MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Aug 27 2020, 8:30 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
Brian Vukadinovich                                         KALLIE LOLKEMA
Wheatfield, Indiana                                        Shawn C. Swope
                                                           Cassandra J. Neal
                                                           Swope Law Offices, LLC
                                                           Dyer, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Brian Vukadinovich,                                        August 27, 2020
Appellant/Cross-Appellee/Plaintiff,                        Court of Appeals Case No.
                                                           19A-CT-2353
        v.                                                 Appeal from the LaPorte Superior
                                                           Court
Kallie Lolkema and Donald                                  The Honorable Michael S.
Webb,1                                                     Bergerson, Judge
Appellees/Cross-                                           Trial Court Cause No.
Appellants/Defendants.                                     46D03-1611-CT-1809




1
  Webb does not participate in this appeal. However, pursuant to Indiana Appellate Rule 17(A), a party
below is a party on appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020                 Page 1 of 32
      Bradford, Chief Judge.



                                          Case Summary
[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.



                            Facts and Procedural History
[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 was




      2
       The responding officer also noted seeing a scratch on the bumper, but Vukadinovich could not remember
      whether the scratch was there prior to the accident.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020             Page 2 of 32
      granted 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.



                                   Discussion and Decision
                                       I. Direct-Appeal Issues
[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.




      3
          The default judgment against Webb remained in effect.


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 3 of 32
                                               A. Voir Dire
[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

      “thought that generally [Vukadinovich] invited that response. That’s how I

      took 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 this

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 4 of 32
      nondescript 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:


              MR. VUKADINOVICH: … Because he made a physical and
              verbal comment and that’s inappropriate and he needs to be told
              not to do that anymore.


              THE COURT: I think he understands.


              MR. VUKADINOVICH: Does he?


              THE COURT: I believe he does.


              MR. VUKADINOVICH: Can he say that or do you have to
              speak for him?


              THE COURT: [Opposing counsel]?


              [OPPOSING COUNSEL]: I’m well aware of the rules, Your
              Honor. And I did not say anything nor would I nor did I.
              Actually that’s not true, I believe there was one point where I
              repeated a question during voir dire, because Mr. Vukadinovich
              didn’t hear from Juror 4085 on the right hand side, because he

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 5 of 32
               was proceeding along the lines of asking him, or following up on
               the wrong question.


      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


                            B. Admission/Exclusion of Evidence
[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 the



      4
         We are unpersuaded by Vukadinovich’s claim that the trial court demonstrated bias by giving an allegedly
      untruthful answer when Vukadinovich asked whether there was a security camera in the courtroom. The
      trial court indicated that there was not. Vukadinovich asserts on appeal that this statement was false and that
      there was a security camera in the courtroom on the day of trial. Vukadinovich, however, has failed to
      provide any proof that there was a security camera in the courtroom, merely pointing to a local rule that
      provides that if there is a security camera in the courtroom, the recordings from the camera are confidential
      unless a court order provides otherwise.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020                   Page 6 of 32
               same 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).


                                            1. Admitted Evidence

[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, 2

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 7 of 32
       N.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


                                               2. Excluded Evidence

                                        i. The Indiana Driver’s Manual

[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 was appropriate to do




       5
         To the extent that Vukadinovich argues on appeal that Lolkema failed to provide a sufficient foundation
       for the estimate, Vukadinovich did not object on this ground at trial and has therefore waived the claim on
       appeal. See Malone v. State, 700 N.E.2d 780, 784 (Ind. 1998) (providing that a party waives appellate review if
       the party objects on one ground at trial and seek reversal on appeal using a different ground).

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020                   Page 8 of 32
       so by the responding officer. Vukadinovich fails to explain how the portions of

       the Indiana Driver’s Manual that he cites are relevant to his claim that he was

       injured when his vehicle was rear-ended at the stoplight by the vehicle being

       driven by Lolkema. The trial court, therefore, did not abuse its discretion in

       excluding Vukadinovich’s copy of the Indiana Driver’s Manual from evidence.


                                           ii. After-Visit Summary

[12]   Vukadinovich also claims that the trial court abused its discretion in excluding

       an after-visit summary (“the AVS”) that was given to him after he visited the

       emergency room following the accident. Lolkema objected to the AVS on the

       foundational grounds. The trial court sustained Lolkema’s objection but

       allowed Vukadinovich to testify about his condition following the accident and

       his treatment in the emergency room. Vukadinovich asserts that the AVS

       should have been admitted because it was a medical record. While medical

       records may be admissible when a proper foundation is made, Vukadinovich

       failed to provide a proper foundation for the AVS or establish that it qualified as

       a medical record. Given the complete lack of foundation offered by

       Vukadinovich, we cannot say that the trial court abused its discretion in this

       regard.


                                 iii. Payment Demands by Bill Collectors

[13]   Vukadinovich also claims that the trial court abused its discretion in excluding

       “evidence of payment demands from bill collectors for medical billings that

       were sent to Vukadinovich several times over that would have demonstrated to

       the jury Vukadinovich’s emotional and mental distress from having to deal with
       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 9 of 32
       the constant demands for payment.” Appellant’s Br. p. 27. Review of the

       record reveals that the trial court admitted numerous bills and collection

       demands from alleged bill collectors. The trial court merely excluded a few

       duplicative offerings. Given that the excluded documents were duplicates of

       other admitted documents, the exclusion of these documents was, at most,

       harmless error. See Spaulding v. Harris, 914 N.E.2d 820, 830 (Ind. Ct. App.

       2009) (providing that the where the excluded evidence is merely cumulative of

       other evidence, its exclusion is harmless error). As such, we cannot say that the

       trial court abused its discretion in this regard.


                      iv. Cross-Examination on Categorization of Brake Failure

[14]   Prior to trial, Lolkema’s counsel filed an affidavit with the trial court stating

       that Webb’s insurance company had agreed that if the default were vacated, it

       would waive its reservations of right for notice and cooperation and coverage

       would apply. In this affidavit, counsel categorized the brake failure that

       resulted in Lolkema’s failure to stop as “catastrophic.” Appellant’s App. Vol. II

       p. 189. While testifying, Lolkema categorized the brake issue as a “hiccup”

       rather than a “catastrophic” failure. Tr. Vol. III p. 131. Vukadinovich

       attempted to cross-examine Lolkema about why her categorization differed

       from her counsel’s prior categorization after she indicated that she would not

       categorize the brake failure as “catastrophic.” Lolkema objected, arguing that

       any attack on her counsel, including an allegation that counsel was being

       untruthful when he made the prior characterization, was covered by a motion

       in liminie. The trial court reviewed the applicable motion in liminie, agreed,

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 10 of 32
       and sustained Lolkema’s objection. Vukadinovich argues that the trial court

       abused its discretion by not allow him to cross-examine Lolkema on the

       inconsistency between her counsel’s categorization of the failure and her

       testimony. Vukadinovich, however, has failed to establish that Lolkema could

       have provided any further insight to the characterization used by her counsel at

       a prior stage of the trial or that the use of different characterizations impacted

       his substantial rights in any way.


[15]   Regardless of how the failure was characterized, there was evidence of brake

       failure presented at trial. Lolkema argues that “the choice of adjectives, which

       appears to be Vukadinovich’s main source of discontent, has no probative

       value” as the evidence clearly demonstrates that brake failure occurred.

       Appellee’s Br. p. 21. We agree. The trial court did not abuse its discretion in

       this regard.


                         v. Cross-Examination Regarding Contributory Fault

[16]   At trial, Vukadinovich attempted to cross-examine Lolkema regarding her

       counsel’s contentions that she would assert contributory fault as an affirmative

       defense at trial. In doing so, the following exchange occurred:


               MR. VUKADINOVICH: Okay, now your lawyer, your lawyer,
               now your lawyer said, when he asked you, well, why didn’t, why
               did you wait for you hired me and then, and then your lawyer
               said, because we conducted discovery and therefore, we got
               information that, that Donald Webb is somehow at fault here, so
               what information is that, [Lolkema]?

               MR. SWOPE: Objection, that’s privileged.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 11 of 32
        MR. VUKADINOVICH: No, it’s not privileged.

        MR. SWOPE: Unless I get to put him on the stand and tell
        everything about why I did that and I will, I will make an offer of
        proof right now as to everything I know.

        THE COURT: Well, we don’t have to get there, because you
        don’t have to -- she does not have to disclose what she and her
        lawyer, uh, discussed or information that she obtained from her
        attorney as potential work product or anything else.

        MR. VUKADINOVICH: I fully understand that.

        THE COURT: Okay, what, what’s the nature of your question?

        MR. VUKADINOVICH: Well, we’re certainly entitled to, to
        the proof that since they’re going to maintain and have
        maintained that, that they assert that it was Webb’s fault here
        after they did discovery. I’m asking, I’m not asking about any
        discussions between her and her lawyer, I’m asking what that
        discovery was? What’s the evidence? What evidence is there
        that it was Webb’s fault, because he said that that’s the reason
        they put Webb on their defense.

        THE COURT: Well, there’s a police report that says, that she
        said it in her own testimony as well as to the police at the day
        that the, the brakes failed.

        MR. VUKADINOVICH: But the, but the police stepped up and
        the police didn’t say this.

        MR. SWOPE: Can I ask you a question? Can we, appro -- this is
        the problem.

        MR. VUKADINOVICH: But did the police --


Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 12 of 32
               THE COURT: Hold on a second.

               MR. VUKADINOVICH: -- the police report doesn’t say that
               Donald Webb was at fault in this accident?

               THE COURT: No.

               MR. VUKADINOVICH: She says that.

               THE COURT: It’s up to -- it’s up to the Jury to decide what
               percentage to apportion to the Defendants. End of story. Move
               on.


       Tr. Vol. III pp. 201–02. This exchange demonstrates that Vukadinovich was

       attempting to question Lolkema about privileged work product, i.e., documents

       that counsel relied on to craft trial strategy.


[17]           Indiana Trial Rule 26(B)(3) defines the work-product privilege. It
               provides that a party may obtain discovery of documents and
               tangible things otherwise discoverable and prepared in
               anticipation of litigation or for trial by or for another party or by
               or for that other party’s representative only upon a showing that
               the party seeking discovery: 1) has a substantial need for the
               materials in the preparation of his case; and 2) is unable without
               undue hardship to obtain the substantial equivalent of the
               materials by other means.


       Brown v. Katz, 868 N.E.2d 1159, 1166 (Ind. Ct. App. 2007). Vukadinovich

       indicated that he wished to know what evidence Lolkema’s counsel relied on in

       raising an affirmative defense of contributory fault. Vukadinovich, however,

       has failed to show that he had a substantial need for any of the requested

       information or that he could not otherwise obtain the materials. As the trial

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 13 of 32
       court pointed out, the evidence of brake failure, which Lolkema’s counsel relied

       upon in arguing contributory fault, was known to all parties at all stages of this

       case, beginning with Lolkema’s claim of brake failure in the police report. The

       trial court did not abuse its discretion in sustaining Lolkema’s objection to this

       line of questioning.


                                         C. Jury Instructions
[18]   Vukadinovich takes issue with the manner in which the trial court instructed the

       jury, referring to it as an “injudicious train wreck.” Appellant’s Br. p. 33.


               The manner of instructing a jury is left to the trial court’s
               discretion. Kimbrough v. Anderson, 55 N.E.3d 325, 339 (Ind. Ct.
               App. 2016), trans. denied. We consider whether: (1) the
               instruction correctly states the law; (2) the record contains
               evidence to support the instruction; and (3) the substance of the
               tendered instruction is covered by the other instructions that are
               given. Id. An instruction is properly rejected if it could mislead
               or confuse the jury. Miller v. Ryan, 706 N.E.2d 244, 248 (Ind. Ct.
               App. 1999), trans. denied.

               To determine whether sufficient evidence exists to support an
               instruction given by the trial court, we look only at the evidence
               most favorable to the appellee and any reasonable inferences to
               be drawn therefrom. Foddrill v. Crane, 894 N.E.2d 1070, 1078
               (Ind. Ct. App. 2008), trans. denied. When a jury is given an
               incorrect instruction, we will not reverse the judgment unless the
               party seeking a new trial shows a reasonable probability that its
               substantial rights were adversely affected. Kimbrough, 55 N.E.3d
               at 339.


       Burdick v. Romano, 148 N.E.3d 335, 340 (Ind. Ct. App. 2020).


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 14 of 32
                              1. Attack on the Trial Court’s Competence

[19]   Vukadinovich first argues that the trial court “woefully failed” to perform its

       duties competently. Appellant’s Br. p. 34. In raising this argument,

       Vukadinovich makes a series of inflammatory and personal attacks on the trial

       court. Lolkema asserts that the tenor of Vukadinovich’s argument mirrors his

       behavior at trial where his “shouting, interruptions, [and] attacks on everyone

       in the court room who disagreed with him” caused him difficulty and apparent

       confusion. Appellee’s Br. p. 23. Without commenting on the tenor of

       Vukadinovich’s argument on appeal, we conclude that Vukadinovich has failed

       to provide any proof that the trial court did not perform its duties competently

       or that the alleged incompetence adversely affected his substantial rights.


                                         2. Proposed Instruction #2

[20]   Vukadinovich argues that the trial court abused its discretion in refusing to give

       his proposed jury instruction #2, which reads as follows:


               At all relevant times when the events in this case happened, there
               were in full force and effect Indiana statutes that provided in part
               as follows:

               Ind. Code Sec. 9 21 5 1.

               A person may not drive a vehicle on a highway at a speed greater
               than is reasonable and prudent under the conditions, having
               regard to the actual and potential hazards then existing. Speed
               shall be restricted as necessary to avoid colliding with a person,
               vehicle, or other conveyance on, near, or entering a highway in
               compliance with legal requirements and with the duty of all
               persons to use due care.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 15 of 32
               I.C. Sec. 9 21 5 4

               The driver of each vehicle shall, consistent with section l [IC 9 21
               5 1] of this chapter, drive at an appropriate reduced speed as
               follows:

               …

               (1) When approaching and crossing an intersection or railway
               grade crossing.

               Indiana Code Title 9. Motor Vehicles Sec. 9-21-8-l4

               A person who drives a motor vehicle may not follow another
               vehicle more closely than is reasonable and prudent, having due
               regard for the speed of both vehicles, the time interval between
               vehicles, and the condition of the highway.

               If you decide from the greater weight of the evidence that Kallie
               N. Lolkema violated any of these Indiana Codes, and that the
               violation was not excused, then you must decide that Defendant
               Kallie N. Lolkema was negligent.


       Appellant’s App. Vol. III p. 73 (brackets in original).


[21]   In arguing that the trial court did not abuse its discretion by refusing to give

       Vukadinovich’s tendered instruction, Lolkema stated the following:


               The accident did not occur while Lolkema was allegedly
               following too closely or speeding — it occurred miles later while
               Vukadinovich was stopped at a stoplight and Lolkema rolled into
               him at 2-3 mph.

               Further, Vukadinovich testified that he did not know what

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 16 of 32
               Lolkema’s speed was before the accident. This evidence,
               combined with Lolkema’s testimony that “I was [also] coming to
               a gradual stop… [going] two to three miles an hour” that the
               brakes “hiccupped as I was trying to gradually stop” and the cars
               met with an impact that caused “an indentation on the bumper”
               that Vukadinovich himself “pushed out” do not support a jury
               instruction for following too closely or speeding. As there existed
               no evidence that Lolkema was following too closely or speeding
               at the time of the occurrence, there was no legal or factual basis
               to give the instruction.


       Appellant’s Br. p. 24 (internal record cites omitted). We agree with Lolkema

       and accordingly conclude that the trial court did not abuse its discretion by

       refusing to give Vukadinovich’s proposed instruction.


                                         3. Proposed Instruction #6

[22]   Vukadinovich also argues that the trial court abused its discretion by giving

       final instruction #15 rather than his proposed instruction #6. Proposed

       instruction #6 reads: “An injury is ‘foreseeable’ when a person should realize

       that her act or failure to act might cause that injury.” Appellant’s App. Vol. III

       p. 74. Final instruction #15 reads: “An injury and/or Property damage are

       ‘foreseeable’ when a person should realize that his or her act or failure to act

       might cause that injury and/or property damage.” Appellant’s App. Vol. II p.

       55. Because the substance of Vukadinovich’s proposed instruction was

       included in and covered by final instruction #15, we conclude that the trial

       court did not abuse its discretion in this regard. See Smith v. State, 981 N.E.2d

       1262, 1269 (Ind. Ct. App. 2013) (providing that the trial court did not abuse its



       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 17 of 32
       discretion in refusing to use a tendered instruction because the substance of the

       instruction was covered by other instructions given by the court).


                                         4. Proposed Instruction #8

[23]   Vukadinovich argues that the trial court abused its discretion by failing to give

       his proposed jury instruction #8, which reads:


               The law recognizes two kinds of damages when a person is
               harmed due to negligence. The first are “special damages” for
               the economic losses suffered by plaintiff as a result of defendant’s
               negligence, such as wage loss and medical expenses. The second
               are “general damages” for the human loss resulting from
               defendant’s negligence such as pain, disability, suffering or
               disfigurement. Your verdict should include money for both the
               economic or “special damages” and the human loss or “general
               damages” proven by the greater weight of the evidence to have
               resulted from defendant’s negligence.


       Appellant’s App. Vol. III p. 75.


[24]   While the trial court did not give the proposed instruction, it did instruct the

       jury at length as to damages and what damages were recoverable, if proven, by

       Vukadinovich. Specifically, final instruction #23A, which was read to the jury,

       covered the types of damages available, instructing the jury as follows:


               If you decide from the greater weight of the evidence that a
               Defendant is liable to the Plaintiff, then you must decide the
               amount of money that will fairly compensate the Plaintiff.

               In deciding the amount of money you will award, you may
               consider the nature and extent of the injury and the effect of the
               injury on the Plaintiff’s ability to function as a whole person;
       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 18 of 32
               Two, the physical pain and mental suffering of the Plaintiff as a
               result of the, of his injuries;

               And three, the reasonable value of necessary medical care,
               treatment, and medic -- and services Plaintiff was provided as a
               result of the injury.


       Tr. Vol. IV pp. 90–91. The instructions given covered the substance of the

       proposed instruction. As such, we conclude that the trial court did not abuse its

       discretion by refusing to give the proposed instruction. See Smith, 981 N.E.2d at

       1269.


                                          5. Final Instruction #18

[25]   Vukadinovich argues that the trial court abused its discretion in giving final

       instruction #18, which reads as follows:


               It is the duty of the court to give you instructions on all phases of
               the case. Thus, the fact that the court gives you instructions on
               damages is not to be taken by you as any intimation by the court
               that the plaintiff is entitled to recover damages or that defendants
               are liable for such damages. Moreover, the attorneys for the
               defendants have the right to discuss damages in their closing
               argument and such discussion is not to be taken by you as an
               admission that the plaintiff is entitled to recover damages or that
               the defendants are liable.

               You are to consider the question of damages only if you have
               decided that a defendant was negligent and that such negligence
               was the cause of plaintiff’s damages.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 19 of 32
       Appellant’s App. Vol. II p. 58. Vukadinovich challenges this instruction by

       asserting that it “unfairly implied” that only Lolkema’s attorneys had the right

       to argue damages during closing argument. Appellant’s Br. p. 38. While we do

       not read the instruction as implying that only Lolkema’s attorneys could discuss

       damages during closing argument, we conclude that even if one did read the

       instruction in such a way, any error in giving the instruction was, at most,

       harmless.


[26]   The record reveals that Vukadinovich was permitted to, and in fact did, argue

       damages during his closing argument. Vukadinovich has failed to prove that

       there was a reasonable probability that his substantial rights were adversely

       affected by the giving of this instruction. Any error in giving the instruction,

       therefore, does not warrant reversal. See Burdick, 148 N.E.3d at 340.


                               6. Final Instruction #24/Verdict Form A

[27]   Vukadinovich argues that the trial court abused its discretion in giving final

       instruction #24 to the jury and by providing the jury with verdict form A. Final

       instruction #24 reads as follows:


               If Brian Vukadinovich is entitled to recover damages from Kallie
               Lolkema, or Donald Webb, or both, and if so, the amount of
               those damages, you must apportion the fault of Kallie Lolkema
               and Donald Webb on a percentage basis. Do this as follows:

               First, if Kallie Lolkema or Donald Webb are not at fault for
               causing damages, return your verdict for Kallie Lolkema and
               Donald Webb and against Brian Vukadinovich and deliberate no
               further. (Use Verdict Form A)


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 20 of 32
        If Kallie Lolkema or Donald Webb are at fault for causing
        damages, you must decide Kallie Lolkema’s, Kallie Lolkema or
        Donald Webb and Donald Webb’s, percentages of fault that
        caused the plaintiff’s damages. These percentages must total 100
        percent. Do not apportion fault to any other person or entity.
        (Use Verdict Form B)

        If you decide that Brian Vukadinovich’s [sic] is entitled to recover
        damages from Kallie Lolkema or Donald Webb, then:

                 (1)    Decide the total amount of Brian
                 Vukadinovich’s damages, if any. Do not consider
                 fault when you decide this amount.

                 (2)  Multiply the total damages by each
                 Defendants’ percentage of fault.

                 (3)   Return your verdict for Brian Vukadinovich
                 and against each Defendant in the amount of the
                 product of that multiplication. (Use Verdict Form B).

        I will give you verdict forms that will help guide you through this
        process.


Appellant’s App. Vol. II p. 88. Verdict form A reads as follows:


        VERDICT FORM A, FOR BOTH DEFENDANTS

        We, the Jury, decide that the Defendants, Kallie Lolkema and
        Donald Webb were not at fault for causing damages, and
        therefore decide in favor of the Defendants, Kallie Lolkema and
        Donald Webb and against the Plaintiff, Brian Vukadinovich.


Appellant’s App. Vol. II p. 89. Vukadinovich argues that the trial court abused

its discretion in providing the instruction and form A to the jury because it

“confusingly implied that the liability issue was ‘all or nothing.’” Appellant’s

Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 21 of 32
Br. p. 39. Vukadinovich fails to recognize, however, that the jury was

instructed to only use verdict form A if they found for the defendants. The trial

court also provided verdict form B to the jury, which reads as follows:


        VERDICT FROM [sic] B, FOR THE PLAINTIFF


        We, the Jury, assign the following percentage of fault:


                 Kallie Lolkema                            _______________%
                 Donald Webb                               _______________%
                 Total                                           100%


                 (The fault percentages listed in the blanks must total 100%)


        We decide that the total amount of damages the Plaintiff, Brian
        Vukadinovich, is entitled to recover, without considering the
        fault percentages, is $_______________. (Enter this amount
        below as Total Damages)


        We therefore calculate the Plaintiff’s Verdict Amount as follows:


                 Total damages:                           $_______________
                 Kallie Lolkema’s percentage of fault ______________%
                 Plaintiff’s verdict against Kallie Lolkema $_____________
                 Total damages:                           $_______________
                 Donald Webb’s percentage of fault          _____________%
                 Plaintiff’s verdict against Donald Webb $_______________


Appellant’s App. Vol. II p. 90. Again, the trial court instructed the jury to use

verdict form B if they found for Vukadinovich. When read together, we cannot

agree that the instruction and verdict forms imply that liability was “all or

Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 22 of 32
       none.” The instruction clearly informs the jury that they could find for either

       the defendants or Vukadinovich and instructs them as to which verdict form is

       appropriate for each potential finding. Vukadinovich has failed to prove that

       the trial court abused its discretion by giving final instruction #24 and the

       verdict forms to the jury.


                                           7. Final Instruction #2

[28]   Vukadinovich also argues that the trial court abused its discretion by failing to

       give final instruction 2, which reads as follows: “Do not base your verdict on

       sympathy, bias or prejudice.” Appellant’s App. Vol. II p. 42. In its order

       denying Vukadinovich’s motion to correct error, the trial court acknowledged

       that it had inadvertently failed to give the instruction, noting:


               The failure to give the missing instruction was inadvertent; but
               the substance of said missing instruction was covered in multiple
               other preliminary and final instructions which required the jury
               to base their verdict soley [sic] on the evidence admitted and the
               instructions as to the law. Any error was harmless.


       Appellant’s App. Vol. II p. 36 n.1. After reviewing all of the trial court’s

       instructions to the jury, we agree with the trial court that the substance of final

       instruction #2 was covered by the other instructions as the jury was instructed

       to base its verdict solely on the evidence. As such, the trial court’s inadvertent

       failure to give final instruction #2 was harmless and did not affect

       Vukadinovich’s substantial rights. See Smith, 981 N.E.2d at 1269.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 23 of 32
                                               8. Final Reading

[29]   Vukadinovich argues that the trial court abused its discretion by erroneously

       reading the final jury instructions. In support of this argument, Vukadinovich

       relies on the fact that the trial court noticed just prior to the reading of the final

       instructions that final instruction #23A had inadvertently been left out of the

       instructions that the trial court was going to read to the court. The record

       reveals, however, that prior to instructing the jury, the trial court noticed that

       final instruction #23A was not initially included in its set of instructions. The

       trial court added final instruction #23A to its set of instructions and included it

       in its final instructions to the jury. Vukadinovich has failed to show how the

       trial court’s actions in this regard affected his substantial rights. We therefore

       conclude that the trial court did not abuse its discretion in this regard.


                                         D. Jury Misconduct
[30]   Vukadinovich alleged jury misconduct in his motion to correct error, arguing

       that he learned of the alleged misconduct after a friend approached the jury

       foreman after the conclusion of trial and spoke with him about the jury’s

       verdict. With respect to post-trial testimony from a juror regarding the

       workings of the jury, Indiana Evidence Rule 606(b)(1) provides as follows:


               Prohibited Testimony or Other Evidence. During an inquiry into the
               validity of a verdict or indictment, a juror may not testify about
               any statement made or incident that occurred during the jury’s
               deliberations; the effect of anything on that juror’s or another
               juror’s vote; or any juror’s mental processes concerning the
               verdict or indictment. The court may not receive a juror’s
               affidavit or evidence of a juror’s statement on these matters.
       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 24 of 32
[31]   In alleging jury misconduct, Vukadinovich does not rely on an affidavit from

       any member of the jury. Instead, he relies on the affidavit of his friend, Carole

       Wockner, who, following the conclusion of trial, questioned the jury foreman

       about the jury’s verdict. Wockner averred that


               Secondly, the jury foreman told me that the jury could not find
               against Ms. Lolkema because she was ‘young,’ and that they
               considered her attorney fees for her defense as punishment
               enough. He also stated that insurance was considered by the jury
               as sufficient means to compensate Mr. Vukadinovich; hence Ms.
               Lolkema should not have to bear those costs.


       Appellant’s App. Vol. II p. 156. For her part, Lolkema asserts that Wockner’s

       affidavit, including the above-quoted portion, contained inadmissible hearsay.


[32]   Hearsay is defined as “a statement that: (1) is not made by the declarant while

       testifying at the trial or hearing; and (2) is offered in evidence to prove the truth

       of the matter asserted.” Evid. R. 801(c). Wockner’s affidavit contained

       statements attributed to a declarant, i.e., the jury foreman, that were allegedly

       made after trial but were introduced in support of Vukadinovich’s motion to

       correct error to prove the truth of the matter asserted. These statements were

       hearsay. Hearsay statements are not sufficient to prove a claim alleged in a

       motion to correct error. See Lemont v. State, 168 Ind. App. 486, 491, 344 N.E.2d

       88, 91 (1976) (providing that an affidavit containing hearsay regarding a post-

       trial out of court statement by a declarant is insufficient to support a motion to

       correct error). As such, Wockner’s affidavit was not sufficient to support



       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 25 of 32
       Vukadinovich’s claim of jury misconduct. Vukadinovich had failed to present

       any admissible evidence supporting his claim of jury misconduct.


             E. Sufficiency of the Evidence to Support Jury Verdict
[33]   Vukadinovich also challenges the sufficiency of the evidence to support the

       jury’s verdict. “‘Upon appellate review the standard by which the sufficiency of

       the evidence is measured is that such evidence must have the fitness to induce

       conviction; it must be adequate to support a conclusion in the mind of

       reasonable persons.” West v. J. Greg Allen Builder, Inc., 92 N.E.3d 634, 643 (Ind.

       Ct. App. 2017) (quoting Beaman v. Hedrick, 146 Ind. App. 404, 405, 255 N.E.2d

       828, 829 (1970)). “We neither reweigh the evidence nor assess the credibility of

       witnesses, but consider only the evidence most favorable to the judgment.”

       Fowler v. Perry, 830 N.E.2d 97, 102 (Ind. Ct. App. 2005). Further,


               [w]e define the clearly erroneous standard based upon whether
               the party is appealing a negative judgment or an adverse
               judgment. Garling v. Ind. Dep’t Of Natural Res., 766 N.E.2d 409,
               411 (Ind. Ct. App. 2002), trans. denied. Where, as here, the party
               who had the burden of proof at trial appeals, he appeals from a
               negative judgment and will prevail only if he establishes that the
               judgment is contrary to law. Todd Heller, Inc. v. Ind. Dep’t of
               Transp., 819 N.E.2d 140, 146 (Ind. Ct. App. 2004), reh’g denied,
               trans. denied. A judgment is contrary to law when the evidence is
               without conflict and all reasonable inferences to be drawn from
               the evidence lead to only one conclusion, but the trial court
               reached a different conclusion. Id.


       Id.



       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 26 of 32
[34]   Vukadinovich appeals from a negative judgment, i.e., the denial of his motion

       to correct error. He argues that the evidence clearly established Lolkema’s fault

       and liability. While this may be true, Vukadinovich fails to point to any

       evidence, other than his own self-serving testimony, establishing that he

       suffered any damages as a result of the accident. In denying Vukadinovich’s

       post-trial challenge to the sufficiency of the evidence to support the jury’s

       verdict, the trial court found


               Pure and simple, [Vukadinovich] failed to meet his burden of
               proof. The jury was well within its charge to find that
               [Vukadinovich] failed to present any credible evidence that he
               was either injured or that the medical bills were related to the
               accident. [Vukadinovich] failed to call any medical expert or
               treating physician(s) and thus relied upon his own credibility, or
               lack thereof, to support his claims.


       Appellant’s App. Vol. II p. 37. Based on our review of the record, we agree

       with the trial court that the only evidence of Vukadinovich’s alleged injuries

       was his own self-serving testimony.


[35]   Vukadinovich introduced medical bills into evidence. However, he failed to

       introduce any evidence connecting these medical bills to the accident apart

       from his own self-serving testimony that the bills were connected to the

       accident. The jury, acting as the trier-of-fact, was not required to believe

       Vukadinovich’s testimony regarding his alleged injuries. See Thompson v. State,

       804 N.E.2d 1146, 1149 (Ind. 2004) (“As a general rule, factfinders are not

       required to believe a witness’s testimony even when it is uncontradicted.”);


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 27 of 32
       Kelsie v. State, 265 Ind. 363, 367, 354 N.E.2d 219, 222 (1976) (“It is the province

       of the jury to determine the credibility of witnesses and to determine whether it

       will believe all, none, or any part of a witness’s testimony[.]”); Buckland v. Reed,

       629 N.E.2d 1241, 1245 (Ind. Ct. App. 1994) (“The mere fact that an injured

       party is of the opinion that he or she is entitled to be more amply compensated

       for injuries sustained does not support the proposition that the injured party is

       entitled to greater damages as a matter of law.”). Vukadinovich failed to prove

       that he was entitled to damages as a result of the accident.


                           F. Denial of Motion to Correct Error
[36]   Vukadinovich last contends that the trial court abused its discretion in denying

       his motion to correct error. “In general, we review a trial court’s ruling on a

       motion to correct error for an abuse of discretion.” City of Indianapolis v. Hicks,

       932 N.E.2d 227, 230 (Ind. Ct. App. 2010), trans. denied. However, to the extent

       the issues raised are purely questions of law, our review is de novo. Id.


[37]   In arguing that the trial court should have granted his motion to correct error,

       Vukadinovich asserts that


               Trial courts should not be in the business of protecting corrupt
               insurance companies as [the trial court] did in protecting the
               interests of [Webb’s insurance company], which has a
               demonstrated history of corruption[6] … Courts should be in the



       6
         Nothing in the record even suggests that the trial court acted in a manner aimed at protecting Webb’s
       insurance company and we are not swayed by Vukadinovich’s inflammatory and unsubstantiated allegation
       that said insurance company has a “demonstrated history of corruption.”

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020            Page 28 of 32
               business of protecting and enforcing the fundamental rights of
               litigants to have their day in court in an honest proceeding. A
               trial where the judge makes inappropriate gestures while the
               plaintiff is conducting voir dire is tantamount to making a
               mockery of the proceedings and is not a fair trial. A trial where
               the judge takes it upon himself to mysteriously remove final jury
               instructions on the sly breeds contempt for the principles of
               fundamental fairness to a fair trial to which Vukadinovich was
               entitled to, but didn’t get.… Fundamental fairness dictates that
               Vukadinovich receives a trial where the opposing counsel and
               judge are not making gestures to the jury while he is addressing
               the jury, and fundamental fairness dictates that Vukadinovich
               receives a trial where the judge is not mysteriously removing jury
               instructions. Because of the aforementioned events that took
               place in Vukadinovich’s trial, justice was not administered as
               there was no remedy effected by due course of law completely
               and without denial. This Court should now administer justice in
               this matter.


       Appellant’s Br. pp. 53–54. Having concluded that Vukadinovich has failed to

       prove that the trial court demonstrated bias or committed reversible error with

       regard to the alleged gestures and did not abuse its discretion in instructing the

       jury, we conclude that the trial court likewise did not abuse its discretion in

       denying Vukadinovich’s motion to correct error on either of these grounds.


                                      II. Cross-Appeal Issue
[38]   On cross-appeal, Lolkema contends that the trial court erred in refusing her

       request for attorney’s fees pursuant to Indiana Code section 34-50-1-6. Indiana

       Code section 34-50-1-6(a) provides that


               If:

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 29 of 32
                 (1) a recipient does not accept a qualified settlement
                 offer; and

                 (2) the final judgment is less favorable to the recipient
                 than the terms of the qualified settlement offer;

        the court shall award attorney’s fees, costs, and expenses to the
        offeror upon the offeror’s motion.


(Emphasis added). An award of attorney’s fees awarded under this section

“may not total more than one thousand dollars ($1,000).” Ind. Code § 34-50-1-

6(b). A qualified settlement offer must:


        (1) be in writing;

        (2) be signed by the offeror or the offeror’s attorney of record;

        (3) be designated on its face as a qualified settlement offer;

        (4) be delivered to each recipient or recipient’s attorney of record:

                 (A) by registered or certified mail; or

                 (B) by any method that verifies the date of receipt;

        (5) set forth the complete terms of the settlement proposed by the
        offeror to the recipient in sufficient detail to allow the recipient to
        decide whether to accept or reject it;

        (6) include the name and address of the offeror and the offeror’s
        attorney of record, if any; and

        (7) expressly revoke all prior qualified settlement offers made by
        the offeror to the recipient.


Ind. Code § 34-50-1-4.


Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 30 of 32
[39]   The record reveals that Lolkema made a qualified settlement offer to

       Vukadinovich on September 6, 2017. The offer, which was signed by

       Lolkema’s counsel, mailed via certified mail and received by Vukadinovich,

       read as follows:


               Pursuant to IC 34-50-1, et seq. the Defendant hereby makes a
               qualified settlement offer in the amount of $1.00 (one dollar) in
               the above captioned case. All other offers of settlement are
               hereby revoked. The settlement will resolve all claims and causes
               of action.

               Payment will be made within 60 days of acceptance. Your
               acceptance must be in writing and received within 30 days of
               service of this offer. After 30 days, the offer is hereby withdrawn
               without further notice, and we will proceed to verdict.


       Appellant’s App. Vol. II p. 105. It is undisputed that Vukadinovich rejected the

       settlement offer and that the final judgment is less favorable to him than the

       terms of the qualified settlement offer. However, Lolkema’s attorney’s address

       is not clearly visible on the copies of the qualified settlement offer included in

       the record. Lolkema’s counsel testified at the hearing on Vukadinovich’s

       motion to correct error that the offer was sent on his firm’s letterhead but did

       not testify that the letterhead contained his firm’s address.7 Because the record

       lacks proof that the qualified settlement offer received by Vukadinovich




       7
        A subsequent qualified settlement offer was sent to Vukadinovich on May 15, 2019, which included
       Lolkema’s counsel’s address. However, the record does not contain proof of receipt of this letter by
       Vukadinovich.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020               Page 31 of 32
       contained Lolkema’s counsel’s address as required by Indiana Code section 34-

       50-1-4(6), we conclude that the trial court did not err in denying Lolkema’s

       request for attorney’s fees.


[40]   The judgment of the trial court is affirmed.


       Vaidik, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2353 | August 27, 2020   Page 32 of 32
