Court of Appeals of Indiana | Memorandum Decision 19A-CT-2894 | July 9, 2020 Page 1 of 12

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANTS

Dina Cox

Charles R. Whybrew

Lewis Wagner, LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Duran L. Keller

Keller Law

Lafayette, Indiana

Zachary T. Williams

Withered Burns & Williams, LLP

Lafayette, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jeff D. Bieneman and Tonya 

Bieneman,

Appellants-Defendants,

v.

Elliott Foreman, By Next Friend 

Bobbi Belinda Foreman,

Appellee-Plaintiff.

July 9, 2020

Court of Appeals Case No.

19A-CT-2894

Appeal from the Tippecanoe 

Circuit Court

The Honorable Sean M. Persin, 

Judge

Trial Court Cause No.

79C01-1705-CT-72

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2894 | July 9, 2020 Page 2 of 12

Statement of the Case

[1] Jeff Bieneman (“Jeff”) and Tonya Bieneman (“Tonya”) (collectively “the 

Bienemans”) appeal a jury verdict in favor of Elliott Foreman (“Elliott”), By 

Next Friend Bobbi Belinda Foreman (“Belinda”) (collectively “the Foremans”),

on Elliott’s complaint alleging the Bienemans’ negligence. The Bienemans 

present two issues for our review:

1. Whether the trial court abused its discretion when it 

admitted certain evidence.

2. Whether the jury verdict is excessive.

[2] We affirm.

Facts and Procedural History

[3] The Bienemans and the Foremans have been next-door neighbors since 

approximately 2013, and Elliott and the Bienemans’ son Ryan are close friends. 

In 2014 and 2015, the Bienemans owned two Alaskan malamutes, Max and 

Mia. The Bienemans mostly kept Max on a chain in the yard. Jeff routinely 

spanked Max, sometimes causing him to “yelp,” when he misbehaved. Tr. Vol. 

4 at 8. Jeff also routinely hit Max on the nose as a form of discipline. Max was 

skittish around the Bienemans’ vacuum cleaner, and he was scared of a remotecontrolled car (“RC car”) Ryan played with. Jeff liked to “screw[] with” Max

when he was a puppy and “dr[ove] a[n RC] car into” him once. Tr. Vol. 5 at 

56-57.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2894 | July 9, 2020 Page 3 of 12

[4] On one occasion in 2014, Max bit Ryan. And in May 2015, as Elliott walked 

through the Bienemans’ yard to look for Ryan, Max bit Elliott. Later that same 

day, Belinda walked over to the Bienemans’ house to leave them a note about 

the bite, and Max bit Belinda in her breast, breaking the skin. When Belinda 

later talked to Jeff and Tonya about the bites, Jeff told her that he “should have 

shot the damn dog when it bit Ryan.” Tr. Vol. 3 at 178. The Bienemans 

assured Belinda that they would take corrective action with Max, such as 

neutering him, but it was a long time before Belinda allowed Elliott to return to 

the Bienemans’ home to play with Ryan. Unbeknownst to Belinda, Max had 

already been neutered at the time of the bites in May 2015.

[5] On August 16, 2015, Elliott, then eleven-years-old, was playing with Ryan on 

the floor inside the Bienemans’ home, and Tonya was standing only a few feet 

away making dinner. Elliott was playing with Legos, and Ryan was playing 

with an RC car. Max was in the room with the boys, and Ryan drove the car 

around Max. Tonya knew that Max was “very” scared of the RC car, so she 

“asked the boys to stop” playing with it. Tr. Vol. 5 at 12. Despite Tonya’s 

request, Ryan continued to play with the RC car. At some point, Elliott heard 

“a horn honk” and Max attacked Elliott. Tr. Vol. 4 at 137. Max’s jaws 

clamped down on Elliott’s head, puncturing his right ear and the top of his 

head. When Max released Elliott’s head, he was bleeding profusely from the 

wounds, and Tonya applied pressure to Elliott’s ear with a washcloth. Tonya 

then walked Elliott home. Elliott was screaming for his mom along the way, 

and Belinda came running out of the house.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2894 | July 9, 2020 Page 4 of 12

[6] Belinda loaded Elliott and Ryan into her car, and they drove to a nearby 

hospital. Elliott was losing so much blood that he wondered whether he might 

die. At the hospital, a doctor closed the wound on Elliott’s head with eight 

staples and “stitched up” his ear. Id. at 143. The doctor then told Belinda that 

Elliott needed to go to Riley Hospital for Children in Indianapolis to have his 

ear reattached. At that point, Elliott’s stepfather Michael Johnson arrived, and 

Belinda and Michael drove Elliott to Riley. At Riley, Elliott underwent surgery 

“to reattach his ear and to clean up the staples.” Tr. Vol. 3 at 61. Elliott, 

Belinda, and Michael spent the night at Riley.

[7] The next day, a doctor asked Belinda whether the dog that bit Elliott was up to 

date on its rabies shots. Belinda texted Tonya to find out, but got no answer. 

Elliott spent the next night at Riley, and Belinda and Michael again stayed with 

him. A doctor followed up about the dog’s rabies shots the next day, but 

Belinda still had not heard anything from the Bienemans.

[8] Once he was released from Riley and returned home, Elliott was in a lot of 

pain, and he was extremely upset. He did not sleep in his own room, but slept 

with his mom and stepdad for comfort. Tonya had told Belinda that she would 

get documentation that Max had been vaccinated against rabies, but she never 

did. In fact, Max was not current on his rabies shots. Accordingly, Elliott had 

to go through a series of rabies shots himself, including shots in his head at the 

site of the dog bite, as well as in his legs, his gluteal muscle, and his arm. Elliott 

also missed one week of school.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2894 | July 9, 2020 Page 5 of 12

[9] Elliott had previously been in therapy from the age of five to age ten and a half 

to treat ADHD. And in February 2015, Elliott began therapy with Marianne 

Spicker because he was having “temper outbursts,” trouble in school, and 

difficulty accepting a new sibling. Tr. Vol. 4 at 71. Elliott saw Spicker six times

between February and June 2015. In June 2015, Spicker noted that Elliott had 

“met all of his goals” and was “looking forward to sixth grade[.]” Id. at 81.

[10] After Max bit him in August 2015, Elliott started having trouble in school, he 

was having nightmares, he was still sleeping with his mom and stepdad, and he 

threatened suicide. Accordingly, Elliott resumed therapy with Spicker in 

November 2015. Spicker noted that Elliott was “struggling” and had “[n]ew 

problems” since she had last seen him, most notably “suicidal thoughts.” Id. at 

75. Elliott told Spicker about Max biting him. He told her that, since the dog 

bite, he “was really behind in school,” he was “hearing voices,” and “he was 

having images in his head of blood and war.” Id. Elliott told Spicker that he 

had threatened “to suffocate himself with a pillowcase,” and “he was doing 

things like burping and growling” during a session with Spicker, which is 

behavior she had not seen in Elliott before. Id. at 76. Spicker determined that, 

because of the dog bite, Elliott “might [have the] criteria for post traumatic 

stress disorder[ (“PTSD”).]” Id. Accordingly, Spicker prescribed additional 

services to treat Elliott, including home case management, school-based case 

management, and psychiatric care. A doctor prescribed Lexapro for Elliott.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2894 | July 9, 2020 Page 6 of 12

[11] On May 10, 2017, Elliott filed a complaint alleging damages as a result of the 

Bienemans’ negligence.

1

 During the ensuing jury trial, Elliott presented 

evidence over the Bienemans’ objections that: Jeff had “smacked the piss” out 

of Max after he had bit Elliott; and that the Bienemans’ other dog Mia had 

killed the Foremans’ chickens. Tr. Vol. 5 at 56. Also at trial, Elliott agreed to 

not introduce into evidence his medical expenses, past or future. Rather, the 

trial court instructed the jury, without objection, to consider the following 

elements of Elliott’s damages:

the nature and extent of the injuries, and the effect of the injuries 

on Elliott Foreman’s ability to function as a whole person; 

whether the injuries are temporary or permanent; the physical 

pain and mental suffering experienced and to be experienced in 

the future as result of the injuries; the disfigurement or scarring 

resulting from the injuries; and Elliott Foreman’s life expectancy.

Tr. Vol. 6 at 4. At the conclusion of trial, the jury entered a verdict in favor of 

Elliott and assessed fault as follows: 40% fault to Jeff; 35% fault to Tonya; 20% 

fault to Belinda, a non-party; and 5% fault to Elliott. The jury found that 

Elliott’s damages totaled $1,133,333, which, after allocating fault, meant that 

Elliott’s total recovery was $850,000. The Bienemans filed a motion to correct 

error, which the trial court denied. This appeal ensued.

1

 In the original complaint, Belinda was named as an individual plaintiff, but she was not a named plaintiff 

by the time of trial. In addition, Elliott’s complaint included two counts: negligence and negligent 

entrustment. The trial court dismissed the negligent entrustment claim on the Bienemans’ motion for 

summary judgment.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2894 | July 9, 2020 Page 7 of 12

Discussion and Decision

Issue One: Admission of Evidence

[12] The Bienemans first contend that the trial court abused its discretion when it 

admitted certain evidence at trial. The decision to admit or exclude evidence 

lies within the sound discretion of the trial court, and we will not disturb the 

trial court’s decision absent a showing of an abuse of that discretion. Oaks v. 

Chamberlain, 76 N.E.3d 941, 946 (Ind. Ct. App. 2017). An abuse of discretion 

occurs when the trial court’s decision is against the logic and effect of the facts 

and circumstances before the court or if the court has misinterpreted the law.

Id.

[13] The Bienemans assert that the trial court abused its discretion when it admitted 

evidence that their dog Mia had killed the Foremans’ chickens sometime after 

Max had bitten Elliott. However, while the Bienemans objected to that 

evidence during Tonya’s testimony, they made no objection when Jeff testified 

that Mia had killed the chickens. It is well settled that a party must object to 

evidence at the time it is offered in order to preserve the issue for review on 

appeal. Everage v. N. Ind. Pub. Serv. Co., 825 N.E.2d 941, 948 (Ind. Ct. App. 

2005). Moreover, while the Bienemans argue on appeal that this evidence was 

inadmissible because it was irrelevant to the issues at trial, there is no record 

that, during Tonya’s testimony, they objected based on relevance.2

 It is well2

 The Bienemans objected to this evidence based on a “lack of personal knowledge.” Tr. Vol. 4 at 246. 

There appears to have been a second objection, but it is depicted in the transcript as “inaudible.” Id. It is 
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2894 | July 9, 2020 Page 8 of 12

settled that a mere general objection, or an objection on grounds other than 

those raised on appeal, is ineffective to preserve an issue for appellate review. 

Raess v. Doescher, 883 N.E.2d 790, 797 (Ind. 2008). The Bienemans have 

waived this issue for our review.

[14] The Bienemans also assert that the trial court abused its discretion when it 

admitted evidence that Jeff had “smacked the piss” out of Max after Max bit 

Elliott in August 2015. Tr. Vol. 5 at 56. The Bienemans objected to this 

evidence at trial on the ground that it was irrelevant to the issue of negligence. 

However, they made no argument to the trial court that the evidence was 

prejudicial, confusing, or misleading. See Ind. Evidence Rule 403. Elliott 

argued to the trial court that this evidence was relevant because Jeff had a 

history of hitting Max, which, Elliott asserted, “caused this dog to be violent” 

against Elliott. Tr. Vol. 5 at 53. Elliott argued that Jeff’s reaction to the bite 

was consistent with his mistreatment of Max over the years. The trial court 

agreed that the evidence showed a “pattern” and admitted the testimony as 

relevant to the issue of Jeff’s negligence. Id.

[15] Indiana Evidence Rule 401 provides that evidence is relevant if it has any 

tendency to make a fact more or less probable than it would be without the 

evidence and the fact is of consequence in determining the action. On appeal, 

well settled that “[i]t is the appellant’s duty to present an adequate record on appeal, and when the appellant 

fails to do so, he is deemed to have waived any alleged error based upon the missing material.” Rausch v. 

Reinhold, 716 N.E.2d 993, 1002 (Ind. Ct. App. 1999), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2894 | July 9, 2020 Page 9 of 12

the Bienemans do not address the trial court’s stated reason for admitting the 

evidence, namely that it was relevant to show a “pattern” of Jeff’s abuse of 

Max. Rather, the Bienemans’ argument on appeal on this issue is this:

The sole issue at trial was whether Tonya breached the duty of 

care she owed Elliott on August 16, 2015. Tonya was the only 

adult in the house at the time of the incident, and she was solely 

responsible for the care and control of Max at the time. Jeff was 

not present and therefore had no responsibility or ability to 

control the situation or the dog. Jeff’s actions vis-à-vis Max after

the incident do not logically tend to prove or disprove whether 

Tonya breached her duty of care owed Elliott at the time of the 

bite.

Appellants’ Br. at 29 (emphasis original).

[16] The Bienemans have waived this issue for our review. First, they do not direct 

us to any part of the record to support their assertion that only Tonya could be 

found liable for the bite. Indeed, the Bienemans agreed to include Jeff as a 

possible liable party on the verdict form. Second, they cite no case law to

support this specious assertion. In fact, it is well settled that every dog owner 

owes a duty of reasonable care to third parties. Martin v. Hayduk, 91 N.E.3d 

601, 607 (Ind. Ct. App. 2017). Whether Jeff breached that duty was clearly at 

issue at trial, and the jury found that he did. Third, and moreover, the 

Bienemans’ attorney cross-examined Jeff and brought up Jeff’s deposition 

testimony that he had “hit [Max] with a gun” after Max bit Elliott. Tr. Vol. 5 at 

74. The Bienemans have not shown that the trial court abused its discretion 
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2894 | July 9, 2020 Page 10 of 12

when it admitted evidence that Jeff hit Max after finding out that Max had 

bitten Elliott.

Issue Two: Excessive Verdict

[17] The Bienemans next contend that the jury “speculate[d] and award[ed] 

damages for non-proven medical expenses” which “makes the jury’s verdict 

excessive under Indiana law.” Appellants’ Br. at 33. As this Court has 

explained,

“[a] jury determination of damages is entitled to great deference 

when challenged on appeal. Sears Roebuck and Co. v. Manuilov, 

742 N.E.2d 453, 462 (Ind. 2001). The applicable standard of 

review has been summarized as follows:

Damages are particularly a jury determination. 

Appellate courts will not substitute their idea of a 

proper damage award for that of the jury. Instead, 

the court will look only to the evidence and 

inferences therefrom which support the jury’s verdict. 

We will not deem a verdict to be the result of 

improper considerations unless it cannot be explained 

on any other reasonable ground. Thus, if there is any 

evidence in the record which supports the amount of 

the award, even if it is variable or conflicting, the 

award will not be disturbed.

Id. (quoting Prange v. Martin, 629 N.E.2d 915, 922 (Ind. Ct. App. 

1994) (internal citations omitted)[, trans. denied ]). In addition, 

[our] Supreme Court has noted the following:

Our inability to actually look into the minds of the 

jurors is, to a large extent, the reason behind the rule 

that we will not reverse if the award falls within the 
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2894 | July 9, 2020 Page 11 of 12

bounds of the evidence. We cannot invade the 

province of the jury to decide the facts and cannot 

reverse unless the verdict is clearly erroneous.

Id. (quoting Annee v. State, 256 Ind. 686, 690, 271 N.E.2d 711, 

713 (1971)).”

Spaulding v. Cook, 89 N.E.3d 413, 420-21 (Ind. Ct. App. 2017) (quoting Flores v. 

Gutierrez, 951 N.E.2d 632, 636 (Ind. Ct. App. 2011) (emphasis added), trans. 

denied), trans. denied.

[18] As the Bienemans point out, Elliott did not present evidence of his medical 

expenses, past or future, at trial. Without any objection, the trial court 

instructed the jury to award damages to Elliott based on:

the nature and extent of the injuries, and the effect of the injuries 

on Elliott Foreman’s ability to function as a whole person; 

whether the injuries are temporary or permanent; the physical pain 

and mental suffering experienced and to be experienced in the future as 

result of the injuries; the disfigurement or scarring resulting from 

the injuries; and Elliott Foreman’s life expectancy.

Tr. Vol. 6 at 4 (emphases added).

[19] On appeal, the Bienemans maintain that “Elliott’s counsel asked questions of 

Elliott and Belinda indicative of a request of future medical expenses” and 

“made statements during closing argument indicative of a claim for the 

recovery of medical expenses.” Appellants’ Br. at 33. However, the Bienemans 

do not direct us to any part of the record to support their assertions either with 

respect to Elliott’s counsel’s questions of Elliott and his mom or during closing 
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2894 | July 9, 2020 Page 12 of 12

argument. The Bienemans’ only support for their contentions on this issue 

consists of: (1) the trial court’s comments during a side bar that jurors would be 

“wondering” about Elliott’s medical expenses and (2) two jury questions, only 

one of which requested an itemization of Elliott’s medical expenses. Tr. Vol. 2 

at 234. Clearly, the court’s comments during a side bar had no impact on the 

jury, and the Bienemans do not direct us to anything in the record showing that 

the court answered either of the two jury questions.

[20] In sum, the Bienemans’ contention that the jury award is excessive because it is 

based on medical expenses is pure speculation. There is simply no evidence in 

the record to support a determination on appeal that, rather than assess Elliott’s 

damages based on the elements provided in the jury instructions, the jury 

considered anything improper in awarding Elliott damages. Elliott presented 

evidence that he sustained serious physical and emotional injuries, including 

scars and disfigurement, as a result of the dog bite. The jury was instructed to 

consider Elliott’s young age and the permanence of his injuries in assessing his 

damages. The Bienemans have not shown that the verdict is clearly erroneous.

[21] Affirmed.

Kirsch, J., and Brown, J., concur.