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Lachenman v. Stice11/30/2005
court's ruling was in error. We would therefore be justified in holding this argument waived for purposes of appeal. See Ind. Appellate Rule 46(A)(8)(a). Waiver notwithstanding, we cannot say that the trial court erred.
With regard to the trial court's rulings regarding evidence of future breeding income, we first note that although the trial court did exclude evidence of such, it had earlier granted summary judgment upon Lachenman's claim for damages regarding the loss of potential breeding income. We therefore review this issue as whether the trial court was correct in granting summary judgment. In her brief, Lachenman refers us to no designated evidence regarding future breeding income, but our review of the record reveals that the portions of Lachenman's deposition testimony, which was designated as evidence, did mention the loss of future breeding income. Lachenman testified that she had never bred her dog before. She agreed that her loss of future breeding income was "pretty hard to determine," and stated that her damage estimates were "average ." Appellant's App. at 30. When asked how she would determine her loss of future breeding income, she stated, "I know Jack Russell terriers sell from [$]350 to $500, depending on their lineage. And basically she would probably have four puppies, but it's hard to determine because she's never really had a litter." Id. In fact, Lachenman had only recently begun to research the possibility of breeding her dog and stated that such would be a "learning experience." Id. Lachenman further stated that Jack Russell terriers usually have four to six pups, and that she would have had to have given one pup up to whomever provided the stud services. Lastly, she stated that she would probably have bred her dog for six or seven years.
Based upon this designated evidence, we agree with the Stices that Lachenman's claim of damages with regard to future breeding income was speculative. The Stices refer us to Greives v. Greenwood, 550 N.E.2d 334, 338 (Ind. Ct. App. 1990), in which the court held that where damages were allowed for injury to or loss of cows, such damages could not also be allowed for the loss of unborn calves carried by them, "since unborn calves have no market value and a separate allowance for them would amount to double damages." While not entirely on point, the Greives court did note the rule that a jury may consider lost profits only if there is sufficient evidence to prevent mere speculation. Id. at 337. Here, the designated evidence regarding the breeding potential of Lachenman's dog was wholly speculative. Lachenman's testimony betrayed the speculative nature of her claim for breeding income when she admitted that her dog would "probably" have had four puppies but that such was "hard to determine" because her dog had never been bred before. Appellant's App. at 30. We cannot say that the trial court erred in granting summary judgment in favor of the Stices with respect to Lachenman's claim she lost $14,000 in future breeding income because the designated evidence with regard to this claim was speculative in nature.
II. Violent Propensity Evidence
Lachenman also challenges the trial court's rulings regarding the admissibility of certain evidence. The admission or exclusion of evidence is a determination entrusted to the discretion of the trial court, and we will reverse a trial court's decision only when the court has abused its discretion. Potts v. Williams, 746 N.E.2d 1000, 1007 (Ind. Ct. App. 2001). Upon appeal, Lachenman specifically contends that the trial court erred in excluding evidence regarding the two incidents involving the Stices' dogs which occurred after the attack on Lachenman's dog. The Stices counter that
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