                                                                        FILED
                                                                    Jun 22 2020, 9:04 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Michael A. Landisman                                       MARK BEEMAN
Louisville, Kentucky                                       Douglas A. Hoffman
                                                           Carson LLP
                                                           Bloomington, Indiana
                                                           ATTORNEY FOR APPELLEE STATE
                                                           FARM MUTUAL AUTOMOBILE
                                                           INSURANCE COMPANY
                                                           Rodney L. Scott
                                                           Carli A. Clowers
                                                           Waters, Tyler, Hofmann & Scott,
                                                           LLC
                                                           New Albany, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Edward Cook,                                               June 22, 2020
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           19A-CT-2145
        v.                                                 Appeal from the Clark Circuit
                                                           Court
Mark A. Beeman and State Farm                              The Honorable Steven M. Fleece,
Mutual Automobile Insurance                                Judge
Company,                                                   Trial Court Cause No.
Appellees-Respondents                                      10C01-1501-CT-11




May, Judge.



Court of Appeals of Indiana | Opinion 19A-CT-2145 | June 22, 2020                           Page 1 of 7
[1]   Edward Cook appeals following a jury verdict in favor of Mark Beeman in a

      lawsuit stemming from an automobile accident.1 Cook asserts the trial court

      abused its discretion in admitting testimony from Beeman and in denying

      Cook’s motion for a mistrial. Because Cook waived his claims of error, we

      affirm.



                              Facts and Procedural History
[2]   Cook worked for a concrete supply company and, as part of his job, regularly

      visited concrete manufacturing plants in the early morning hours. On February

      5, 2013, at approximately 1:30 a.m., Cook drove west along Tenth Street in

      Jeffersonville and approached the intersection of Tenth Street and Allison Lane.

      Beeman was traveling north on Allison Lane but was stopped by the traffic

      control device at the intersection of Tenth Street and Allison Lane as Cook

      approached. Beeman entered the intersection when the traffic control device

      gave him a green light, and Cook’s car hit the side of Beeman’s vehicle.


[3]   Cook filed suit on January 29, 2015. The trial court agreed to bifurcate the trial

      and held a jury trial on the issue of liability on August 13, 2019. Cook and

      Beeman gave conflicting testimony – Cook testified he had the green light when




      1
        Cook also included an underinsured motorist claim against State Farm Mutual Automobile Insurance
      Company in his complaint. State Farm was not present for the trial on liability and does not participate in
      this appeal. The jury’s verdict regarding liability rendered a trial on damages unnecessary.

      Court of Appeals of Indiana | Opinion 19A-CT-2145 | June 22, 2020                                  Page 2 of 7
      he entered the intersection, and Beeman testified he waited for the traffic light

      to turn green before entering the intersection.


[4]   On direct examination, Beeman’s attorney asked him, “Why did you not sue

      Mr. Cook?” (Tr. Vol. II at 187.) Beeman answered, “I was compensated for

      my vehicle. I wasn’t injured. There was no, I didn’t feel like I had a claim to

      make against Mr. Cook.” (Id.) Cook did not object or move to strike this

      testimony. On cross-examination, Cook asked Beeman, “Who compensated

      you for your vehicle?” (Id. at 190.) Beeman’s counsel requested a sidebar

      conference before Beeman answered the question. 2 Cook asked Beeman a

      different question after the sidebar conference and his cross-examination

      continued. The jury rendered a verdict assigning Cook 51% fault and Beeman

      49% fault.



                                   Discussion and Decision
                                   1. Admission of Beeman’s Testimony

[5]   Cook argues the trial court erred in admitting Beeman’s testimony that Beeman

      did not sue Cook because Beeman was compensated for the damage done to his

      vehicle. Cook contends such testimony violated a motion in limine. 3 However,




      2
        The transcript does not indicate what occurred during the sidebar conference because the recording is
      inaudible.
      3
       Cook’s brief also relies on Trial Rule 60 to argue he is entitled to a new trial. However, Cook did not file a
      Trial Rule 60(B) motion or a motion to correct error in the trial court. Therefore, Cook has waived any such
      argument on appeal. See JK Harris & Co. LLC v. Sandlin, 942 N.E.2d 875, 882 (Ind. Ct. App. 2011) (holding

      Court of Appeals of Indiana | Opinion 19A-CT-2145 | June 22, 2020                                   Page 3 of 7
      Beeman argues Cook waived any claim of error because he did not object to

      Beeman’s testimony or move to strike the testimony.


[6]   We first note that a trial court’s ruling on a motion in limine is not a final order,

      and a party must also object to admission of the evidence at trial to preserve the

      issue for appeal. Swaynie v. State, 762 N.E.2d 112, 113 (Ind. 2002) (holding

      denial of motion in limine was not an issue available on appeal because party

      did not object to witness’s testimony at trial). Regardless whether a motion in

      limine was filed, a party has a duty to contemporaneously object to the

      admission of evidence a party wishes to challenge. Walnut Creek Nursery, Inc. v.

      Banske, 26 N.E.3d 648, 654 (Ind. Ct. App. 2015). “By making a

      contemporaneous objection, the party affords the trial court the opportunity to

      make a final ruling on the matter in the context in which the evidence is

      introduced.” Id. The failure to contemporaneously object results in waiver of

      the issue on appeal. Id.


[7]   Cook did not object when Beeman was asked why Beeman did not sue Cook.

      Nor did Cook move to strike Beeman’s answer to the question. Therefore,

      Cook waived any claim that the trial court erred in admitting the testimony. See

      Myers v. State, 887 N.E.2d 170, 184 (Ind. Ct. App. 2008) (holding the failure to




      party waived arguments under Trial Rule 60 because it did not present the arguments before the trial court),
      reh’g denied, trans. denied.

      Court of Appeals of Indiana | Opinion 19A-CT-2145 | June 22, 2020                                 Page 4 of 7
       raise an objection to testimony at trial results in waiver of the issue on appeal),

       reh’g denied, trans. denied.


                                      2. Denial of Request for Mistrial

[8]    As we noted in the Facts and Procedural History, after Beeman testified on

       direct-examination that he was compensated for his vehicle, Cook asked

       Beeman on cross-examination who compensated him for that vehicle. Beeman

       immediately requested a sidebar conference, and the parties approached the

       bench. The discussion that occurred was inaudible on the Record.


[9]    In his appellate brief, Cook asserts he argued Beeman opened the door for Cook

       to ask Beeman about who compensated him for damages to his vehicle, the trial

       court sustained Beeman’s objection to such questioning by Cook, and Cook

       moved for a mistrial, which the trial court denied. Beeman contends Cook did

       not move for a mistrial during the sidebar.


[10]   Indiana Appellate Rule 31 provides a procedure for litigants to supplement the

       Clerk’s Record when “no Transcript of all or part of the evidence is available.”

       App. R. 31(A). In such a situation, parties may “prepare a verified statement of

       the evidence” and submit it to the trial court for certification. Id. If a party

       disputes the contents of the verified statement, App. R. 31(B), the trial court can

       hold a hearing and then modify the statement of evidence proposed by the

       parties. App. R. 31(C). Indiana Appellate Rule 32 provides: “The trial court

       retains jurisdiction to correct or modify the Clerk’s Record or Transcript at any

       time before the reply brief is due to be filed. After that time, the movant must


       Court of Appeals of Indiana | Opinion 19A-CT-2145 | June 22, 2020           Page 5 of 7
       request leave of the Court on Appeal to correct or modify the Clerk’s Record or

       Transcript.”


[11]   Herein, the parties disagree about what occurred during the inaudible sidebar

       conference. The trial court’s chronological case summary indicates that, on

       March 16, 2020, Cook filed a motion for the trial court to certify his statement

       of evidence about what happened during that sidebar conference. Cook v.

       Beeman, 10C01-1501-CT-000011 [https://perma.cc/L25C-FLVC]. However,

       Cook also filed his reply brief before the Court of Appeals on March 16, 2020.

       (Appellant’s Reply Br. at 1.) Accordingly, the trial court lost jurisdiction to rule

       on Cook’s motion on the same day Cook filed it. See App. R. 32(A). Neither

       party requested a stay in the Court of Appeals to permit the trial court to clarify

       the Record and, therefore, the trial court does not have jurisdiction to rule on

       Cook’s motion. If the trial court were to rule on the motion, such ruling would

       be ultra vires. See Schumacher v. Radiomaha Inc., 619 N.E.2d 271, 273 (Ind. 1993)

       (holding trial court did not have jurisdiction to grant Radiomaha’s summary

       judgment motion after Radiomaha perfected the record on appeal from court’s

       prior order setting aside original damage award).


[12]   Cook’s failure to supplement the record in a timely manner is particularly

       consequential in this case because we are unable to determine whether Cook

       moved for a mistrial or what his basis was for such a motion. Further, we do

       not know the substance of Beeman’s objection or what the trial court said in

       issuing its ruling. “It is the appellant’s duty to present an adequate record on

       appeal, and when the appellant fails to do so, he is deemed to have waived any

       Court of Appeals of Indiana | Opinion 19A-CT-2145 | June 22, 2020          Page 6 of 7
       alleged error based upon the missing material.” Rausch v. Reinhold, 716 N.E.2d

       993, 1002 (Ind. Ct. App. 1999), trans. denied. Therefore, Cook has waived any

       issues on appeal based on the arguments he made during the inaudible sidebar

       conference. See id. (holding issue waived because of failure to present adequate

       record on appeal).



                                                 Conclusion
[13]   Cook waived any challenge to Beeman’s testimony about why Beeman did not

       sue Cook because Cook did not object to the testimony at trial. Cook also

       waived any objection to the trial court’s limitation on the questions he could ask

       Beeman about Beeman’s insurance coverage and the trial court’s denial of his

       motion for mistrial by failing to present an adequate record on appeal.

       Therefore, we affirm.


[14]   Affirmed.


       Robb, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CT-2145 | June 22, 2020         Page 7 of 7
