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Carney v. Patino

Court of Appeals of Indiana

October 31, 2018

Brett Carney, Appellant-Defendant,
v.
Fernando Patino, Jr., Appellee-Plaintiff

          Appeal from the LaPorte Circuit Court The Honorable Thomas J. Alevizos, Judge Trial Court Cause No. 46C01-1303-CT-366

          Attorney for Appellant Scott B. Cockrum Hinshaw & Culbertson LLP Schererville, Indiana

          Attorney for Appellee James Harper Harper & Harper, LLC Valparaiso, Indiana

          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, 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 History [1]

         [¶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.

         [¶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 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.

         [¶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 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 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 ...


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