# Brett Carney v. Fernando Patino, Jr.

> Indiana Court of Appeals · October 31, 2018 · 114 N.E.3d 20

URL: https://www.frixlaw.com/law-library/cases/4326156

## Case

- **Full name:** Brett CARNEY, Appellant-Defendant, v. Fernando PATINO, Jr., Appellee-Plaintiff
- **Court:** Indiana Court of Appeals
- **Decided:** October 31, 2018
- **Citations:** 114 N.E.3d 20
- **Precedential status:** Published
- **Opinion:** Opinion by Crone
- **Judges:** Crone
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

FILED
Oct 31 2018, 8:36 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Scott B. Cockrum James Harper
Hinshaw & Culbertson LLP Harper & Harper, LLC
Schererville, Indiana Valparaiso, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Brett Carney, October 31, 2018
Appellant-Defendant, Court of Appeals Case No.
46A03-1712-CT-2855
v. Appeal from the LaPorte Circuit
Court
Fernando Patino, Jr., The Honorable Thomas J.
Appellee-Plaintiff Alevizos, Judge
Trial Court Cause No.
46C01-1303-CT-366

Crone, Judge.

Case Summary
[1] Brett Carney reported to Michigan City police that Fernando Patino, Jr., took

various fixtures from a residence that Carney had purchased at a sheriff’s sale.

Based on Carney’s report, Patino was placed on Michigan City’s “most

wanted” list, arrested, and charged with a felony. Patino was later found not

guilty of the criminal charge. Patino sued Carney for, among other things,

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defamation and intentional infliction of emotional distress. Following a trial,

the jury awarded Patino $256,000 in damages against Carney.

[2] Carney now appeals, first contending that the trial court erred in denying his

pretrial motion for summary judgment on grounds that his statements to police

were protected, as a matter of law, by the doctrine of qualified privilege.

Carney also contends that the trial court erred in denying his subsequent

motion for judgment on the evidence for the same reason. Finally, Carney

contends that the jury verdict is excessive and that the trial court should have

granted his motion to correct error on that basis. Concluding that the trial court

did not err in denying Carney’s various motions, and further concluding that

the jury verdict is not excessive, we affirm.

Facts and Procedural History1
[3] In February 2011, Patino resided at a home on Franklin Street (“the

Residence”) in Michigan City that was owned by his father. Patino’s father

purchased the Residence in 2006 and secured a mortgage on the Residence.

Following subsequent foreclosure, the Residence was sold at a sheriff’s sale on

the morning of February 18, 2011. Carney purchased the Residence at the sale

for $33,676.

1
Although Carney appeals the trial court’s rulings at various stages of the proceedings, for clarity’s sake, we
primarily recite the relevant facts most favorable to the jury’s verdict.

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[4] Immediately after the sale on February 18, Carney proceeded to the Residence

to inspect the property. He did not have a key to the Residence, and he did not

know if anyone still lived in the Residence. Carney knocked on the door, but

when nobody answered, he entered the Residence by using a credit card to pop

open the locked door. Upon entry, Carney noted that boxes were present,

indicating that the current resident was still in the process of moving. While

Carney was at the Residence, Patino arrived. Patino had been told by a

coworker at the nearby NAPA Auto Parts store where he worked that someone

was at the Residence, so Patino went to investigate. During this relatively

uneventful interaction, Carney informed Patino that he had purchased the

Residence and intended to take possession of it. Patino gave Carney his name

and phone number, and Carney agreed to allow Patino additional time to

remove his belongings from the Residence.2 Carney then left the Residence.

[5] The parties agree that they had a second encounter at the Residence, but they

dispute the date as well as what transpired. Patino claims that he decided to

remove the remainder of his belongings on the afternoon of February 18 and so

he called his father, who rented a U-Haul truck and came to the Residence with

Patino’s brother. Patino had returned to work, so his father and brother began

removing the family’s belongings from the Residence. His mother also came

over to help clean. Patino joined them shortly thereafter to help with the

moving process. At approximately 9:00 p.m. on February 18, while Patino and

2
Carney claims that although Patino gave him a correct phone number, he gave a false name.

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his father were still at the Residence, Carney returned to the Residence while

Patino was moving the stove he had purchased into the U-Haul. Carney was

angry and told Patino that he did not think Patino was allowed to take the

appliances. He threatened to call the Michigan City police and stood in the

doorway of the Residence to prevent Patino from removing any other items

from the Residence. Thus, Patino could not go back in the Residence to

retrieve his refrigerator or the washing machine that he had also purchased.

Patino decided that it was best just to leave, so he grabbed his dog and walked

past Carney to leave the premises. Patino overheard Carney on his cell phone

telling an unknown third party, “They took the appliances.” Appellant’s App.

Vol. 2 at 111. Patino and his family drove the U-Haul across the front lawn

because Carney’s truck was blocking the driveway. Patino and his father

returned the U-Haul on February 19, 2011. Patino did not return to the

Residence at any point after February 18, 2011.

[6] Carney agrees that the parties had a contentious second encounter at the

Residence, but he claims it occurred on the afternoon of February 20, 2011.

Carney claims that on that date, he encountered Patino and his father at the

Residence, and that he observed two pickup trucks in the driveway loaded with

various fixtures that had clearly been taken out of the Residence. Carney

claims that after he confronted Patino about taking the items, Patino drove

through the yard and fled the premises. Carney then inspected the Residence

and discovered numerous missing fixtures and extensive damage to the interior

of the Residence.

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[7] Carney contacted Michigan City police on February 20 while he was at the

Residence. Officer Brian Richmond came to the Residence to take the report.

Carney reported to Officer Richmond that he had purchased the Residence on

February 18, that upon inspection that same day he had encountered a young

adult Hispanic male (later identified as Patino) who was in the process of

moving out, and that the Residence was in good condition at that time. Carney

stated that he encountered Patino at the Residence again shortly before the

officer’s arrival on February 20, and that two pickup trucks in the driveway

were loaded with numerous items that should not have been removed from the

Residence. Carney stated that he personally observed interior doors, closet

doors, light fixtures, a register vent cover, a toilet, a bathroom sink, and

shelving in Patino’s trucks. Carney reported that he confronted Patino about

taking the items, but that Patino and his family simply drove through the yard

and fled. Carney stated that his subsequent walk-through of the Residence

revealed that the fixtures had been removed from the Residence and damage

had been done to the interior of the Residence. Carney did not mention

anything about a missing stove or other appliances to Officer Richmond.

Carney told Officer Richmond that Patino worked at a nearby NAPA Auto

Parts store. Carney also reported that he believed that Patino had purchased

and moved to a home on Chicago Street in Michigan City.

[8] Carney made at least four cell phone calls to Patino after the contentious

second encounter. Each time, Carney left a voicemail message that Patino

perceived to be threatening. In March 2011, Carney went to NAPA and

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confronted Patino about the appliances. He demanded that Patino return the

stove and a dryer that Patino had removed from the Residence. When Patino

refused, Carney stated, “When we’re done with you, we’re sending you back to

where you came from.” Id. at 113. Patino’s mother was at NAPA at the time,

and she overheard what Carney said about the appliances and his threatening

statement to her son. Patino, a United States citizen, believed that Carney was

referring to his Mexican ancestry and suggesting that he should be deported to

Mexico.

[9] Following an investigation of Carney’s claims by Michigan City Police

Detective Corporal Anthony McClintock, a warrant was issued for Patino’s

arrest. Patino was also included on the Michigan City Top 10 Most Wanted

List that was reported in local media. After learning of the warrant, Patino

turned himself in to Michigan City Police. Patino was subsequently charged

with class D felony theft for stealing “property” from the Residence. Ex. 4.

The criminal charges were pending for approximately five and a half years.

Following a jury trial, Patino was acquitted of the theft charge. The whole

experience was “like a nightmare” for Patino and his family. Tr. Vol. 3 at 104.

[10] On February 28, 2013, Patino filed a complaint against Carney and numerous

other defendants including the City of Michigan City, Indiana, the Michigan

City Police Department, Michigan City Police Chief Mark Swistek, and

Detective Corporal Anthony McClintock (the “Michigan City Defendants”).

Patino alleged claims of false arrest, false imprisonment, libel, slander,

defamation, negligent infliction of emotional distress, intentional infliction of

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emotional distress, negligence, and violations of his civil and constitutional

rights. The matter was removed to the United States District Court for the

Northern District of Indiana in April 2013. In November 2013, Patino’s federal

civil rights claims were dismissed with prejudice as to all defendants. Although

the remaining state law claims were initially dismissed without prejudice, they

were later remanded back to the LaPorte Circuit Court in December 2013. The

claims against the Michigan City Defendants were dismissed by the trial court

in April 2014.

[11] Patino filed an amended complaint for damages against Carney alleging that he

was falsely arrested by the Michigan City Police Department and charged with

class D felony theft based on knowingly false accusations made by Carney. The

complaint alleged claims for defamation, negligence, negligent infliction of

emotional distress, and intentional infliction of emotional distress. Patino

sought both compensatory and punitive damages for his economic losses,

emotional distress, pain, suffering, and loss of reputation.

[12] Carney filed a motion for summary judgment and designation of evidence in

July 2015. Among other things, Carney asserted that his statements to police

were qualifiedly privileged and thus he was entitled to judgment as a matter of

law as to all of Patino’s claims. Patino responded with a motion in opposition

to summary judgment and accompanying affidavit. The trial court entered an

order denying Carney’s summary judgment motion in April 2016.

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[13] A jury trial began on September 25, 2017. Prior to the start, Patino withdrew

his negligence claims, leaving only his defamation and intentional infliction of

emotional distress claims. Patino presented his case-in-chief, and at the close of

his evidence, Carney made an oral motion for judgment on the evidence again

based upon qualified privilege, which the trial court took under advisement.

Carney then presented his evidence, after which he renewed his motion for

judgment on the evidence, which the court again took under advisement.

Following deliberations, the jury returned a verdict in favor of Patino. The jury

awarded total damages in the amount of $320,000 and apportioned fault as

follows: Patino 5%, Michigan City Police Department 5%, Detective Corporal

McClintock 10%, and Carney 80%. Accordingly, the trial court entered final

judgment against Carney in the amount of $256,000.

[14] Carney filed a motion to correct error which was denied by the trial court. The

court also entered its order denying Carney’s motion for judgment on the

evidence. Carney now appeals the court’s denial of his motion for summary

judgment, the denial of his motion for judgment on the evidence, and the denial

of his motion to correct error.

Discussion and Decision

Section 1 – The trial court did not err in denying Carney’s
motion for summary judgment on the basis of qualified
privilege.
[15] Carney first argues that the trial court erred in denying his pretrial summary

judgment motion. “The purpose of summary judgment is to terminate litigation

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about which there can be no factual dispute and which can be determined as a

matter of law.” Lamb v. Mid Indiana Serv. Co., 19 N.E.3d 792, 793 (Ind. Ct. App.

2014). “The party moving for summary judgment has the burden of making a

prima facie showing that there is no genuine issue of material fact and that it is

entitled to judgment as a matter of law.” Mint Mgmt., LLC v. City of Richmond,

69 N.E.3d 561, 564 (Ind. Ct. App. 2017). If the moving party meets its burden,

“the burden then shifts to the nonmoving party whose response must set forth

specific facts indicating that there is an issue of material fact.” Venture Enter.,

Inc. v. Ardsley Distrib., Inc., 669 N.E.2d 1029, 1032 (Ind. Ct. App. 1996). “The

nonmovant may not rest upon bare allegations made in the pleadings, but must

respond with affidavits or other evidence setting forth specific facts showing

there is a genuine issue in dispute.” Id. Any doubts as to any facts or inferences

to be drawn from those facts must be resolved in favor of the nonmoving party.

Mint Mgmt., 69 N.E.3d at 564.

[16] “We review a summary judgment ruling de novo.” Pelliccia v. Anthem Ins. Cos.,

90 N.E.3d 1226, 1230 (Ind. Ct. App. 2018). A trial court’s findings and

conclusions offer insight into the rationale for the court’s judgment and

facilitate appellate review but are not binding on this Court. Henderson v. Reid

Hosp. & Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans. denied

(2015). We may affirm a summary judgment ruling on any theory supported by

the designated evidence. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). The

party that lost in the trial court has the burden of persuading us that the trial

court erred. Estate of Hofgesang v. Hansford, 714 N.E.2d 1213, 1216 (Ind. Ct.

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App. 1999). Our supreme court has cautioned that summary judgment “is not

a summary trial” and Indiana consciously errs on the side of letting even

marginal cases proceed to trial on the merits, rather than risk short-circuiting

meritorious claims. Hughley v. State, 15 N.E.3d 1000, 1003-04 (Ind. 2014).

[17] Carney asserts that, even if defamatory,3 his statements to law enforcement

concerning Patino were qualifiedly privileged, and thus he was entitled to

summary judgment as to Patino’s claims. A qualified privilege “applies to

communications made in good faith on any subject matter in which the party

making the communication has an interest or in reference to which he had a

duty, either public or private, either legal, moral, or social, if made to a person

having a corresponding interest or duty.” Bals v. Verduzco, 600 N.E.2d 1353,

1356 (Ind. 1992) (citation omitted). As a defense to defamation, the qualified

privilege operates not to “change the actionable quality of the words published,

but merely [to] rebut[] the inference of malice that is [otherwise] imputed.”

Holcomb v. Walter’s Dimmick Petroleum, Inc., 858 N.E.2d 103, 106 (Ind. 2006)

(citation omitted).4 It is well established that “communications made to law

3
Defamation is that which tends to injure reputation or to diminish esteem, respect, good will, or confidence
in the plaintiff, or to excite derogatory feelings or opinions about the plaintiff.” Davidson v. Perron, 716 N.E.2d
29, 37 (Ind. Ct. App. 1999) trans. denied (2000). “To establish defamation, the plaintiff must prove the
following elements: (1) a communication with defamatory imputation, (2) malice, (3) publication, and (4)
damages.” Id. A communication is defamatory per se if it imputes criminal conduct. Kelley v. Tanoos, 865
N.E.2d 593, 596 (Ind. 2007).
4
Although Patino’s amended complaint raised several claims in addition to defamation, the basis of each
claim was Carney’s purported false statements to law enforcement. Thus, Carney asserts that he was entitled
to summary judgment on all of Patino’s claims based on the qualified privilege defense. Indeed, the qualified
privilege defense to defamation has also been applied to claims of false imprisonment, negligence, and
intentional infliction of emotional distress. Brown v. Indianapolis Housing Agency, 971 N.E.2d 181, 186 (Ind.
Ct. App. 2012).

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enforcement to report criminal activity are qualifiedly privileged.” Williams v.

Tharp, 914 N.E.2d 756, 763 (Ind. 2009) (quoting Kelley v. Tanoos, 865 N.E.2d

593, 600 (Ind. 2007)). This furthers the compelling public interest of

encouraging citizens not only to report suspected wrongdoing but also to assist

law enforcement in investigating and apprehending persons who engage in

criminal activity. Id. at 762-63. Our supreme court has stated,

If this purpose is to be met, the privilege must offer a robust
defense against liability. Protecting unverified and even
speculative reports of suspected wrongdoing to law enforcement
is, in our view, supported by ample reasons of social advantage.
It is important that citizens not opt for inaction, chilled from
communicating with police in all but the most certain of
situations.

Id. at 765.

[18] The privilege, however, “is not without limits: a statement ‘may lose its

privileged character upon a showing of abuse wherein: (1) the communicator

was primarily motivated by ill will in making the statement; (2) there was

excessive publication of the defamatory statement; or (3) the statement was

made without belief or grounds for belief in its truth.’” Bah v. Mac’s Convenience

Stores, LLC, 37 N.E.3d 539, 548 (Ind. Ct. App. 2015) (quoting Bals, 600 N.E.2d

at 1356), trans. denied (2016). Thus,

the burden is upon the defendant in the first instance to establish
the existence of a privileged occasion for the publication, by
proof of a recognized public or private interest which would
justify the utterance of the words. Then the plaintiff has the

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burden of overcoming that privilege by showing that it has been
abused. When speaking of abuse, the essence of the concept is
not the speaker’s spite but his abuse of the privileged occasion by
going beyond the scope of the purposes for which privilege exists.
And unless only one conclusion can be drawn from the evidence,
the question of whether the privilege has been abused is for the
jury.

Williams, 914 N.E.2d at 762 (citations, quotation marks, and alterations

omitted).

[19] We agree with Carney that the privileged occasion implicated by his

communication to law enforcement related to the public interest in encouraging

private citizens to report crime. Patino contends that Carney abused the

privilege because, when he reported that Patino removed numerous fixtures

from the Residence, he was primarily motivated by ill will and made the

statement without belief or grounds for belief in truth. Carney claims that

Patino presented no evidence but simply offered “speculation about the intent

or knowledge of Carney in making the statement.” Appellant’s Br. at 33. “It is

well settled, however, that ‘[s]ummary judgment must be denied if the

resolution hinges upon state of mind, credibility of the witnesses, or the weight

of the testimony.’” Bah, 37 N.E.3d at 548 (quoting Nelson v. Jimison, 634 N.E.2d

509, 512 (Ind. Ct. App. 1994)). This is precisely the scenario that confronted

the trial court here.

[20] It is undisputed that, prior to Carney’s communication to law enforcement,

Patino and Carney had an extremely contentious second encounter. Patino

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presented evidence that, although he was not even at the Residence on

February 20, Carney told police that he personally observed Patino at the

Residence on that date in possession of various fixtures taken from the

Residence. According to Patino, it was his belief that Carney was upset that, a

few days earlier, Patino removed certain appliances from the Residence that

Patino had purchased, and that motivated Carney to fabricate a story about his

observations on February 20 and to accuse Patino of the theft of numerous

fixtures. Patino designated evidence in support of this motivation. He averred

that Carney expressed his clear dismay and objection to the appliance removal

when Patino was removing the stove on February 18, and that Carney

confirmed those feelings when he subsequently went to Patino’s place of

employment and made what appeared to be a racially charged threat to send

Patino “back to where [he] came from” if he did not return the appliances.

Appellant’s App. at Vol. 2 at 113.

[21] Viewing the designated evidence and resolving all doubts in favor of Patino as

the nonmoving party, as we must, we conclude that it was for a jury to

determine whether Carney was primarily motivated by ill will in accusing

Patino of theft and/or whether his accusations were made without belief or

grounds for belief in their truth.5 In other words, we cannot say that only one

conclusion can be drawn from the evidence. Rather, the evidence presented,

5
Carney asserts that Patino failed to designate evidence that Carney’s statements to police were, in fact, false.
However, in his affidavit, Patino denied being at the Residence on February 20 or being in possession of the
fixtures. This, in effect, is an averment that Carney’s statements to the contrary were, in fact, false.

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and the reasonable inferences to be drawn therefrom, was sufficient to establish

a genuine issue of material fact on whether the qualified privilege had been

abused, and therefore Carney was not entitled to summary judgment on

Patino’s claims based on the qualified privilege defense. Accordingly, the trial

court did not err when it declined to enter summary judgment for Carney. 6

Section 2 – The trial court did not err in denying Carney’s
motion for judgment on the evidence on the basis of qualified
privilege.
[22] Carney next asserts that the evidence presented by Patino at trial “was

insufficient to overcome the application of the [qualified] privilege” and

therefore his motion for judgment on the evidence should have been granted.

Appellant’s Br. at 19. The standard of review for a challenge to a ruling on a

motion for judgment on the evidence is the same standard utilized by the trial

court in making its decision. Bals, 600 N.E.2d at 1357. We look only to the

evidence and reasonable inferences therefrom most favorable to the nonmoving

party. Id. The motion should be granted only where there is no substantial

6
Carney briefly argues that the trial court erred in failing to enter at least partial summary judgment on
Patino’s defamation claim because Patino’s amended complaint “failed to plead the alleged defamatory
statements with any specificity.” Appellant’s Br. at 35. Carney did not assert this as grounds for summary
judgment in his original brief in support of summary judgment. Indeed, his only mention of this alleged lack
of specificity is a passing reference in a footnote in his reply brief in support of summary judgment. This was
insufficient to alert the trial court to this argument. It is well settled that arguments not presented to the trial
court on summary judgment are waived on appeal. Anderson v. Four Seasons Equestrian Ctr., Inc., 852 N.E.2d
576, 581 (Ind. Ct. App. 2006), trans. denied. The trial court cannot be found to have erred as to an issue or
argument that it never truly had an opportunity to consider. Id. Thus, Carney has waived this argument,
and we will not consider it on appeal.

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evidence supporting an essential issue in a case. Id. (citing Ind. Trial Rule

50(A); Johnson v. Naugle, 557 N.E.2d 1339, 1342 (Ind. Ct. App. 1990); Whisman

v. Fawcett, 470 N.E.2d 73, 79 (Ind. 1984)).

[23] Our supreme court has stated that determining whether evidence was sufficient

to defeat a motion for judgment on the evidence requires both a quantitative

and a qualitative analysis. Purcell v. Old Nat’l Bank, 972 N.E.2d 835, 840 (Ind.

2012). Specifically, the court explained,

Evidence fails quantitatively only if it is wholly absent; that is,
only if there is no evidence to support the conclusion. If some
evidence exists, a court must then proceed to the qualitative
analysis to determine whether the evidence is substantial enough
to support a reasonable inference in favor of the non-moving
party.

Qualitatively, ... [evidence] fails when it cannot be said, with
reason, that the intended inference may logically be drawn
therefrom; and this may occur either because of an absence of
credibility of a witness or because the intended inference may not
be drawn therefrom without undue speculation. The use of such
words as “substantial” and “probative” are useful in determining
whether evidence is sufficient under the qualitative analysis.
Ultimately, the sufficiency analysis comes down to one word:
“reasonable.”

Id. (citations and some quotation marks omitted). Unlike a motion for

summary judgment under Indiana Trial Rule 56, the sufficiency test of Indiana

Trial Rule 50(A) is not merely whether a conflict of evidence may exist, but

rather whether there exists probative evidence, substantial enough to create a

reasonable inference that the nonmovant has met his burden. Id. at 841.
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[24] Here, Patino presented sufficient evidence to meet both the quantitative and

qualitative elements of the judgment on the evidence analysis. Our thorough

review of the trial transcript and the totality of the testimony presented reveals

that Patino presented sufficient evidence to show that Carney was not being

truthful when he told police that Patino was at the Residence on February 20,

and that he witnessed Patino removing various fixtures from the premises on

that date.7 Patino also presented substantial evidence to create a reasonable

inference that Carney was primarily motivated by ill will in making his

statement to police and/or that he made the statement without belief or

grounds for belief in its truth. In other words, we are confident that enough

credible evidence was presented from which an inference that Carney abused

his qualified privilege could be found by a reasonable jury without engaging in

undue speculation.

[25] Carney essentially suggests that his abuse of the qualified privilege could not be

established absent direct testimony from him admitting that his statements to

law enforcement were in fact motivated by ill will or that he made the

statements without belief or grounds for belief in their truth. He is mistaken.

Viewing only the evidence and reasonable inferences therefrom most favorable

to Patino as the nonmoving party, there was substantial evidence presented to

7
Carney emphasizes that he never reported to law enforcement that he saw Patino actually taking the
fixtures out of the Residence, only that he encountered Patino in the driveway of the Residence already in
possession of the fixtures that had been taken out of the Residence. We find this to be a distinction without a
difference.

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overcome Carney’s qualified privilege defense. Accordingly, the trial court did

not err in denying Carney’s motion for judgment on the evidence.

Section 3 – The jury verdict is not excessive, and the trial court
did not abuse its discretion in denying Carney’s motion to
correct error.
[26] Following the trial court’s entry of judgment on the jury’s award of $256,000 in

damages to Patino, Carney filed a motion to correct error asserting that he was

entitled to a new trial due to “the excessiveness of the jury verdict.” Appellant’s

App. Vol. 5 at 158. This Court has explained that the remedy offered by

Indiana Trial Rule 59(J)(5) is “available only where the evidence is insufficient

to support the verdict as a matter of law.” Solnosky v. Goodwell, 892 N.E.2d 174,

184 (Ind. Ct. App. 2008) (quoting City of Carmel v. Leeper Elec. Servs., Inc., 805

N.E.2d 389, 392 (Ind. Ct. App. 2004), trans. denied). Once the trial court has

entered final judgment on the evidence for the amount of proper damages, we

will reverse the decision only for an abuse of discretion. Id.

[27] We afford a jury’s damage award great deference on appeal. Sims v. Pappas, 73

N.E.3d 700, 709 (Ind. 2017). In considering whether a jury verdict is excessive,

we do not reweigh the evidence and look only to the evidence and reasonable

inferences that may be drawn therefrom that support the verdict. West v. J. Greg

Allen Builder, Inc., 92 N.E.3d 634, 643 (Ind. Ct. App. 2017), trans. denied (2018).

If there is any evidence in the record which supports the amount of the award,

even if it is variable or conflicting, the award will not be disturbed. Sandberg

Trucking, Inc. v. Johnson, 76 N.E.3d 178, 189 (Ind. Ct. App. 2017). “To warrant

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reversal, the award must appear to be so outrageous as to impress the Court at

first blush with its enormity.” Id. (citation and quotation marks omitted). An

award is not excessive unless the amount cannot be explained upon any basis

other than prejudice, passion, partiality, corruption, or some other element of

improper consideration. Sims, 73 N.E.3d at 709.

[28] Carney complains that “Patino presented no medical expenses, no lost wages,

and no documented losses of any kind” to support the jury’s damage award.

Appellant’s Br. at 44. He argues that “[e]ven if there is an emotional toll

associated with being charged with a crime, there is no justification for so large

a verdict.” Id. at 45. We disagree.

[29] “Awards for pain, suffering, fright, humiliation, and mental anguish are

particularly within the province of the jury because they involve the weighing of

evidence and credibility of witnesses.” Landis v. Landis, 664 N.E.2d 754, 757

(Ind. Ct. App. 1996). Indeed, “[p]hysical and mental pain are, by their very

nature, not readily susceptible to quantification, and therefore, the jury is given

very wide latitude in determining these kinds of damages.” Groves v. First Nat’l

Bank of Valparaiso, 518 N.E.2d 819, 831 (Ind. Ct. App. 1988). “Our inability to

actually look into the minds of jurors and determine how they computed an

award is, to a large extent, the reason behind the rule that a verdict will be

upheld if the award falls within the bounds of the evidence.” Griffin v. Acker, 659

N.E.2d 659, 664 (Ind. Ct. App. 1995).

Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018 Page 18 of 19
[30] The evidence favorable to the verdict reveals that, in addition to the monetary

cost incurred in defending his criminal trial, Patino suffered great mental and

emotional pain due to the highly publicized charge and arrest. His criminal

case was pending for more than five years, and he presented evidence of the

negative impact that it had, and continues to have, on both his personal and

professional life. Under the circumstances, the $256,000 award is not so

outrageous as to indicate that the jury was motivated by prejudice, passion,

partiality, corruption, or some other element of improper consideration.

Carney has failed to persuade us that the trial court abused its discretion in

denying his motion to correct error.8 We therefore affirm the verdict and the

trial court’s judgment entered thereon.

[31] Affirmed.

Najam, J., and Pyle, J., concur.

8
Carney also argues that the verdict should be set aside because the “evidence presented should have led the
jury to conclude that the qualified privilege applied.” Appellant’s Br. at 42. This is essentially a request for
us to reweigh the evidence and reassess witness credibility on the issue of whether he abused the privilege,
which we cannot do. See West, 92 N.E.3d at 643 (when party seeks to reverse adverse judgment on basis of
insufficient evidence, appellate court will not weigh evidence or assess witness credibility). Carney also
briefly submits, without citation to authority, that the jury’s allocation of 80% fault to him for Patino’s
injuries was unreasonable. It is well settled that the allocation of fault is entrusted to the sound judgment of
the factfinder. Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1056 (Ind. 2003). Carney’s sole argument
in this regard appears to be simply a disagreement with the jury’s conclusion. Without more, we decline to
address the issue further.

Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018 Page 19 of 19

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4326156. Public record. Not legal advice.