Lachenman v. Stice

Decision Date30 November 2005
Docket NumberNo. 15A01-0503-CV-113.,15A01-0503-CV-113.
Citation838 N.E.2d 451
PartiesSean T. LACHENMAN, as Personal Representative for the Estate of Chere Lachenman, Appellant-Plaintiff, v. Mitchell STICE and Josephine Stice, Appellees-Defendants.
CourtIndiana Supreme Court

Douglas C. Holland, Lawrenceburg, for Appellant.

M. Michael Stephenson, McNeely, Stephenson, Thopy & Harrold, Shelbyville, for Appellees.

OPINION

SULLIVAN, Judge.

Appellant-Plaintiff, Sean T. Lachenman, as the personal representative of the estate of Chere Lachenman ("Lachenman"), challenges the trial court's grant of partial summary judgment in favor of Appellee-Defendants, Mitchell Stice and Josephine Stice (collectively "the Stices"), and also challenges the trial court's rulings on the Stices' motion in limine. Upon appeal, Lachenman claims that summary judgment was improperly granted because there are genuine issues of material fact as to whether Lachenman may recover on her claims of intentional and negligent infliction of emotional distress and that the trial court erred in ruling to exclude evidence regarding the vicious propensity of the Stices' dogs and the value of Lachenman's pet dog.

We affirm.

The record reveals that at the time relevant to this appeal, Lachenman and the Stices lived in the Hidden Valley Lake housing addition in Lawrenceburg, Indiana.1 Lachenman owned lots 2978 and 2979, and the Stices lived on lot 2976. Apparently separating their lots is lot 2977, owned by Gary L. Miller. Lachenman owned a Jack Russell terrier. The Stices owned a German Shepard dog and an English bulldog. Prior to the incident which led to the case upon appeal, the Stices' dogs ran loose, and on one occasion, chased Lachenman's dog onto the deck attached to her house. Although Lachenman in her affidavit describes this incident as an "attack," during her deposition, she explained that the Stices' dogs came running toward her deck, where her dog was, and that she had to restrain the Stices' dogs by holding onto their collars. There is no indication that Lachenman's dog was injured during this incident.

On September 30, 2002, Lachenman was on her deck with her dog when she was distracted by a telephone call from work. Lachenman went inside her house for seven to eight minutes, and after she hung up the phone, she heard a "horrible" noise. Realizing the noise was the being made by a dog, Lachenman went back onto her deck and saw the Stices' dogs attacking her dog in the lake which abuts Lachenman's property.2 The Stices' dogs were standing in shallow water, and Lachenman's dog was swimming, trying to get back to land. Whenever Lachenman's dog got near the shore, the Stices' dogs would attack it. Mrs. Stice was standing near her dogs, holding leashes which were not attached to her dogs' collars.3 Lachenman eventually went into the water, and called to her dog, but the Stices' dogs would not release it. Eventually, the dogs let go, and Lachenman's dog swam to her. Lachenman took her dog to the veterinarian to treat its wounds. The veterinarian treated the dog's wounds, but the terrier died on October 3, 2002. No person was bitten or otherwise hurt during this incident.

After this incident, the Hidden Valley Lake Property Owner's Association declared the Stices' German Shepard dog a "vicious" dog and fined the Stices for failing to follow the Association's guidelines.

On December 3, 2002, Lachenman's neighbor, Mr. Miller, was in his attached garage unloading his truck with his dogs approximately fifteen feet away from him in his front yard. Mr. Stice opened his garage door, and his German Shepard came running at Mr. Miller's dogs. Mr. Miller called his dogs into the garage, but Mr. Stice's dog came into the garage and mauled one of Mr. Miller's Pomeranian dogs. Mr. Stice attempted to pull his dog off of Mr. Miller's dog, punching his dog in the side. Mr. Stice's dog bit Mr. Stice in the hand, causing him to bleed as he continued to hit his dog. As Mr. Stice finally got ahold of his German Shepard dog and began to lead it away with a choke chain, his English bulldog came running into Mr. Miller's garage. Mr. Miller grabbed at this dog, which lunged at his face, knocking Mr. Miller down as he threw the dog out of the way. The bulldog followed Mr. Stice away. Mr. Miller took his injured dog to an animal hospital. It had broken ribs, had to have cuts stitched, and had tubes placed in its side.

On April 19, 2003, the Stices' German Shepard dog attacked and mauled another dog, one belonging to Wende Penny, who apparently also lives near the Stices. This attack occurred on Ms. Penny's property, and neither of the Stices' dogs was on a leash.

On February 19, 2003, Lachenman filed a complaint against the Stices. The complaint alleged that the Stices were liable pursuant to Indiana Code § 15-5-12-1 (Burns Code Ed. Repl.2005). The complaint also alleged that due to the Stices' "negligent and intentional acts," Lachenman suffered veterinary bills of $172.00, "[p]ersonal fear of attack by [the Stices'] dogs," "[e]motional distress due to the violent death of the [Lachenman]'s pet," "[e]motional distress and fear for [Lachenman's] own safety and the safety of her pets and the safety of her visitors, especially children," and "[l]oss of future breeding income. . . ." Appellant's Appendix at 16-17. The complaint further sought a protective order requiring the Stices to comply with the Hidden Valley Lake dog control guidelines, and $100 damages for every day the defendants were in violation of the Hidden Valley Lake guidelines. Lastly, the complaint alleged that the Stices had intentionally or knowingly committed criminal acts pursuant to Indiana Code § 15-5-12-3 (Burns Code Ed. Repl.2005) and that Lachenman was therefore entitled to punitive damages of at least $10,000.

On November 13, 2003, the Stices filed a motion for partial summary judgment with regard to Lachenman's claims of intentional infliction of emotional distress, negligent infliction of emotional distress, punitive damages, the issue of future breeding income, the claims involving statutory violations, and the request for a protective order. After being granted an extension of time in which to respond to the summary judgment motion, Lachenman filed her response on February 12, 2004. After both parties filed supplemental materials, the trial court held a hearing upon the summary judgment motion on April 1, 2004.4 On May 6, 2004, the trial court entered an order granting partial summary judgment in favor of the Stices. In preparation for trial for the remaining issue, the Stices filed on November 8, 2004, a motion in limine seeking to exclude, among other things, evidence regarding the incidents which occurred after the attack which killed the Lachenman's dog. The court granted the motion in limine on November 16, 2004. On January 10, 2005, Lachenman filed a motion for partial final judgment, asking the trial court to make its rulings final pursuant to Indiana Trial Rule 54(B).

On January 12, 2005, the trial court entered an order of final judgment on specific issues, which stated in part:

"The Court entered Partial Summary Judgment on May 6, 2004, and the Parties appeared for Jury Trial on November 16, 2004, where the Court entered rulings on Defendants' Motion in Limine and Ordered that specific evidence would be excluded from the Trial. The Court's position was that if the Court's rulings are correct, then it would be a waste of effort to proceed with a Jury Trial and conversely if the Court's ruling[s] were incorrect, the Plaintiff would be entitled to a new trial, whereby the Parties agreed to continue the Jury Trial so that Plaintiff could file a Motion to obtain the Court's Final Rulings and for a specific partial Final Judgment on the contested Rulings under Trial Rule 56(C) and Trial Rule 54(B). The Court joins with the Parties in requesting Appellate Review of the Court's rulings in this case so that the Jury Trial will be according to the proper legal standards giving both Parties a legally fair trial." Appellant's App. at 8.

Lachenman subsequently filed a Notice of Appeal on February 11, 2005. Upon appeal, Lachenman challenges both the trial court's grant of partial summary judgment and the evidentiary rulings incorporated into the final judgment.

I Summary Judgment

Summary judgment is appropriate only where the designated evidentiary materials demonstrate that there are no genuine issues as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rector v. Oliver, 809 N.E.2d 887, 889 (Ind.Ct.App.2004) (citing Ind. Trial Rule 56(C)). When reviewing a grant of a motion for summary judgment, we stand in the shoes of the trial court. Id. Once the moving party demonstrates, prima facie, that there are no genuine issues of material fact as to any determinative issue, the burden falls upon the non-moving party to come forward with contrary evidence. Id. Upon appeal, we do not weigh the evidence but rather consider the facts in the light most favorable to the non-moving party. Id.

A. Intentional Infliction of Emotional Distress

Lachenman claims that the trial court erred in granting summary judgment in favor of the Stices with regard to her claims of intentional infliction of emotional distress. The tort of intentional infliction of emotional distress was first recognized as a separate cause of action without the need for an accompanying tort in Cullison v. Medley, 570 N.E.2d 27 (Ind.1991). See City of Anderson v. Weatherford, 714 N.E.2d 181, 185 (Ind.Ct.App.1999). In Cullison, our Supreme Court defined the tort of intentional infliction of emotional distress as: "`one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress. . . .'" Id. at 31 (quoting Restatement (Second) of Torts § 46 (1965)). It is the intent to harm the...

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