Richard Brock and Gail Brock v. Pamela Gilbert

• Court: Indiana Court of Appeals
• Decided: June 5, 2013
• Docket: 15A05-1208-PL-401
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

Jun 05 2013, 9:01 am APPELLANTS PRO SE:

RICHARD BROCK GAIL BROCK New Trenton, Indiana

IN THE COURT OF APPEALS OF INDIANA

RICHARD BROCK and GAIL BROCK, ) ) Appellants-Plaintiffs, ) ) vs. ) No. 15A05-1208-PL-401 ) PAMELA GILBERT, ) ) Appellee-Defendant. )

APPEAL FROM THE DEARBORN SUPERIOR COURT The Honorable Sally A. Blankenship, Judge Cause No. 15D02-1206-PL-38

June 5, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

SHEPARD, Senior Judge Richard and Gail Brock sued Pamela Gilbert when Gilbert refused to return their

dog. After hearing all the evidence, the trial court concluded that Gilbert was correct in

saying that the Brocks had gifted the dog. The court therefore found in favor of Gilbert.

We affirm.

FACTS AND PROCEDURAL HISTORY

Richard bought a German Shepherd puppy in April 2010 as a birthday gift for his

wife Gail. They named him Kaizer. Richard was later diagnosed with cancer, and

around September 2011, when he became too weak to care for Kaizer, they asked their

niece Pamela Gilbert to care for him until Richard regained his strength.

The Brocks and Gilbert subsequently disagreed about who should keep Kaizer. In

June 2012, Richard went to Gilbert’s house to get Kaizer back, but no one answered the

door. He consequently filed a report with the police department and a replevin action in

the Dearborn Superior Court.

At a hearing, the Brocks claimed their agreement was always that Gilbert would

care for Kaizer until Richard’s health improved. Gilbert agreed this was the initial

understanding but claimed when Richard saw how attached her children were to Kaizer,

he said they could keep him. Gilbert noted in passing that Kaizer had vacationed with

her and her family twice. She also offered notarized letters from witnesses, which the

court apparently admitted.1

After the hearing, the court issued an order stating in part:

1 The notarized letters are not included in the record on appeal; however, the court’s statements at the hearing indicate they would be considered. See Tr. pp. 23, 24. 2 3. The Defendant presented evidence that she had cared for the dog for approximately a year during which time she had paid for all expenses, including food and veterinary care, except for an initial approximate two week supply of food. The Defendant has received no funds for her services in boarding and caring for the dog. 4. There is no written agreement regarding the dog and there are conflicting statements on what the verbal agreement was. However, the length of time the dog has been in Defendant’s care without any reimbursement would support the Defendant’s testimony that she was given the dog. 5. The Defendant’s testimony was that the dog has a value as a breeder and that that is the Plaintiffs’ primary interest. 6. There was testimony that the dog is better cared for by the Defendant as the dog was confined in a small cage for lengthy periods while in the Plaintiffs’ care and the Defendant is able to care for the dog without the confinement.

Order, Appended to Appellants’ Br. Based on the totality of the circumstances, the court

denied the request for replevin.

ISSUES

The Brocks raise two issues on appeal: (1) whether the court improperly relied on

certain evidence and (2) whether the court denied them the right to cross-examination.

DISCUSSION AND DECISION

The Brocks first contend the court erred by relying on certain evidence. They

challenge Gilbert’s testimony that Kaizer had been on vacation with her family by noting

the near logistical impossibility of fitting the family along with Kaizer in their midsize

car. The Brocks also challenge the court’s apparent use of the notarized letters to find

that they confined the dog for lengthy periods and that their primary interest in the dog

was for breeding, noting their right to own and breed Kaizer if they wish.

3 However, it was within the province of the trial court to decide whom to believe.

See Marlow v. Conley, 787 N.E.2d 490, 494 (Ind. Ct. App. 2003) (deferring to trial

court’s determination of credibility). The court was thus within its authority to give

credit to Gilbert’s testimony and the notarized letters.

The Brocks nonetheless argue it was unfair for the court to say the notarized letters

were “irrelevant” but then to rely on them in its decision. Appellants’ Br. p. 5. As far as

we can tell from the transcript, the court never used the word “irrelevant.” What the

judge actually said at the time the letters were offered was: “I think the best testimony is

just of the people here.” Tr. p. 23. A fair reading of this comment merely reflects the

importance of the testimony of the parties directly involved in the dispute—the Brocks

and Gilbert.

The Brocks next contend they were denied the right to cross-examine the

witnesses who wrote the letters. The Brocks filed their lawsuit on the court’s civil

plenary docket and thus possessed the full range of procedural tools available to litigants.

Had they wanted to subpoena the authors of the letters or to bring in new witnesses to

controvert them, they should have asked the court to let them do so. Judge Blankenship

went out of her way to assist both parties as they worked their way through a bench trial

without lawyers, and she doubtless would have entertained such a request with the same

good will she demonstrated throughout.

Still, a court on appeal cannot grant relief on procedural grounds such as these

unless the issue was first brought before the trial court. See Trout v. Trout, 638 N.E.2d

4 1306, 1308 (Ind. Ct. App. 1994) (party waived claim that he was denied due process right

to cross-examination where he made no request before the trial court), trans. denied.

CONCLUSION

We therefore affirm the trial court’s judgment.

NAJAM, J., and PYLE, J., concur.