Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 1 of 26 A TTORNEYS FOR A PPELLANT George M. Plews Brianna J. Schroeder Jonathan Penn Plews Shadley Racher & Braun LLP Indianapolis, Indiana A TTORNEYS FOR A PPELLEE E RIC J

. SPICKLEMIRE Thomas F. O’Gara Bradley R. Sugarman Jeffrey D. Stemerick Taft Stettinius & Hollister, LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

5200 Keystone Limited Realty, LLC, A

ppellan t -Defendant,

v. Filmcraft Laboratories, Inc ., Eric J. Spicklemire, Portrait America, Inc., A.C. Demaree, Inc., Clean C ar, I nc ., and The Wax Museum & Auto Sales, Inc., A

ppelle e -Plaintiff April 14, 2015 Court of Appeals Case No. 49A02-1403-CT-188 Appeal from the Marion Superior Court Cause No. 49D07-0310- CT

- 003394 The Honorable Michael D. Keele, Judge

Friedlander, Judge.

[1] This litigation involves a dispute ov er responsibility for the costs of environmental cleanup of commercial real estate (the Site) located near theCourt of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 2 of 26 corner of 52 nd St. and Keystone Avenue in Indianapolis. 5200 Keystone Limited Realty, LLC (KLR) acquired th e subject property from Apex Mortgage Corporation (Apex) after Ap ex had acquired the prop erty through foreclosure proceedings against Eric Spicklemire, wh o purchased the property in 1981. Apex filed its complaint against Filmcr aft Laboratories, Inc. (Filmcraft), a company owned by Spicklemire. The comp laint alleged causes of action under these three statutes: 1) Ind. Code Ann. § 13-11-2-70.3 (West, Westlaw current with legislation of the 2015 First R egular Session of the 119th General Assembly effective throug h March 24 2015) (creating an “environmental legal action” (ELA), which is a legal action “brought to recover reasonable costs associated with removal or remedial ac tion involving a hazardous substance or petroleum released into the surface or subsurface soil or groundwater that poses a risk to human health and the environm ent”); 2) Ind. Code Ann. § 13-30-3- 13(d) (West, Westlaw current with legisl ation of the 2015 First Regular Session of the 119th General Assemb ly effective through Marc h 24, 2015) (creating an action to recover reasonable expens es and attorney f ees incurred by a landowner on whose land so lid waste has been illegally dumped); and 3) Ind. Code Ann. § 6-1.1-22-13 (West, Westlaw current with legislation of the 2015 First Regular Session of the 119th Gene ral Assembly effective through March 24 2015) (liability for back property ta xes). KLR was substituted as plaintiff after it purchased the Site from Apex . Shortly thereafter, KLR amended its complaint, adding as defendants Spickl emire, Portrait America, Inc., A.C. Demaree, Inc., Russ Dellen, Inc. (R DI), Clean Car, Inc., and The Wax Museum & Auto Sales. KLR appeals th e grant of Spicklemire’s motion toCourt of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 3 of 26 dismiss with respect to KLR’s statutor y causes of action, and a grant of summary judgment with respect to ce rtain common-law claims presented by KLR at trial. KLR presents the followi ng consolidated, re stated issues for review:
1. Did the trial court err in excluding expert testimony regarding whether the Wax Museum & Auto Sales and Clean Car caused or contribu ted to the contamination at the Site? 2. Did the trial court err in entering summary judgment against KLR on its common-law claims? 3. Did the trial court err in dismissing KLR’s complaint pursuant to Trial Rule 41(B) on grounds that KLR failed to present sufficient evidence to show Spicklemire caused or contributed to chlorinated solvent and petroleum hydrocarbon contamination of the Site?
[2] We affirm.

[3] In order to understand the issues involved in this case, we must first set out in detail the history of the ownership and ac tivity on the Site. A.C. Demaree Inc. (Demaree) owned and operated a commercia l dry cleaning business on the Site from at least 1948 to 1973. It is undisputed that duri ng this time, dry cleaners used two solvents to clean textiles: perchloroethyl ene, a chlorinated solvent, and Stoddard solvent, a petroleum hydroc arbon. Demaree stored these solvents in tanks at the Site.

[4] In 1973, Demaree sold the Site to Robert Dellen, who in turn conveyed the Site in 1979 to Dellen Realty, Inc. (Dellen Realty), a predecessor of RDI. From 1974 to 1981, Filmcraft leased the Site from Dellen and Dellen Realty. InCourt of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 4 of 26 January 1981, Spicklemire and his fath er purchased the Site from Dellen Realty, and from 1981 to 2000, Spicklem ire leased the site to Filmcraft. Spicklemire was a shareholder, officer, and employee of Filmcraft, and became the company’s president in 1994, when he became sole owner of Filmcraft and the Site. He remained in this position until the company ceased operation. Portrait America, also a Spicklemire-owne d entity, leased the Site from 2000 to 2001. During its years of operation, Fi lmcraft sublet the back of the Site to several auto-detailing operations. Thes e included Clean Car, Inc. and The Wax Museum & Auto Sales (colle ctively, the Detailers).

[5] During the time its business was located on the Site, i.e., 1974 to 2000 or 2001, Filmcraft operated a commercial photo-proc essing operation. This process was accomplished by the use of machines, which ran approximately eight to twelve hours per day. These machines processe d film and printed images on paper. The processing generally involved the f eeding of paper through a machine that sent the film or paper through a series of chemical baths and water-wash tanks. The chemicals used in this process included b l eaches, fixers, and stabilizers manufactured by Kodak and other suppli ers. Such chemicals were highly diluted by water. None of these chem icals contained chlorinated solvents. Filmcraft documents indicate that the only petroleum hydrocarbon used in Filmcraft’s operation were white greas e and photographic lacquer. White grease was used to lubricate a single piec e of equipment, and a single, three- to four-inch tube lasted the entire time that Filmcraft was in operation on the Site.Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 5 of 26 [6] During his ownership of the Site, De maree had installed trench drains throughout the Site that connected to the sewer. Later, photo-processing chemicals spent in Filmcraft’s operations were discharged from its machines through a silver recovery device in the form of an effluent and, per manufacturer recommendations and standard industry pr actice, discharged into the trenches Demaree had installed. This effluent contained minute amounts of silver but did not contain chlorinated solvents or petroleum hydrocarbons. Subsequent testing indicated the presence of silver in a sediment sample collected from inside the trench wh ere photo-processing effluent was discharged. No silver above regulatory action levels, however, was found in the soil and groundwater samples taken at th e Site in 2013. On occasion, paper from the paper processor would clog the drain and form a sludge. This sludge did not contain chlorinated solvents or petroleum hydrocarbons. In 2013, the sewer lines were scoped by Gurney Bu sh, Inc. (GBI) with a video camera, which revealed certain offset joints in the sewer line, but no leaks were found. 1 Also, GBI’s investigation co nfirmed that the sewer on the Site was usable and that water sent down the pipes went into the city’s main sewer line.

[7] Filmcraft used small cans of aerosol lacq uer that were approximately the size of a can of spray paint. Each can would last approximately one month, and the aerosol lacquer was applied directly to photographs in a ventilated area on the Site. Any overspray ended up on a p eg board that was used to hold the

1 Indeed, GBI indicated that its proced ure was not intended to look for leaks.Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 6 of 26 photographs or was vented out of the bu ilding through an exhaust fan. The testing indicated that no la cquer was released to the so il or groundwater at the Site.

[8] As indicated, the rear part of the Si te was sublet to various auto-detail companies during Filmcraft’s operation. The rear of the Site was separated from Filmcraft’s operation by a wall and a windowless door. The Detailers had their own main entrance to the Site on the outside of the building. Spicklemire was not in any way involved with th e Detailers’ operations and had no knowledge of whether they used chemical s in their operations , much less what those chemicals would have been if indeed any were used. His interaction with those tenants was confined primarily to go ing to the rear of the Site to collect rent when it was overdue. Also, on occasion, Spicklemire would go to the Detailers and asked them to stop runnin g cars inside the bu ilding when that occurred. On four or five occasions, Spicklemire brought photo-processing machinery through the garage door located in the Detailers’ space. Spicklemire claimed to have no knowledge of any chemical releases by the Detailers.

[9] In 2001, Spicklemire defaulted on the mortgage and abandoned the Site. Apex foreclosed and acquired titl e via a sheriff’s deed, purcha sing the Site via a credit bid of $240,000. After it acquired the property, Apex hired Keramida Environmental, Inc. (Keramida) in 2002 to conduct soil and groundwater samples at the Site. Keramida issued a report detailing the contamination it had discovered and suggesting further eval uation. Keramida’s report estimated that the cost of remediation for the problems it discovered would exceedCourt of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 7 of 26 $150,000. On October 9, 2003, Apex file d this action against Filmcraft. After the lawsuit was filed, Portrait Am erica paid Patriot Environmental & Engineering, Inc. (Patriot) to inventory an d remove all chemicals from the Site. The chemicals removed included a gas ca n, motor oil, and various paints. None of these chemicals were used in Filmcraft’s operations.

[10] “After full and complete disclosure of a ll potential environmental issues known to Apex as a result of the Keramida [i nspection]”, Apex so ld the Site to KLR for $20,000 in 2014. Exhibit 8B, pa ragraph 6, Admitted Exhibits Binder 2 (Exhibits Binder). “Apex accepted the $20,000 sale price for the Site from [KLR] as a discount from the earlier a ppraised value of $400,000 because of the potential environmental contamination at the Site discussed in Keramida’s Phase II report [.]” Id. At this point, KLR was subs tituted for Apex as plaintiff in the present lawsuit. In 2013, KLR hired Terra Environmental Corporation (Terra) to perform additional tests on th e Site. Terra’s test results essentially duplicated those of the tests performe d earlier by Keramida in that they revealed the presence of chlorinated so lvents and petroleu m hydrocarbons in soil and groundwater samples.

[11] As indicated above, the original an d amended complaints alleged three statutory causes of action, including an ELA complaint under I.C. § 13-11-2- 70.3 to recover costs associated with remediation of haza rdous substances

2 The pages in the Admitted Exhibits Binder (two volu mes) are not numbered. The exhibits are, however, arranged in numerical order and ta bbed, which expedited our review.Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 8 of 26 released into the soil or groundwater on the Site, an action under I.C. § 13-30-3- 13(d) to recover expenses and attorney fees incurred beca use solid waste was illegally dumped on the Site, and an action under I.C. § 6-1.1-22-13 against Spicklemire for back taxes owed on th e Site. Ultimately, default judgments were entered in favor of KLR agains t Demaree, the Wax Museum & Auto Sales, and Clean Car. Claims against Portra it America were settled before trial. Russ Dellen, Inc. prevailed on summa ry judgment. Therefore, all that remained were the claims presented in a second amended complaint filed by KLR against Filmcraft and Spicklemire.

[12] On March 28, 2013, KLR filed its Plaintiff’s Pr eliminary Contentions, Itemization of Damages, and Witness/Ex hibit Lists (Plaintiff’s Preliminary Contentions), setting out for the first time among its “prelimina ry itemization of damages” common-law claims for lost re nt and lost use. In response, Spicklemire sought summary judgment on KLR’s common-law claims on grounds that they were never pleaded and that in any ev ent they are not available to a property owner against a pr ior owner of the same property. KLR challenges the trial court’ s grant of this motion, wh ich the trial court entered upon its finding that KLR was not entitl ed to recover economic damages under the ELA and that KLR had not plead ed any common-law claims.

[13] Trial commenced against the remaining parties on the remaining counts on February 19-21, 2014. At the conclusion of KLR’s case-in-chief, Spicklemire and Filmcraft moved for involuntary dism issal under Trial Rule 41(B), arguing that upon the weight of the evidence presented by KLR, there had been noCourt of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 9 of 26 showing of a right to relief. The trial court granted this motion and dismissed the complaint. KLR appeals the grant of the T.R. 41(B) motion and the grant of summary judgment on KLR’s common-law claims, as well as the exclusion of certain expert testimony.

1.

[14] We begin with KLR’s evidentiary claim th at the trial court erred in disallowing KLR’s expert, Douglas Zabonick, Keramida ’s president, to testify about his opinion regarding whether the auto-detaili ng operations conducted on the Site during Spicklemire’s ownership more likely than no t used petroleum hydrocarbons and chlorinated solvents. Du ring Zabonick’s direct testimony, he was asked whether he ha d an opinion regarding whether the Detailers’ operations more likely than not caused or contribute d to the contamination at the Site. Spicklemire’s counsel object ed and asked the fo llowing preliminary question: “You don’t have any knowled ge whatsoever as to what chemicals these particular auto detailers were using at any time, do you?” Transcript at 909. Zabonick responded, “That would be correct.” Id. Counsel objected to this line of questioning on the basis that Zabonick’s testimony would be “just speculation.” Id. KLR’s counsel then proceeded to question Zabonick about whether his (Zabonick’s) ca r had ever been to an au to detailing shop, and he responded that it had. When Zabonick was asked to describe that process, Spicklemire’s counsel objected on ground s that “whatever nice experience Mr. Zabonick may have had with the detailing of his car is utterly irrelevant to what was going on with these auto detailers.” Id. at 912. Spicklemire’s counsel againCourt of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 10 of 26 objected on grounds that Za bonick’s testimony as it applied to the facts of the present case was “inherently speculative.” Id. KLR contends the trial court erred in sustaining the objection.

[15] Indiana Evidence Rule 702 governs the ad missibility of expert testimony, and provides as follows:
(a) A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue. (b) Expert scientific testimony is admissible only if the court is satisfied that the scientific pr inciples upon which the expert testimony rests are reliable.
[16] The admissibility of expert testimony un der Evid. R. 702 is a matter within the trial court’s broad discretion and we wi ll reverse such determinations only for an abuse of that discretion. Estate of Borwald v. Old Nat’l Bank , 12 N.E.3d 252 (Ind. Ct. App. 2014). Expert testimon y admitted under Rule 702 requires more than subjective belief or unsupported speculation. Armstrong v. Cerestar USA,
Inc. , 775 N.E.2d 360 (Ind. Ct. App. 2002), trans. denied . In conducting our review, we presume the trial court’s decision is correct, and the party challenging that decision bears the burden of persuading us that the trial court abused its discretion. Id.

[17] Citing Vaughn v. Daniels Co. , 841 N.E.2d 1133 (Ind. 20 06), KLR argues that the trial court’s ruling improperly requires that in order to be admissible, an expert’s testimony must be based on first-hand experience. In Vaughn , the trial courtCourt of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 11 of 26 struck a paragraph in an affidavit comp leted by an expert and submitted by the opponent of a motion for summary judgment. Among other things, the proponents of the affidavit contended that the trial court erred in excluding that paragraph on grounds that the opinion lacked the requisite foundation. The trial court’s ruling was premised upon th e fact that the expert did not view the equipment in question, but rather revi ewed only documents setting forth the defendant’s proposal with respect to the equipment. Our Supreme Court reversed, holding that the expert’s prior experience and review of documents relating to the proposal provided a suffi cient foundation for the expert opinion and that it was not necessary for the expe rt to have actually seen the equipment in question for him to rend er an expert opinion.

[18] Although it is true that the Vaughn expert was permitted to offer opinion testimony even though he had not seen the equipment in question, it cannot fairly be said that the resulting opinio n was based on “pure speculation.” The expert’s opinion as to the safety of the equipment at issue was based upon his review of a design drawing of that eq uipment rendered by its creator, who also happened to be a defendant. We reiterat e, however, that in the present case, Zabonick admitted that he did not have “any know ledge whatsoever as to what chemicals these particular auto detail ers were using at any time [.]” Transcript at 909. Thus, it appears that the only evidence that the Detailers could have caused or contributed to th e particular contamination found at the Site involved pure speculation on Zabonick’ s part as to what chemical s they used. This is not legally sufficient. See Estate of Dyer v. Doyle , 870 N.E.2d 573, 581 (Ind. Ct. App.Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 12 of 26 2007) (the appellant challenged the admi ssion of expert testimony regarding the faked left syndrome, 3 arguing that there was no evidence that the factual scenario occurred in which the syndro me would be applicable; the court reversed upon observing that the plaint iff “admitted during cross-examination that there was no evidence that [the decedent] was ev er in [the defendant’s] lane” and that “there must be some evid ence other than the opinion itself that there was a ‘faked left’ occurrence for the opinion to pass muster”), trans. denied

. The trial court did not err in excluding th is evidence.

2.

[19] KLR contends the trial court erred in gr anting summary judgment in favor of Spicklemire on KLR’s common-law claims of lost rent and loss of use. The trial court held, in pertinent part:
The Second Amended Complaint makes no mention of any common law claims. Nor are the operative facts asserted against Spicklemire sufficient for a reasonable person to be on notice that [KLR] is making claims under any common law theories. The facts pled in [KLR’s] Second Am ended Complaint are simply not

3 This was explained in Smith v. Yang , 829 N.E.2d 624, 627 (Ind. Ct. App. 2005) as follows:
This syndrome is seen near curves and/ or hill crests where an initial vehicle enters the area left of center and the other driver steers to the left, now being left of center in avoidance, when the initial vehicle steers back to the right and a head-on collision occurs in th e initial vehicle’s traveling lane.Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 13 of 26 sufficient to put a reasonable pe rson on notice that [KLR] is asserting common law claims against Spicklemire. Appellant’s Appendix at 40.

[20] Summary judgment is appropriate where the moving party shows there are no genuine issues of material fact with respec t to a particular issue or claim. Ind. Trial Rule 56(C); Bleeke v. Lemmon , 6 N.E.3d 907 (Ind. 2014). We review a summary judgment order de novo

. Hughley v. State , 15 N.E.3d 1000 (Ind. 2014). Considering only the facts supported by evidence designated to the trial court by the parties, we must determine whethe r there is a “genuine issue as to any material fact” and whether “the moving party is entitled to a judgment as a matter of law.” T.R. 56(C); see also TP Orthodontics, Inc. v. Kesling , 15 N.E.3d 985 (Ind. 2014). Where the moving pa rty designates material demonstrating there are no genuine issues of material fa ct with respect to a particular issue or claim, the burden shifts to the non-moving party to come forward with designated evidence showing the existence of a genuine issue of material fact. Bleeke v. Lemmon , 6 N.E.3d 907. Upon review, we will accept as true those facts alleged by the nonmoving party. Sees v. Bank One, Ind., N.A. , 839 N.E.2d 154 (Ind. 2005). “All designated evidence and reasonable inferences must be construed in favor of the non-moving party, and doubts resolved against the moving party.” Bleeke v. Lemmon , 6 N.E.3d at 917. The appellant bears the burden of demonstrating th at the grant of summary judgment was erroneous. Hughley v. State , 15 N.E.3d 1000. Finally, we will affirm a grant of summary judgment on any theory supported by the record. Holiday Hospitality Franchising, Inc. v. AMCO Ins. Co. , 983 N.E.2d 574 (Ind. 2013).Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 14 of 26 [21] KLR argues that the grant of the su mmary judgment was improper on the stated grounds because Indiana is a notice -pleading state, and as such requires only a short, plain statement of the clai m showing an entitlement to relief, and a demand for relief to which the pleader is entitled. See Ind. Trial Rule 8(A). KLR claims that its complaint met thes e criteria because its second amended complaint “pled the operative facts to su pport claims for lost rent and reduced property value [.]” Appellant’s Brief at 41. In other words, the common-law claims were tried by consent.

[22] In resolving this issue, it is important to note that at the time KLR filed its Plaintiff’s Preliminary Contentions, the only claims that remained unresolved were those presented in the second amended complaint against Filmcraft and Spicklemire. In an introductory pa ragraph of the Plaintiff’s Preliminary Contentions, KLR described its lawsuit against Spicklemire as an ELA action (i.e., “[KLR] brought this Environmen tal Legal Action (“ELA”) against the defendants for the payment of costs to delineate and remediate this Site”). Appellant’s Appendix at 103. It was in this docume nt that KLR referenced for the first time its claim for lost rent and lost use. In response, Spicklemire filed a motion for summary judgment on ground s that the ELA permits recovery only of reasonable costs of removal or re medial action, and does not authorize claims for lost rent or loss of use. See I.C. § 13-30-9-2 (West, Westlaw current with legislation of the 2015 First R egular Session of the 119th General Assembly effective through March 24, 2015). In its brief opposing Spicklemire’s motion for summary judg ment, KLR asserted that those costsCourt of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 15 of 26 were recoverable under various common-la w theories. This was the first time that KLR mentioned common-law remedies, or indeed described this lawsuit in terms other than an ELA action. This was approximately ten years after the onset of this litigation. Nevertheless, KLR contends these issues were tried by consent because the second amended complaint pleaded operative facts sufficient to support claims for lost rent and reduced property value, i.e., “these substances were deposited in the soil and groundwater during the Defendant’s ownership and/or operations at the Site and remained there after the Defendants ceased ownership and/or op eration at the Site and continue to cause property damage.” Appellant’s Appendix at 59.

[23] We first observe that th e foregoing language canno t be deemed to have expressly presented the common-law clai ms in question. Not only are the concepts of “lost rent” and “loss of use” not pleaded with specificity, but the reference to continuing property dam age is made in a co mplaint identified explicitly as an ELA action . This leaves only the possibility that the commonlaw claims were tried by implied consent of the parties, which is the main thrust of KLR’s argument on this point.

[24] Trial Rule 15 (B) provides: “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Genera lly, we consider two factors when determining whether a party has impliedly consented to a non-pleaded issue at trial. First, did the opposing party have notice of the issue? Second, did the opposing party object to the issue being litigated at trial? Mercantile Nat’lCourt of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 16 of 26 Bank of Ind. v. First Builders of Ind., Inc. , 774 N.E.2d 488 (Ind. 2002). Our Supreme Court has stated, “[i]f the opposi ng party both had notice and failed to object at trial, then that party will have impliedly consented to the non-pleaded issue at trial.” Id. at 492-93. Both elements must be met in order for a party to be deemed to have impliedly cons ented to a non-pleaded issue. See id. at 493 (“[w]e find that Owner validly objected to the personal liability issue being litigated, and although Owner had notice of this issue, Owner did not impliedly consent to it being litigated within th e meaning of Trial Rule 15(B)”).

[25] Even assuming Spicklemire had notice of the common-law claims, his objection to the presentation of thos e claims when denominated as such for the first time in Plaintiff’s Preliminary Contentions constituted a valid objection to those issues being litigated. Th erefore, Spicklemire did not impliedly consent to litigating those issues at trial within th e meaning of T.R. 15(B). The trial court did not err in granting summary judgme nt in favor of Spicklemire on KLR’s common-law claims.

3.

[26] KLR contends the trial court erred in dism issing its complaint pursuant to Trial Rule 41(B) on grounds that KLR failed to present sufficient evidence to show Spicklemire caused or contributed to chlorinated solvent and petroleum hydrocarbon contamination of the Site.

[27] When reviewing a ruling on a T.R. 41( B) motion to dismiss, we apply the following standard of review:Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 17 of 26 The grant or denial of a motion to dismiss made under Trial Rule 41(B) is reviewed under the cl early erroneous standard. In reviewing a motion for involuntar y dismissal, this court will not reweigh the evidence or judge the credibility of the witnesses. We will reverse the trial court only if the evidence is not conflicting and points unerringly to a conclusion different from the one reached by the lower court. Todd v. State , 900 N.E.2d 776, 778 (Ind . Ct. App. 2009) (quoting Thornton– Tomasetti Eng’rs v. Indianapolis –Marion Cnty. Pub. Library, 851 N.E.2d 1269, 1277 (Ind. Ct. App. 2006)).

[28] In this particular case, in granting Sp icklemire’s T.R. 41(B) motion, the trial court ruled that KLR failed to establish a viable ELA claim. In order to establish such a case, KLR was required to prove that Spicklemire “caused or contributed to the release of a hazard ous substance or pe troleum into the surface or subsurface soil or groundwate r that poses a risk to human health and the environment.” I.C. § 13-30-9-2. Th e parties stipulated before trial that “chlorinated solvents and petroleum hydr ocarbons [had] been detected in the soil and groundwater at the Site.” Appellant’s Appendix at 45. Thus, in order to prevail, or, as the case may be, surviv e a T.R. 41(B) motion to dismiss, KLR was required to offer evidence that Sp icklemire caused or contributed to the release of chlorinated solvents and pe troleum hydrocarbons in the soil and groundwater at the Site.

[29] KLR contends that it did pr esent such evidence, and furt her that the trial court’s conclusion to the contrary is a result of the court applying the wrong legal standard. According to KLR, “[t]he E LA does not require a person who cleansCourt of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 18 of 26 up a contaminated property to prove specific contaminating incidents with direct evidence.” Appellant’s Brief at 12. Rather, according to KLR, it is enough “to show with direct or circumstantial evidence that the defendant more likely than not ‘had some involv ement with the contaminants at issue’ or ‘helped bring about’ contamination of the property.” Id. (citing Reed v. Reid , 980 N.E.2d 277, 289 (Ind. 2012), Gary v. Schafer 683 F. Supp.2d 836, 855 (N.D. Ind. 2010), and Neal v. Cure , 937 N.E. 1227, 1234 (Ind. Ct. App. 2010), trans. denied )). KLR urges that “[e]ven if [S picklemire] only helped spread contamination others put at the Site or contributed to one-half of 1 % of the contamination at the Site, he is liable under the ELA.” Id. at 12-13. KLR claims that it presented ev idence that Spicklemire cont ributed to a release of the contaminants by having some involvemen t with the contaminants. In essence KLR contends that Spicklemire helped spread the contaminants that were brought to and released on to the Site by others. As KLR phrases it, “it is against the logic and effect of the evidence presented at trial to hold that Spicklemire’s 26 years of un lawful, chemical-laden op erations and heavy daily discharges at the Site had abso lutely no effect on the Site.” Id. at 13.

[30] The standard to be applied in ELA ca ses alleging that a party “caused or contributed” to environmental contamin ation of the sort covered by the ELA was addressed by this court as follows:
The phrase “caused or contributed” is not defined by statute, and we must give those words thei r plain and ordinary meaning. “Each term of the phrase ‘caused or contributed’ requires some involvement by the actor which pr oduces a result.” StandardCourt of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 19 of 26 English dictionaries may also be consulted in determining the meaning of this phrase. A standa rd dictionary definition of “cause” is “‘a person, thing, fact , or condition that brings about an effect or that produces or calls forth a resultant action or state.’” “Among other things, ‘c ontribute’ means ‘to act as a determining factor; share responsibi lity for somethin g.’” Our goal when construing the phrase “cause or contribute” should be to hold accountable all partie s “responsible for creating environmental contaminations.” JDN Props., LLC v. VanMeter Enters., Inc. , 17 N.E.3d 357, 360-61 (Ind. Ct. App. 2014) (internal citations omitted). Therefore, KLR is correct in that “caused or contributed” in this contex t requires proof that the defendant was in some way involved in the contam ination of the property in question.

[31] In Neal v. Cure, 937 N.E.2d at 1234, the definition of “caused or contributed” was further refined for our particular pu rposes, i.e., in determining the liability of a landlord under the ELA. In Neal , the plaintiff sued a landlord under the ELA for contamination caused by its tena nt. The landlord submitted a motion for summary judgment, arguing that it was not responsible for the contamination, nor was it aware that the contamination was occurring or had occurred. On appeal, the plaintiff argued only that the evid ence demonstrated that the landlord “contrib uted” to (versus “caused”) the contamination. The trial court granted the motion upon it s conclusion that the plaintiffs had presented no evidence demo nstrating an affirmative act on the part of the landlord that caused or contributed to the contamination. The court further concluded, “any alleged inaction on th e part of [the landlord] ... cannot form the basis for determining that the [lan dlord] caused or contributed to theCourt of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 20 of 26 contamination.” Id. at 1233. The court on appeal thus undertook to determine the meaning of “contributed” in this context and concluded that “the plain language of the statute does not permit an ELA action against landlords who ‘by all accounts were not involved in the alleged release of hazardous substances and had no know ledge of the release.’” Id. at 1235 (quoting City of Martinsville v. Masterwear Corp., 2006 WL 2710628, slip op. at 4 (S.D. Ind. 2006)).

[32] In the present case, the parties stipulat ed that Demaree was responsible for the chlorinated solvent and petroleum hydroc arbon contamination at the Site. The court found that subsequent purchaser Spicklemire had no involvement in the day-to-day operations of Filmcraft’s su btenants, i.e., the Detailers, nor did he have knowledge regarding whether those subtenants used ch emicals in their operations. Moreover, there was no ev idence that the Detailers used any chlorinated solvents or petroleum hydrocar bons in their operations. Therefore, the evidence supported the determinatio n that Spicklemire was not liable by virtue of his status as landlord vis-à-vi s the Detailers and their operations on the Site.

[33] As for liability by virtue of Filmcra ft’s own activities, the direct evidence indicated that, with but one very minor exception, its operations did not involve the use of chlorinated so lvents or petroleum hydr ocarbons. The exception involved the use of a single tube of whit e grease – about three to four inches in size – which contained petroleum hydrocar bon. That single tube was used so sparingly that it lasted the entire time Filmcraft was in operation. This supportsCourt of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 21 of 26 the trial court’s finding that Filmcraft’ s operations did not contribute to the petroleum hydrocarbon or chlorinated so lvent contamination on the Site.

[34] We note also that sometime around 1980, Filmcraft purchased a fifty-fivegallon drum of photographic lacquer. Filmcraft also purcha sed four one-gallon cans of lacquer. None of these containe rs were ever used, or apparently even opened, because Filmcraft did not have enou gh lacquer orders to justify it. The full fifty-five-gallon drum was fo und during Patriot’s chemical decommissioning, and was described by Pa triot as sealed an d not leaking. Patriot properly disposed of it. The ev idence also showed that Filmcraft used small cans of aerosol lacquer, which was applied to photographs in a ventilated booth. Overspray ended up on the peg board used to hold the photographs at the time, or was vented out of the buildi ng through an exhaust fan. Filmcraft used approximately one can (about the size of a can of spray paint) per month. This evidence supports the trial court’s finding that Filmcraft’s operations did not contribute to the petroleum hydrocarbon or chlorinated solvent contamination on the Site.

[35] Those chemicals that Filmcraft did use were heavily diluted with water, and effluent from the photo-processing oper ations was dischar ged into a trench drain that led to city sewers. Zaboni ck testified that the photo-processing effluent did not contain chlorinated so lvents or petroleu m hydrocarbons, and that discharge of photo-processing e ffluent to the tren ch did not cause contamination at the Site. The effluent did contain silver, but not in amounts above regulatory action leve ls in the soil or groundwater. A test of the soilCourt of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 22 of 26 around the drain did not rev eal the presence of silver in the soil. Moreover, we must bear in mind that this testing of the drain and sewer lines occurred in 2013, which was fully twelve or thirteen years after Filmcraft ceased operations on the Site. Again, this evidence supports the trial court’s finding that Filmcraft’s operations did not actively contribute to the petroleum hydrocarbon or chlorinated solvent contam ination on the Site.

[36] We understand that the gist of KLR’s argu ment is that the trial court applied an impossibly high standard in determin ing whether KLR had proven its case under the ELA. According to KLR, “t he ‘contributed’ element of the ELA should not be interpreted to require an ELA plaintiff to produce direct evidence that the defendants releas ed specific contaminants on specific dates, which caused the contaminatio n driving the remediation decades later.” Appellant’s Brief at 8. It seems that KLR reads into the court’s findings and conclusions the view that, in order to prevail under the ELA, KLR was required to present evidence that on a specific date Spic klemire contributed to the release of a particular contaminant into the soil or groundwater. We do not interpret the trial court’s findings and conclusions to convey such an exac ting standard.

[37] For purposes of this litigation, the im portant dates were those dates for which KLR could establish that Spicklemir e was present on the Site, or had knowledge of or bore some responsibility for what was occurring on the Site. KLR adduced such evidence, establishing the date range of Spicklemire’s ownership of the Site, the date range of Filmcraft’s operations, and the date range of the operations of the subtenants, i.e., the Detailers. It was then up toCourt of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 23 of 26 KLR to present evidence linking Spickl emire to the particular contaminants discovered to be present at the Site via the inspec tions performed by Keramida in 2002 and Terra in 2013, i.e., chlorina ted solvents or petroleum hydrocarbons. As explained above, KLR’s evidence di d not establish that Filmcraft used products containing those contaminants in its operations, nor did Filmcraft’s subtenants, the Detailers.

[38] KLR points to the testimony of its expe rt, Zabonick, to the effect that “the historical operations of the Site have contributed to the co ntamination present at the Site.” Transcript at 854. He went on to incl ude Filmcraft as a contributor to that contamination on grounds that so me of the chemicals used in the film processing operation “more likely than not would have contributed to the contamination or cause some additional contamination.” Id. at 855. Yet, Zabonick also testified on this subject as follows:
Q Now, let’s talk about your opinion that Filmcraft’s photo and film processing operat ions contributed to the contamination at the site. You understand that Filmcraft used chemicals to develop film and photographs, correct? A Correct. Q You understand that these chemicals included developers, fixes, bleaches, as well as some other -- as well as water, correct? A Correct. Q You also understand that Filmcraft used a variety of machines when they develo ped film and photographs, correct? A Correct.Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 24 of 26 Q But it’s not your opinion that day-to-day effluent or discharge from these machines contained any chlorinated solvents or petroleum hydrocarbons, is it? A That would be correct. Q In fact, you agreed with me that introducing chlorinated solvents would be detrimental to that photographic or film processing, didn’t you? A I believe so. Q So rather you believe that Filmcraft may have conducted other activities at the site that contributed to that -- to the petroleum hydrocarbon and chlorinated solvent contamination, correct? A By “contributed to”, are you meaning adding additional chlorinated and petroleum hydrocarbons or contributing to the migration of the existing contamination? Q Let’s stick with your old opinio n. Just contributing to the chlorinated solvent and petroleum hydrocarbon contamination at the site and then we’ll talk about this migration. A Okay. Can you ask the question again, please. Q So you believe that Film craft conducted some other activities at the site other th an discharging effluent that added something to the petroleum hydrocarbon and chlorinated solvent contamination at the site, correct? A Yes. Q And you believe these activi ties could have included cleaning the film and the deve loping equipment, is that right? A That’s correct. Q Even though you have no knowledge of whether or not they used chlorinated solvents or petroleum hydrocarbons in that process?Court of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 25 of 26 A That’s correct. Q You also believe that these ac tivities could have included cleaning film, correct? A Correct. Q What film cleaners did the photo processing, the photo and film processing operations use? A This specific operation? Q Yes. A I have no knowledge of any specific cleaners that they would have used. Q So you don’t know the company that manufactured it, correct? A That would be correct. Q You don’t know the chemical that they supplied, correct? A That would be correct. Q You don’t know how Filmcr aft may have used that chemical, is that correct? A That would be correct. Q How do you know that th ese operations could have contributed? A I guess I’m not sure – [.] Transcript at 940-43. In light of this testim ony, among other things, Zabonick’s opinion as to Spicklemire’s responsibility for the contamination was not so irrefutably supported by the direct and ci rcumstantial evidence presented during KLR’s case-in-chief that, in rejecting it , the trial court committed clear error. See Todd v. State , 900 N.E.2d 776. In the end, the evidence cited by KLR asCourt of Appeals of Indiana | Opinion 49A02-1403-CT-188 |April 14, 2015 Page 26 of 26 crossing the minimum threshold 4 is just too speculative to mandate a different result. We cannot say that the eviden ce pertaining to whether Spicklemire caused or contributed to contamination at the Site is non-conflicting and points unerringly to a conclusion different from the one reached by the trial court. See id

.

[39] Judgment affirmed.

Kirsch, J., and Crone, J., concur.

4 E.g. “The contaminants found at the Site are consistent with some of the petroleum hydrocarbons and chlorinated solvents typically used by photo processors during Filmcraft’s operations.” Appellant’s Brief at 5 (emphasis supplied).