Beverly R. Newman v. Meijer, Inc. (mem. dec.)

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

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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

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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

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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

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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