                                                                     FILED
                                                                 Dec 13 2017, 6:20 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Dana M. Eberle-Peay                                       Michael C. Cooley
McNeely Stephenson                                        Eric N. Allen
New Albany, Indiana                                       Allen Wellman McNew
                                                          Harvey, LLP
                                                          Greenfield, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Childress Cattle, LLC,                                    December 13, 2017
Appellant-Claimant,                                       Court of Appeals Case No.
                                                          70A05-1706-EU-1442
        v.                                                Appeal from the Rush Superior
                                                          Court
The Estate of Roger F. Cain,                              The Honorable Brian D. Hill,
Christie Cain, Personal                                   Judge
Representative,                                           Trial Court Cause No.
Appellee-Respondent                                       70D01-1602-EU-5




Baker, Judge.




Court of Appeals of Indiana | Opinion 70A05-1706-EU-1442 | December 13, 2017             Page 1 of 14
[1]   Childress Cattle, LLC (Childress Cattle), filed a claim against the Estate of

      Roger F. Cain (the Estate), alleging that Roger Cain’s business, R&C Cain

      Farms (Cain Farms) owed it money. The trial court disallowed Childress

      Cattle’s claim. Childress Cattle appeals, arguing that the trial court erred in

      excluding certain evidence. Finding no error, we affirm.


                                                     Facts
[2]   Roger Cain (Roger) was the sole proprietor of Cain Farms. Childress Cattle is a

      cattle broker located in Kentucky and owned by James Childress (James) and

      Bonnie Childress (Bonnie). Roger occasionally purchased cattle from Childress

      Cattle. Each purchase was separate and distinct and was conducted verbally by

      telephone. Childress Cattle’s records of these transactions consist of undated

      handwritten notations on documents from other purchases that Childress Cattle

      made from other brokers and stockyards.


[3]   On January 13, 2016, Roger died. On February 23, 2016, the Estate was

      opened, and his widow, Christie Cain (Christie), was appointed personal

      representative. On April 5, 2016, Childress Cattle filed a claim against the

      Estate for $217,770.37 as recovery of payment for certain cattle that Roger had

      allegedly ordered and that were allegedly delivered to Cain Farms sometime

      before Roger’s death. On April 21, 2016, the Estate disallowed the claim. On

      November 17, 2016, Childress Cattle amended its claim to the amount of

      $294,631.98.




      Court of Appeals of Indiana | Opinion 70A05-1706-EU-1442 | December 13, 2017   Page 2 of 14
[4]   A hearing took place on April 17, 2017. The Estate objected to the testimony of

      James and Bonnie, arguing that they were incompetent to testify under

      Indiana’s Dead Man’s Statute.1 The Estate also objected to the admission of

      Childress Cattle’s invoices to Roger, arguing that the invoices required context

      to interpret, which could be provided only by the testimony that was barred

      under the Dead Man’s Statute.


[5]   The trial court did not allow James and Bonnie to testify, finding that they were

      incompetent under the Dead Man’s Statute, and did not admit the invoices into

      evidence, finding that the testimony of James and Bonnie was necessary to

      establish a foundation for such evidence and that they would continue to be

      incompetent witnesses as to the admission of the evidence. The trial court

      allowed five truck drivers to testify on behalf of Childress Cattle regarding

      specific deliveries of cattle they made to Cain Farms for Childress Cattle. The

      trial court also allowed the testimony of an expert witness about standard

      practices in the cattle industry. The trial court admitted Childress Cattle’s

      exhibits of trucking invoices, veterinary testing records, and some checks that

      Childress Cattle had received as payment from Cain Farms.


[6]   On May 30, 2017, the trial court disallowed Childress Cattle’s claim, finding

      that it did not prove that it had not been paid in full. The trial court provided

      that James and Bonnie could make offers of proof as to their testimony and




      1
          Ind. Code § 34-45-2-4.


      Court of Appeals of Indiana | Opinion 70A05-1706-EU-1442 | December 13, 2017   Page 3 of 14
      business records either by affidavit or testimony in open court. On June 22,

      2017, Childress Cattle filed two offers of proof, one by James and one by

      Bonnie. Childress Cattle now appeals.


                                    Discussion and Decision
[7]   Childress Cattle argues that the trial court erred in excluding the testimony of

      James and Bonnie and in excluding Childress Cattle’s invoices as evidence.


                                     I. Dead Man’s Statute
[8]   Indiana’s Dead Man’s Statute provides in relevant part:


              (a) This section applies to suits or proceedings:


                       (1) in which an executor or administrator is a party;


                       (2) involving matters that occurred during the lifetime of
                       the decedent; and


                       (3) where a judgment or allowance may be made or
                       rendered for or against the estate represented by the
                       executor or administrator.


                                                       ***


              (c) This section does not apply to a custodian or other qualified
              witness to the extent the witness seeks to introduce evidence that
              is otherwise admissible under Indiana Rule of Evidence 803(6).


              (d) . . . [A] person:


      Court of Appeals of Indiana | Opinion 70A05-1706-EU-1442 | December 13, 2017   Page 4 of 14
                       (1) who is a necessary party to the issue or record; and


                       (2) whose interest is adverse to the estate;


              is not a competent witness as to matters against the estate.


      I.C. § 34-45-2-4.


[9]   The Dead Man’s Statute establishes as a matter of legislative policy that

      claimants to the estate of a deceased person should not be permitted to present a

      court with their version of their dealings with the decedent. In re Estate of

      Rickert, 934 N.E.2d 726, 731 (Ind. 2010). Our Court has explained that


              Generally, when an executor or administrator of an estate is one
              party, the adverse parties are not competent to testify about
              transactions that took place during the lifetime of the decedent.
              Furthermore, the general purpose of the statutes is to protect
              decedents’ estates from spurious claims. The Dead Man’s
              Statutes guard against false testimony by a survivor by
              establishing a rule of mutuality, wherein the lips of the surviving
              party are closed by law when the lips of the other party are closed
              by death.


              We have held that the Dead Man’s Statutes apply to all cases in
              which a judgment may result for or against the estate,
              notwithstanding the parties’ positions as plaintiff or defendant.
              In addition, neither the express language of the statutes nor
              accepted concepts of fairness should preclude application of the
              statutes so long as no statements made by the decedent are
              admitted through depositions or public records made during his
              life.



      Court of Appeals of Indiana | Opinion 70A05-1706-EU-1442 | December 13, 2017   Page 5 of 14
       J.M. Corp. v. Roberson, 749 N.E.2d 567, 571 (Ind. Ct. App. 2001) (internal

       citations omitted).


                          II. Testimony of James and Bonnie
       Childress Cattle first argues that the trial court erred by precluding Bonnie from

       testifying about conversations that took place with Christie after Roger’s death.

       Where the trial court rules on witness competency, the ruling will be reversed

       only when the ruling is against the logic and effect of the facts and

       circumstances before the trial court. Roberson, 749 N.E.2d at 571.


[10]   Initially, we note that neither party filed an appendix. The purpose of an

       appendix in civil appeals is to present the Court with copies of the parts of the

       record “that are necessary for the Court to decide the issues presented.” Ind.

       Appellate Rule 50(A)(1). “The appellant shall file its Appendix on or before the

       date on which the appellant's brief is filed. The appellee shall file its Appendix,

       if any, with its appellee’s brief.” App. R. 49. “Any factual statement shall be

       supported by a citation to the volume and page where it appears in an

       Appendix, and if not contained in an Appendix, to the volume and page it

       appears in the Transcript or exhibits . . . . Any record material cited in an

       appellate brief must be reproduced in an Appendix or the Transcript or

       exhibits.” App. R. 22(C).


[11]   Childress Cattle did not file an appendix, instead submitting only the transcript

       of the hearing, the exhibits that the trial court admitted during the hearing, and

       the trial court’s order. Childress Cattle should have filed an appendix that

       Court of Appeals of Indiana | Opinion 70A05-1706-EU-1442 | December 13, 2017   Page 6 of 14
       included all pertinent filings, especially the offers of proof that James and

       Bonnie submitted to the trial court and its invoices. Although both parties cite

       the offers of proof, no such documents are in the record.


[12]   We will nonetheless endeavor to address the issue despite the lack of an

       appendix and supporting record. According to Childress Cattle, Bonnie is

       prepared to testify about conversations with Christie that took place after

       Roger’s death regarding the overdue balance on Cain Farms’ account in the

       amount of $294,631.98 for the cattle ordered by, delivered to, and accepted by

       Roger on behalf of Cain Farms. Bonnie is also prepared to testify that upon

       Christie’s request, Bonnie faxed additional copies of all relevant invoices to

       Christie to facilitate settlement of the overdue amount. According to the Estate,

       the language of Bonnie’s offer of proof indicates that the conversations with

       Christie took place during Roger’s lifetime; that Bonnie does not allege that she

       had any discussions with Christie after Roger’s death; and that Bonnie does not

       allege that Christie agreed that Roger owed Childress Cattle a balance.

       Childress Cattle does not address the substance of James’s offer of proof.


[13]   Childress Cattle argues that because the conversations to which Bonnie wants

       to testify took place after Roger’s death, the Dead Man’s Statute does not apply

       and cannot preclude her from testifying. But even if Bonnie’s proposed

       testimony is about conversations with Christie that took place after Roger’s

       death, the substance of those conversations involves oral contracts that

       Childress Cattle and Roger may have formed during Roger’s lifetime. In

       essence, Bonnie’s proposed testimony would present the trial court with

       Court of Appeals of Indiana | Opinion 70A05-1706-EU-1442 | December 13, 2017   Page 7 of 14
       Childress Cattle’s version of its dealings with Roger, who cannot testify to his

       version of any oral contracts because his lips are closed by death. This

       proposed testimony, therefore, is precisely what the Dead Man’s Statute aims to

       preclude.


[14]   Childress Cattle also argues that the trial court erred by precluding James and

       Bonnie from testifying about all other matters. Childress Cattle never specifies

       any other proposed testimony but rather states generally that it can establish the

       amount of its claim “with testimony allowed by the Dead Man’s Statute as well

       as with the admission of further evidence.” Appellant’s Br. p. 17. Without

       facts about the substance of the proposed testimony on other matters, we

       cannot review whether it would be allowed or precluded under the Dead Man’s

       Statute. Accordingly, Childress Cattle’s argument regarding testimony on other

       matters is unavailing.


[15]   In sum, the trial court did not err by excluding the testimony of James and

       Bonnie.


                                           III. The Invoices
[16]   Childress Cattle next argues that the trial court erred by excluding its invoices

       as evidence. Specifically, Childress Cattle argues that the Dead Man’s Statute

       allows it to present evidence that is otherwise admissible under Indiana Rule of

       Evidence 803(6).


[17]   The Dead Man’s Statute provides that it “does not apply to a custodian or other

       qualified witness to the extent the witness seeks to introduce evidence that is
       Court of Appeals of Indiana | Opinion 70A05-1706-EU-1442 | December 13, 2017   Page 8 of 14
       otherwise admissible under Indiana Rule of Evidence 803(6).” I.C. § 34-45-2-

       4(C). Indiana Rule of Evidence 803(6) governs the exception to hearsay

       evidence regarding records of regularly conducted business activity and

       provides that the following are not excluded by the rule against hearsay:


               (6) Records of a Regularly Conducted Activity. A record of an
               act, event, condition, opinion, or diagnosis if:


                        (A) the record was made at or near the time by — or from
                        information transmitted by — someone with knowledge;


                        (B) the record was kept in the course of a regularly
                        conducted activity of a business, organization, occupation,
                        or calling, whether or not for profit;


                        (C) making the record was a regular practice of that
                        activity;


                        (D) all these conditions are shown by the testimony of the
                        custodian or another qualified witness, or by a certification
                        that complies with Rule 902(9) or (10) or with a statute
                        permitting certification; and


                        (E) neither the source of information nor the method or
                        circumstances of preparation indicate a lack of
                        trustworthiness.


[18]   We note again that the failure to file an appendix frustrates our analysis of this

       issue, but we will still consider it. According to Childress Cattle, in Bonnie’s

       offer of proof, Bonnie identified herself as the company’s office manager and

       accountant and stated that she would testify that she maintains the files for each

       Court of Appeals of Indiana | Opinion 70A05-1706-EU-1442 | December 13, 2017   Page 9 of 14
       customer, including for Cain Farms, which contain all relevant invoices,

       identification of the cattle purchased, shipping invoices, and payments received;

       that the records are created in the normal course of business; that she is familiar

       with the transactions recorded; that the records are created at or near the time

       of the recorded events; and that Childress Cattle relies on these records to track

       sales, deliveries, and accounts receivable.


[19]   Childress Cattle asserts that the accuracy of its invoices is supported by

       evidence already admitted, including testimony from five truck drivers

       regarding eight occasions in 2015 on which Cain Farms accepted cattle

       delivered from Childress Cattle. But Childress Cattle does not point to any

       testimony from the truck drivers that establishes that the invoices are regularly

       conducted business records under Rule 803(6), nor do we find any. Testimony

       regarding Roger’s veterinary records and Cain Farm’s past payments to

       Childress Cattle is similarly unhelpful in establishing that the invoices are

       records of regularly conducted activity.


[20]   Childress Cattle also contends that the reliability of its invoices would be

       bolstered if the trial court allowed testimony about its invoices for the purchases

       of cattle from the stockyards, including the dates of those purchases, and the

       market price of cattle on and around certain dates. According to Childress

       Cattle, this evidence “conclusively establishes” that cattle was delivered to Cain

       Farms at Childress Cattle’s behest and that Cain Farms paid Childress Cattle

       $380,607.65 as partial payment. Appellant’s Br. p. 15. Yet Childress Cattle

       fails to include in its brief any specific facts that would “conclusively establish”

       Court of Appeals of Indiana | Opinion 70A05-1706-EU-1442 | December 13, 2017   Page 10 of 14
       these points, nor can it point to an appendix to support its contentions.

       Further, we fail to see how invoices relating to transactions between Childress

       Cattle and third parties establishes that invoices relating to totally separate and

       distinct transactions between Childress Cattle and Cain Farms are records of

       regularly conducted activity.


[21]   Moreover, although Childress Cattle argues that its invoices “establish the total

       amount of the claim,” it also acknowledges that its invoices “will show that

       some of the payments made by the Estate [to Childress Cattle] match precisely

       to particular invoices, while other payments made by the Estate are clearly

       partial payments toward the total account balance with Childress [Cattle].” Id.

       at 19. Without specific facts, the offers of proof, or an appendix to support its

       claim, Childress Cattle is essentially asking this Court to take it at its word,

       regardless of any discrepancies that may exist in the evidence it wants to

       present, that its invoices are records of a regularly conducted activity. As a

       result, we find that the circumstances indicate a lack of trustworthiness that

       precludes the invoices from meeting the hearsay exception for records of a

       regularly conducted activity. The trial court did not err by not admitting

       Childress Cattle’s invoices as evidence.


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


       Mathias, J., concurs.
       Kirsch, J., concurs with a separate opinion.




       Court of Appeals of Indiana | Opinion 70A05-1706-EU-1442 | December 13, 2017   Page 11 of 14
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Childress Cattle, LLC,                                    Court of Appeals Case No.
                                                                 70A05-1706-EU-1442
       Appellant-Claimant,

               v.

       The Estate of Roger F. Cain,
       Christie Cain, Personal
       Representative
       Appellee-Respondent



       Kirsch, Judge, concurring.


[23]   I concur, albeit with much reluctance.


[24]   The Dead Man’s Statutes have long been criticized by legal scholars,

       practitioners and appellate judges. Today, they remain the law in a small

       minority of states.



[25]   The effect of the Dead Man’s Statute is to render interested parties—those

       persons who know more than any other where truth lies--incompetent as

       Court of Appeals of Indiana | Opinion 70A05-1706-EU-1442 | December 13, 2017          Page 12 of 14
       witnesses. As Ed Wallis noted in the Cleveland State Law Review more than

       ten years ago, legal scholars have long called for repeal of the Dead Man’s

       statutes.2



[26]   Professor McCormick labelled the statutes a “blind and brainless” technique,

       noting that while they seek to avoid injustice to one side, they may well create it

       for the other.3



[27]   Dean Wigmore stated that America’s judicial system is based on presuming one

       is innocent until proven guilty, but by their very nature, Dead Man’s statutes

       prevent an entire class of persons from testifying because of an assumption that

       all witnesses are bound to lie when the lips of one are sealed due to death.4



[28]   Finally, as noted several years ago by Michael Simon and William Hennessey

       in their survey of Florida law, “The mere mention of the [Dead Man’s] statute

       is enough to make most practitioners shudder.” 5




       2
        Ed Wallis. “Outdated Form of Evidentiary Law: A Survey of Dead Man’s Statutes and a proposal for
       change, 53 Clev. St. L. Rev. 75 (2005)
       3
           Id., p. 101
       4
           Id.
       5
        Michael Simon and William Hennessey, “Estates, Trusts, and Guardianships: 1998 Survey of Florida Law”
       23 NOVA L. Rev. 119, 145 (1998)

       Court of Appeals of Indiana | Opinion 70A05-1706-EU-1442 | December 13, 2017             Page 13 of 14
[29]   It is past time for Indiana to follow the lead of other states and repeal its Dead

       Man Statute.




       Court of Appeals of Indiana | Opinion 70A05-1706-EU-1442 | December 13, 2017   Page 14 of 14
