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Appellate court upholds $256K award for man acquitted of theft

October 31, 2018

The Indiana Court of Appeals affirmed an award of more than $250,000 to a man falsely accused of theft after finding that the man’s accuser was not entitled to summary judgment based on qualified privilege and that the award was not excessive.

In February 2011, Fernando Patino, Jr.’s Michigan City home was sold at a sheriff’s sale. Immediately after the sale, the purchaser, Brett Carney, went to the residence to inspect the property without realizing Patino still lived there.

Carney agreed to allow Patino additional time to move out but became angry and threatened to call police upon finding the kitchen stove, purchased by Patino, had been removed. Patino later removed a dryerand subsequently received threatening phone calls and voice messages from Carney demanding the appliances be returned. Carney also showed up at Patino’s workplace making similar demands.

Carney also called the police about the issue, resulting in Patino being on Michigan City’s Most Wanted list. Patino later turned himself in and was charged with Class D felony theft for stealing “property” from the residence.

Patino was eventually acquitted of the theft charge and sued Carney for, among other things, defamation and intentional infliction of emotional distress. A jury awarded Patino $256,000 in damages against Carney.

On appeal, Carney argued the LaPorte Circuit Court erred in denying his pretrial motion for summary judgment on grounds that his statements to police were protected by the doctrine of qualified privilege. He also contended the trial court erred in denying his subsequent motion for judgment on the evidence for the same reason and that the jury verdict was excessive.

The appellate court found sufficient evidence to prove that Carney was not entitled to summary judgment on the basis of qualified privilege defense, noting that more than one conclusion could be drawn from the evidence in Brett Carney v. Fernando Patino, Jr., 46A03-1712-CT-2855.

The appellate court additionally found no error in the trial court’s decision to deny Carney’s subsequent motion for judgment. Specifically, it found he was mistaken for thinking 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.”

Lastly, the appellate court found the jury verdict was not excessive because Patino’s 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,” Judge Terry Crone wrote for the court.  

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