MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 19 2016, 8:53 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Beverly R. Newman Arthur C. Johnson, II Bradenton, Florida Steven A. Johnson Johnson Stracci & Ivancevich, LLP Merrillville, Indiana
IN THE COURT OF APPEALS OF INDIANA
Beverly R. Newman, October 19, 2016 Appellant-Plaintiff, Court of Appeals Case No. 49A02-1604-PL-843 v. Appeal from the Marion Superior Court Meijer, Inc. The Honorable James B. Osborn, Appellee-Defendant. Judge Trial Court Cause No. 49D14-1010-PL-43302
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-PL-843 | October 19, 2016 Page 1 of 7 Case Summary [1] Beverly Newman sued Meijer, Inc., claiming she had been injured when she fell
at one of its stores. A jury found in favor of Meijer, and Newman appeals,
challenging a variety of rulings made by the trial court before and during trial.
Finding no error, we affirm.
Facts and Procedural History [2] The history of this case is long and complicated, but the basic background is as
follows: On October 4, 2008, Newman was walking through a Meijer store in
Indianapolis when she stepped in watermelon juice and fell. She later sued
Meijer, claiming she was injured in the fall, accusing Meijer of negligence, gross
negligence, and negligent infliction of emotional distress, and seeking
compensatory and punitive damages. More than seven years after Newman’s
fall, in March 2016, the case was tried to a jury. Newman requested and was
granted permission to represent herself via video-conferencing. The jury
concluded that Meijer was not at fault and returned a verdict in its favor.
[3] Newman, still proceeding pro se, now appeals.
Discussion and Decision [4] Newman contends that the trial court committed numerous errors before and
during trial. We have examined all of Newman’s appellate arguments—some
of which are clearer than others—and we conclude that each one is either
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-PL-843 | October 19, 2016 Page 2 of 7 waived, non-reviewable, or unsupported by the limited record she provided to
us.
[5] Newman’s primary claim is that the trial court imposed an inadequate sanction
in response to discovery violations committed by Meijer. In its pretrial order,
the court found that “several documents relative to the October 4, 2008 incident
should have been in Meijer’s possession and should have been produced in
discovery, but were not,” including accident reports, the company’s policy
regarding slips and falls, minutes of a safety meeting, inspection records,
personnel records, and video recordings. Appellant’s App. p. 18-19. The court
said that it “will give the standard spoliation instruction in the final
instructions” and that Newman “will be allowed to argue in closing argument
that the documents Meijer could have produced, but did not, would have been
unfavorable to . . . Meijer’s case.” Id. at 20. Newman argues that this sanction
was insufficient and that the trial court should have instead granted her a
default judgment.
[6] As Newman observes, our Supreme Court has recognized that spoliation of
evidence can significantly hinder an opposing party’s case and can therefore
justify severe sanctions. See Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349
(Ind. 2005). Still, a party asserting that a trial court erred by failing to impose
the ultimate sanction of default judgment must overcome two well-established
principles. First, trial courts enjoy broad discretion in determining the
appropriate sanctions for discovery violations, and we will reverse such a
determination only for an abuse of that discretion. Reed v. Cassady, 27 N.E.3d
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-PL-843 | October 19, 2016 Page 3 of 7 1104, 1111 (Ind. Ct. App. 2015), reh’g denied, trans. denied. Second, default
judgment is an extreme sanction that should be imposed in extreme situations.
See, e.g., Prime Mortgage USA, Inc. v. Nichols, 885 N.E.2d 628, 649 (Ind. Ct. App.
2008). But there is a more fundamental problem with Newman’s claim: she has
not provided us with a transcript of the trial, transcripts of the pretrial hearings
at which spoliation was addressed, or the text of the spoliation instruction. As
a result of this failure, we have no way of reviewing the evidence presented at
trial or evaluating whether the sanction chosen by the trial court was sufficient
to address Meijer’s discovery violations. Therefore, we have no basis on which
to conclude that the trial court abused its discretion by declining to enter the
litigation-ending sanction of default judgment.
[7] While Newman has not provided us with a transcript of the entire trial, her
appendix does include a transcript of Meijer’s opening statement. She argues
that even if a default judgment was not appropriate before trial, certain
inflammatory comments made during that opening statement should have
prompted the trial court to enter a default judgment or declare a mistrial.
However, as Meijer notes, Newman did not object to any of those comments
during trial. Therefore, she waived any such claim. See, e.g., Gasaway v. State,
547 N.E.2d 898, 900 (Ind. Ct. App. 1989) (holding that failure to make timely
objections to alleged misstatements during opening statement constitutes waiver
of error), reh’g denied, trans. denied.
[8] Newman also contends that Meijer engaged in misconduct when it said during
its opening statement that it would be calling certain employees as witnesses but
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-PL-843 | October 19, 2016 Page 4 of 7 then failed to actually call them. There is no indication in the record before us
that Newman raised this issue with the trial court, so she waived any claim of
error in this regard. In any event, Newman does not cite any authority in
support of her argument, and it is by no means uncommon for parties to alter
their witness strategies as trial proceeds. Furthermore, when Meijer failed to
call witnesses it said it would be calling, it did so at its own peril, and Newman
was free to highlight this failure during her closing argument.
[9] Next, Newman argues that the trial court abused its discretion by granting two
motions in limine filed by Meijer: one seeking to exclude settlement letters sent
by Newman’s husband/attorney to Meijer before suit was filed, and one
seeking to exclude evidence of various government actions taken against
Meijer. But the Indiana Supreme Court has made clear that a trial court’s
ruling on a motion in limine is not itself reviewable on appeal. See, e.g., TRW
Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 216 (Ind. 2010) (“It is only
those rulings on admissibility made during trial, not those made on motions in
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 19 2016, 8:53 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Beverly R. Newman Arthur C. Johnson, II Bradenton, Florida Steven A. Johnson Johnson Stracci & Ivancevich, LLP Merrillville, Indiana
IN THE COURT OF APPEALS OF INDIANA
Beverly R. Newman, October 19, 2016 Appellant-Plaintiff, Court of Appeals Case No. 49A02-1604-PL-843 v. Appeal from the Marion Superior Court Meijer, Inc. The Honorable James B. Osborn, Appellee-Defendant. Judge Trial Court Cause No. 49D14-1010-PL-43302
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-PL-843 | October 19, 2016 Page 1 of 7 Case Summary [1] Beverly Newman sued Meijer, Inc., claiming she had been injured when she fell
at one of its stores. A jury found in favor of Meijer, and Newman appeals,
challenging a variety of rulings made by the trial court before and during trial.
Finding no error, we affirm.
Facts and Procedural History [2] The history of this case is long and complicated, but the basic background is as
follows: On October 4, 2008, Newman was walking through a Meijer store in
Indianapolis when she stepped in watermelon juice and fell. She later sued
Meijer, claiming she was injured in the fall, accusing Meijer of negligence, gross
negligence, and negligent infliction of emotional distress, and seeking
compensatory and punitive damages. More than seven years after Newman’s
fall, in March 2016, the case was tried to a jury. Newman requested and was
granted permission to represent herself via video-conferencing. The jury
concluded that Meijer was not at fault and returned a verdict in its favor.
[3] Newman, still proceeding pro se, now appeals.
Discussion and Decision [4] Newman contends that the trial court committed numerous errors before and
during trial. We have examined all of Newman’s appellate arguments—some
of which are clearer than others—and we conclude that each one is either
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-PL-843 | October 19, 2016 Page 2 of 7 waived, non-reviewable, or unsupported by the limited record she provided to
us.
[5] Newman’s primary claim is that the trial court imposed an inadequate sanction
in response to discovery violations committed by Meijer. In its pretrial order,
the court found that “several documents relative to the October 4, 2008 incident
should have been in Meijer’s possession and should have been produced in
discovery, but were not,” including accident reports, the company’s policy
regarding slips and falls, minutes of a safety meeting, inspection records,
personnel records, and video recordings. Appellant’s App. p. 18-19. The court
said that it “will give the standard spoliation instruction in the final
instructions” and that Newman “will be allowed to argue in closing argument
that the documents Meijer could have produced, but did not, would have been
unfavorable to . . . Meijer’s case.” Id. at 20. Newman argues that this sanction
was insufficient and that the trial court should have instead granted her a
default judgment.
[6] As Newman observes, our Supreme Court has recognized that spoliation of
evidence can significantly hinder an opposing party’s case and can therefore
justify severe sanctions. See Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349
(Ind. 2005). Still, a party asserting that a trial court erred by failing to impose
the ultimate sanction of default judgment must overcome two well-established
principles. First, trial courts enjoy broad discretion in determining the
appropriate sanctions for discovery violations, and we will reverse such a
determination only for an abuse of that discretion. Reed v. Cassady, 27 N.E.3d
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-PL-843 | October 19, 2016 Page 3 of 7 1104, 1111 (Ind. Ct. App. 2015), reh’g denied, trans. denied. Second, default
judgment is an extreme sanction that should be imposed in extreme situations.
See, e.g., Prime Mortgage USA, Inc. v. Nichols, 885 N.E.2d 628, 649 (Ind. Ct. App.
2008). But there is a more fundamental problem with Newman’s claim: she has
not provided us with a transcript of the trial, transcripts of the pretrial hearings
at which spoliation was addressed, or the text of the spoliation instruction. As
a result of this failure, we have no way of reviewing the evidence presented at
trial or evaluating whether the sanction chosen by the trial court was sufficient
to address Meijer’s discovery violations. Therefore, we have no basis on which
to conclude that the trial court abused its discretion by declining to enter the
litigation-ending sanction of default judgment.
[7] While Newman has not provided us with a transcript of the entire trial, her
appendix does include a transcript of Meijer’s opening statement. She argues
that even if a default judgment was not appropriate before trial, certain
inflammatory comments made during that opening statement should have
prompted the trial court to enter a default judgment or declare a mistrial.
However, as Meijer notes, Newman did not object to any of those comments
during trial. Therefore, she waived any such claim. See, e.g., Gasaway v. State,
547 N.E.2d 898, 900 (Ind. Ct. App. 1989) (holding that failure to make timely
objections to alleged misstatements during opening statement constitutes waiver
of error), reh’g denied, trans. denied.
[8] Newman also contends that Meijer engaged in misconduct when it said during
its opening statement that it would be calling certain employees as witnesses but
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-PL-843 | October 19, 2016 Page 4 of 7 then failed to actually call them. There is no indication in the record before us
that Newman raised this issue with the trial court, so she waived any claim of
error in this regard. In any event, Newman does not cite any authority in
support of her argument, and it is by no means uncommon for parties to alter
their witness strategies as trial proceeds. Furthermore, when Meijer failed to
call witnesses it said it would be calling, it did so at its own peril, and Newman
was free to highlight this failure during her closing argument.
[9] Next, Newman argues that the trial court abused its discretion by granting two
motions in limine filed by Meijer: one seeking to exclude settlement letters sent
by Newman’s husband/attorney to Meijer before suit was filed, and one
seeking to exclude evidence of various government actions taken against
Meijer. But the Indiana Supreme Court has made clear that a trial court’s
ruling on a motion in limine is not itself reviewable on appeal. See, e.g., TRW
Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 216 (Ind. 2010) (“It is only
those rulings on admissibility made during trial, not those made on motions in
limine, that may be raised on appeal.”); McCarthy v. State, 749 N.E.2d 528, 537
(Ind. 2001). The purpose of a motion in limine is “‘to prevent the proponent of
potentially prejudicial matter from displaying it to the jury, making statements
about it before the jury, or presenting the matter to a jury in any manner until
the trial court has ruled upon its admissibility in the context of the trial itself.’”
Rohrkaste v. City of Terre Haute, 470 N.E.2d 738, 741 (Ind. Ct. App. 1984)
(quoting Lagenour v. State, 268 Ind. 441, 376 N.E.2d 475, 481 (1978)), reh’g
denied, trans. denied. As such, the grant of such a motion “is nothing more than
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-PL-843 | October 19, 2016 Page 5 of 7 a preliminary order requiring counsel to alert the court during trial to any
proposed reference to a matter covered by the granted motion so that the court
can make its final ruling on the propriety of the line of questioning.” Id. To
preserve error, a party must do more than object to the grant of the motion; it
must, out of the hearing of the jury, propose to ask a certain question at trial
and have the court prohibit it. Id. Here, Newman has not even alleged that she
sought to have the challenged evidence admitted at trial, and she has not
provided us with a transcript of the trial. Therefore, there is no evidentiary
ruling for us to review.1
[10] Newman’s final two arguments are that the trial court “abused its discretion by
discriminating against [her] throughout the case below on the basis of her
disabilities” and “denied [her] due process of law under the federal and Indiana
Constitutions[.]” Appellant’s Br. p. 44, 49. She does not support these
arguments with cogent reasoning or citations to relevant legal authority, as
required by Indiana Appellate Rule 46(A)(8)(a). As such, they are waived. See
City of Indianapolis v. Buschman, 988 N.E.2d 791, 795 (Ind. 2013).
[11] Affirmed.
1 Newman cites three decisions in which Indiana courts have addressed pretrial rulings on motions in limine, but all three decisions arose from interlocutory appeals specifically challenging those pretrial rulings. See McClain v. State, 678 N.E.2d 104 (Ind. 1997), reh’g denied; Perry v. Gulf Stream Coach, Inc., 871 N.E.2d 1038 (Ind. Ct. App. 2007), trans. denied; Hopper v. Carey, 716 N.E.2d 566 (Ind. Ct. App. 1999), trans. denied. This is not an interlocutory appeal.
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-PL-843 | October 19, 2016 Page 6 of 7 Baker, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-PL-843 | October 19, 2016 Page 7 of 7