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Childress Cattle, LLC v. Estate of Cain

Court of Appeals of Indiana

December 13, 2017

Childress Cattle, LLC, Appellant-Claimant,
v.
The Estate of Roger F. Cain, Christie Cain, Personal Representative, Appellee-Respondent

         Appeal from the Rush Superior Court The Honorable Brian D. Hill, Judge Trial Court Cause No. 70D01-1602-EU-5

          Attorney for Appellant Dana M. Eberle-Peay McNeely Stephenson New Albany, Indiana.

          Attorneys for Appellee Michael C. Cooley Eric N. Allen Allen Wellman McNew Harvey, LLP Greenfield, Indiana.

          Baker, Judge.

         [¶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.

         [¶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 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 ...

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