Vukadinovich v. Lolkema
| Decision Date | 27 August 2020 |
| Docket Number | Court of Appeals Case No. 19A-CT-2353 |
| Parties | Brian Vukadinovich, Appellant/Cross-Appellee/Plaintiff, v. Kallie Lolkema and Donald Webb, Appellees/Cross-Appellants/Defendants. |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE
Brian Vukadinovich
Wheatfield, Indiana
ATTORNEYS FOR APPELLEE
Shawn C. Swope
Cassandra J. Neal
Swope Law Offices, LLC
Dyer, Indiana
Appeal from the LaPorte Superior Court
The Honorable Michael S. Bergerson, Judge
[1] Brian Vukadinovich initiated the underlying lawsuit after his vehicle was rear-ended by a vehicle being driven by Kallie Lolkema. Following trial, the jury found in favor of Lolkema. Vukadinovich raises numerous contentions on appeal. On cross-appeal, Lolkema contends that the trial court abused its discretion by denying her request for attorney's fees. We affirm.
[2] On August 14, 2016, Lolkema rear-ended Vukadinovich's vehicle while Vukadinovich was stopped at a traffic light. Lolkema, who was driving a vehicle owned by Donald Webb, was in the process of stopping at the time of the contact and was moving at a speed of approximately "[t]wo to three miles per hour." Tr. Vol. III p. 129. The contact caused minor damage to Vukadinovich's vehicle, leaving a small dent in the rear bumper.2 Vukadinovich subsequently fixed the dent by pushing it out with his hand.
[3] On November 10, 2016, Vukadinovich filed suit, claiming to have been injured by the accident. Vukadinovich filed a motion for default judgment, which wasgranted with respect to both Lolkema and Webb on March 23, 2017. The default judgment against Lolkema was vacated on July 11, 2017.3 Lolkema's counsel subsequently tendered a qualified settlement offer, which was rejected by Vukadinovich. The matter proceeded to trial on June 24-25, 2019, after which the jury found for Lolkema and Webb. The trial court denied Vukadinovich's subsequent motions for judgment notwithstanding the verdict and to correct error following a hearing. The trial court also denied Lolkema's request for attorney's fees.
[4] Vukadinovich raises numerous contentions on direct appeal which we restate as whether (A) the trial court and opposing counsel demonstrated bias or committed reversible error during voir dire; (B) the trial court abused its discretion with regard to the admission/exclusion of certain evidence; (C) the trial court abused its discretion in instructing the jury; (D) the jury committed misconduct; (E) the evidence is insufficient to support the jury's verdict; and (F) the trial court abused its discretion in denying Vukadinovich's motion to correct error.
[5] Vukadinovich contends that the trial court and opposing counsel committed reversible error by allegedly making visible gestures or audible comments during his questioning of prospective jurors during voir dire. Vukadinovich claims that these alleged gestures and comments, together with the trial court's failure to formally admonish opposing counsel from making such gestures or comments, demonstrates bias by the trial court. Vukadinovich, the trial court, and opposing counsel discussed the alleged gestures and comments outside of the presence of the jury. Vukadinovich alleged that both the trial court and opposing counsel made improper audible comments during his questioning of prospective jurors. The record, however, does not support Vukadinovich's claim that either the trial court or opposing counsel made any improper audible comments. Both the trial court and opposing counsel flatly denied making any such comments and the transcript supports their denials.
[6] As for the alleged gestures, Vukadinovich has failed to describe the alleged gestures in his appellate brief and the record contains no description of the alleged gestures. The trial court acknowledged making some kind of gesture in response to a general question asked by Vukadinovich, indicating that it Tr. Vol. II p. 72. The trial court apologized for making the gesture and indicated that it would refrain from making any further gestures. Opposing counsel denied making any gestures and the record contains no proof that opposing counsel made any gestures. Vukadinovich has failed to prove that thisnondescript alleged gesture by the trial court indicated bias or constituted reversible error.
[7] As for the trial court's failure to formally admonish opposing counsel from making any gestures or comments while Vukadinovich was questioning the prospective jurors, the record does not support Vukadinovich's assertion that the trial court inappropriately protected opposing counsel. When Vukadinovich requested the formal admonishment, the following exchange occurred:
Tr. Vol. II p. 76. The exchange confirms that opposing counsel understood that he was not to make any improper comments or gestures while Vukadinovich was speaking to the jury. The only comment he made was to repeat a question from a prospective juror when Vukadinovich apparently did not hear it. Vukadinovich has failed to establish bias or reversible error with regard to the alleged comments and/or gestures.4
[8] Vukadinovich contends that the trial court abused its discretion in admitting certain evidence and in excluding other evidence at trial.
Generally, the admission or exclusion of evidence is a determination entrusted to the discretion of the trial court. Zemco Mfg., Inc. v. Pecoraro, 703 N.E.2d 1064, 1069 (Ind. Ct. App. 1998), trans. denied. We will reverse a trial court's decision only for an abuse of discretion, that is, when the trial court's decision is clearly erroneous and against the logic and effect of the facts and circumstances before the court. Id. Erroneously excluded evidence requires reversal only if the error relates to a material matter or substantially affects the rights of the parties. Id. Further, any error in the admission of evidence is harmless if thesame or similar evidence is submitted without objection. Homehealth, Inc. v. N. Ind. Pub. Serv. Co., 600 N.E.2d 970, 974 (Ind. Ct. App. 1992), reh'g denied.
R.R. Donnelley & Sons Co. v. N. Texas Steel Co., 752 N.E.2d 112, 126-27 (Ind. Ct. App. 2001).
[9] Vukadinovich claims that the trial court abused its discretion in admitting an estimate for repairs to his vehicle, asserting that the estimate was not relevant to trial because he had not included a claim for damages to his vehicle in his request for damages. Vukadinovich, however, detailed damage to his vehicle that he attributed to the accident on both direct and cross-examination, including testimony regarding a spring "somewhere on the car." Tr. Vol. III p. 28. Vukadinovich testified that he took the vehicle to an auto-repair shop to get an estimate on the cost of fixing the spring. The estimate at issue shows that the spring was located on the front of the vehicle, nowhere near the other claimed damage on the rear bumper. It also detailed other related damage, none of which Vukadinovich attributed to the accident.
[10] Lolkema argues that the trial court acted within its discretion in admitting the estimate because it rebutted Vukadinovich's assertion that the damage to the spring was caused by the accident. "Rebuttal evidence is that which tends to explain, contradict, or disprove an adversary's evidence." White v. White, 655 N.E.2d 523, 529 (Ind. Ct. App. 1995). "The scope of rebuttal and the order of evidence are matters left to the discretion of the trial court." Reed v. Bethel, 2N.E.3d 98, 111 (Ind. Ct. App. 2014). We agree with Lolkema that the estimate was relevant as it rebutted Vukadinovich's testimony. The trial court, therefore, did not abuse its discretion in admitting the estimate at trial.5
[11] Vukadinovich argues that the trial court abused its discretion in excluding his copy of the Indiana Driver's Manual from evidence. He claims that it was relevant to his claim for damages in that it warns against distracted driving; gives tips for avoiding accidents, including avoiding following too closely behind another vehicle; and provides that if an individual is involved in an accident, the individual should call for help before moving the vehicle. Evidence Rule 401 provides that evidence is relevant if "(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." The incident occurred when Lolkema rear-ended Vukadinovich's vehicle while he was stopped at a stop light. While Vukadinovich asserted that he believed Lolkema was following too closely, he indicated that he believed that she had been doing so "miles back." Tr. Vol. II p. 200. Further, Vukadinovich does not allege that Lolkema moved or drove her vehicle before being told it...
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