24 N.E.3d 1019 (Ind.App. 2014), 79A05-1403-CT-160, Myers v. Myers
| Judge | BRADFORD, Judge. BARNES, J., concurs. BROWN, J., concurs in part and dissents in part with opinion. BROWN, J., concurs in part and dissents in part with opinion. CONCUR BY: BROWN (In Part) BROWN, Judge, concurring in part and dissenting in part. |
| Parties | JASON T. MYERS, Appellant-Plaintiff, v. GARY W. MYERS, Appellee-Defendant |
| Docket Number | 79A05-1403-CT-160 |
| Date | 25 November 2014 |
| Court | Indiana Appellate Court |
| Citation | 24 N.E.3d 1019 |
Page 1019
Editorial Note:
These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE TIPPECANOE CIRCUIT COURT. The Honorable Donald L. Daniel, Judge. Cause No. 79C01-1206-CT-23.
MEMORANDUM DECISION
CASE SUMMARY
Appellant-Plaintiff Jason T. Myers and Appellee-Defendant Gary W. Myers are brothers. On June 20, 2012, Jason filed a lawsuit against Gary alleging that Gary failed to give Jason his share of their deceased father's estate. At some point, Jason amended his complaint to include requests for damages relating to his claim that Gary intentionally inflicted emotional distress upon him, punitive damages, and damages under the Victim's Relief Act ("VRA"). Jason subsequently requested leave to amend his complaint to add additional defendants.
On June 20, 2012, Jason, while still incarcerated, filed a complaint alleging that Gary had failed to provide him with his share of Dale's estate. Gary filed an appearance, but no other substantive response. At some point, Jason amended his complaint to allege that Gary intentionally inflicted emotional distress upon him, to request punitive damages, and to request damages under the VRA. On October 22, 2012, Jason filed a motion for default judgment. On December 17, 2012, Jason requested leave to amend his complaint to add additional parties as defendants. On January 2, 2013, the trial court denied Jason's request to amend his complaint to add additional defendants and granted default judgment against Gary in favor of Jason.
On January 14, 2013, Jason filed a renewed request to amend his complaint to add additional defendants. The trial court denied Jason's renewed request on March 8, 2013. On July 10, 2013, the trial court scheduled a hearing on damages for February 27, 2014. On February 14, 2014, Jason filed another renewed motion to amend his complaint to add additional defendants. The trial court denied Jason's renewed motion on February 20, 2014. On February 27, 2014, the trial court conducted a hearing on damages. The next day, the trial court issued an order awarding Jason $14,041.00 in damages and denying his request for damages relating to his claim that Gary intentionally inflicted emotional distress upon him, request for punitive damages, and request for damages under the VRA. This appeal follows.
FACTS AND PROCEDURAL HISTORY
Jason and Gary are brothers. Their father, Dale, died intestate on November 4, 2010.1 At the time of his death, Dale had $21,782.81 in bank accounts and a 1999 Ford F150 truck that was valued at $6,300.00. Jason, who was incarcerated at the time of Dale's death, subsequently received assurances that Gary would give him his share of Dale's estate after the proper Tippecanoe County offices gave the bank clearance to disperse the funds to Gary. Gary, however, did not give Jason his share of Dale's estate.
DISCUSSION AND DECISION
I. Challenges Relating to the Trial Court's Award of Damages
On appeal, Jason contends that the trial court erred in awarding him damages. Specifically, Jason argues that the trial court erred by failing to award damages relating to his claim that Gary intentionally inflicted emotion distress upon him. Jason also argues that the trial court erred in denying his request for putative damages and for damages under the VRA.
A. Intentional Infliction of Emotional Distress
Jason argues that the trial court erred by failing to award damages relating to his claim that Gary intentionally inflicted emotional distress upon him. " The definition of the tort of intentional infliction of emotional distress is that 'one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress....'" Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991) (quoting Restatement (Second) of Torts § 46 (1965)). " The tort arises when a defendant (1) engages in 'extreme and outrageous' conduct that (2) intentionally or recklessly (3) causes (4) severe emotional distress to another." Bradley v. Hall, 720 N.E.2d 747, 752 (Ind.Ct.App. 1999) (citing Doe v. Methodist Hosp., 690 N.E.2d 681, 691 (Ind. 1997)). " It is the intent to harm one emotionally that forms the basis for the tort." Id. (citing Cullison, 570 N.E.2d at 31).
Liability for intentional infliction of emotional distress is found only if there is extreme and outrageous conduct. The comments to the Restatement, Section 46 read:
d. Extreme and outrageous conduct. The cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by " malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, " Outrageous!" Restatement (Second) of Torts § 46 (quoted in Gable v. Curtis, 673 N.E.2d 805, 809 (Ind.Ct.App. 1996)). What constitutes " extreme and outrageous" conduct depends, in part, upon prevailing cultural norms and values. In the appropriate case, the question can be decided as a matter of law. See, e.g., Conwell v. Beatty, 667 N.E.2d 768, 775-77 (Ind.Ct.App. 1996) (no outrageous conduct where sheriff announced deputy's arrest at press conference and refused to assist deputy in completing retirement forms); Gable, 673 N.E.2d at 809-11 (no outrageous conduct where contractor's wife phoned purchaser seven times in one hour, screaming, threatening to repossess home and to come over, and stating repeatedly that the purchasers " would pay" ).
Bradley, 720 N.E.2d at 752-53.
In the instant matter, the trial court determined that Jason failed to prove his intentional infliction of emotional distress claim. We agree. In support of his claim, Jason presented testimony from his and Gary's mother who indicated that she believed that Gary had acted in a willful or wanton manner by misrepresenting that all of the money included in Dale's estate belonged to him. Jason also asserted that in light of Gary's failure to place some of the money from Dale's estate in his prison account, Jason suffered emotionally because he was not able to purchase food or personal hygiene materials from the prison commissary or to hire private investigators to investigate claims relating to his numerous ongoing civil lawsuits. Jason also presented evidence, however, which would suggest that he had been informed that he needed to speak directly with Gary about the potential inheritance and that their mother would not be treated as a " middle man." Plaintiff's Ex. 2. Further, while Plaintiff's Exhibit 4, a letter to Jason from his and Gary's grandmother, indicated that " there is no money," the letter suggested that the lack of money was due to garnishment of some of the funds by the State and the need for Gary, who was apparently unemployed at the time, to pay living expenses. Even assuming Gary did spend Jason's share of Dale's estate on living expenses, the record fails to prove by a preponderance of the evidence that Gary spent the funds in a manner that was intended to harm Jason. Upon review, we conclude that this evidence falls short of proving that Gary's alleged conduct was so extreme in degree or outrageous in character that it went beyond all possible bounds of decency. Because Jason failed to prove that Gary intentionally inflicted emotional distress upon him, he cannot recover damages in connection to this claim. We therefore affirm the judgment of the trial court in this regard.
B. Punitive Damages
Jason also argues that the trial court erred in denying his claim for punitive damages.
The correct standard of review for punitive damages is whether, considering only the probative evidence and the reasonable inferences supporting it, without weighing evidence or assessing witness credibility, a reasonable trier of fact could find by clear and convincing evidence that the defendant acted with malice, fraud, gross negligence or oppressiveness which was not the result of a mistake of fact or law, honest error of judgment, overzealousness, mere negligence, or other human failing.
Budget Car Sales v. Stott, 662 N.E.2d 638, 639 (Ind. 1996) (citing Bud Wolf Chevrolet, Inc. v. Robertson, 519 N.E.2d 135, 137 (Ind. 1988)).
In arguing that the trial court erred in denying his request for punitive damages, Jason points to the testimony of his Mother in which she claimed that Gary had misrepresented to various State and County governmental offices that he was entitled to recover all of the funds and property in question. Even assuming that this testimony, without more, could be found to be sufficient to prove that Jason was entitled to an award of punitive damages, the trial court, acting as the trier-of-fact, was under no obligation to believe this testimony and was free to believe or disbelieve Jason's mother as it saw fit. See Thompson v. State, ...
To continue reading
Request your trial