MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 May 29 2020, 10:14 am
court except for the purpose of establishing
                                                                               CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Patrick F. O’Leary                                       Peter J. Agostino
Elkhart, Indiana                                         Stephanie L. Nemeth
                                                         Anderson, Agostino & Keller, P.C.
                                                         South Bend, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Scott Floyd,                                             May 29, 2020
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         19A-CT-2406
        v.                                               Appeal from the St. Joseph Circuit
                                                         Court
St. Joseph County,                                       The Honorable John E. Broden,
Appellee-Defendant                                       Judge
                                                         Trial Court Cause No.
                                                         71C01-1608-CT-394



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CT-2406 | May 29, 2020                       Page 1 of 12
[1]   After having been terminated from his job on October 15, 2015, Scott Floyd

      filed suit against his employer, St. Joseph County (St. Joseph), alleging that St.

      Joseph unlawfully discharged him in retaliation for filing a worker’s

      compensation claim. A jury later returned a verdict in favor of St. Joseph. Now,

      Floyd appeals, arguing that the trial court erred by (1) denying his motion for

      relief from judgment because St. Joseph committed discovery misconduct; and

      (2) refusing to give a proffered final jury instruction. Finding no error, we

      affirm.


                                                    Facts
[2]   Floyd worked for St. Joseph as a heavy equipment operator at the Riverside

      Garage in South Bend. By the time of his termination, Floyd had been subject

      to various disciplinary actions and was close to being discharged. Floyd was

      operating under a Last Chance Agreement with his local union, which required

      specific rules and regulations with corresponding points for disciplinary actions

      attached to each regulation violation. Thus, by this time, Floyd understood that

      any further violation of the rules would lead to his termination. One such rule

      violation under the Agreement included a failure to report damage to any work

      equipment. On September 29, 2015, Floyd filed a worker’s compensation claim

      after sustaining a workplace injury to his right hand and wrist.


[3]   On October 7, 2015, during his shift, Floyd operated Truck 124 to haul dirt

      from the Clay Fire Station to the Central Garage. Supervisor Edward

      Hawthorne testified that Floyd was, in fact, assigned to Truck 124 on that day,


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2406 | May 29, 2020   Page 2 of 12
      that Truck 124 was not damaged that morning, and that he assisted Floyd with

      installing a tail gate on Truck 124. Michael Jaffe similarly testified that he saw

      Floyd driving away in Truck 124 on October 7, 2015, and that the truck was

      not damaged.


[4]   However, the next day, on the morning of October 8, 2015, supervisor Mark

      Lewandowski discovered damage to Truck 124 and the truck’s spindle.

      Lewandowski took a photograph of the truck and sent it to his supervisor, Chip

      Porter. Porter then asked Hawthorne to obtain the job assignment/inspection

      sheet to see who last operated Truck 124. Porter authorized moving the

      damaged Truck 124 and its spindle to the Central Garage, where Porter took

      additional photos of the damage on October 13, 2015.


[5]   Porter then asked Floyd to attend a meeting at the Central Garage that same

      day. Porter requested that Jim Szucs, a union representative, be present for the

      meeting. During the meeting, Porter informed Floyd that Porter and other

      employees discovered damage to Truck 124 and that Floyd was to be

      disciplined for failing to report the damage. In support of his decision, Porter

      presented Floyd with his coworkers’ statements and photos of the damage.

      Floyd admitted that there was damage to Truck 124, that an incident occurred

      on October 7, 2015, and that that incident may have caused damage to Truck

      124. At no point in time was the topic of a worker’s compensation claim ever

      discussed. Porter gave Floyd the option of resigning, which Floyd refused to do.

      Therefore, on October 15, 2015, Porter terminated Floyd for failing to report

      damage to work equipment, a clear violation of his Last Chance Agreement.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2406 | May 29, 2020   Page 3 of 12
[6]   Soon thereafter, Floyd initiated a grievance regarding his termination, which

      resulted in a review hearing before St. Joseph’s Auditor, Michael Hamann.

      During the hearing, Floyd did not dispute that Truck 124 was damaged on

      October 7, 2015, nor did he dispute that no one had ever mentioned or

      referenced his September 2015 worker’s compensation claim in connection with

      his eventual termination. On January 20, 2016, Hamann issued his decision

      affirming Floyd’s termination, finding that “[St. Joseph] did, in fact, have just

      cause to terminate the employment of Scott Floyd.” Appellant’s App. Vol. II p.

      26.


[7]   On August 25, 2016, Floyd filed suit against St. Joseph, alleging that St. Joseph

      had terminated him in retaliation for filing the September 29, 2015, worker’s

      compensation claim. The trial court set the discovery deadline for January 31,

      2019. As part of the discovery process, Floyd sent St. Joseph two sets of

      interrogatories. Interrogatory Number 2-3 read as follows:


              Did [St. Joseph] photograph any part of the Truck after [St.
              Joseph] believed or suspected that the truck had been damaged by
              [Floyd]? If so, if you are willing to do so, please produce copies of
              all photographs with your answers to these interrogatories.


      Id. at 73. St. Joseph responded to this interrogatory by saying, “Yes, see

      attached four (4) photographs,” and submitting the four photos of damage that

      Porter had presented to Floyd. Id.


[8]   Another interrogatory, Interrogatory Number 2-5, read as follows:



      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2406 | May 29, 2020   Page 4 of 12
              Did [St. Joseph] photograph any part of the Truck prior to
              [Floyd’s] termination? If so, if you are willing to do so, please
              produce copies of all photographs with your answers to these
              interrogatories.


      Id. at 74. St. Joseph responded to this interrogatory by saying “Yes, they are the

      same pictures referenced in Interrogatory No. 2-3, above.” Id. Floyd did not

      object or respond to St. Joseph’s answers to either of these interrogatories.


[9]   Additionally, Floyd sent St. Joseph multiple requests for production of certain

      documents. In response to request number 11 (Request 11), which asks for “All

      documents and communications that mention or refer to [Floyd] in any

      manner,” St. Joseph stated the following:


              Objection. This Request is vague, ambiguous, overly broad and
              unduly burdensome. Without waiving said objection, [St. Joseph]
              has produced at Tab 2 [Floyd’s] employee personnel file.


      Tr. Ex. Vol. IV p. 33. As part of Floyd’s personnel file, St. Joseph compiled

      approximately 343 pages of documents, among them records from Floyd’s prior

      disciplinary actions, written statements from Floyd’s coworkers, the daily job

      assignment sheet for October 7, 2015, and a copy of Floyd’s Last Chance

      Agreement. St. Joseph did not provide photographs because it had already

      submitted them to Floyd in response to Floyd’s interrogatories. Floyd did not

      respond to St. Joseph’s objection or the documents it submitted. Moreover, at

      no time did Floyd request clarification or supplementation of the materials that

      St. Joseph submitted; he also did not claim that the materials themselves were

      insufficient.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2406 | May 29, 2020   Page 5 of 12
[10]   On May 15, 2019, Floyd filed a “Comprehensive Motion,” appellant’s app. vol.

       II p. 131, which included a request to continue the jury trial beyond June 18,

       2019, and a request that St. Joseph supplement its response to Request 11.

       Specifically, Floyd wanted St. Joseph to clarify that it had looked for and could

       not find a certain document— a job and equipment inspection sheet from

       October 7, 2015. St. Joseph argued that such a request was unwarranted

       because Floyd had never specifically requested that log and waited until after

       January 31, 2019, to do so. Following a June 4, 2019, hearing, the trial court

       denied Floyd’s “Comprehensive Motion” in whole. The matter then proceeded

       to trial.


[11]   At the conclusion of Floyd’s June 18, 2019, jury trial, the trial court provided

       both parties with proposed jury instructions. Floyd tendered the following

       instruction for consideration:


               If a party fails to produce documents under the party’s exclusive
               control, you may conclude that the documents that the party could
               have produced would have been unfavorable to the party’s case.


       Id. at 15. Floyd argued that this instruction was necessary because St. Joseph

       failed to submit the job and equipment inspection sheet in response to Request

       11. St. Joseph objected, arguing that the trial court had already ruled on this

       issue in a previous hearing and that such an instruction casts a negative light on

       St. Joseph’s case. The trial court ultimately refused to give Floyd’s proffered

       final jury instruction.



       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2406 | May 29, 2020   Page 6 of 12
[12]   At the end of the trial, the jury returned a verdict in favor of St. Joseph. On

       August 7, 2019, Floyd filed a motion to correct error and for relief from

       judgment, on which the trial court did not issue a ruling. Floyd now appeals.


                                       Discussion and Decision
                                       I. Discovery Misconduct
[13]   First, Floyd argues that the trial court erred by denying his motion for relief

       from judgment1 because St. Joseph committed discovery misconduct.

       Specifically, Floyd contends that St. Joseph prejudiced him during discovery by

       intentionally omitting or withholding certain evidence.


[14]   Indiana Trial Rule 60(B)(3) states that a party may be relieved from a judgment

       for “fraud (whether heretofore denominated intrinsic or extrinsic),

       misrepresentation, or other misconduct of an adverse party[.]” “A grant of

       equitable relief under Indiana Trial Rule 60 is within the discretion of the trial

       court.” Outback Steakhouse of Fla., Inc. v. Markley, 856 N.E.2d 65, 72 (Ind. 2006).

       We review a trial court’s ruling on a motion for relief from judgment to

       determine whether the trial court’s decision was clearly erroneous or against the

       logic and effect of the facts before it and all inferences drawn therefrom. Barton

       v. Barton, 47 N.E.3d 368, 373 (Ind. Ct. App. 2015). It is the movant’s burden to




       1
         It should be noted that the trial court did not, in fact, issue a ruling on Floyd’s motion to correct error and
       for relief from judgment. However, Indiana Trial Rule 53.3(A) states that “[i]n the event a [trial] court . . .
       fails to rule on a Motion to Correct Error within thirty (30) days after it was heard or forty-five (45) days after
       it was filed, if no hearing is required, the pending Motion to Correct Error shall be deemed denied.”

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2406 | May 29, 2020                          Page 7 of 12
       show that the opposing party committed fraud and that that fraud prevented the

       movant from fully and fairly presenting his case. Morgan Cty. v. Ferguson, 712

       N.E.2d 1038, 1046 (Ind. Ct. App. 1999).


[15]   Here, Floyd argues that during discovery, St. Joseph purposefully omitted or

       withheld a specific photograph—the one Lewandowski took on October 8,

       2015, and then sent to Porter—and the job and equipment inspection sheet

       from October 7, 2015. In so doing, according to Floyd, St. Joseph fraudulently

       concealed important information and, consequently, “sucker[ed] Floyd’s

       counsel into presenting to the jury an erroneous narrative that undermined the

       jury’s confidence in his credibility.” Appellant’s Br. p. 20.


[16]   First, as to the cell phone picture, Floyd posits that “[St. Joseph] led Floyd and

       his counsel to believe that the 4 photographs comprised all of them and by

       logical extension, included the photo that Lewandowski claimed to have sent

       Porter on October 8th.” Id. at 18. However, Floyd has never shown what the cell

       phone picture depicted and cannot prove that its existence and use during trial

       would have benefitted him in any way. At this point, it is pure speculation to

       say that the cell phone photograph is integral to Floyd’s case. Moreover, there

       is no evidence in the record that St. Joseph purposefully withheld it.


[17]   Moreover, the trial court, during the hearing on Floyd’s “Comprehensive

       Motion” and during the trial, elicited testimony from Porter that Porter had had

       the photo on his cell phone, but that his and Lewandowski’s phones had been

       exchanged over time. Therefore, according to Porter, it was virtually impossible


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2406 | May 29, 2020   Page 8 of 12
       to retrieve the photo, despite Floyd’s multiple requests. It is clear that the trial

       court found Porter’s testimony to be credible because it denied Floyd’s motions

       and allowed the matter to proceed. We find that the trial court did not err in its

       assessment. St. Joseph did, in fact, turn over photographs of the damaged Truck

       124 and complied, to the best of its abilities, with Floyd’s myriad requests

       during discovery. As such, we find that the trial court did not err by denying

       Floyd’s request for relief on this front.


[18]   Next, there is the job and equipment inspection sheet. As a reminder, Request

       11 asked for “All documents and communications that mention or refer to

       [Floyd] in any manner.” Tr. Ex. Vol. IV p. 33. In lieu of objecting and simply

       refusing to turn over any evidence, St. Joseph objected and submitted Floyd’s

       entire personnel file, which included written statements, the daily job

       assignment sheet from October 7, 2015, and a copy of Floyd’s Last Chance

       Agreement. Floyd argues that the 343 pages of his personnel file did not suffice

       because the inspection sheet was not included.


[19]   The problem is that Floyd did not specifically request the job and equipment

       inspection sheet. Yes, Request 11 is broad in scope, but as St. Joseph correctly

       points out, “it is not [St. Joseph’s] responsibility to complete the discovery for

       [Floyd].” Appellee’s Br. p. 23. And like with the cell phone photo, Floyd

       cannot demonstrate how omission of the job and equipment inspection sheet

       prejudiced his case. The onus was on Floyd to be specific in his requests for

       documents, and the record shows that St. Joseph more than adequately

       responded by handing over the documents that it did.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2406 | May 29, 2020   Page 9 of 12
[20]   Most importantly, Floyd seemingly ignores that he had nearly two and one-half

       years from the commencement of litigation up until the discovery deadline to

       obtain this information. After St. Joseph responded to Floyd’s interrogatories

       and requests for documents, Floyd did not seek clarification or

       supplementation. It was not until May 2019—months after the discovery period

       had closed—that Floyd sought more information because he suddenly found St.

       Joseph’s discovery responses to be lacking. Floyd has not shown that St. Joseph

       committed fraud or any other misconduct during the discovery process or that

       he was prejudiced by St. Joseph’s actions.


[21]   Thus, in looking at the totality of the circumstances, we find that the trial court

       did not err by denying Floyd’s motion for relief from judgment.


                                         II. Jury Instruction
[22]   Next, Floyd argues that the trial court erred by refusing to give a proffered jury

       instruction on the spoliation of evidence.


[23]   “The purpose of jury instructions is to inform the jury of the law applicable to

       the facts without misleading the jury and to enable it to comprehend the case

       clearly and arrive at a just, fair and correct verdict.” Dawson v. Thornton’s, Inc.,

       19 N.E.3d 337, 339 (Ind. Ct. App. 2014). When reviewing a trial court’s

       decision to grant or deny a request for a tendered jury instruction, we consider

       whether the instruction (1) correctly states the law; (2) is supported by the

       evidence in the record; and (3) is not covered in substance by other instructions.

       Matheny v. State, 983 N.E.2d 672, 679 (Ind. Ct. App. 2013). We will reverse a

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2406 | May 29, 2020   Page 10 of 12
       trial court’s decision not to give a final jury instruction only if the proposing

       party would be prejudiced by the failure to give the instruction. Dollar Inn, Inc. v.

       Slone, 695 N.E.2d 185, 190 (Ind. Ct. App. 1998).


[24]   The preliminary jury instruction Floyd proffered reads as follows:


               If a party fails to produce documents under the party’s exclusive
               control, you may conclude that the documents that the party could
               have produced would have been unfavorable to the party’s case.


       Appellant’s App. Vol. II p. 15. This instruction relates to the legal tort of the

       spoliation of evidence. “Spoliation of evidence is the intentional destruction,

       mutilation, alteration, or concealment of evidence. If spoliation by a party to a

       lawsuit is proved, the jury may infer that the missing evidence was unfavorable

       to that party.” Am. Nat’l Prop. & Cas. Co. v. Wilmoth, 893 N.E.2d 1068, 1070

       (Ind. Ct. App. 2008) (internal citation omitted).


[25]   Thus, the instruction itself is not an incorrect recitation of Indiana law, and St.

       Joseph concedes this point. As such, we must determine whether there is

       evidence in the record supporting the instruction. We find none. To begin with,

       the issue of spoliation of evidence was never explicitly brought up during trial.

       Yes, Floyd alluded to spoliation by claiming St. Joseph had committed

       misconduct during the discovery process, but that was not the basis of Floyd’s

       lawsuit. Rather, Floyd alleged unlawful termination because of retaliation, and

       it is the province of trial courts to reject jury instructions that tend to mislead or

       confuse the jury. Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001). We see no

       error in the trial court’s conclusion that an instruction on spoliation, which was
       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2406 | May 29, 2020   Page 11 of 12
       not at issue in the trial or in any way presented to the jury, would have

       confused or misled jurors.


[26]   Next, the trial court already ruled in a prior hearing that St. Joseph had

       complied with Floyd’s discovery requests and denied a variety of requests by

       Floyd to have St. Joseph clarify or supplement its responses. It is apparent from

       these rulings that the trial court was not persuaded that any misconduct had

       occurred in the first place. And, as we have already examined, the evidence

       shows that St. Joseph did its best to acquire documents, send adequate

       responses to interrogatories, and communicate with Floyd at every step of the

       litigation. A jury instruction on spoliation of evidence would not be warranted

       given the evidence present in the record. Thus, we find that the trial court did

       not err when it rejected Floyd’s proffered final jury instruction.


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


       Bradford, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2406 | May 29, 2020   Page 12 of 12
