Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018 Page 1 of 19

ATTORNEY FOR APPELLANT

Scott B. Cockrum

Hinshaw & Culbertson LLP

Schererville, Indiana

ATTORNEY FOR APPELLEE

James Harper

Harper & Harper, LLC

Valparaiso, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Brett Carney,

Appellant-Defendant,

v.

Fernando Patino, Jr.,

Appellee-Plaintiff

October 31, 2018

Court of Appeals Case No.

46A03-1712-CT-2855

Appeal from the LaPorte Circuit 

Court

The Honorable Thomas J. 

Alevizos, Judge

Trial Court Cause No.

46C01-1303-CT-366

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, 
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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 History1

[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. 

 

1 Although Carney appeals the trial court’s rulings at various stages of the proceedings, for clarity’s sake, we 

primarily recite the relevant facts most favorable to the jury’s verdict.
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[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 

 

2 Carney claims that although Patino gave him a correct phone number, he gave a false name.
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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.
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[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 
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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 
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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 compensatory and punitive damages for his economic losses, 

emotional distress, pain, suffering, and loss of reputation. 

[12] Carney filed a motion for summary judgment and designation of evidence in 

July 2015. Among other things, Carney asserted that his statements to police 

were qualifiedly privileged and thus he was entitled to judgment as a matter of 

law as to all of Patino’s claims. Patino responded with a motion in opposition 

to summary judgment and accompanying affidavit. The trial court entered an 

order denying Carney’s summary judgment motion in April 2016. 
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[13] A jury trial began on September 25, 2017. Prior to the start, Patino withdrew

his negligence claims, leaving only his defamation and intentional infliction of 

emotional distress claims. Patino presented his case-in-chief, and at the close of 

his evidence, Carney made an oral motion for judgment on the evidence again 

based upon qualified privilege, which the trial court took under advisement. 

Carney then presented his evidence, after which he renewed his motion for 

judgment on the evidence, which the court again took under advisement. 

Following deliberations, the jury returned a verdict in favor of Patino. The jury 

awarded total damages in the amount of $320,000 and apportioned fault as 

follows: Patino 5%, Michigan City Police Department 5%, Detective Corporal 

McClintock 10%, and Carney 80%. Accordingly, the trial court entered final 

judgment against Carney in the amount of $256,000.

[14] Carney filed a motion to correct error which was denied by the trial court. The 

court also entered its order denying Carney’s motion for judgment on the 

evidence. Carney now appeals the court’s denial of his motion for summary 

judgment, the denial of his motion for judgment on the evidence, and the denial 

of his motion to correct error. 

Discussion and Decision

Section 1 – The trial court did not err in denying Carney’s 

motion for summary judgment on the basis of qualified 

privilege.

[15] Carney first argues that the trial court erred in denying his pretrial summary 

judgment motion. “The purpose of summary judgment is to terminate litigation 
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about which there can be no factual dispute and which can be determined as a 

matter of law.” Lamb v. Mid Indiana Serv. Co., 19 N.E.3d 792, 793 (Ind. Ct. App.

2014). “The party moving for summary judgment has the burden of making a 

prima facie showing that there is no genuine issue of material fact and that it is 

entitled to judgment as a matter of law.” Mint Mgmt., LLC v. City of Richmond, 

69 N.E.3d 561, 564 (Ind. Ct. App. 2017). If the moving party meets its burden, 

“the burden then shifts to the nonmoving party whose response must set forth 

specific facts indicating that there is an issue of material fact.” Venture Enter., 

Inc. v. Ardsley Distrib., Inc., 669 N.E.2d 1029, 1032 (Ind. Ct. App. 1996). “The 

nonmovant may not rest upon bare allegations made in the pleadings, but must 

respond with affidavits or other evidence setting forth specific facts showing 

there is a genuine issue in dispute.” Id. Any doubts as to any facts or inferences 

to be drawn from those facts must be resolved in favor of the nonmoving party. 

Mint Mgmt., 69 N.E.3d at 564. 

[16] “We review a summary judgment ruling de novo.” Pelliccia v. Anthem Ins. Cos., 

90 N.E.3d 1226, 1230 (Ind. Ct. App. 2018). A trial court’s findings and 

conclusions offer insight into the rationale for the court’s judgment and 

facilitate appellate review but are not binding on this Court. Henderson v. Reid 

Hosp. & Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans. denied

(2015). We may affirm a summary judgment ruling on any theory supported by 

the designated evidence. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). The 

party that lost in the trial court has the burden of persuading us that the trial 

court erred. Estate of Hofgesang v. Hansford, 714 N.E.2d 1213, 1216 (Ind. Ct. 
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App. 1999). Our supreme court has cautioned that summary judgment “is not 

a summary trial” and Indiana consciously errs on the side of letting even 

marginal cases proceed to trial on the merits, rather than risk short-circuiting 

meritorious claims. Hughley v. State, 15 N.E.3d 1000, 1003-04 (Ind. 2014).

[17] Carney asserts that, even if defamatory,3 his statements to law enforcement 

concerning Patino were qualifiedly privileged, and thus he was entitled to 

summary judgment as to Patino’s claims. A qualified privilege “applies to 

communications made in good faith on any subject matter in which the party 

making the communication has an interest or in reference to which he had a 

duty, either public or private, either legal, moral, or social, if made to a person 

having a corresponding interest or duty.” Bals v. Verduzco, 600 N.E.2d 1353, 

1356 (Ind. 1992) (citation omitted). As a defense to defamation, the qualified 

privilege operates not to “change the actionable quality of the words published, 

but merely [to] rebut[] the inference of malice that is [otherwise] imputed.” 

Holcomb v. Walter’s Dimmick Petroleum, Inc., 858 N.E.2d 103, 106 (Ind. 2006) 

(citation omitted).4 It is well established that “communications made to law 

 

3 Defamation is that which tends to injure reputation or to diminish esteem, respect, good will, or confidence 

in the plaintiff, or to excite derogatory feelings or opinions about the plaintiff.” Davidson v. Perron, 716 N.E.2d 

29, 37 (Ind. Ct. App. 1999) trans. denied (2000). “To establish defamation, the plaintiff must prove the 

following elements: (1) a communication with defamatory imputation, (2) malice, (3) publication, and (4) 

damages.” Id. A communication is defamatory per se if it imputes criminal conduct. Kelley v. Tanoos, 865 

N.E.2d 593, 596 (Ind. 2007).

4 Although Patino’s amended complaint raised several claims in addition to defamation, the basis of each 

claim was Carney’s purported false statements to law enforcement. Thus, Carney asserts that he was entitled 

to summary judgment on all of Patino’s claims based on the qualified privilege defense. Indeed, the qualified 

privilege defense to defamation has also been applied to claims of false imprisonment, negligence, and 

intentional infliction of emotional distress. Brown v. Indianapolis Housing Agency, 971 N.E.2d 181, 186 (Ind. 

Ct. App. 2012).
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enforcement to report criminal activity are qualifiedly privileged.” Williams v. 

Tharp, 914 N.E.2d 756, 763 (Ind. 2009) (quoting Kelley v. Tanoos, 865 N.E.2d 

593, 600 (Ind. 2007)). This furthers the compelling public interest of 

encouraging citizens not only to report suspected wrongdoing but also to assist 

law enforcement in investigating and apprehending persons who engage in 

criminal activity. Id. at 762-63. Our supreme court has stated,

If this purpose is to be met, the privilege must offer a robust 

defense against liability. Protecting unverified and even 

speculative reports of suspected wrongdoing to law enforcement 

is, in our view, supported by ample reasons of social advantage. 

It is important that citizens not opt for inaction, chilled from 

communicating with police in all but the most certain of 

situations.

Id. at 765.

[18] The privilege, however, “is not without limits: a statement ‘may lose its 

privileged character upon a showing of abuse wherein: (1) the communicator 

was primarily motivated by ill will in making the statement; (2) there was 

excessive publication of the defamatory statement; or (3) the statement was 

made without belief or grounds for belief in its truth.’” Bah v. Mac’s Convenience 

Stores, LLC, 37 N.E.3d 539, 548 (Ind. Ct. App. 2015) (quoting Bals, 600 N.E.2d 

at 1356), trans. denied (2016). Thus, 

the burden is upon the defendant in the first instance to establish 

the existence of a privileged occasion for the publication, by 

proof of a recognized public or private interest which would 

justify the utterance of the words. Then the plaintiff has the 
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burden of overcoming that privilege by showing that it has been 

abused. When speaking of abuse, the essence of the concept is 

not the speaker’s spite but his abuse of the privileged occasion by 

going beyond the scope of the purposes for which privilege exists. 

And unless only one conclusion can be drawn from the evidence, 

the question of whether the privilege has been abused is for the 

jury.

Williams, 914 N.E.2d at 762 (citations, quotation marks, and alterations 

omitted).

[19] We agree with Carney that the privileged occasion implicated by his

communication to law enforcement related to the public interest in encouraging 

private citizens to report crime. Patino contends that Carney abused the 

privilege because, when he reported that Patino removed numerous fixtures 

from the Residence, he was primarily motivated by ill will and made the 

statement without belief or grounds for belief in truth. Carney claims that 

Patino presented no evidence but simply offered “speculation about the intent 

or knowledge of Carney in making the statement.” Appellant’s Br. at 33. “It is 

well settled, however, that ‘[s]ummary judgment must be denied if the 

resolution hinges upon state of mind, credibility of the witnesses, or the weight 

of the testimony.’” Bah, 37 N.E.3d at 548 (quoting Nelson v. Jimison, 634 N.E.2d 

509, 512 (Ind. Ct. App. 1994)). This is precisely the scenario that confronted 

the trial court here.

[20] It is undisputed that, prior to Carney’s communication to law enforcement, 

Patino and Carney had an extremely contentious second encounter. Patino 
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presented evidence that, although he was not even at the Residence on 

February 20, Carney told police that he personally observed Patino at the 

Residence on that date in possession of various fixtures taken from the 

Residence. According to Patino, it was his belief that Carney was upset that, a 

few days earlier, Patino removed certain appliances from the Residence that 

Patino had purchased, and that motivated Carney to fabricate a story about his 

observations on February 20 and to accuse Patino of the theft of numerous

fixtures. Patino designated evidence in support of this motivation. He averred 

that Carney expressed his clear dismay and objection to the appliance removal 

when Patino was removing the stove on February 18, and that Carney

confirmed those feelings when he subsequently went to Patino’s place of 

employment and made what appeared to be a racially charged threat to send 

Patino “back to where [he] came from” if he did not return the appliances. 

Appellant’s App. at Vol. 2 at 113.

[21] Viewing the designated evidence and resolving all doubts in favor of Patino as 

the nonmoving party, as we must, we conclude that it was for a jury to 

determine whether Carney was primarily motivated by ill will in accusing 

Patino of theft and/or whether his accusations were made without belief or 

grounds for belief in their truth.

5

 In other words, we cannot say that only one 

conclusion can be drawn from the evidence. Rather, the evidence presented, 

 

5 Carney asserts that Patino failed to designate evidence that Carney’s statements to police were, in fact, false. 

However, in his affidavit, Patino denied being at the Residence on February 20 or being in possession of the 

fixtures. This, in effect, is an averment that Carney’s statements to the contrary were, in fact, false.
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and the reasonable inferences to be drawn therefrom, was sufficient to establish 

a genuine issue of material fact on whether the qualified privilege had been 

abused, and therefore Carney was not entitled to summary judgment on 

Patino’s claims based on the qualified privilege defense. Accordingly, the trial 

court did not err when it declined to enter summary judgment for Carney.6 

Section 2 – The trial court did not err in denying Carney’s 

motion for judgment on the evidence on the basis of qualified 

privilege.

[22] Carney next asserts that the evidence presented by Patino at trial “was 

insufficient to overcome the application of the [qualified] privilege” and 

therefore his motion for judgment on the evidence should have been granted. 

Appellant’s Br. at 19. The standard of review for a challenge to a ruling on a 

motion for judgment on the evidence is the same standard utilized by the trial 

court in making its decision. Bals, 600 N.E.2d at 1357. We look only to the 

evidence and reasonable inferences therefrom most favorable to the nonmoving 

party. Id. The motion should be granted only where there is no substantial 

 

6 Carney briefly argues that the trial court erred in failing to enter at least partial summary judgment on 

Patino’s defamation claim because Patino’s amended complaint “failed to plead the alleged defamatory 

statements with any specificity.” Appellant’s Br. at 35. Carney did not assert this as grounds for summary 

judgment in his original brief in support of summary judgment. Indeed, his only mention of this alleged lack 

of specificity is a passing reference in a footnote in his reply brief in support of summary judgment. This was 

insufficient to alert the trial court to this argument. It is well settled that arguments not presented to the trial 

court on summary judgment are waived on appeal. Anderson v. Four Seasons Equestrian Ctr., Inc., 852 N.E.2d 

576, 581 (Ind. Ct. App. 2006), trans. denied. The trial court cannot be found to have erred as to an issue or 

argument that it never truly had an opportunity to consider. Id. Thus, Carney has waived this argument, 

and we will not consider it on appeal.
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evidence supporting an essential issue in a case. Id. (citing Ind. Trial Rule 

50(A); Johnson v. Naugle, 557 N.E.2d 1339, 1342 (Ind. Ct. App. 1990); Whisman 

v. Fawcett, 470 N.E.2d 73, 79 (Ind. 1984)). 

[23] Our supreme court has stated that determining whether evidence was sufficient 

to defeat a motion for judgment on the evidence requires both a quantitative 

and a qualitative analysis. Purcell v. Old Nat’l Bank, 972 N.E.2d 835, 840 (Ind. 

2012). Specifically, the court explained, 

Evidence fails quantitatively only if it is wholly absent; that is, 

only if there is no evidence to support the conclusion. If some 

evidence exists, a court must then proceed to the qualitative 

analysis to determine whether the evidence is substantial enough 

to support a reasonable inference in favor of the non-moving 

party.

Qualitatively, ... [evidence] fails when it cannot be said, with 

reason, that the intended inference may logically be drawn 

therefrom; and this may occur either because of an absence of 

credibility of a witness or because the intended inference may not 

be drawn therefrom without undue speculation. The use of such 

words as “substantial” and “probative” are useful in determining 

whether evidence is sufficient under the qualitative analysis.

Ultimately, the sufficiency analysis comes down to one word: 

“reasonable.”

Id. (citations and some quotation marks omitted). Unlike a motion for 

summary judgment under Indiana Trial Rule 56, the sufficiency test of Indiana 

Trial Rule 50(A) is not merely whether a conflict of evidence may exist, but 

rather whether there exists probative evidence, substantial enough to create a 

reasonable inference that the nonmovant has met his burden. Id. at 841.
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[24] Here, Patino presented sufficient evidence to meet both the quantitative and 

qualitative elements of the judgment on the evidence analysis. Our thorough 

review of the trial transcript and the totality of the testimony presented reveals 

that Patino presented sufficient evidence to show that Carney was not being 

truthful when he told police that Patino was at the Residence on February 20,

and that he witnessed Patino removing various fixtures from the premises on 

that date.

7

 Patino also presented substantial evidence to create a reasonable 

inference that Carney was primarily motivated by ill will in making his 

statement to police and/or that he made the statement without belief or 

grounds for belief in its truth. In other words, we are confident that enough 

credible evidence was presented from which an inference that Carney abused 

his qualified privilege could be found by a reasonable jury without engaging in 

undue speculation.

[25] Carney essentially suggests that his abuse of the qualified privilege could not be 

established absent direct testimony from him admitting that his statements to 

law enforcement were in fact motivated by ill will or that he made the 

statements without belief or grounds for belief in their truth. He is mistaken. 

Viewing only the evidence and reasonable inferences therefrom most favorable 

to Patino as the nonmoving party, there was substantial evidence presented to 

 

7 Carney emphasizes that he never reported to law enforcement that he saw Patino actually taking the 

fixtures out of the Residence, only that he encountered Patino in the driveway of the Residence already in 

possession of the fixtures that had been taken out of the Residence. We find this to be a distinction without a 

difference.
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overcome Carney’s qualified privilege defense. Accordingly, the trial court did 

not err in denying Carney’s motion for judgment on the evidence.

Section 3 – The jury verdict is not excessive, and the trial court 

did not abuse its discretion in denying Carney’s motion to 

correct error.

[26] Following the trial court’s entry of judgment on the jury’s award of $256,000 in 

damages to Patino, Carney filed a motion to correct error asserting that he was 

entitled to a new trial due to “the excessiveness of the jury verdict.” Appellant’s 

App. Vol. 5 at 158. This Court has explained that the remedy offered by 

Indiana Trial Rule 59(J)(5) is “available only where the evidence is insufficient 

to support the verdict as a matter of law.” Solnosky v. Goodwell, 892 N.E.2d 174, 

184 (Ind. Ct. App. 2008) (quoting City of Carmel v. Leeper Elec. Servs., Inc., 805 

N.E.2d 389, 392 (Ind. Ct. App. 2004), trans. denied). Once the trial court has 

entered final judgment on the evidence for the amount of proper damages, we 

will reverse the decision only for an abuse of discretion. Id. 

[27] We afford a jury’s damage award great deference on appeal. Sims v. Pappas, 73 

N.E.3d 700, 709 (Ind. 2017). In considering whether a jury verdict is excessive, 

we do not reweigh the evidence and look only to the evidence and reasonable 

inferences that may be drawn therefrom that support the verdict. West v. J. Greg 

Allen Builder, Inc., 92 N.E.3d 634, 643 (Ind. Ct. App. 2017), trans. denied (2018). 

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. Sandberg 

Trucking, Inc. v. Johnson, 76 N.E.3d 178, 189 (Ind. Ct. App. 2017). “To warrant 
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reversal, the award must appear to be so outrageous as to impress the Court at 

first blush with its enormity.” Id. (citation and quotation marks omitted). An 

award is not excessive unless the amount cannot be explained upon any basis

other than prejudice, passion, partiality, corruption, or some other element of 

improper consideration. Sims, 73 N.E.3d at 709.

[28] Carney complains that “Patino presented no medical expenses, no lost wages, 

and no documented losses of any kind” to support the jury’s damage award. 

Appellant’s Br. at 44. He argues that “[e]ven if there is an emotional toll 

associated with being charged with a crime, there is no justification for so large 

a verdict.” Id. at 45. We disagree.

[29] “Awards for pain, suffering, fright, humiliation, and mental anguish are 

particularly within the province of the jury because they involve the weighing of 

evidence and credibility of witnesses.” Landis v. Landis, 664 N.E.2d 754, 757 

(Ind. Ct. App. 1996). Indeed, “[p]hysical and mental pain are, by their very 

nature, not readily susceptible to quantification, and therefore, the jury is given 

very wide latitude in determining these kinds of damages.” Groves v. First Nat’l 

Bank of Valparaiso, 518 N.E.2d 819, 831 (Ind. Ct. App. 1988). “Our inability to 

actually look into the minds of jurors and determine how they computed an 

award is, to a large extent, the reason behind the rule that a verdict will be 

upheld if the award falls within the bounds of the evidence.” Griffin v. Acker, 659 

N.E.2d 659, 664 (Ind. Ct. App. 1995).
Court of Appeals of Indiana | Opinion 46A03-1712-CT-2855 | October 31, 2018 Page 19 of 19

[30] The evidence favorable to the verdict reveals that, in addition to the monetary 

cost incurred in defending his criminal trial, Patino suffered great mental and 

emotional pain due to the highly publicized charge and arrest. His criminal 

case was pending for more than five years, and he presented evidence of the 

negative impact that it had, and continues to have, on both his personal and 

professional life. Under the circumstances, the $256,000 award is not so 

outrageous as to indicate that the jury was motivated by prejudice, passion, 

partiality, corruption, or some other element of improper consideration. 

Carney has failed to persuade us that the trial court abused its discretion in 

denying his motion to correct error.8 We therefore affirm the verdict and the 

trial court’s judgment entered thereon.

[31] Affirmed.

Najam, J., and Pyle, J., concur.

 

8 Carney also argues that the verdict should be set aside because the “evidence presented should have led the 

jury to conclude that the qualified privilege applied.” Appellant’s Br. at 42. This is essentially a request for 

us to reweigh the evidence and reassess witness credibility on the issue of whether he abused the privilege, 

which we cannot do. See West, 92 N.E.3d at 643 (when party seeks to reverse adverse judgment on basis of 

insufficient evidence, appellate court will not weigh evidence or assess witness credibility). Carney also 

briefly submits, without citation to authority, that the jury’s allocation of 80% fault to him for Patino’s 

injuries was unreasonable. It is well settled that the allocation of fault is entrusted to the sound judgment of 

the factfinder. Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1056 (Ind. 2003). Carney’s sole argument 

in this regard appears to be simply a disagreement with the jury’s conclusion. Without more, we decline to 

address the issue further.