

clogged washing machine drain could have migrated to the

subflooring around the unit.

57. Cammack’s investigation specifically ruled out the uninsulated

supply plenum transition as a cause of the water damage. His

inspection of the unit revealed no evidence of leaking or

condensation from the unit as installed by Kuebler. As depicted

in the photograph of the supply plenum and adjacent subflooring,

there was no evidence of significant condensation at the site of

the plenum.

58. Cammack’s “Moisture Damage Evaluation” stated:

1. The stains on the floor of the Webber utility room were unrelated

to the current air handler or its installation.

2. The floor conditions were possibly the result of one or

more of the following: leaks from the previous unit, defrost of

the adjacent freezer, long-term condensation from improper

crawlspace conditions, or some other unknown source.

3. Previously existing moisture stains would not have been

visible until the vinyl floor covering was removed.

59. In reference to Section M1411.3.1 Auxiliary and secondary

drain systems he noted:

The air unit installation manual recommended the same

instructions for condensate drainage. The installation of the

unit did not conform to the excerpts above; however, the

condensate line was observed to be draining at the exterior of

the building. The unit lacked the shut off noted . . . above,

but there was no evidence that water ever rose to the level

that it would have been activated.

60. With respect to condensation, he found and concluded:

No condensation was observed on the supply duct. No

condensate drain leaks were observed. The supply ductwork

was not water-stained and/or corroded as would be expected

if duct sweating were the source of the floor water stains. We

concluded that the stains on the flooring were unrelated to the air

handling unit or its installation.

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61. With respect to moisture in the crawlspace, he found and

concluded:

All modern building codes require the proper installation of

methods to remove excess moisture vapor from the

crawlspace. Vapor barriers are to be installed on the dirt floor

to prevent evaporation. Properly placed and sized openings

in the foundation walls are required to ventilate the

crawlspace air and remove moisture vapor. External soils are

required to slope away from the building and be properly

drained. None of those requirement was [sic] met in the Webber

house.

Water drained towards the house and flowed into

penetrations and cracks in the foundation walls. That water

flowed at velocities and quantities to erode crawlspace soils.

There were no vapor barrier or ventilation openings. Such

conditions created high levels of moisture vapor in the

crawlspace. The duct work and the floor framing in the

crawlspace had no insulation. The lack of insulation resulted

in a semi-conditioned space that would have been generally

heated and cooled with operation of the house air system.

Though the moisture-laden air had the potential for

condensation, it likely would only in severe exterior

temperature differential.

62. Cammack did not uncover any evidence that the installation of the

unit by Kuebler caused or contributed to the water problems in the

subfloor.

DAMAGES:

63. [Webber] alleges that Kuebler’s breach of contract and/or

negligence led to various expenses, including:

$111.78 for developing photographs used as trial exhibits

$234.00 for photo enlargements . . .

$1,689.00 for Baylor’s inspection and reinstallation of the

unit

$1,536.00 for water removal and installation of new flooring

$74.89 for a wet/dry vacuum. The evidence was not clear

whether this was a rental or purchase.

$180.00 for laundry expenses at laundromat while repairs

were made to utility room

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$180.00 for mileage expenses to and from the laundromat

$191.01 Court Costs

$15,324.48 for attorneys fees

$29,521.16 TOTAL

64. [Webber] testified that Morrow had rendered two bills for the

floor replacement—one related to the area around the washing

machine and one for the area around the air handler. Neither of

the bills were offered into evidence.

65. [Webber] and Kuebler did not discuss payment of legal fees if

a dispute arose and they were not addressed in Exhibits A and B.

MISC:

66. The evidence also did not support a finding as to the

following:

A. How long water had penetrated into the floor.

B. Whether or not [Webber] had ever checked the

condensate drain on the unit for blockage or spill-over or

other maintenance items on the unit that may have disclosed

developing or existing issues.

C. Whether or not liquid was found in the duct work or the

returns on the unit.

D. Whether or not the prior unit was level.

E. The dimensions of the utility room.

F. Whether or not the floor was actually wet when it was

being removed.

PART IV: CONCLUSIONS THEREON

1. [Webber] has the burden of proof on her claims.

Breach of Contract:

2. The evidence did not support a conclusion that Kuebler

breached any of its contractual obligations or that, if it did breach

its contractual obligations, that the breach caused the water

damage to the floor in the utility room and [Webber]’s other

claimed damages.

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Negligence:

3. Although the unit was not installed precisely according the

manufacturer’s installation instructions and the residential

building code, the evidence did not support the conclusion that the

water damage to the floor in the utility room and [Webber]’s other

claimed damages resulted from installation of the unit.

4. The evidence was sufficient to support the conclusion that

[Webber] suffered losses an[d] expenses—but they were not the

result of Kuebler’s negligence.

Misc:

5. The evidence does not support a conclusion that [Webber] met

her burden of proof on her claims nor that she should recover

from Kuebler under either cause of action for negligence or

breach of contract.

6. Kuebler is not responsible for [Webber]’s damages and losses.

Damages and Attorney Fees:

7. Because the evidence does not support the conclusion that

Kuebler’s installation of the unit was the responsible cause of the

water damage to [Webber]’s floor, under either breach of

contract or negligence, the court cannot award damages or

attorney fees.

PART V: JUDGMENT

IT IS THEREFORE CONSIDERED, ORDERED,

ADJUDGED AND DECREED that the above Findings of Fact

and Conclusions Thereon are incorporated herein as the Order

and Judgment of this court without further enumeration.

IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED,

AND DECREED that based on the above Findings of Fact and

Conclusions Thereon, the Court finds in favor of the Defendant,

Kenneth Kuebler Heating & Air Conditioning, Inc, on Counts 1

and 2 and against Plaintiff.

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Appellant’s App. pp. 18–30 (record citations and footnotes omitted) (bold and

underline in original, italic emphasis added). Webber now appeals.

I. Timeliness of Webber’s Appeal

[6] The first issue we address is Kuebler’s argument that Webber’s appeal is

untimely. As stated above, the trial court entered its final judgment on

December 6, 2018. Webber therefore had until January 7, 20191 to file a notice

of appeal or file a motion to correct error. See Ind. Appellate Rule 9(A) (“A

party initiates an appeal by filing a Notice of Appeal with the Clerk (as defined

in Rule 2(D)) within thirty (30) days after the entry of a Final Judgment is noted

in the Chronological Case Summary.”); Ind. Trial Rule 59 (“The motion to

correct error, if any, shall be filed not later than thirty (30) days after the entry

of a final judgment is noted in the Chronological Case Summary.”).

[7] On December 28, 2018, Webber filed a motion with the trial court seeking a

thirty-day extension of the time limit to file a notice of appeal. The trial court

denied this motion on January 1, 2019, correctly explaining that Appellate Rule

9 does not permit a trial court to extend the time limits to file a notice of

appeal.2 See Tarrance v. State, 947 N.E.2d 494, 496 (Ind. Ct. App. 2011) (noting

that “‘no provision of the appellate rules permits trial courts to expand the time

1

Thirty days from December 6 is January 5. But in 2019, January 5 was a Saturday. Thus, the notice of

appeal was not due until the following Monday, January 7.

2

Indiana Trial Rule 72(E) does provide that, if service of a copy of a court’s entry is not evidenced in the

CCS, the court, “upon application for good cause shown, may grant an extension of any time limitation

within which to contest such ruling, order or judgment to any party who was without actual knowledge, or

who relied upon incorrect representations by Court personnel.”). Here, the trial court’s final judgment was

evidenced by a note in the CCS. See Appellant’s App. pp. 11–12. Trial Rule 72(E) is therefore inapplicable.

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limit prescribed by Appellate Rule 9.’”) (quoting Sewell v. State, 939 N.E.2d 686,

687 (Ind. Ct. App. 2010)).3

[8] Instead of filing a notice of appeal by January 7, 2019, Webber filed, on

January 3, 2019, what she styled as a “Motion for Relief From Judgment to

Correct Error Pursuant to Trial Rule 60(B).” Appellee’s App. p. 5

(capitalization altered).4 In this motion, Webber sought to “correct errors

regarding the judgment entered on December 6, 2018, pursuant to Ind. Trial

Rule 60(B)(1), due to a mistake having a prejudicial impact on the Plaintiff . . .

.” Id. at 5. Kuebler filed a response to Webber’s motion on January 8, 2019,

and, on January 18, 2019, the trial court denied Webber’s motion. The trial

court’s order stated, “Plaintiff's Motion should be denied—both as a motion for

relief from judgment under Trial Rule 60 and as a motion to correct error under

Trial Rule 59.” Appellant’s App. p. 36. Webber filed a notice of appeal on

February 6, 2019, sixty-two days after the trial court entered its final judgment

but only nineteen days after the trial court denied Webber’s post-judgment

motion.

[9] The timeliness of Webber’s appeal depends upon whether her post-judgment

motion was a motion for relief from judgment under Trial Rule 60(B) or a

motion to correct error under Trial Rule 59. If a party timely files a motion to

3

We note that Sewell was subsequently abrogated on other grounds by our supreme court in In re Adoption of

O.R., 16 N.E.3d 965, 971 (Ind. 2014), which held that the failure to timely file a notice of appeal results in

forfeiture of the right to appeal but does not deprive the court on appeal of jurisdiction.

4

The following day, Webber filed an identical motion that had also been signed personally by Webber.

Appellee’s App. pp. 8–10.

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correct error under Trial Rule 59, then “a Notice of Appeal must be filed within

thirty (30) days after the court’s ruling on such motion is noted in the

Chronological Case Summary or thirty (30) days after the motion is deemed

denied under Trial Rule 53.3, whichever occurs first.” Ind. Appellate Rule 9(A).

[10] However, there is no similar provision for extending the time in which a party

must file a notice of appeal following a motion for relief from judgment under

Trial Rule 60(B). See In re Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind. 2010)

(holding that the propriety of a trial court’s order can only be challenged by way

of a timely notice of appeal or a timely motion to correct error) (citing App. R.

9(A)(1)). Indeed, it is well settled that “a motion for relief from judgment under

Indiana Trial Rule 60(B) is not a substitute for a direct appeal.” Id. (citing Gertz

v. Estes, 922 N.E.2d 135, 138 (Ind. Ct. App. 2010)). “‘Trial Rule 60(B) motions

address only the procedural, equitable grounds justifying relief from the legal

finality of a final judgment, not the legal merits of the judgment.’” Id. (quoting

Mid-West Fed. Sav. Bank v. Epperson, 579 N.E.2d 124, 129 (Ind. Ct. App. 1991)).

[11] Here, Kuebler argues that Webber’s post-judgment motion should be

considered a motion for relief from judgment, not as a motion to correct error.

Kuebler notes that Webber cited Trial Rule 60(B)(1) as the basis for her motion

and made no mention of Trial Rule 59.

[12] But Webber also ambiguously titled her motion a “motion for relief from

judgment to correct error.” Appellee’s App. p. 5 (emphasis added). Moreover, the

grounds for relief listed in the motion were:

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1. Defendant’s acts and/or omissions by Defendant were the

proximate cause of damages to Plaintiff’s home, in that Kenneth

Keubler stated in his deposition (among other statements) to the

effect that he, in fact, did make a mistake when installing

Plaintiff’s air unit.

2. Kenneth Keubler agreed in his testimony that the damage to

Plaintiff s floor could have been caused by Defendant’s

acts/omissions, as follows: a. condensation which rotted out

Plaintiff’s floor was caused by Defendant’s failure to insulate the

supply plenum; b. the unit was not level when it was installed,

which caused the A-coil to drain out onto Plaintiff’s floor.

3. Kenneth Keubler stated that the air unit was not level (and/or

that he did not check whether it was level) after the installation,

which is against applicable building codes that Defendant must

follow.

4. Petitioner’s witness, Ethan Gresham, was not viewed by the

Court as an expert witness, although the Court should have due

to Mr. Gresham’s years of experience and also a certification in

HVAC, and therefore, Mr. Gresham is an expert witness, due to

his expert knowledge in HVAC that an ordinary lay witness

would not have.

5. Kenneth Keubler testified that he did not read the installation

instructions prior to the unit’s installation.

6. Plaintiff s witness, Mike Morrow, had an illness, which kept

him from being deposed or being a witness at the trial.

Appellee’s App. pp. 5–6.

[13] None of these claims for relief allege any mistake, surprise, or excusable neglect

as set forth in Trial Rule 60(B)(1) as grounds for relief from judgment. Instead,

they simply allege error in the trial court’s judgment. Therefore, despite the fact

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that Webber’s post-judgment motion refers to Trial Rule 60(B), the substance of

her motion was to correct alleged error in the trial court’s judgment. We

therefore consider Webber’s post-judgment motion to be, in substance, a

motion to correct error, which acted to extend the time within which Webber

had to file her notice of appeal. See Hubbard v. Hubbard, 690 N.E.2d 1219, 1221

(Ind. Ct. App. 1998) (declining to favor form over substance and treating

appellee-respondent’s motion, captioned as a motion to reconsider, as a motion

to correct error).

II. Negligence

[14] Turning to Webber’s claims, she argues that the trial court clearly erred by

failing to conclude that Kuebler was negligent per se because of his failure to

install the air-conditioning unit pursuant to the applicable Posey County

residential building codes.

A. Standard of Review

[15] The parties requested that the trial court enter findings of fact and conclusions

of law. Accordingly, on appeal we

determine whether the evidence supports the findings and

second, whether the findings support the judgment. In deference

to the trial court’s proximity to the issues, we disturb the

judgment only where there is no evidence supporting the findings

or the findings fail to support the judgment. We do not reweigh

the evidence, but consider only the evidence favorable to the trial

court’s judgment. Challengers must establish that the trial court’s

findings are clearly erroneous. Findings are clearly erroneous

when a review of the record leaves us firmly convinced a mistake

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has been made. However, while we defer substantially to findings

of fact, we do not do so to conclusions of law. Additionally, a

judgment is clearly erroneous under Indiana Trial Rule 52 if it

relies on an incorrect legal standard. We evaluate questions of

law de novo and owe no deference to a trial court’s

determination of such questions.

McCauley v. Harris, 928 N.E.2d 309, 313 (Ind. Ct. App. 2010), trans. denied.

[16] Additionally, as the party who bore the burden of proof, Webber appeals from a

negative judgment. See Smith v. Dermatology Assocs. of Fort Wayne, P.C., 977

N.E.2d 1, 4 (Ind. Ct. App. 2012). On appeal, we will reverse a negative

judgment only if it is contrary to law. Id. In determining whether a judgment is

contrary to law, we consider only the evidence in the light most favorable to the

appellee, together with all the reasonable inferences to be drawn therefrom. Id.

The party appealing from a negative judgment must demonstrate that the

evidence points unerringly to a conclusion other than that reached by the trial

court. Id.

[17] Our supreme court recently explained the difference between the clearly-

erroneous standard and the negative-judgment standard as follows: “In [the

former], the inquiry is essentially whether there is any way the trial court could

have reached its decision. In the [latter], it is whether there is no way the court

could have done so.” Town of Brownsburg v. Fight Against Brownsburg Annexation,

124 N.E.3d 597, 602 (Ind. 2019) (citation and internal quotation marks

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omitted) (emphasis in original).5 It is under this limited standard that we review

Webber’s claims of error.

B. Negligence Per Se

[18] “The unexcused or unjustified violation of a duty proscribed by a statute or

ordinance constitutes negligence per se if the statute or ordinance is intended to

protect the class of persons in which the plaintiff is included and to protect

against the risk of the type of harm which has occurred as a result of its

violation.” Am. United Life Ins. Co. v. Douglas, 808 N.E.2d 690, 704 (Ind. Ct.

App. 2004), trans. denied (citing Town of Montezuma v. Downs, 685 N.E.2d 108,

112 (Ind. Ct. App. 1997), trans. denied). For the violation of a statute or

ordinance to constitute negligence per se, the trier of fact must first determine

whether the statute or ordinance is applicable. Id. (citing Dawson ex rel. Dawson

v. Long, 546 N.E.2d 1265, 1268 (Ind. Ct. App. 1989), trans. denied). If the statute

or ordinance is applicable, the trier of fact must determine whether a violation

of the statute or ordinance occurred. Id. If there was such a violation, the

question then becomes whether the violation proximately caused the plaintiff’s

injury. Id. “Negligence per se supplies liability, but the plaintiff must still prove

causation and damages just as in any other negligence claim.” Id. (citing City of

Gary ex rel. King v. Smith & Wesson, Corp., 801 N.E.2d 1222, 1245 (Ind. 2003)).

5

Our supreme court observed that the distinction between the clearly-erroneous standard and the negative-

judgment standard is “[a]rguably . . . a distinction without a difference.” Id. (citation and internal quotation

marks omitted).

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[19] Here, Webber contends that there was clear evidence that the building code

applied, that Kuebler violated this ordinance, and that her damages resulted

from this violation. Kuebler contends that Webber waived any reliance upon

the doctrine of negligence per se by failing to include such a claim in her

complaint and by failing to argue such before the trial court.

[20] Even if we were to assume that negligence per se applied under these facts and

circumstances, Webber would not prevail, as there was ample evidence

supporting the trial court’s conclusion that the air-conditioning unit as installed

by Kuebler did not proximately cause the damage to Webber’s flooring.

Kenneth testified that he found no evidence of moisture in the unit, did not find

any signs of an overflow in the drain pan, and did not see any condensation

when he ran the air conditioner. Cammack’s extensive investigation also found

no evidence that the air-conditioning unit installed by Kuebler contributed to

the damage to Webber’s flooring. Webber’s appellate argument is little more

than a request that we consider the evidence favoring her claim, disregard the

evidence favoring the trial court’s judgment, and come to a conclusion opposite

that reached by the trial court. This is not within our prerogative as an appellate

court.

Conclusion

[21] Because Webber’s post-judgment motion was, in substance, a motion to correct

error, her notice of appeal was timely filed. And even assuming that Kuebler’s

installation of the air-conditioning unit in Webber’s home was contrary to the

controlling ordinance and constituted negligence per se, there was still evidence

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from which the trial court, acting as the trier of fact, could conclude that the

manner in which Kuebler installed the unit did not proximately cause the

damage to Webber’s flooring. Accordingly, we affirm the judgment of the trial

court.

[22] Affirmed.

May, J., and Brown, J., concur.

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