Faulkinbury v. Broshears

• Decision Date: 10 April 2015
• Docket Number: No. 29A05–1405–CT–234.,29A05–1405–CT–234.
• Citation: 28 N.E.3d 1115
• Parties: M. Shane FAULKINBURY, by his next friends/guardians John M. Faulkinbury and Olivia J. Faulkinbury, Appellant–Plaintiff/Counterclaim–Defendant, v. Michael BROSHEARS and BAM Outdoor, Inc., Appellees–Defendants/Counterclaim–Plaintiffs.
• Court: Indiana Appellate Court

28 N.E.3d 1115

M. Shane FAULKINBURY, by his next friends/guardians John M. Faulkinbury and Olivia J. Faulkinbury, Appellant–Plaintiff/Counterclaim–Defendant

v.Michael BROSHEARS and BAM Outdoor, Inc., Appellees–Defendants/Counterclaim–Plaintiffs.

No. 29A05–1405–CT–234.

Court of Appeals of Indiana.

April 10, 2015.

Alex R. Voils, Jr., Zionsville, IN, Attorney for Appellant.

Thomas R. Schultz, Charles S. Smith, Justin C. Wiler, Schultz & Pogue, LLP, Indianapolis, IN, James D. Crum, Brandi A. Gibson, Coots, Henke & Wheeler, P.C., Carmel, IN, Attorneys for Appellees.

Opinion

KIRSCH, Judge.

[1] M. Shane Faulkinbury (“Shane”), by his next friends/guardians, his parents, John M. Faulkinbury (“Father”) and Olivia J. Faulkinbury (“Mother”) (collectively, “Guardians”), appeal the trial court's: (1) grant of summary judgment in favor of Michael Broshears (“Michael”) and BAM Outdoor, Inc. (together, “BAM”) on Guardians' tort claim against BAM; (2) grant of summary judgment in favor of BAM on its counterclaim against Guardians; (3) award to BAM of damages, attorney fees, and expenses in the total amount of $46,711.47; and (4) denial of Guardians' motion to correct error based on newly discovered evidence. On appeal, we address the one dispositive issue: Whether the trial court erred in denying Guardians' motion to correct error.

[2] We reverse and remand.

Facts and Procedural History

[3] This case arises from a June 1, 2005 car accident between Shane and Michael, which occurred at the intersection of Hazel Dell Parkway and 146th Street in Hamilton County, Indiana. At the time of the accident, Michael was the President and sole owner of BAM Outdoor, Inc. and was driving a truck owned by that company. The parties agree that Michael's truck was in front of Shane's car after the two vehicles had stopped for a red light. They also agree that the two vehicles collided. The parties disagree, however, about the events surrounding that collision. Guardians claimed that Michael backed his truck into Shane's car and, after the two men exited their vehicles, Michael hit Shane from behind with an object similar to a two-by-four, injuring Shane's head and shoulders. Michael claimed that Shane's car hit Michael's truck from behind and, after the two men exited their vehicles, Shane punched Michael in the face.

[4] At some point after the accident, Shane became incapacitated and his parents were appointed as his guardians in September 2006. Appellant's App. at 36. On May 30, 2007, on Shane's behalf, Guardians filed a complaint against BAM (“tort claim”) alleging that Michael committed the torts of battery by vehicle, battery on Shane's person, trespass to chattel, and mischief. Id. at 51–52. BAM filed an answer to the complaint and included a counterclaim (“counterclaim”), alleging the same torts raised by Guardians, but asserting that Michael was the one who suffered injuries after Shane drove into Michael's truck, got out of his car, and punched Michael in the face. BAM included in the counterclaim the allegation that Guardians' tort claim was “groundless or otherwise frivolous” and was being litigated in bad faith. Id. at 68. Accordingly, BAM requested reasonable attorney fees for defending the frivolous suit. Id. Guardians answered BAM's counterclaim, denying each allegation.

[5] In 2011, BAM filed a motion for summary judgment as to Guardians' tort claim.¹ In support of the motion for summary judgment, BAM designated: (1) an affidavit sworn by Michael; and (2) a portion of witness Courtney Luschinski's (“Luschinski”) June 27, 2011 deposition, which was taken six years after the incident. In his affidavit, Michael stated that he had not hit Shane; instead, Shane's car hit Michael's truck, and thereafter, Shane “punched [Michael] in the face.” Id. at 88. In the designated portion of Luschinski's deposition, pages 1–4 and 9–12, she testified that she was the driver of the car behind Shane's on the night in question and witnessed some of the altercation between Shane and Michael. Luschinski said that she did not witness the actual collision of the vehicles, nor did she see Michael hit Shane. Id. at 91. Luschinski stated, “I saw the guy [Shane] get out of the—the red car and then I saw Mike get out of his truck.” Id. The “guy in the red car seemed to be stumbling and then just started hitting Mike.” Id. “It looked like [Shane punched him] in the face.” Id.

[6] Guardians responded to BAM's motion for summary judgment for the tort claim and attached to their response: (1) an affidavit sworn by Father on October 7, 2011 (also referred to as “Exhibit 1” or “Father's 2011 affidavit”); (2) a different portion of witness Luschinski's deposition, pages 13–20; and (3) a photograph of Shane, purportedly taken soon after the altercation (also referred to as “Exhibit 3”). Id. at 92–102.

[7] In Father's 2011 affidavit, he related:

4. M. Shane Faulkinbury has steadfastly stated, in detail before he lost his communicative skills, that on June 1, 2005, a person later identified as Michael Broshears pulled his vehicle around [Shane's] vehicle just prior to the intersection of Hazel Dell Parkway and 146th Street in Hamilton County, Indiana. After “passing” Shane's red [E]scort and while stopped at the intersection Michael Broshears backed his vehicle into Shane's Escort. That during the interaction between the parties which followed Michael Broshears operating his vehicle in such a manner[,] Michael Broshears struck Shane with an object likened to a “2x4.”

5. Michael Broshears was involved in a relationship with Shane's estranged wife, Kelly Faulkinbury. In the period of time surrounding said incident Shane and his estranged wife were involved in litigation regarding custody of their minor child.

6. The injuries suffered by Shane on June 1, 2005 are inconsistent with any which may have resulted from the contact of the two vehicles. The air bag was not deployed. The damage to Shane's red Escort was minimal. Repair to the vehicle was not required.

Id. at 98. In her deposition, Luschinski said that Michael recognized her at the scene and asked if she had seen the accident. Luschinski told Michael that she had not seen the accident but had seen the physical altercation. Id. at 100. When asked if she had spoken with the police on that evening, Luschinski said no; she explained that she had asked Michael if she needed to stick around to talk to the police, and when Michael said no, she left. Id. Luschinski witnessed everything from inside her car, where she remained during the whole incident. Id.

[8] On October 12, 2011, the trial court held a hearing on BAM's motion for summary judgment as to the tort claim. At the beginning of the hearing, BAM hand-filed a motion to strike Exhibits 1 and 3. Regarding Exhibit 1, BAM argued that Father's 2011 affidavit was based on hearsay and portions of the affidavit constituted impermissible expert testimony. Tr. at 92–94. As to Exhibit 3, BAM maintained that the photo of Shane was not authenticated. Id. at 94–95. The trial court granted BAM's motion to strike Exhibits 1 and 3 and, thereafter, granted BAM's motion for summary judgment on the tort claim.

[9] On August 16, 2012, BAM filed a motion for summary judgment in connection with its counterclaim and designated the following evidence in support thereof: (1) Michael's affidavit stating that it was he who had been injured by Shane; (2) a portion of Luschinski's deposition;² and (3) a letter from BAM's attorney, Brandi Gibson, stating that she had reviewed Shane's medical records and found no evidence that his injuries were connected to the accident; this letter suggested that Guardians' tort claim was frivolous. Appellant's App. at 109–19.

[10] The trial court granted Guardians' two motions for extension of time; accordingly, Guardians' response was due on November 21, 2012. Id. at 16. On that day, Guardians faxed to the Hamilton Superior Court, an eighteen-page document, which included Guardians' response to BAM's motion for summary judgment on its counterclaim. As part of the response, Guardians designated the following evidence: (1) an affidavit of Father, dated November 19, 2012; (2) an affidavit of Dr. Mark J. Janicki, Shane's treating physician; (3) a portion of Luschinski's deposition; and (4) a “Book-in Photo of M. Shane Faulkinbury.” Id. at 143–44, 148–59. The response was file-stamped by the Hamilton Superior Court with the date of “11/26/2012.” Id. at 17, 131. BAM filed a motion to strike Guardians' response, arguing that it was untimely filed. On February 22, 2013, the trial court granted BAM's motion to strike Guardians' response as untimely, citing Hamilton County Local Administrative Rule 12's requirement that a faxed transmission may not exceed ten pages in length including the cover sheet and proposed CCS entry. Id. at 199.

[11] Having struck Guardians' response, BAM's motion for summary judgment on its counterclaim was the only filing before the trial court. Finding no genuine issue of material fact, on August 21, 2013, the trial court granted BAM's motion for summary judgment on its counterclaim and claim that the suit was frivolous. Following a November 15, 2013 hearing on the issue of damages, the trial court awarded BAM $1,500 for Michael's pain and suffering. Id. at 203. Regarding BAM's request for attorney fees and expenses, the trial court concluded that it had insufficient evidence to award attorney fees in the amount requested. Id. Nevertheless, “because there was confusion as to what should have been provided,” the trial court allowed BAM to provide supplemental exhibits containing “a description of services provided, hours worked, and hourly rate for each paralegal and attorney.” Id. at 204. BAM provided the supplemental exhibits, and the trial court ordered Guardians to pay attorney fees and expenses: (1) as it related to Charles Smith, in the total amount of $23,191.81; and (2) as it related to Brandi A. Gibson and James D. Crum, with the firm of Coots Henke...