Robert Gacsy v. Todd Reinhart

• Court: Indiana Court of Appeals
• Decided: March 4, 2020
• Docket: 19A-CT-1345
• Status: Published

Opinion

FILED Mar 04 2020, 9:43 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy S. Schafer Leslie B. Pollie Timothy S. Schafer, II Travis W. Montgomery Todd S. Schafer Kopka Pinkus Dolin PC Schafer & Schafer, LLP Carmel, Indiana Merrillville, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert Gacsy, March 4, 2020 Appellant-Plaintiff, Court of Appeals Case No. 19A-CT-1345 v. Appeal from the LaPorte Superior Court Todd Reinhart1, The Honorable Richard R. Appellee-Defendant Stalbrink, Jr., Judge Trial Court Cause No. 46D02-1601-CT-126

Baker, Judge.

1 Although mistakenly spelled in the caption for this cause as “Reinhart,” in fact, the correct spelling of this party’s last name is “Reinert.” Appellee’s Br. p. 5. To avoid confusion, we will continue to use “Reinhart” in the caption, but will use the correct spelling throughout the opinion.

Court of Appeals of Indiana | Opinion 19A-CT-1345 | March 4, 2020 Page 1 of 11 [1] Robert Gacsy filed a complaint against Todd Reinert after Reinert’s horses

escaped their confinement, resulting in injuries to Gacsy. The trial court

granted an order in limine excluding all evidence related to the alleged prior

escapes of Reinert’s horses. Gacsy violated the order in limine multiple times

during the first trial, resulting in a mistrial. The trial court warned Gacsy that

further violations could result in dismissal. During the second trial, Gacsy

made a statement that the trial court found was a violation of the order in

limine. The trial court then declared a mistrial and dismissed the complaint

with prejudice. Gacsy now appeals, arguing that (1) the order in limine was

erroneous; and (2) even if the order in limine was proper, it was erroneous to

dismiss the complaint.

[2] We find that Gacsy’s statement at the second trial did not violate the order in

limine. We further find that the order in limine was improper and that Gacsy

should not have been sanctioned for violating it following the first trial.

Therefore, we reverse and remand for further proceedings and with instructions

to, among other things, strike the sanctions order against Gacsy.

Facts 2

[3] On January 22, 2016, Gacsy filed a complaint against Reinert alleging that in

June 2014, Reinert’s “horse confinement was negligently maintained which

2 We held oral argument in Indianapolis on February 19, 2020. We thank counsel for their written and oral presentations.

Court of Appeals of Indiana | Opinion 19A-CT-1345 | March 4, 2020 Page 2 of 11 permitted the horses to get free and roam at large,” allowing one of the horses

to collide with Gacsy, “knocking him to the ground [and] causing him

injuries.” Appellant’s App. Vol. II p. 20-21. One of Gacsy’s main theories of

the case was that Reinert knew his fence was ineffective and inadequate prior to

the incident involving Gacsy. After an unsuccessful mediation, the trial court

set the matter for a jury trial beginning March 20, 2018.

[4] Two weeks before trial, Reinert filed a motion in limine, seeking to exclude all

mentions, comments, questions, arguments, and any other references to

“[t]estimony or evidence regarding any incidents previous or subsequent to the

incident giving rise to this lawsuit in which one or more of [Reinert’s] horses is

alleged to have escaped its confinement[.]” Id. at 25, 43. Following argument,

on March 15, 2018, the trial court granted the motion.

[5] During opening statements, Reinert objected four times to statements made by

Gacsy’s attorney that violated the order in limine; the trial court sustained each

objection. Specifically, counsel for Gacsy made the following objectionable

comments:

• “After necking down the fence, the horses would get out, start roaming around at large in violation of the statute.” Tr. Vol. II p. 204.

• “You’ll learn there was a particular area of the fence where the horses would get out most frequently . . . .” Id. at 209.

• “You’ll learn when these horses had gotten out, [Reinert] unbelievably just tied a ladder to the wood post.” Id. at 210.

Court of Appeals of Indiana | Opinion 19A-CT-1345 | March 4, 2020 Page 3 of 11 • “Frank . . . says, hey, [Gacsy], neighbor’s horses are out again. What you’ll find out is by this time the police had arrived and pulled in . . . .” Id. at 215.

Reinert moved for a mistrial, in which Gacsy ultimately joined. The trial court

granted the motion from the bench.

[6] Following the mistrial, Reinert filed a motion to dismiss. Following briefing

and a hearing, the trial court granted sanctions against Gacsy but denied

Reinert’s request for a dismissal. In its order, the trial court warned that

“[f]urther misconduct of this nature during the next trial in this cause will result

in total dismissal of this cause with prejudice.” Appellee’s App. Vol. II p. 85.

Gacsy filed another motion to reconsider regarding the order in limine, further

argument took place, and the trial court again allowed the original order to

remain in place.

[7] The second trial began on May 14, 2019. A few minutes into Gacsy’s opening

statement, counsel made the following comment:

You’re going to learn [Reinert’s fence] wasn’t built very well and that about two months before [Gacsy] was injured it found a failure. That’s the words [Reinert] will tell you. The fence found a failure . . . .

Tr. Vol. III p. 200. Reinert objected and moved for a mistrial and dismissal.

Gacsy’s counsel defended the statement by citing to the following portion of the

deposition of Reinert, when Reinert was discussing a prior escape:

Court of Appeals of Indiana | Opinion 19A-CT-1345 | March 4, 2020 Page 4 of 11 Q. Would you agree with me, as you sit here today, that your confinement was, in fact, ineffective and inadequate to contain the horses?

A. It was good for a lot of years, then it apparently found a failure.

Appellant’s App. Vol. III p. 81.

[8] The trial court took the request for mistrial and dismissal under advisement and

adjourned for the day. The next day, the trial court orally granted the request

for mistrial and dismissed the case with prejudice, concluding that the only

possible interpretation of “found a failure” was that the horses had escaped in

the past. The trial court noted that before Gacsy’s attorney made the statement

in question, the trial court “fully anticipated getting an offer of proof outside the

presence of the jury where I would get facts and evidence before me to be able

to allow me to lift the order in limine, but we didn’t get to that point.” Tr. Vol.

III p. 226.

[9] On May 17, 2019, the trial court issued a written order finding and concluding,

in relevant part, as follows:

25. The Court has already found that [Gacsy’s] Counsel intentionally caused [a] mistrial in the first trial and sanctioned them accordingly. The only reason that the original trial did not result in dismissal is because the egregious misconduct of [Gacsy’s] Attorneys was of a degree never experienced by this Court and the Court did not warn [Gacsy’s] Attorneys that their conduct could result in dismissal.

Court of Appeals of Indiana | Opinion 19A-CT-1345 | March 4, 2020 Page 5 of 11 26. Prior to the outset of the second trial, as well as during, [Gacsy’s] Counsel was reminded several times of the importance of complying with the Court’s orders. They were also repeatedly reminded that this meant there could be no reference to prior or subsequent escapes by the horses. Yet not even five minutes into [Gacsy’s] Counsel’s opening statement they referenced a prior escape by the horses. . . .

27. Based upon the amount of verbal and written warnings about this type of behavior throughout both trials, this court finds that the conduct of [Gacsy’s] Attorney was intentional and reckless. Based on the forgoing, the Court finds that [Gacsy’s] Attorneys engaged in egregious misconduct and caused a mistrial making the imposition of sanctions just.

***

29. This flagrant disrespect for the Court by [Gacsy’s] Counsel is unlike anything this Court has experienced. The Court is empowered to protect its institutional integrity against this sort of behavior with sanctions. The Court in [Prime Mortgage USA, Inc. v. Nichols, 885 N.E.2d 628, 651 (Ind. Ct. App. 2008)] empowers the Court to sanction with dismissal provided parties have been warned that their continued conduct will result in dismissal.

30. As mentioned above, [Gacsy’s] Counsel were warned repeatedly that continued violation would result in dismissal. Therefore, dismissal with prejudice is just.

Appealed Order p. 6-8 (internal citations omitted). Gacsy now appeals.

Court of Appeals of Indiana | Opinion 19A-CT-1345 | March 4, 2020 Page 6 of 11 Discussion and Decision I. Dismissal [10] Gacsy first argues that the statement made by counsel during the opening

argument of the second trial did not violate the order in limine; consequently,

dismissal was erroneous. Initially, we note that dismissal should be a last

resort: “[a]lthough Indiana does not require trial courts to impose lesser

sanctions before applying the ultimate sanctions of default judgment or

dismissal, we view dismissals with disfavor, and dismissals are considered

extreme remedies that should be granted only under limited circumstances.”

Deutsche Bank Nat’l Trust Co. v. Harris, 985 N.E.2d 804, 814 (Ind. Ct. App.

2013); see also Allied Prop. & Cas. Ins. Co. v. Good, 919 N.E.2d 144, 153 (Ind. Ct.

App. 2009). (observing that while trial courts have the inherent power to

dismiss cases, this Court “caution[s] restraint in the use of inherent powers

because of their very potency”) (internal quotation marks and citation omitted).

[11] As noted above, the order in limine prohibited “[t]estimony or evidence

regarding any incidents previous or subsequent to the incident giving rise to this

lawsuit in which one or more of [Reinert’s] horses is alleged to have escaped its

confinement[.]” Appellant’s App. Vol. II p. 25, 43.

[12] While Reinert focuses much of his brief on what happened during the first trial,

our focus should be only on what happened at the second trial, which is

ultimately what led to the dismissal. And at the second trial, the statement of

Gacsy’s attorney that resulted in dismissal was that the fence “found a failure.”

Court of Appeals of Indiana | Opinion 19A-CT-1345 | March 4, 2020 Page 7 of 11 Tr. Vol. III p. 200. In other words, counsel did not refer to horses or prior

escapes. It is easily imaginable that a fence could fail without an escape of the

animals being confined. A reasonable factfinder could determine that a fence

with a missing section, or a post that had fallen over, or a break in the wires,

had failed—even if no animals had escaped. In other words, the fact that the

fence “found a failure” does not necessarily or obviously imply an escape.

[13] By stating that the fence “found a failure,” it is apparent that counsel was

twisting himself into proverbial knots to try to make his case while also abiding

by the trial court’s order. Tr. Vol. III p. 200. Counsel tried to explain to the

trial court that he was faced with an impossible task: “I’m now tasked with

showing the confinement was inadequate, yet they’re saying [I] can’t put on

evidence that it was inadequate. I mean, that’s what I’m trying to do.” Id. at

211.

[14] Given the strict confines within which Gacsy was operating, we can only

conclude that the benign statement that the fence “found a failure” did not

violate the order in limine prohibiting mention of prior escapes. Because Gacsy

did not violate the order in limine by making this statement, the trial court erred

by declaring a mistrial and dismissing the case. Therefore, we reverse and

remand for a new trial.

Court of Appeals of Indiana | Opinion 19A-CT-1345 | March 4, 2020 Page 8 of 11 II. Order in Limine [15] Next, we believe that in the interest of judicial economy, it is incumbent upon

us to address the order in limine so that the issue need not be relitigated on

remand.

[16] The central nature of Gacsy’s claim against Reinert is negligent confinement. It

is well established that the owner of an animal has a common law duty to

confine it. E.g., Briggs v. Finley, 631 N.E.2d 959, 965 (Ind. Ct. App. 1994). To

prevail on a claim of negligent confinement, an injured party must establish that

(1) the owner placed the animal in a confinement (2) that he knew or should

have known would be ineffective and (3) could reasonably foresee the animal

would escape therefrom.3 Id. The legal duty owed by the owner in restraining

and confining his animal is that of reasonable care under the circumstances. Id.

[17] Gacsy directs our attention to a wealth of authority from other states providing

that prior and subsequent escapes are relevant and admissible in negligent

confinement cases. See Appellant’s Br. p. 18-21. We have been unable to find

any Indiana cases directly standing for that proposition, but we note that on at

least one occasion, this Court found that negligent confinement had not been

established where, among other things, the horses at issue had never before

escaped. Briggs, 631 N.E.2d at 965. Based on the lack of history of escape,

3 An injured party can also prevail on a claim of negligent confinement by showing that the owner knew the animal had escaped but took no reasonable steps to bring it back to confinement. Briggs, 631 N.E.2d at 965. This prong of negligent confinement is not at issue in this appeal.

Court of Appeals of Indiana | Opinion 19A-CT-1345 | March 4, 2020 Page 9 of 11 together with evidence regarding the way in which the owner secured the

animals, this Court found that the owner could not have reasonably foreseen

that his horses were likely to escape. Id.

[18] Because the foreseeability of the escape of the horses is directly at issue in a

negligent confinement claim, we can only find that it was erroneous to exclude

evidence related to the prior escapes of Reinert’s horses. Indeed, to prove his

claim, Gacsy was required to prove that Reinert knew that his confinement was

inadequate and ineffective before Gacsy was injured. See Pedersen v. White-Evans

Elevator Co., 511 N.E.2d 460, 464-65 (Ind. Ct. App. 1987) (holding that it is

erroneous to prohibit plaintiff from presenting evidence that is “vital” to their

claim); see also Cochran v. Phillips, 573 N.E.2d 472, 474 (Ind. Ct. App. 1991)

(holding that the injured party “will prevail if he shows the animal owner placed

the animal in confinement which the owner knew or should have known would

be ineffective”) (emphasis added).

[19] Reinert does not respond to the substance of Gacsy’s argument on this issue in

his appellate brief. But before the trial court, Reinert relied on Greathouse v.

Armstrong, 601 N.E.2d 419 (Ind. Ct. App. 1992), aff’d in relevant part, 616

N.E.2d 364 (Ind. 1993). In that case, a man died after the motorcycle he was

riding collided with the defendant’s bull, which had escaped from its enclosure.

One of the issues on appeal was whether the trial court had properly excluded

evidence of prior incidents in which the bull had similarly escaped. The prior

escapes occurred in 1982 and 1983, whereas the motorcycle accident occurred

in 1987. In affirming the exclusion of the evidence, this Court, among other

Court of Appeals of Indiana | Opinion 19A-CT-1345 | March 4, 2020 Page 10 of 11 things, relied on the remoteness in time of the prior escapes. Id. at 425. In this

case, in contrast, Reinert’s horses allegedly escaped approximately two months

before the incident involving Gacsy—substantially less remote than four or five

years, as in Greathouse. Therefore, we do not find that Greathouse requires that

we affirm the trial court.

[20] The alleged prior escapes of Reinert’s horses, as well as the condition of the

fence, are directly relevant to Gacsy’s claim. Therefore, evidence related to

those escapes should be admitted in a new trial.

[21] Additionally, we note that the trial court imposed sanctions upon Gacsy for the

failures to abide by the order in limine in the first trial. Because we find that the

order was improper and placed Gacsy’s counsel in an impossible position, we

direct the trial court to strike the sanctions on remand.

[22] The judgment of the trial court is reversed and remanded for further

proceedings and with instructions to strike the sanctions against Gacsy and to

permit the introduction of evidence related to the prior escapes of Reinert’s

horses on retrial.

Riley, J., and Brown, J., concur.

Court of Appeals of Indiana | Opinion 19A-CT-1345 | March 4, 2020 Page 11 of 11