Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                          Mar 18 2014, 9:35 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

JOHN P. DALY, JR.                                 JULIA BLACKWELL GELINAS
MATTHEW M. GOLITKO                                MAGGIE L. SMITH
Golitko & Daly, PC                                ERIC A. RIEGNER
Indianapolis, Indiana                             Frost Brown Todd LLC
                                                  Indianapolis, Indiana

                                                  STEVEN J. MOSS
                                                  Duke Energy Business Services LLC
                                                  Plainfield, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

RENEE BERRY, AS PERSONAL REPRESENTATIVE )
OF THE ESTATE OF JEFFREY BERRY, DECEASED, )
                                          )
       Appellant-Plaintiff,               )
                                          )
              vs.                         )                  No. 49A02-1306-CT-483
                                          )
DUKE ENERGY INDIANA, INC.,                )
d/b/a DUKE ENERGY,                        )
                                          )
       Appellee-Defendant.                )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Thomas J. Carroll, Judge
                             Cause No. 49D06-1001-CT-2683


                                        March 18, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge
                             STATEMENT OF THE CASE

       Renee Berry (“Berry”), as Personal Representative of the Estate of Jeffrey Berry

(“Jeffrey”), appeals the trial court’s judgment in favor of Duke Energy Indiana, Inc. d/b/a

Duke Energy (“Duke”) on Berry’s complaint alleging negligence following a jury trial.

Berry presents two issues for our review:

       1.     Whether the magistrate who presided over the final day of trial had
              authority to hear the case and enter a final judgment.

       2.     Whether alleged misconduct by Duke’s counsel during trial is
              grounds for a new trial.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On September 10, 2008, Jeffrey, a traffic signal technician for the City of

Kokomo, was performing maintenance on traffic signals at the intersection of Mulberry

and Washington Streets. Jeffrey had parked his truck in the right lane of travel and

redirected travel from that lane into the left lane. As Jeffrey performed maintenance on

the traffic signals, he stood on a platform that extended from the bed of the truck and

moved up, down, right, and left as needed. At times, Jeffrey moved the platform to a

position over the left lane of travel. Jeffrey was not utilizing the available safety harness,

lanyard, or hard hat as he performed the work on the platform that day. And he raised the

platform to a height of thirteen feet, two inches instead of the recommended height of

sixteen feet, which would accommodate all types of trucks passing underneath the

platform.




                                              2
       At approximately 10:00 a.m., Annette Patchett, a Duke employee, was driving a

semi-truck and trailer in the scope of her employment when she approached the

intersection where Jeffrey was working on the platform. She observed that the platform

was positioned over the right lane of travel, and she stopped her truck in the left lane of

travel while she waited for the traffic signal to turn green. After the light changed and

Patchett began to drive straight through the intersection underneath the traffic signal,

Jeffrey moved the platform toward the traffic signal over the left lane of travel. The

trailer of Patchett’s truck was thirteen feet, six inches tall, and as she passed under the

traffic signal, Jeffrey’s platform collided with the top of the trailer. As a result of the

collision, Jeffrey fell off of the platform and sustained severe injuries. Jeffrey died a few

days later.

       On January 15, 2010, Berry filed a complaint against Duke and Patchett alleging

negligence in causing Jeffrey’s death. Berry subsequently filed an amended complaint

and named as an additional defendant Delphi Body Works (“Delphi”), the manufacturer

of the platform truck Jeffrey used on the date of the accident. Berry subsequently

removed Delphi as a defendant in her third amended complaint. On the second day of the

three-day jury trial, Berry dismissed Patchett from the case, leaving Duke as the sole

defendant. And on the third day of trial, Judge Thomas J. Carroll did not appear due to

illness, so his magistrate Christopher B. Haile presided without objection.          At the

conclusion of the trial, the jury found that Jeffrey was 51% at fault in causing the

accident and returned a verdict in favor of Duke. Magistrate Haile entered judgment




                                             3
accordingly. Berry filed a motion to correct error, which the trial court denied following

a hearing. This appeal ensued.

                             DISCUSSION AND DECISION

                            Issue One: Magistrate’s Authority

       Berry first contends that, because Magistrate Haile was not appointed as judge pro

tempore when he presided over the third day of trial and entered judgment, the judgment

in favor of Duke is “a nullity.” Appellant’s Brief at 8. In support of that contention,

Berry cites Floyd v. State, 650 N.E.2d 28, 30 (Ind. 1994), where our supreme court

observed:

       The Indiana Constitution requires that judicial acts be performed only by
       judges. Ind. Const. art. 7, § 1. Thus, only a duly elected or appointed judge
       of the court or a duly appointed judge pro tempore or special judge may
       enter an appealable final judgment, including a criminal sentence. When a
       court official who is not a duly elected or appointed judge of the court
       purports to make a final order or judgment, that decision is a nullity.

(Some citations omitted). Berry further contends that Indiana Code Section 34-35-1-5

mandates that where, as here, the sitting trial judge takes ill and is absent for fewer than

three days, the court shall be adjourned until the judge returns. We cannot agree with

Berry’s assertion that the trial court’s judgment is a nullity.

       First, Indiana Code Section 34-35-1-5 provides in relevant part that, if a judge is

prevented from presiding during any session of court by reason of sickness, the sheriff

may adjourn the court “from day to day.”           But nothing in that statute prohibits a

magistrate from presiding over one day of trial due to the sitting judge’s illness. And

under Indiana Code Section 33-23-5-5, a magistrate is authorized to conduct a trial and



                                               4
receive a jury’s verdict. Moreover, to the extent Berry contends that she was prejudiced1

by the change of judge mid-trial and denied her right to trial, Berry made no objection to

Magistrate Haile’s presiding over the final day of trial or moved for a continuance. In

Tapia v. State, 753 N.E.2d 581, 588 (Ind. 2001), our supreme court held that the

defendant waived any challenge to a magistrate’s authority to preside over portions of his

post-conviction proceeding when he failed to make any objection. Likewise, here, Berry

cannot object to the magistrate’s authority to hear the final day of her trial for the first

time on appeal.2

        Second, after Berry filed her notice of appeal in this case, Duke moved this court

for limited remand, which was granted, and the appeal was temporarily stayed. On

remand, Judge Carroll issued a signed, final judgment in favor of Duke. Thereafter, this

appeal resumed.        Thus, any defect in the magistrate’s entry of judgment has been

corrected.

                           Issue Two: Alleged Attorney Misconduct

        Berry next contends that Duke’s trial counsel committed several acts of

misconduct throughout the course of the trial. Berry maintains that the cumulative effect




        1
            In support of her contention that she was prejudiced by the change of judge mid-trial, Berry
cites In re D.P., 994 N.E.2d 1228 (Ind. Ct. App. 2013), where we held that a parent’s right to due process
was violated when the magistrate who presided over the evidentiary hearing was different from the
magistrate who suggested findings and conclusions to the juvenile court. That case, a bench trial, is
obviously distinguishable from this case, which was tried to a jury. Accordingly, the holding in In re D.P.
is inapposite.
        2
           During the hearing on her motion to correct error, Berry attempted to amend her motion to
include a challenge to the magistrate’s authority to preside over the third day of trial “without consent of
the parties.” Transcript at 598. But the trial court denied Berry permission to amend her motion to
correct error to include that new issue.
                                                     5
of the alleged misconduct “is grounds for a new trial.” Appellant’s Brief at 15. We

cannot agree.

        Initially, we note that Berry asserts that Judge Carroll orally granted several

motions in limine and that Duke violated at least three of the trial court’s orders in limine.

But during the hearing on Berry’s motion to correct error, Judge Carroll stated that he did

not make any rulings on the motions in limine. And Berry does not direct us to anything

in the record showing that the trial court issued orders in limine. Accordingly, Berry’s

contention on this issue is without merit.

        Moreover, even if Judge Carroll had granted any motions in limine,

contemporaneous objections were still required to preserve those issues for appeal. See

Owens v. State, 937 N.E.2d 880, 885 (Ind. Ct. App. 2010), trans. denied. But Berry did

not preserve any of her allegations of misconduct through a contemporaneous objection,

a request for an admonishment, and/or a motion for a mistrial. See Dumont v. Davis, 992

N.E.2d 795, 807 (Ind. Ct. App. 2013). For instance, during voir dire, Duke remarked to

prospective jurors: “Who wins a tie? It’s the defendant.” Transcript at 97. On appeal,

Berry contends that that remark led to the jury’s confusion on the allocation of fault

under the Comparative Fault Act, but Berry made no objection to the trial court.3

Accordingly, the issue is waived. Waiver notwithstanding, Duke’s counsel made the



        3
           Berry submitted to the trial court an affidavit prepared by the jury foreperson indicating that the
jurors had been confused by this remark and would have allocated fault differently had they not been so
confused. The trial court struck that affidavit from the record. Berry attempts to rely on that affidavit in
support of her argument on appeal, but Duke moved to strike the affidavit from the appellate record. We
grant that motion by separate order. And while Berry appears to challenge the trial court’s ruling in
striking that affidavit in her “Statement of the Issues” in her brief on appeal, she does not include any
argument with regard to that issue in the argument section of her brief. Accordingly, we do not address
whether the trial court erred when it struck the juror affidavit from the record.
                                                      6
challenged remark in explaining Berry’s burden to prove Patchett’s negligence by a

preponderance of the evidence. Berry’s counsel had explained to a prospective juror

during voir dire that a preponderance of the evidence means that Berry has to tip the

scales of justice “just a little bit” to show Patchett’s negligence. Transcript at 44. Thus,

the challenged remark, in context, is essentially the same concept stated by Berry’s

counsel. Moreover, the trial court properly instructed the jury on the allocation of fault,

and the jury was provided with appropriate verdict forms consistent with the instruction

on fault allocation. Berry’s contention on this issue must fail.

       Berry also alleges that Duke’s counsel committed misconduct during cross-

examination of Berry. In particular, Duke referred to Berry’s claim against Delphi,

which had been dismissed as a defendant prior to trial. And, when questioning Berry

about her claimed damages, Duke referred to an economic loss report prepared by an

expert witness for Berry which was not admitted into evidence at trial. Berry maintains

that both lines of questioning prejudiced her. But the trial court sustained Berry’s

objections to both, and Berry did not request an admonishment, curative instruction, or

mistrial. Accordingly, Berry cannot now complain. See Dumont, 992 N.E.2d at 807.

       Berry also contends that Duke’s counsel committed misconduct during direct

examination of Duke’s expert witness Nick Tumbas.            Once again, Berry made no

objection to the challenged testimony. Accordingly, the issue is waived. See id.

       Finally, Berry contends that Duke’s counsel committed numerous acts of

misconduct during closing argument, including alleged violations of the Rules of

Professional Conduct and the evidence rules. But Berry did not make a single objection


                                              7
to any of the alleged acts of misconduct. In an effort to excuse her lack of diligence in

making objections during Duke’s closing argument, Berry contends that objections are

“futile at best and harmful at worst.” Appellant’s Brief at 20. And she attempts to argue

that contemporaneous objections are unnecessary to preserve an issue for appeal if it is

raised in a motion to correct error.4 But Berry ignores decades of established precedent,

which clearly provides that she was required, at a minimum, to object to the alleged

misconduct to preserve the issues for appeal. As our supreme court has held:

       To preserve an issue regarding the propriety of a closing argument for
       appeal, a defendant must do more than simply make a prompt objection to
       the argument. Defendant must also request an admonishment, and if
       further relief is desired, defendant must move for a mistrial. If the trial
       court gives the requested admonishment, generally any error is deemed
       cured. Failure to request an admonishment or move for a mistrial results in
       waiver of the issue. Generally this is so, even if the court has overruled a
       timely objection.

Wright v. State, 690 N.E.2d 1098, 1111 (Ind. 1997). Berry’s contentions regarding

Duke’s closing argument are waived.

       Affirmed.

BAKER, J., and CRONE, J., concur.




       4
          Berry relies on case law that is not relevant to a party’s failure to make contemporaneous
objections or request curative instructions during trial. Obviously, not all trial errors require
contemporaneous objections.
                                                 8
