                                                                      FILED
                                                                 Jun 13 2017, 10:05 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




      ATTORNEYS FOR APPELLANTS                                ATTORNEY FOR APPELLEE
      Keith W. Vonderahe                                      Guy A. Relford
      Robert L. Burkart                                       The Law Offices of Guy A.
      Ziemer Stayman Weitzel & Shoulders,                     Relford
      LLP                                                     Carmel, Indiana
      Evansville, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      City of Evansville and The                              June 13, 2017
      Evansville Department of Parks                          Court of Appeals Case No.
      and Recreation,                                         82A05-1610-PL-2350
      Appellants-Defendants,                                  Appeal from the Vanderburgh
                                                              Circuit Court
              v.                                              The Honorable Carl A. Heldt,
                                                              Judge
      Benjamin A. Magenheimer,                                Trial Court Cause No.
      Appellee-Plaintiff.                                     82C01-1109-PL-476




      Najam, Judge.


                                       Statement of the Case
[1]   The City of Evansville and the Evansville Department of Parks and Recreation

      (“the City”) bring this interlocutory appeal from the trial court’s denial of their

      motion for summary judgment on a complaint filed by Benjamin A.


      Court of Appeals of Indiana | Opinion 82A05-1610-PL-2350 | June 13, 2017            Page 1 of 10
      Magenheimer. This is the City’s second interlocutory appeal in this matter. See

      City of Evansville v. Magenheimer, 37 N.E.3d 965 (Ind. Ct. App. 2015), trans.

      denied (“Magenheimer I”). In the instant appeal, the City contends that there is

      no genuine issue of material fact that would support a private right of action

      under the Indiana firearm preemption statutes, Indiana Code Chapter 35-47-

      11.1. But we believe the dispositive issue is whether the law of the case doctrine

      precludes our review of the City’s arguments in this appeal. We hold that it

      does, and, as such, we affirm the trial court’s denial of summary judgment.


                                 Facts and Procedural History
[2]   The facts relevant to this appeal were stated by this court in Magenheimer I:


              On September 10, 2011, Magenheimer visited the Mesker Park
              Zoo and Botanical Garden, a city park, with his wife and son.
              While at the park, Magenheimer was openly carrying a firearm.
              Magenheimer was licensed to carry this firearm and had a copy
              of the license in his possession. At the time, the Evansville
              municipal code contained a provision prohibiting firearms in city
              parks. An employee of the park spotted Magenheimer carrying
              the firearm and called the police. The police arrived and ordered
              Magenheimer to leave the park.


              Magenheimer filed an initial complaint on September 16, 2011,
              and an amended complaint a few days later. Magenheimer’s
              complaint alleged that Evansville had violated Indiana Code
              chapter 35-47-11.1, which generally bars political subdivisions
              from regulating firearms. Magenheimer filed his complaint
              pursuant to a provision that gives individuals a private right of
              action to enforce the statute. Magenheimer’s request for relief
              tracked the language of the statute, which allows successful


      Court of Appeals of Indiana | Opinion 82A05-1610-PL-2350 | June 13, 2017    Page 2 of 10
              plaintiffs to recover either actual and consequential damages or
              liquidated damages of treble attorney fees.


      Id. at 966-67. The City sought a judgment on the pleadings of Magenheimer’s

      complaint, which the trial court denied.


[3]   On interlocutory appeal in Magenheimer I, we discussed the law and facts

      underlying Magenheimer’s complaint as follows:


                                 I. Indiana Code Chapter 35-47-11.1


              It is the general policy of this state that local governments shall
              be granted all powers “necessary or desirable in the conduct of
              [their] affairs.” Ind. Code § 36-1-3-4. However, local
              governments only retain a power “to the extent that the power is
              not expressly denied by the Indiana Constitution or by statute.”
              I.C. § 36-1-3-5. In 2011, our legislature determined that the
              public interest would be best served by denying local
              governments the power to regulate firearms. Indiana Code
              chapter 35-47-11.1 was passed to effectuate this new policy. It
              provides that, subject to certain exceptions:


                      [A] political subdivision may not regulate:


                               (1) firearms, ammunition, and firearm
                               accessories;


                               (2) the ownership, possession, carrying,
                               transportation, registration, transfer, and
                               storage of firearms, ammunition, and firearm
                               accessories; and




      Court of Appeals of Indiana | Opinion 82A05-1610-PL-2350 | June 13, 2017      Page 3 of 10
                         (3) commerce in and taxation of firearms,
                         firearm ammunition, and firearm accessories.


        I.C. § 35-47-11.1-2.


        The statute also grants individuals a private right of action to
        enforce its provisions, providing that:


                A person adversely affected by an ordinance, a
                measure, an enactment, a rule, or a policy adopted
                or enforced by a political subdivision that violates
                this chapter may file an action in a court with
                competent jurisdiction against the political
                subdivision for


                         (1) declarative and injunctive relief; and


                         (2) actual and consequential damages
                         attributable to the violation.


        I.C. § 35-47-11.1-5. Prevailing plaintiffs may elect to recover:


                (1) The greater of the following:


                         (A) Actual damages, including consequential
                         damages.


                         (B) Liquidated damages of three (3) times the
                         plaintiff's attorney’s fees.


                (2) Court costs (including fees).



Court of Appeals of Indiana | Opinion 82A05-1610-PL-2350 | June 13, 2017   Page 4 of 10
                (3) Reasonable attorney’s fees.


        I.C. § 35-47-11.1-7.


        To be “adversely affected” for purposes of the statute, individuals
        must first be legal residents of the United States who may legally
        possess firearms in Indiana. I.C. § 35-47-11.1-6. Individuals
        then only need to show that they were “subject to the ordinance,
        measure, enactment, rule, or policy of the political subdivision.”
        Id. The statute provides that:


                An individual is or was subject to the ordinance,
                measure, enactment, rule, or policy of the political
                subdivision if the individual is or was physically
                present within the boundaries of the political
                subdivision for any reason.


        Id. Thus, were a political subdivision to violate Indiana Code
        chapter 35-47-11.1, many individuals would be authorized to
        bring suit.


        However, this seemingly broad authorization was limited by this
        Court’s recent holding in Dykstra[ v. City of Hammond, 985 N.E.2d
        1105 (Ind. Ct. App. 2013), trans. denied]. In Dykstra, this Court
        held that Indiana Code chapter 35-47-11.1 did not authorize suits
        merely because a political subdivision had left an ordinance or
        measure on its books after the statute went into effect. Id. at
        1108. This Court concluded that “the statute was meant to
        prevent the adoption of future ordinances that may conflict with state
        law and to prevent the enforcement of statutes that were in place at
        the time Indiana Code section 35-47-11.1-2 was adopted.” Id.
        (emphases added). However, the instant case is distinguishable from
        Dykstra in that, here, Evansville actually enforced its ordinance against
        Magenheimer.


Court of Appeals of Indiana | Opinion 82A05-1610-PL-2350 | June 13, 2017       Page 5 of 10
      Id. at 967-68 (last emphasis added). Following our analysis of Indiana Code

      Chapter 35-47-11.1 (hereinafter, “the Act”) on these facts, we also assessed

      whether the Indiana Tort Claims Act barred Magenheimer’s claim. Id. at 968-

      71. After concluding that neither the Act nor the Indiana Tort Claims Act

      prohibited Magenheimer’s cause of action, we affirmed the trial court’s

      judgment and “remanded for further proceedings pursuant to Indiana Code

      chapter 35-47-11.1.” Id. at 971.


[4]   The City filed a petition to transfer from this court’s opinion in Magenheimer I.

      In its transfer petition, the City argued, among other things, each of the

      following:


           “A statutory condition precedent to a claim under the [Act] is the
            existence of . . . some affirmative act of a municipal policymaker to
            regulate firearms . . . .”
           “A void firearm regulation does not violate the [Act],” relying on this
            court’s opinion in Dykstra.
           “[Magenheimer] admits that the City had no firearm regulation in
            effect.”
           “the Mayor, City Council, Police Chief” nor “any other City
            policymaker sought to regulate firearms after July 1, 2011, or . . . ordered
            the Void Ordinance to be enforced after July 1, 2011.”
           “the Officers’ alleged actions at the zoo . . . cannot, as a matter of law,
            establish City policy much less constitute . . . enforcement of a City
            firearm regulation that violated the [Act].”
           This court’s opinion in Magenheimer I was contrary to public policy.

      Magenheimer I, Pet. to Transfer at 3-7. The Indiana Supreme Court

      unanimously denied the City’s petition to transfer.



      Court of Appeals of Indiana | Opinion 82A05-1610-PL-2350 | June 13, 2017   Page 6 of 10
[5]   On remand in the trial court, the City moved for summary judgment on the

      grounds that Magenheimer’s claim was precluded by this court’s interpretation

      of the Act in Dykstra, a contention that this court had rejected in Magenheimer I.

      Among the evidence designated to the trial court on the City’s motion was the

      deposition testimony of Magenheimer. In that testimony, Magenheimer stated

      that Evansville Police Department officers “kick[ed him] out of the zoo” and

      told him that they were doing so “[b]ecause [he] shouldn’t have a handgun like

      that here.” Appellee’s App. Vol. 2 at 10. The trial court denied the City’s

      motion for summary judgment but certified its order for interlocutory appeal,

      which we accepted. This second interlocutory appeal ensued.


                                     Discussion and Decision
[6]   The City appeals the trial court’s denial of its motion for summary judgment.

      We review the trial court’s grant or denial of a motion for summary judgment

      de novo, and the party that moved for summary judgment faces a “high bar.”

      Hughley v. State, 15 N.E.3d 1000, 1004 (Ind. 2014). We construe the designated

      evidence in the manner most favorable to the summary judgment nonmovant.

      Id. at 1003-04. Further, “we will affirm the trial court’s ruling based on any

      theory supported by the record evidence.” Markey v. Estate of Markey, 38 N.E.3d

      1003, 1006-07 (Ind. 2015).


[7]   On appeal, the City argues that it is entitled to summary judgment for the

      following reasons:




      Court of Appeals of Indiana | Opinion 82A05-1610-PL-2350 | June 13, 2017   Page 7 of 10
           the City “did not authorize or seek enforcement of the voided Firearm
            Ordinance and no City firearm regulation that violated the Act existed
            on or after July 1, 2011.”
           “the Act does not impose liability for an employee’s alleged mistaken
            enforcement of a voided ordinance where municipal policymakers
            comply with the Act.”
           the Act does not apply to “regulations voided by the Act which the
            political subdivision does not seek to enforce as its policy,” as held by
            this court in Dykstra.
           an officer’s “action relative to firearms cannot support a claim under the
            Act unless it involves the municipality’s affirmative action to unlawfully
            regulate firearms . . . .”
           the City complied with the Act and the intent underlying the Act, and
            Magenheimer’s claim results in “an absurdity and injustice.”

      Appellants’ Br. at 16-24.


[8]   We conclude that the City’s arguments in the instant appeal are precluded by

      the law of the case doctrine. Under the law of the case doctrine, an appellate

      court’s prior determination of a legal issue “binds both the trial court and the

      court on appeal in any subsequent appeal involving the same case and

      relevantly similar facts.” Anderson v. Gaudin, 42 N.E.3d 82, 87 n.5 (Ind. 2015)

      (quotation marks omitted). “A court may revisit prior decisions of its own or of

      a coordinate court in any circumstances, although as a rule courts should be

      loath[] to do so in the absence of extraordinary circumstances such as where the

      initial decision was clearly erroneous and would work a manifest injustice.” Id.

      (quotation marks omitted).


[9]   This court squarely addressed the applicability of the Act to the facts pleaded by

      Magenheimer in Magenheimer I. Again, we expressly held that the Act applied

      Court of Appeals of Indiana | Opinion 82A05-1610-PL-2350 | June 13, 2017   Page 8 of 10
       to the facts as pleaded. Magenheimer I, 37 N.E.3d at 967-68. Indeed, the City

       sought transfer from our prior opinion and presented arguments in its petition

       to transfer that are virtually identical to the arguments it now presents in this

       second interlocutory appeal. Further, during the summary judgment

       proceedings on remand, the designated evidence most favorable to

       Magenheimer, the summary judgment nonmovant, did not present a different

       picture of the facts than those that were pleaded. Rather, Magenheimer’s

       deposition testimony supports the facts he pleaded and, as such, places the

       summary judgment proceedings in the same factual context as the pleadings.

       Thus, there is no material difference between the City’s argument in the instant

       appeal from the denial of its motion for summary judgment and its argument,

       which we rejected in the prior appeal, from the denial of its motion for

       judgment on the pleadings. We decline the City’s invitation to revisit the issue

       and reconsider its arguments.


[10]   We also note that the City made no mention of Magenheimer I in its lead brief to

       this court1 despite that opinion’s conspicuous treatment of the arguments raised

       by the City in the instant appeal. Indeed, the trial court cited Magenheimer I in

       its entry denying the City’s motion for summary judgment. Attorneys have an

       affirmative obligation to bring relevant authority to this court’s attention, even

       if that authority is adverse to the attorney’s client. See Ind. Professional

       Conduct Rule 3.3(a)(2). Magenheimer I clearly satisfies that test. And, since the


       1
         The City mentions Magenheimer I in its reply brief to criticize Magenheimer for relying on the facts stated in
       that opinion and to reference a policy statement underlying the Act. Reply Br. at 5, 11.

       Court of Appeals of Indiana | Opinion 82A05-1610-PL-2350 | June 13, 2017                           Page 9 of 10
       City makes no mention of Magenheimer I in its lead brief, it makes no argument

       that “extraordinary circumstances” exist that would justify deviating from our

       usual rule that a prior opinion from this court on the same issue is entitled to

       preclusive effect. See Ind. Appellate Rule 46(A)(8)(a); Anderson, 42 N.E.3d at 87

       n.5.


[11]   In sum, the City’s arguments in this second interlocutory appeal were

       considered and rejected in Magenheimer I. That opinion is entitled to preclusive

       effect, and the City makes no argument to the contrary in the instant appeal.

       We will affirm the trial court on any legal theory supported by the record, and,

       thus, we affirm the court’s judgment under the law of the case doctrine.


[12]   Affirmed.


       Mathias, J., and Altice, J., concur.




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