MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Oct 19 2016, 8:53 am
regarded as precedent or cited before any                                 CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court


estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Beverly R. Newman                                        Arthur C. Johnson, II
Bradenton, Florida                                       Steven A. Johnson
                                                         Johnson Stracci & Ivancevich,
                                                         LLP
                                                         Merrillville, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Beverly R. Newman,                                       October 19, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         49A02-1604-PL-843
        v.                                               Appeal from the Marion Superior
                                                         Court
Meijer, Inc.                                             The Honorable James B. Osborn,
Appellee-Defendant.                                      Judge
                                                         Trial Court Cause No.
                                                         49D14-1010-PL-43302



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1604-PL-843 | October 19, 2016        Page 1 of 7
                                          Case Summary
[1]   Beverly Newman sued Meijer, Inc., claiming she had been injured when she fell

      at one of its stores. A jury found in favor of Meijer, and Newman appeals,

      challenging a variety of rulings made by the trial court before and during trial.

      Finding no error, we affirm.



                            Facts and Procedural History
[2]   The history of this case is long and complicated, but the basic background is as

      follows: On October 4, 2008, Newman was walking through a Meijer store in

      Indianapolis when she stepped in watermelon juice and fell. She later sued

      Meijer, claiming she was injured in the fall, accusing Meijer of negligence, gross

      negligence, and negligent infliction of emotional distress, and seeking

      compensatory and punitive damages. More than seven years after Newman’s

      fall, in March 2016, the case was tried to a jury. Newman requested and was

      granted permission to represent herself via video-conferencing. The jury

      concluded that Meijer was not at fault and returned a verdict in its favor.

[3]   Newman, still proceeding pro se, now appeals.



                                 Discussion and Decision
[4]   Newman contends that the trial court committed numerous errors before and

      during trial. We have examined all of Newman’s appellate arguments—some

      of which are clearer than others—and we conclude that each one is either


      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-PL-843 | October 19, 2016   Page 2 of 7
      waived, non-reviewable, or unsupported by the limited record she provided to

      us.

[5]   Newman’s primary claim is that the trial court imposed an inadequate sanction

      in response to discovery violations committed by Meijer. In its pretrial order,

      the court found that “several documents relative to the October 4, 2008 incident

      should have been in Meijer’s possession and should have been produced in

      discovery, but were not,” including accident reports, the company’s policy

      regarding slips and falls, minutes of a safety meeting, inspection records,

      personnel records, and video recordings. Appellant’s App. p. 18-19. The court

      said that it “will give the standard spoliation instruction in the final

      instructions” and that Newman “will be allowed to argue in closing argument

      that the documents Meijer could have produced, but did not, would have been

      unfavorable to . . . Meijer’s case.” Id. at 20. Newman argues that this sanction

      was insufficient and that the trial court should have instead granted her a

      default judgment.

[6]   As Newman observes, our Supreme Court has recognized that spoliation of

      evidence can significantly hinder an opposing party’s case and can therefore

      justify severe sanctions. See Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349

      (Ind. 2005). Still, a party asserting that a trial court erred by failing to impose

      the ultimate sanction of default judgment must overcome two well-established

      principles. First, trial courts enjoy broad discretion in determining the

      appropriate sanctions for discovery violations, and we will reverse such a

      determination only for an abuse of that discretion. Reed v. Cassady, 27 N.E.3d

      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-PL-843 | October 19, 2016   Page 3 of 7
      1104, 1111 (Ind. Ct. App. 2015), reh’g denied, trans. denied. Second, default

      judgment is an extreme sanction that should be imposed in extreme situations.

      See, e.g., Prime Mortgage USA, Inc. v. Nichols, 885 N.E.2d 628, 649 (Ind. Ct. App.

      2008). But there is a more fundamental problem with Newman’s claim: she has

      not provided us with a transcript of the trial, transcripts of the pretrial hearings

      at which spoliation was addressed, or the text of the spoliation instruction. As

      a result of this failure, we have no way of reviewing the evidence presented at

      trial or evaluating whether the sanction chosen by the trial court was sufficient

      to address Meijer’s discovery violations. Therefore, we have no basis on which

      to conclude that the trial court abused its discretion by declining to enter the

      litigation-ending sanction of default judgment.

[7]   While Newman has not provided us with a transcript of the entire trial, her

      appendix does include a transcript of Meijer’s opening statement. She argues

      that even if a default judgment was not appropriate before trial, certain

      inflammatory comments made during that opening statement should have

      prompted the trial court to enter a default judgment or declare a mistrial.

      However, as Meijer notes, Newman did not object to any of those comments

      during trial. Therefore, she waived any such claim. See, e.g., Gasaway v. State,

      547 N.E.2d 898, 900 (Ind. Ct. App. 1989) (holding that failure to make timely

      objections to alleged misstatements during opening statement constitutes waiver

      of error), reh’g denied, trans. denied.


[8]   Newman also contends that Meijer engaged in misconduct when it said during

      its opening statement that it would be calling certain employees as witnesses but

      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-PL-843 | October 19, 2016   Page 4 of 7
      then failed to actually call them. There is no indication in the record before us

      that Newman raised this issue with the trial court, so she waived any claim of

      error in this regard. In any event, Newman does not cite any authority in

      support of her argument, and it is by no means uncommon for parties to alter

      their witness strategies as trial proceeds. Furthermore, when Meijer failed to

      call witnesses it said it would be calling, it did so at its own peril, and Newman

      was free to highlight this failure during her closing argument.

[9]   Next, Newman argues that the trial court abused its discretion by granting two

      motions in limine filed by Meijer: one seeking to exclude settlement letters sent

      by Newman’s husband/attorney to Meijer before suit was filed, and one

      seeking to exclude evidence of various government actions taken against

      Meijer. But the Indiana Supreme Court has made clear that a trial court’s

      ruling on a motion in limine is not itself reviewable on appeal. See, e.g., TRW

      Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 216 (Ind. 2010) (“It is only

      those rulings on admissibility made during trial, not those made on motions in

      limine, that may be raised on appeal.”); McCarthy v. State, 749 N.E.2d 528, 537

      (Ind. 2001). The purpose of a motion in limine is “‘to prevent the proponent of

      potentially prejudicial matter from displaying it to the jury, making statements

      about it before the jury, or presenting the matter to a jury in any manner until

      the trial court has ruled upon its admissibility in the context of the trial itself.’”

      Rohrkaste v. City of Terre Haute, 470 N.E.2d 738, 741 (Ind. Ct. App. 1984)

      (quoting Lagenour v. State, 268 Ind. 441, 376 N.E.2d 475, 481 (1978)), reh’g

      denied, trans. denied. As such, the grant of such a motion “is nothing more than


      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-PL-843 | October 19, 2016   Page 5 of 7
       a preliminary order requiring counsel to alert the court during trial to any

       proposed reference to a matter covered by the granted motion so that the court

       can make its final ruling on the propriety of the line of questioning.” Id. To

       preserve error, a party must do more than object to the grant of the motion; it

       must, out of the hearing of the jury, propose to ask a certain question at trial

       and have the court prohibit it. Id. Here, Newman has not even alleged that she

       sought to have the challenged evidence admitted at trial, and she has not

       provided us with a transcript of the trial. Therefore, there is no evidentiary

       ruling for us to review.1

[10]   Newman’s final two arguments are that the trial court “abused its discretion by

       discriminating against [her] throughout the case below on the basis of her

       disabilities” and “denied [her] due process of law under the federal and Indiana

       Constitutions[.]” Appellant’s Br. p. 44, 49. She does not support these

       arguments with cogent reasoning or citations to relevant legal authority, as

       required by Indiana Appellate Rule 46(A)(8)(a). As such, they are waived. See

       City of Indianapolis v. Buschman, 988 N.E.2d 791, 795 (Ind. 2013).


[11]   Affirmed.




       1
         Newman cites three decisions in which Indiana courts have addressed pretrial rulings on motions in limine,
       but all three decisions arose from interlocutory appeals specifically challenging those pretrial rulings. See
       McClain v. State, 678 N.E.2d 104 (Ind. 1997), reh’g denied; Perry v. Gulf Stream Coach, Inc., 871 N.E.2d 1038
       (Ind. Ct. App. 2007), trans. denied; Hopper v. Carey, 716 N.E.2d 566 (Ind. Ct. App. 1999), trans. denied. This is
       not an interlocutory appeal.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-PL-843 | October 19, 2016                Page 6 of 7
Baker, J., and Bradford, J., concur.




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