                                                                                        FILED
                                                                                    Oct 31 2018, 8:36 am

                                                                                        CLERK
                                                                                    Indiana Supreme Court
                                                                                       Court of Appeals
                                                                                         and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Scott B. Cockrum                                           James Harper
      Hinshaw & Culbertson LLP                                   Harper & Harper, LLC
      Schererville, Indiana                                      Valparaiso, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Brett Carney,                                              October 31, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 46A03-1712-CT-2855
              v.                                                 Appeal from the LaPorte Circuit
                                                                 Court
      Fernando Patino, Jr.,                                      The Honorable Thomas J.
      Appellee-Plaintiff                                         Alevizos, Judge
                                                                 Trial Court Cause No.
                                                                 46C01-1303-CT-366



      Crone, Judge.


                                              Case Summary
[1]   Brett Carney reported to Michigan City police that Fernando Patino, Jr., took

      various fixtures from a residence that Carney had purchased at a sheriff’s sale.

      Based on Carney’s report, Patino was placed on Michigan City’s “most

      wanted” list, arrested, and charged with a felony. Patino was later found not

      guilty of the criminal charge. Patino sued Carney for, among other things,

      Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018                           Page 1 of 19
      defamation and intentional infliction of emotional distress. Following a trial,

      the jury awarded Patino $256,000 in damages against Carney.


[2]   Carney now appeals, first contending that the trial court erred in denying his

      pretrial motion for summary judgment on grounds that his statements to police

      were protected, as a matter of law, by the doctrine of qualified privilege.

      Carney also contends that the trial court erred in denying his subsequent

      motion for judgment on the evidence for the same reason. Finally, Carney

      contends that the jury verdict is excessive and that the trial court should have

      granted his motion to correct error on that basis. Concluding that the trial court

      did not err in denying Carney’s various motions, and further concluding that

      the jury verdict is not excessive, we affirm.


                                   Facts and Procedural History1
[3]   In February 2011, Patino resided at a home on Franklin Street (“the

      Residence”) in Michigan City that was owned by his father. Patino’s father

      purchased the Residence in 2006 and secured a mortgage on the Residence.

      Following subsequent foreclosure, the Residence was sold at a sheriff’s sale on

      the morning of February 18, 2011. Carney purchased the Residence at the sale

      for $33,676.




      1
       Although Carney appeals the trial court’s rulings at various stages of the proceedings, for clarity’s sake, we
      primarily recite the relevant facts most favorable to the jury’s verdict.

      Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018                         Page 2 of 19
[4]   Immediately after the sale on February 18, Carney proceeded to the Residence

      to inspect the property. He did not have a key to the Residence, and he did not

      know if anyone still lived in the Residence. Carney knocked on the door, but

      when nobody answered, he entered the Residence by using a credit card to pop

      open the locked door. Upon entry, Carney noted that boxes were present,

      indicating that the current resident was still in the process of moving. While

      Carney was at the Residence, Patino arrived. Patino had been told by a

      coworker at the nearby NAPA Auto Parts store where he worked that someone

      was at the Residence, so Patino went to investigate. During this relatively

      uneventful interaction, Carney informed Patino that he had purchased the

      Residence and intended to take possession of it. Patino gave Carney his name

      and phone number, and Carney agreed to allow Patino additional time to

      remove his belongings from the Residence.2 Carney then left the Residence.


[5]   The parties agree that they had a second encounter at the Residence, but they

      dispute the date as well as what transpired. Patino claims that he decided to

      remove the remainder of his belongings on the afternoon of February 18 and so

      he called his father, who rented a U-Haul truck and came to the Residence with

      Patino’s brother. Patino had returned to work, so his father and brother began

      removing the family’s belongings from the Residence. His mother also came

      over to help clean. Patino joined them shortly thereafter to help with the

      moving process. At approximately 9:00 p.m. on February 18, while Patino and



      2
          Carney claims that although Patino gave him a correct phone number, he gave a false name.

      Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018                     Page 3 of 19
      his father were still at the Residence, Carney returned to the Residence while

      Patino was moving the stove he had purchased into the U-Haul. Carney was

      angry and told Patino that he did not think Patino was allowed to take the

      appliances. He threatened to call the Michigan City police and stood in the

      doorway of the Residence to prevent Patino from removing any other items

      from the Residence. Thus, Patino could not go back in the Residence to

      retrieve his refrigerator or the washing machine that he had also purchased.

      Patino decided that it was best just to leave, so he grabbed his dog and walked

      past Carney to leave the premises. Patino overheard Carney on his cell phone

      telling an unknown third party, “They took the appliances.” Appellant’s App.

      Vol. 2 at 111. Patino and his family drove the U-Haul across the front lawn

      because Carney’s truck was blocking the driveway. Patino and his father

      returned the U-Haul on February 19, 2011. Patino did not return to the

      Residence at any point after February 18, 2011.


[6]   Carney agrees that the parties had a contentious second encounter at the

      Residence, but he claims it occurred on the afternoon of February 20, 2011.

      Carney claims that on that date, he encountered Patino and his father at the

      Residence, and that he observed two pickup trucks in the driveway loaded with

      various fixtures that had clearly been taken out of the Residence. Carney

      claims that after he confronted Patino about taking the items, Patino drove

      through the yard and fled the premises. Carney then inspected the Residence

      and discovered numerous missing fixtures and extensive damage to the interior

      of the Residence.


      Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018   Page 4 of 19
[7]   Carney contacted Michigan City police on February 20 while he was at the

      Residence. Officer Brian Richmond came to the Residence to take the report.

      Carney reported to Officer Richmond that he had purchased the Residence on

      February 18, that upon inspection that same day he had encountered a young

      adult Hispanic male (later identified as Patino) who was in the process of

      moving out, and that the Residence was in good condition at that time. Carney

      stated that he encountered Patino at the Residence again shortly before the

      officer’s arrival on February 20, and that two pickup trucks in the driveway

      were loaded with numerous items that should not have been removed from the

      Residence. Carney stated that he personally observed interior doors, closet

      doors, light fixtures, a register vent cover, a toilet, a bathroom sink, and

      shelving in Patino’s trucks. Carney reported that he confronted Patino about

      taking the items, but that Patino and his family simply drove through the yard

      and fled. Carney stated that his subsequent walk-through of the Residence

      revealed that the fixtures had been removed from the Residence and damage

      had been done to the interior of the Residence. Carney did not mention

      anything about a missing stove or other appliances to Officer Richmond.

      Carney told Officer Richmond that Patino worked at a nearby NAPA Auto

      Parts store. Carney also reported that he believed that Patino had purchased

      and moved to a home on Chicago Street in Michigan City.


[8]   Carney made at least four cell phone calls to Patino after the contentious

      second encounter. Each time, Carney left a voicemail message that Patino

      perceived to be threatening. In March 2011, Carney went to NAPA and


      Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018   Page 5 of 19
       confronted Patino about the appliances. He demanded that Patino return the

       stove and a dryer that Patino had removed from the Residence. When Patino

       refused, Carney stated, “When we’re done with you, we’re sending you back to

       where you came from.” Id. at 113. Patino’s mother was at NAPA at the time,

       and she overheard what Carney said about the appliances and his threatening

       statement to her son. Patino, a United States citizen, believed that Carney was

       referring to his Mexican ancestry and suggesting that he should be deported to

       Mexico.


[9]    Following an investigation of Carney’s claims by Michigan City Police

       Detective Corporal Anthony McClintock, a warrant was issued for Patino’s

       arrest. Patino was also included on the Michigan City Top 10 Most Wanted

       List that was reported in local media. After learning of the warrant, Patino

       turned himself in to Michigan City Police. Patino was subsequently charged

       with class D felony theft for stealing “property” from the Residence. Ex. 4.

       The criminal charges were pending for approximately five and a half years.

       Following a jury trial, Patino was acquitted of the theft charge. The whole

       experience was “like a nightmare” for Patino and his family. Tr. Vol. 3 at 104.


[10]   On February 28, 2013, Patino filed a complaint against Carney and numerous

       other defendants including the City of Michigan City, Indiana, the Michigan

       City Police Department, Michigan City Police Chief Mark Swistek, and

       Detective Corporal Anthony McClintock (the “Michigan City Defendants”).

       Patino alleged claims of false arrest, false imprisonment, libel, slander,

       defamation, negligent infliction of emotional distress, intentional infliction of

       Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018   Page 6 of 19
       emotional distress, negligence, and violations of his civil and constitutional

       rights. The matter was removed to the United States District Court for the

       Northern District of Indiana in April 2013. In November 2013, Patino’s federal

       civil rights claims were dismissed with prejudice as to all defendants. Although

       the remaining state law claims were initially dismissed without prejudice, they

       were later remanded back to the LaPorte Circuit Court in December 2013. The

       claims against the Michigan City Defendants were dismissed by the trial court

       in April 2014.


[11]   Patino filed an amended complaint for damages against Carney alleging that he

       was falsely arrested by the Michigan City Police Department and charged with

       class D felony theft based on knowingly false accusations made by Carney. The

       complaint alleged claims for defamation, negligence, negligent infliction of

       emotional distress, and intentional infliction of emotional distress. Patino

       sought both compensatory and punitive damages for his economic losses,

       emotional distress, pain, suffering, and loss of reputation.


[12]   Carney filed a motion for summary judgment and designation of evidence in

       July 2015. Among other things, Carney asserted that his statements to police

       were qualifiedly privileged and thus he was entitled to judgment as a matter of

       law as to all of Patino’s claims. Patino responded with a motion in opposition

       to summary judgment and accompanying affidavit. The trial court entered an

       order denying Carney’s summary judgment motion in April 2016.




       Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018   Page 7 of 19
[13]   A jury trial began on September 25, 2017. Prior to the start, Patino withdrew

       his negligence claims, leaving only his defamation and intentional infliction of

       emotional distress claims. Patino presented his case-in-chief, and at the close of

       his evidence, Carney made an oral motion for judgment on the evidence again

       based upon qualified privilege, which the trial court took under advisement.

       Carney then presented his evidence, after which he renewed his motion for

       judgment on the evidence, which the court again took under advisement.

       Following deliberations, the jury returned a verdict in favor of Patino. The jury

       awarded total damages in the amount of $320,000 and apportioned fault as

       follows: Patino 5%, Michigan City Police Department 5%, Detective Corporal

       McClintock 10%, and Carney 80%. Accordingly, the trial court entered final

       judgment against Carney in the amount of $256,000.


[14]   Carney filed a motion to correct error which was denied by the trial court. The

       court also entered its order denying Carney’s motion for judgment on the

       evidence. Carney now appeals the court’s denial of his motion for summary

       judgment, the denial of his motion for judgment on the evidence, and the denial

       of his motion to correct error.


                                       Discussion and Decision

           Section 1 – The trial court did not err in denying Carney’s
            motion for summary judgment on the basis of qualified
                                    privilege.
[15]   Carney first argues that the trial court erred in denying his pretrial summary

       judgment motion. “The purpose of summary judgment is to terminate litigation

       Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018   Page 8 of 19
       about which there can be no factual dispute and which can be determined as a

       matter of law.” Lamb v. Mid Indiana Serv. Co., 19 N.E.3d 792, 793 (Ind. Ct. App.

       2014). “The party moving for summary judgment has the burden of making a

       prima facie showing that there is no genuine issue of material fact and that it is

       entitled to judgment as a matter of law.” Mint Mgmt., LLC v. City of Richmond,

       69 N.E.3d 561, 564 (Ind. Ct. App. 2017). If the moving party meets its burden,

       “the burden then shifts to the nonmoving party whose response must set forth

       specific facts indicating that there is an issue of material fact.” Venture Enter.,

       Inc. v. Ardsley Distrib., Inc., 669 N.E.2d 1029, 1032 (Ind. Ct. App. 1996). “The

       nonmovant may not rest upon bare allegations made in the pleadings, but must

       respond with affidavits or other evidence setting forth specific facts showing

       there is a genuine issue in dispute.” Id. Any doubts as to any facts or inferences

       to be drawn from those facts must be resolved in favor of the nonmoving party.

       Mint Mgmt., 69 N.E.3d at 564.


[16]   “We review a summary judgment ruling de novo.” Pelliccia v. Anthem Ins. Cos.,

       90 N.E.3d 1226, 1230 (Ind. Ct. App. 2018). A trial court’s findings and

       conclusions offer insight into the rationale for the court’s judgment and

       facilitate appellate review but are not binding on this Court. Henderson v. Reid

       Hosp. & Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans. denied

       (2015). We may affirm a summary judgment ruling on any theory supported by

       the designated evidence. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). The

       party that lost in the trial court has the burden of persuading us that the trial

       court erred. Estate of Hofgesang v. Hansford, 714 N.E.2d 1213, 1216 (Ind. Ct.

       Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018   Page 9 of 19
       App. 1999). Our supreme court has cautioned that summary judgment “is not

       a summary trial” and Indiana consciously errs on the side of letting even

       marginal cases proceed to trial on the merits, rather than risk short-circuiting

       meritorious claims. Hughley v. State, 15 N.E.3d 1000, 1003-04 (Ind. 2014).


[17]   Carney asserts that, even if defamatory,3 his statements to law enforcement

       concerning Patino were qualifiedly privileged, and thus he was entitled to

       summary judgment as to Patino’s claims. A qualified privilege “applies to

       communications made in good faith on any subject matter in which the party

       making the communication has an interest or in reference to which he had a

       duty, either public or private, either legal, moral, or social, if made to a person

       having a corresponding interest or duty.” Bals v. Verduzco, 600 N.E.2d 1353,

       1356 (Ind. 1992) (citation omitted). As a defense to defamation, the qualified

       privilege operates not to “change the actionable quality of the words published,

       but merely [to] rebut[] the inference of malice that is [otherwise] imputed.”

       Holcomb v. Walter’s Dimmick Petroleum, Inc., 858 N.E.2d 103, 106 (Ind. 2006)

       (citation omitted).4 It is well established that “communications made to law



       3
         Defamation is that which tends to injure reputation or to diminish esteem, respect, good will, or confidence
       in the plaintiff, or to excite derogatory feelings or opinions about the plaintiff.” Davidson v. Perron, 716 N.E.2d
       29, 37 (Ind. Ct. App. 1999) trans. denied (2000). “To establish defamation, the plaintiff must prove the
       following elements: (1) a communication with defamatory imputation, (2) malice, (3) publication, and (4)
       damages.” Id. A communication is defamatory per se if it imputes criminal conduct. Kelley v. Tanoos, 865
       N.E.2d 593, 596 (Ind. 2007).
       4
         Although Patino’s amended complaint raised several claims in addition to defamation, the basis of each
       claim was Carney’s purported false statements to law enforcement. Thus, Carney asserts that he was entitled
       to summary judgment on all of Patino’s claims based on the qualified privilege defense. Indeed, the qualified
       privilege defense to defamation has also been applied to claims of false imprisonment, negligence, and
       intentional infliction of emotional distress. Brown v. Indianapolis Housing Agency, 971 N.E.2d 181, 186 (Ind.
       Ct. App. 2012).

       Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018                          Page 10 of 19
       enforcement to report criminal activity are qualifiedly privileged.” Williams v.

       Tharp, 914 N.E.2d 756, 763 (Ind. 2009) (quoting Kelley v. Tanoos, 865 N.E.2d

       593, 600 (Ind. 2007)). This furthers the compelling public interest of

       encouraging citizens not only to report suspected wrongdoing but also to assist

       law enforcement in investigating and apprehending persons who engage in

       criminal activity. Id. at 762-63. Our supreme court has stated,


               If this purpose is to be met, the privilege must offer a robust
               defense against liability. Protecting unverified and even
               speculative reports of suspected wrongdoing to law enforcement
               is, in our view, supported by ample reasons of social advantage.
               It is important that citizens not opt for inaction, chilled from
               communicating with police in all but the most certain of
               situations.


       Id. at 765.


[18]   The privilege, however, “is not without limits: a statement ‘may lose its

       privileged character upon a showing of abuse wherein: (1) the communicator

       was primarily motivated by ill will in making the statement; (2) there was

       excessive publication of the defamatory statement; or (3) the statement was

       made without belief or grounds for belief in its truth.’” Bah v. Mac’s Convenience

       Stores, LLC, 37 N.E.3d 539, 548 (Ind. Ct. App. 2015) (quoting Bals, 600 N.E.2d

       at 1356), trans. denied (2016). Thus,


               the burden is upon the defendant in the first instance to establish
               the existence of a privileged occasion for the publication, by
               proof of a recognized public or private interest which would
               justify the utterance of the words. Then the plaintiff has the

       Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018   Page 11 of 19
               burden of overcoming that privilege by showing that it has been
               abused. When speaking of abuse, the essence of the concept is
               not the speaker’s spite but his abuse of the privileged occasion by
               going beyond the scope of the purposes for which privilege exists.
               And unless only one conclusion can be drawn from the evidence,
               the question of whether the privilege has been abused is for the
               jury.


       Williams, 914 N.E.2d at 762 (citations, quotation marks, and alterations

       omitted).


[19]   We agree with Carney that the privileged occasion implicated by his

       communication to law enforcement related to the public interest in encouraging

       private citizens to report crime. Patino contends that Carney abused the

       privilege because, when he reported that Patino removed numerous fixtures

       from the Residence, he was primarily motivated by ill will and made the

       statement without belief or grounds for belief in truth. Carney claims that

       Patino presented no evidence but simply offered “speculation about the intent

       or knowledge of Carney in making the statement.” Appellant’s Br. at 33. “It is

       well settled, however, that ‘[s]ummary judgment must be denied if the

       resolution hinges upon state of mind, credibility of the witnesses, or the weight

       of the testimony.’” Bah, 37 N.E.3d at 548 (quoting Nelson v. Jimison, 634 N.E.2d

       509, 512 (Ind. Ct. App. 1994)). This is precisely the scenario that confronted

       the trial court here.


[20]   It is undisputed that, prior to Carney’s communication to law enforcement,

       Patino and Carney had an extremely contentious second encounter. Patino


       Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018   Page 12 of 19
       presented evidence that, although he was not even at the Residence on

       February 20, Carney told police that he personally observed Patino at the

       Residence on that date in possession of various fixtures taken from the

       Residence. According to Patino, it was his belief that Carney was upset that, a

       few days earlier, Patino removed certain appliances from the Residence that

       Patino had purchased, and that motivated Carney to fabricate a story about his

       observations on February 20 and to accuse Patino of the theft of numerous

       fixtures. Patino designated evidence in support of this motivation. He averred

       that Carney expressed his clear dismay and objection to the appliance removal

       when Patino was removing the stove on February 18, and that Carney

       confirmed those feelings when he subsequently went to Patino’s place of

       employment and made what appeared to be a racially charged threat to send

       Patino “back to where [he] came from” if he did not return the appliances.

       Appellant’s App. at Vol. 2 at 113.


[21]   Viewing the designated evidence and resolving all doubts in favor of Patino as

       the nonmoving party, as we must, we conclude that it was for a jury to

       determine whether Carney was primarily motivated by ill will in accusing

       Patino of theft and/or whether his accusations were made without belief or

       grounds for belief in their truth.5 In other words, we cannot say that only one

       conclusion can be drawn from the evidence. Rather, the evidence presented,




       5
         Carney asserts that Patino failed to designate evidence that Carney’s statements to police were, in fact, false.
       However, in his affidavit, Patino denied being at the Residence on February 20 or being in possession of the
       fixtures. This, in effect, is an averment that Carney’s statements to the contrary were, in fact, false.

       Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018                         Page 13 of 19
       and the reasonable inferences to be drawn therefrom, was sufficient to establish

       a genuine issue of material fact on whether the qualified privilege had been

       abused, and therefore Carney was not entitled to summary judgment on

       Patino’s claims based on the qualified privilege defense. Accordingly, the trial

       court did not err when it declined to enter summary judgment for Carney. 6


            Section 2 – The trial court did not err in denying Carney’s
           motion for judgment on the evidence on the basis of qualified
                                     privilege.
[22]   Carney next asserts that the evidence presented by Patino at trial “was

       insufficient to overcome the application of the [qualified] privilege” and

       therefore his motion for judgment on the evidence should have been granted.

       Appellant’s Br. at 19. The standard of review for a challenge to a ruling on a

       motion for judgment on the evidence is the same standard utilized by the trial

       court in making its decision. Bals, 600 N.E.2d at 1357. We look only to the

       evidence and reasonable inferences therefrom most favorable to the nonmoving

       party. Id. The motion should be granted only where there is no substantial




       6
         Carney briefly argues that the trial court erred in failing to enter at least partial summary judgment on
       Patino’s defamation claim because Patino’s amended complaint “failed to plead the alleged defamatory
       statements with any specificity.” Appellant’s Br. at 35. Carney did not assert this as grounds for summary
       judgment in his original brief in support of summary judgment. Indeed, his only mention of this alleged lack
       of specificity is a passing reference in a footnote in his reply brief in support of summary judgment. This was
       insufficient to alert the trial court to this argument. It is well settled that arguments not presented to the trial
       court on summary judgment are waived on appeal. Anderson v. Four Seasons Equestrian Ctr., Inc., 852 N.E.2d
       576, 581 (Ind. Ct. App. 2006), trans. denied. The trial court cannot be found to have erred as to an issue or
       argument that it never truly had an opportunity to consider. Id. Thus, Carney has waived this argument,
       and we will not consider it on appeal.



       Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018                           Page 14 of 19
       evidence supporting an essential issue in a case. Id. (citing Ind. Trial Rule

       50(A); Johnson v. Naugle, 557 N.E.2d 1339, 1342 (Ind. Ct. App. 1990); Whisman

       v. Fawcett, 470 N.E.2d 73, 79 (Ind. 1984)).


[23]   Our supreme court has stated that determining whether evidence was sufficient

       to defeat a motion for judgment on the evidence requires both a quantitative

       and a qualitative analysis. Purcell v. Old Nat’l Bank, 972 N.E.2d 835, 840 (Ind.

       2012). Specifically, the court explained,


               Evidence fails quantitatively only if it is wholly absent; that is,
               only if there is no evidence to support the conclusion. If some
               evidence exists, a court must then proceed to the qualitative
               analysis to determine whether the evidence is substantial enough
               to support a reasonable inference in favor of the non-moving
               party.

               Qualitatively, ... [evidence] fails when it cannot be said, with
               reason, that the intended inference may logically be drawn
               therefrom; and this may occur either because of an absence of
               credibility of a witness or because the intended inference may not
               be drawn therefrom without undue speculation. The use of such
               words as “substantial” and “probative” are useful in determining
               whether evidence is sufficient under the qualitative analysis.
               Ultimately, the sufficiency analysis comes down to one word:
               “reasonable.”


       Id. (citations and some quotation marks omitted). Unlike a motion for

       summary judgment under Indiana Trial Rule 56, the sufficiency test of Indiana

       Trial Rule 50(A) is not merely whether a conflict of evidence may exist, but

       rather whether there exists probative evidence, substantial enough to create a

       reasonable inference that the nonmovant has met his burden. Id. at 841.
       Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018   Page 15 of 19
[24]   Here, Patino presented sufficient evidence to meet both the quantitative and

       qualitative elements of the judgment on the evidence analysis. Our thorough

       review of the trial transcript and the totality of the testimony presented reveals

       that Patino presented sufficient evidence to show that Carney was not being

       truthful when he told police that Patino was at the Residence on February 20,

       and that he witnessed Patino removing various fixtures from the premises on

       that date.7 Patino also presented substantial evidence to create a reasonable

       inference that Carney was primarily motivated by ill will in making his

       statement to police and/or that he made the statement without belief or

       grounds for belief in its truth. In other words, we are confident that enough

       credible evidence was presented from which an inference that Carney abused

       his qualified privilege could be found by a reasonable jury without engaging in

       undue speculation.


[25]   Carney essentially suggests that his abuse of the qualified privilege could not be

       established absent direct testimony from him admitting that his statements to

       law enforcement were in fact motivated by ill will or that he made the

       statements without belief or grounds for belief in their truth. He is mistaken.

       Viewing only the evidence and reasonable inferences therefrom most favorable

       to Patino as the nonmoving party, there was substantial evidence presented to




       7
         Carney emphasizes that he never reported to law enforcement that he saw Patino actually taking the
       fixtures out of the Residence, only that he encountered Patino in the driveway of the Residence already in
       possession of the fixtures that had been taken out of the Residence. We find this to be a distinction without a
       difference.

       Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018                      Page 16 of 19
       overcome Carney’s qualified privilege defense. Accordingly, the trial court did

       not err in denying Carney’s motion for judgment on the evidence.


       Section 3 – The jury verdict is not excessive, and the trial court
         did not abuse its discretion in denying Carney’s motion to
                                 correct error.
[26]   Following the trial court’s entry of judgment on the jury’s award of $256,000 in

       damages to Patino, Carney filed a motion to correct error asserting that he was

       entitled to a new trial due to “the excessiveness of the jury verdict.” Appellant’s

       App. Vol. 5 at 158. This Court has explained that the remedy offered by

       Indiana Trial Rule 59(J)(5) is “available only where the evidence is insufficient

       to support the verdict as a matter of law.” Solnosky v. Goodwell, 892 N.E.2d 174,

       184 (Ind. Ct. App. 2008) (quoting City of Carmel v. Leeper Elec. Servs., Inc., 805

       N.E.2d 389, 392 (Ind. Ct. App. 2004), trans. denied). Once the trial court has

       entered final judgment on the evidence for the amount of proper damages, we

       will reverse the decision only for an abuse of discretion. Id.


[27]   We afford a jury’s damage award great deference on appeal. Sims v. Pappas, 73

       N.E.3d 700, 709 (Ind. 2017). In considering whether a jury verdict is excessive,

       we do not reweigh the evidence and look only to the evidence and reasonable

       inferences that may be drawn therefrom that support the verdict. West v. J. Greg

       Allen Builder, Inc., 92 N.E.3d 634, 643 (Ind. Ct. App. 2017), trans. denied (2018).

       If there is any evidence in the record which supports the amount of the award,

       even if it is variable or conflicting, the award will not be disturbed. Sandberg

       Trucking, Inc. v. Johnson, 76 N.E.3d 178, 189 (Ind. Ct. App. 2017). “To warrant

       Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018   Page 17 of 19
       reversal, the award must appear to be so outrageous as to impress the Court at

       first blush with its enormity.” Id. (citation and quotation marks omitted). An

       award is not excessive unless the amount cannot be explained upon any basis

       other than prejudice, passion, partiality, corruption, or some other element of

       improper consideration. Sims, 73 N.E.3d at 709.


[28]   Carney complains that “Patino presented no medical expenses, no lost wages,

       and no documented losses of any kind” to support the jury’s damage award.

       Appellant’s Br. at 44. He argues that “[e]ven if there is an emotional toll

       associated with being charged with a crime, there is no justification for so large

       a verdict.” Id. at 45. We disagree.


[29]   “Awards for pain, suffering, fright, humiliation, and mental anguish are

       particularly within the province of the jury because they involve the weighing of

       evidence and credibility of witnesses.” Landis v. Landis, 664 N.E.2d 754, 757

       (Ind. Ct. App. 1996). Indeed, “[p]hysical and mental pain are, by their very

       nature, not readily susceptible to quantification, and therefore, the jury is given

       very wide latitude in determining these kinds of damages.” Groves v. First Nat’l

       Bank of Valparaiso, 518 N.E.2d 819, 831 (Ind. Ct. App. 1988). “Our inability to

       actually look into the minds of jurors and determine how they computed an

       award is, to a large extent, the reason behind the rule that a verdict will be

       upheld if the award falls within the bounds of the evidence.” Griffin v. Acker, 659

       N.E.2d 659, 664 (Ind. Ct. App. 1995).




       Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018   Page 18 of 19
[30]   The evidence favorable to the verdict reveals that, in addition to the monetary

       cost incurred in defending his criminal trial, Patino suffered great mental and

       emotional pain due to the highly publicized charge and arrest. His criminal

       case was pending for more than five years, and he presented evidence of the

       negative impact that it had, and continues to have, on both his personal and

       professional life. Under the circumstances, the $256,000 award is not so

       outrageous as to indicate that the jury was motivated by prejudice, passion,

       partiality, corruption, or some other element of improper consideration.

       Carney has failed to persuade us that the trial court abused its discretion in

       denying his motion to correct error.8 We therefore affirm the verdict and the

       trial court’s judgment entered thereon.


[31]   Affirmed.


       Najam, J., and Pyle, J., concur.




       8
         Carney also argues that the verdict should be set aside because the “evidence presented should have led the
       jury to conclude that the qualified privilege applied.” Appellant’s Br. at 42. This is essentially a request for
       us to reweigh the evidence and reassess witness credibility on the issue of whether he abused the privilege,
       which we cannot do. See West, 92 N.E.3d at 643 (when party seeks to reverse adverse judgment on basis of
       insufficient evidence, appellate court will not weigh evidence or assess witness credibility). Carney also
       briefly submits, without citation to authority, that the jury’s allocation of 80% fault to him for Patino’s
       injuries was unreasonable. It is well settled that the allocation of fault is entrusted to the sound judgment of
       the factfinder. Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1056 (Ind. 2003). Carney’s sole argument
       in this regard appears to be simply a disagreement with the jury’s conclusion. Without more, we decline to
       address the issue further.

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