Man’s affidavit entered after final order requires reversal of summary judgment

April 10, 2015

 A trial court abused its discretion when it did not allow a set of parents to introduce the affidavit from their son, who allegedly suffered a brain injury from an attack, after he was able to remember the night of the incident. The affidavit was submitted shortly after a final judgment was entered in their lawsuit against the alleged attacker. 

Michael Broshears and M. Shane Faulkinbury were involved in a minor traffic accident in 2005, but the parties dispute who caused the accident. Faulkinbury and his parents, who filed the lawsuit against Broshears as Faulkinbury’s guardians, claimed that Broshears exited his car and hit Faulkinbury over the head with a 2-by-4, which later rendered Faulkinbury incapacitated. Broshears disputes that he hit Faulkinbury and claims the man punched him in the face. 
The guardians sued Broshears and BAM Outdoor Inc., of which Broshears is the sole owner. He was driving a BAM truck on the night of the incident. The court record states that Broshears was romantically involved with Faulkinbury’s estranged wife. 
The lawsuit against BAM and Broshears filed in 2007 alleged that Broshears committed the torts of battery by vehicle, battery on Faulkinbury, trespass to chattel, and mischief. BAM filed a counterclaim alleging the same torts, but that Broshears was the one who was injured. BAM also argued the lawsuit was being litigated in bad faith. 
During the course of the litigation, Faulkinbury was unable to communicate or provide testimony as to the night of the incident. The trial court granted summary judgment for BAM and Broshears and entered final judgment on Feb. 7, 2014. Shortly thereafter, the guardians filed a motion to correct error asserting newly discovered evidence and attached affidavits from Faulkinbury’s doctor that he was now competent and could remember the night in question; from Faulkinbury’s mother regarding the decline in her son’s mental functions after the incident, and from Faulkinbury. 
The trial court denied the motion without holding a hearing or making findings. But the COA reversed in M. Shane Faulkinbury, by his next friends/guardians John M. Faulkinbury and Olivia J. Faulkinbury v. Michael Broshears and BAM Outdoor, Inc., 29A05-1405-CT-234.
“This evidence was relevant and material and was not cumulative of any other admissible evidence. Likewise, this was not merely impeaching evidence. Shane’s affidavit was the first personal, admissible affidavit that supported his version of the events on the night in question. Additionally, as set forth in the affidavits of Dr. Janicki and Mother, Shane’s mental state had prevented this evidence from being discovered until after the trial court entered its order; no amount of due diligence could have allowed Shane to swear the affidavit any sooner than he did. Furthermore, Dr. Janicki swore in his affidavit that Shane is now competent. In the absence of the trial court having made a determination that Shane is incompetent to testify, Shane’s affidavit is uncontested and worthy of credit, and at trial, he will have the opportunity to testify as to his version of the events. The factfinder will have the opportunity to weigh the evidence and judge Shane’s credibility. In light of this newly discovered evidence, we believe that Shane should have his day in court,” Judge James Kirsch wrote.



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