                                                                         FILED
                                                                     Oct 14 2016, 9:42 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Benjamen W. Murphy                                         Anthony F. Tavitas
Law Office of Ben Murphy                                   Adam Tavitas
Griffith, Indiana                                          Crown Point, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

William Brandon, Jr. and Sarah                             October 14, 2016
Brandon,                                                   Court of Appeals Case No.
Appellants-Plaintiffs,                                     45A04-1511-CT-1970
                                                           Appeal from the Lake Superior
        v.                                                 Court
                                                           The Honorable Bruce D. Parent,
Buddy & Pal’s III, Inc., d/b/a                             Judge
Buddy & Pal’s Place and                                    Trial Court Cause No.
Thomas Walker,                                             45D04-1206-CT-178
Appellees-Defendants.




Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 45A04-1511-CT-1970 | October 14, 2016                  Page 1 of 11
                                           Case Summary
[1]   William Brandon Jr. was injured in a bar fight. He sued Thomas Walker—the

      person who hit him—and the bar where the fight occurred. Although Walker

      failed to file an answer and was found to be in default, Walker appeared for

      trial three years later and represented himself, disputing his liability. During

      closing argument, Brandon’s attorney urged the jury to find that the bar was

      85% at fault and that Walker was only 15% at fault. The jury, however, found

      that Brandon himself was 100% at fault. Brandon then filed a motion to correct

      error arguing that the default established Walker’s liability and that the only

      thing left to be determined was damages. The trial court found that Brandon

      waived this issue.


[2]   We agree with the trial court that Brandon waived this issue. That is, because

      Brandon did not object to Walker participating in the trial, did not argue the

      effect of Walker’s default at trial, and asked the jury to find that Walker was

      15% at fault, he cannot now fall back on the position that Walker is 100% at

      fault (based on the default). We therefore affirm the trial court.



                             Facts and Procedural History
[3]   On March 10, 2012, Brandon and his wife went to Buddy & Pal’s Place, a bar

      in Schererville, for a birthday party. Walker was attending the same birthday

      party, although Brandon and Walker did not know each other.




      Court of Appeals of Indiana | Opinion 45A04-1511-CT-1970 | October 14, 2016   Page 2 of 11
[4]   At some point, Brandon and Walker got into a verbal argument. According to

      Walker, Brandon told him “I’ll ‘F’ you up, punk.” Tr. p. 86. A Buddy & Pal’s

      employee quickly broke up the argument and escorted Walker and two females

      out of the bar. According to the employee, Walker did not cause any problems

      on his way out. Id. at 299-300. Once outside, Walker realized that he did not

      have his phone. One of the females told Walker that Brandon had taken his

      phone. Walker was upset because he had been kicked out of the bar and

      because he thought Brandon had his phone. Id. at 92.


[5]   Walker approached the same employee who had just escorted him out of the

      bar and asked if he could go back in to get his phone. The employee said yes

      and escorted Walker back into the bar. Walker was calm at the time. Id. at

      300. As Walker approached the table where he had been sitting to look for his

      phone, Brandon stood in his way “to provoke a fight.” Id. at 92. At this point,

      Walker punched Brandon in the forehead. Id. at 112; see also id. at 430 (Walker

      explaining during his pro se closing argument: “It was at this time the flight or

      fight fear came over me. I struck Mr. Brandon in the forehead not out of hatred

      but out of fear of being jumped by him and his friend.”). Brandon returned a

      punch, at which point he slipped and fell. Id. at 148. When Brandon fell, he

      cut his hand on a beer bottle. Brandon was taken by ambulance to the hospital,

      where he underwent surgery that night.


[6]   In March 2012, Brandon and his wife (collectively referred to as “Brandon”)

      filed suit against Buddy & Pal’s and Walker. Buddy & Pal’s filed an answer,

      but Walker did not. So in July 2012, Brandon filed a motion for default

      Court of Appeals of Indiana | Opinion 45A04-1511-CT-1970 | October 14, 2016   Page 3 of 11
      judgment against Walker only. Appellants’ App. p. 37. On August 6, 2012,

      Judge Svetanoff found that Walker was in default and set the “[m]atter . . . for a

      hearing on damages at a later date.” Id. at 39; see Ind. Trial Rule 55(B). Four

      days later, on August 10, 2012, Walker, unrepresented by counsel, filed the

      following letter:

              I Thomas Walker . . . disagree with the charges filed against me
              from Plaintiff William Brandon Jr., and have been in touch with
              his attorney . . . about this matter. I also disagree with the
              motion for default judgement.


      Appellants’ App. p. 40. Judge Svetanoff never held a damages hearing as

      mentioned in the August 6, 2012 order. Judge Parent later took over the case.

      He never held a damages hearing, and Brandon never asked him to hold a

      damages hearing.


[7]   Over three years after the entry of default, in August 2015, a three-day jury trial

      began. After the jury was selected, Walker appeared in court without a lawyer

      because he had received a summons from Brandon to testify as a witness during

      trial; Walker told Judge Parent that he did not think he was still a defendant in

      the case. Tr. p. 18. Judge Parent, however, told Walker that he was still a

      defendant and that he “presumed [Walker was] going forward on [his] own.”

      Id. Without objection from Brandon or any mention of the default that had

      been entered three years earlier, Walker started representing himself.

      Specifically, Walker gave an opening statement, cross-examined witnesses,

      participated in the final-instructions conference, and gave a closing argument.


      Court of Appeals of Indiana | Opinion 45A04-1511-CT-1970 | October 14, 2016   Page 4 of 11
[8]   During Buddy & Pal’s cross-examination of Walker, it admitted into evidence

      the trial court’s entry of default as Exhibit 15. Id. at 94. Then, on redirect,

      Brandon’s attorney asked Walker if he remembered sending a letter to the court

      in which he disagreed with the motion for default judgment, and Walker said

      that he remembered doing so. Id. at 96 (parties pointing out that Walker filed

      the letter before Judge Parent took the bench).


[9]   During the final-instructions conference, the parties agreed to Final Instruction

      No. 24, which gave the jury the option of apportioning fault among Brandon,

      Buddy & Pal’s, and Walker:

              To decide if the plaintiffs are entitled to recover damages from
              Buddy & Pal’s III Inc. or Thomas Walker, or both, and if so, the
              amount of those damages, apportion the fault to William
              Brandon Jr., Buddy & Pal’s III Inc., and Thomas Walker on a
              percentage basis in the FAULT section of the verdict form.


              If both defendants or either defendant is at fault, decide each
              defendant’s percentage of fault, if any, and the percentage of
              fault, if any, of William Brandon Jr. under the FAULT section in
              the verdict form. These percentages must total 100%. Do not
              apportion fault to any other person or entity. If you find that
              either Buddy & Pal’s III Inc. or Thomas Walker are not at fault
              or that the Plaintiffs have failed to meet their burden of proof,
              enter zeros for the applicable Defendant under the FAULT
              section of the verdict form.


              If William Brandon Jr.’s percentage of fault is greater than 50%,
              indicate so on the FAULT section of the verdict form, and
              thereby return your verdict for the defendants and against the
              plaintiffs in this case, and deliberate no further.

      Court of Appeals of Indiana | Opinion 45A04-1511-CT-1970 | October 14, 2016   Page 5 of 11
               If you decide, however, that William Brandon Jr.’s fault is 50%
               or less, then decide the total amount of each plaintiff’s damages,
               if any, and enter them under the RECOVERY section of the
               verdict form. Do not consider fault when you decide these
               amounts.


               I give you a verdict form that will help guide you through this
               process.


       Appellants’ App. p. 132. The parties also agreed with the verdict form that was

       given to the jury, which also gave the jury the option of apportioning fault

       among Brandon, Buddy and Pal’s, and Walker. Tr. p. 393-94; Appellants’

       App. p. 136.


[10]   During closing argument, Brandon’s counsel argued that the jury should

       apportion fault among the parties as follows:

               What did [Brandon] do? He went out with his wife. So, I submit
               that his percentage of fault is zero.


               Now you’re left to apportion fault between Buddy and Pal’s and
               Thomas Walker. Now, I’m not saying that Thomas Walker has
               zero percentage. And I’m not saying give Buddy and Pal’s one
               hundred percentage, but I’m saying Buddy and Pal’s are the
               professionals here. Professional security, professional servers.
               Professionals at securing Mr. Walker and others.


               So if you want to offer say eighty to eighty-five percent to Buddy
               and Pal’s and fifteen to twenty percent to Mr. Walker, who could
               fault you. Who could fault you?




       Court of Appeals of Indiana | Opinion 45A04-1511-CT-1970 | October 14, 2016   Page 6 of 11
       Tr. p. 401; see also id. at 405 (“But the responsible party here—the main

       responsible party is Buddy and Pal’s.”). Notably, Brandon’s counsel did not

       mention the default or argue that the entry of default required the jury to find

       that Walker had a minimum percentage of fault.


[11]   Following closing arguments, the jury found that Brandon was 100% at fault,

       Buddy & Pals was 0% at fault, and Walker was 0% at fault. See Appellants’

       App. p. 136 (verdict form filled out by jury).


[12]   After the jury was excused, Brandon requested direction from Judge Parent

       regarding the default that had been entered against Walker in August 2012.

       Judge Parent heard arguments and gave the parties time to file briefs on the

       issue. Id. at 135. During the briefing window, Brandon filed a motion to

       correct error requesting a new trial. Walker, now represented by counsel, filed

       a response. Judge Parent denied Brandon’s motion to correct error as follows:


               The jury heard evidence for three days, determined a lack of fault
               against WALKER, and had been excused with their
               deliberations complete. Only at that point did BRANDON bring
               to the Court’s attention that a default judgment had been entered
               against WALKER in this case on August 6, 2012 . . . .
               BRANDON allowed WALKER to fully participate in all aspects
               of the jury trial without objection . . . . BRANDON agreed to
               the jury verdict forms presented to, and eventually used by, the
               jury that allowed for apportionment of fault related to
               WALKER; this too was done without comment or objection by
               BRANDON. It was not until after the jury entered its verdict and
               w[as] excused that BRANDON brought up the fact that a default
               judgment had previously been entered.


       Court of Appeals of Indiana | Opinion 45A04-1511-CT-1970 | October 14, 2016   Page 7 of 11
                To be clear, the Court was aware of the default judgment against
                WALKER of August 6, 20[12], but assumed that counsel [for]
                BRANDON—an extremely experienced and talented litigator—
                had investigated WALKER’s financial background and
                determined that there was some advantage to his client in
                litigating the matter against both Defendants simultaneously. In
                short, the Court took BRANDON’s silence on this issue as a
                knowing waiver.


       Id. at 158-60.1


[13]   Brandon now appeals.2



                                    Discussion and Decision
[14]   Brandon contends that the trial court should have granted his motion to correct

       error. A trial court has discretion to grant or deny a motion to correct error,

       and we reverse its decision only for an abuse of that discretion. Chapo v.

       Jefferson Cnty. Plan Comm’n, 926 N.E.2d 504, 507 (Ind. Ct. App. 2010). An

       abuse of discretion occurs when the trial court’s decision is against the logic and

       effect of the facts and circumstances before the court. Id. Here, Brandon argues

       that “[s]ince [Walker’s] liability was established by the default . . ., a new trial

       should have been granted on damages only.” Appellants’ Br. p. 5. We agree




       1
        As Brandon points out, his motion to correct error, filed September 9, 2015, was deemed denied on October
       26, see Ind. Trial Rule 53.3; nevertheless, the trial court issued this denial order two days later on October 28.
       2
        In April 2016, Buddy & Pal’s was dismissed from the appeal with prejudice because Brandon and Buddy &
       Pal’s settled. See Order, No. 45A04-1511-CT-1970 (Ind. Ct. App. Apr. 21, 2016). Accordingly, this appeal
       concerns Brandon and Walker only.

       Court of Appeals of Indiana | Opinion 45A04-1511-CT-1970 | October 14, 2016                          Page 8 of 11
       with the trial court that Brandon waived any rights he had by virtue of Walker’s

       2012 default.


[15]   The general principle is that objections not contemporaneously raised are

       waived. Bogner v. Bogner, 29 N.E.3d 733, 740 (Ind. 2015). This is so because an

       objection gives the trial court the opportunity to make a final ruling on the

       matter in the context in which the evidence is introduced. Id.


[16]   Here, the record shows that the trial court entered a default against Walker in

       2012 and that the jury trial occurred in 2015. Brandon stood by silently as

       Walker represented himself at trial and disputed his liability. Buddy and

       Pal’s—not Brandon—admitted the default into evidence. In fact, Brandon’s

       counsel was the one who reminded Walker that he had sent the trial court a

       letter in which he disagreed with the motion for default judgment. Brandon

       also stood by silently as the jury was instructed that it could apportion fault

       among Brandon, Buddy & Pal’s, and Walker (thereby allowing the option that

       Walker could have no liability) and was given a verdict form that gave the jury

       that same option as well. Furthermore, Brandon’s counsel argued to the jury

       that Buddy and Pal’s was 85% at fault and Walker was 15% at fault. Only

       when the trial did not turn out the way that Brandon wanted it to turn out and

       the jury was excused did Brandon raise the issue of the default against Walker

       with the trial court. This was too late. Because Brandon did not object to

       Walker participating in the trial, did not argue the effect of the default against

       Walker at trial, and asked the jury to find that Walker was 15% at fault (because

       it wanted the jury to find that Buddy & Pal’s was primarily at fault), he cannot

       Court of Appeals of Indiana | Opinion 45A04-1511-CT-1970 | October 14, 2016   Page 9 of 11
       now fall back on the position that Walker is 100% at fault (based on the 2012

       default) and that the only thing left to be determined is damages. Accordingly,

       Brandon has waived this claim. See Bogner, 29 N.E.3d at 741 (holding that

       father waived his right to appeal the summary nature of the child-support

       proceedings because the parties agreed to conduct the hearing in summary

       fashion and father never objected).


[17]   In addition, where a defendant fails to answer a complaint, even though there is

       a technical default, the nondefaulting party is not entitled to a judgment by

       default as a matter of right. Progressive Ins. Co. v. Harger, 777 N.E.2d 91, 95 (Ind.

       Ct. App. 2002) (“It is not an abuse of discretion to put a party to its proof,

       default notwithstanding . . . .”); see also Shoulders v. State, 462 N.E.2d 1034, 1036

       (Ind. 1984) (“[E]ntering of the default did not summarily dispose of the petition

       in appellant’s favor.”). Indiana Trial Rule 55(B), which governs default

       judgments, provides that the trial court can hold a hearing to enable it to enter

       judgment:


               If, in order to enable the court to enter judgment or to carry it
               into effect, it is necessary to take an account or to determine the
               amount of damages or to establish the truth of any averment by
               evidence or to make an investigation of any other matter, the
               court may conduct such hearing or order such references as it
               deems necessary and proper and shall accord a right of trial by
               jury to the parties when and as required.


       Here, although the trial court found that Walker was in default in 2012,

       judgment was never entered because the issue of damages was left open. See


       Court of Appeals of Indiana | Opinion 45A04-1511-CT-1970 | October 14, 2016   Page 10 of 11
       Appellants’ Br. p. 9 (Brandon conceding that judgment was never entered on

       the default in this case).3 Accordingly, to the extent that there was still a default

       in place, the 2015 jury trial constituted the hearing contemplated by Trial Rule

       55(B). The trial court did not abuse its discretion in denying Brandon’s motion

       to correct error.4


[18]   Affirmed.


       Baker, J., and Najam, J., concur.




       3
        Although Judge Svetanoff’s August 6, 2012 order called the entry of default a “default judgment,” see
       Appellants’ App. p. 39, it is clear that it was not a judgment because it did not entitle Brandon to collect any
       damages from Walker. See Ind. Trial Rule 58(B)(4) (explaining that a judgment must include “the relief
       granted”).
       4
         To the extent Brandon raises as a separate issue that the jury’s verdict that he was 100% at fault is against
       the weight of the evidence and therefore the trial court should have granted him a new trial pursuant to
       Indiana Trial Rule 59(J) (on damages only), see Warrick v. Stewart, 29 N.E.3d 1284, 1289 (Ind. Ct. App. 2015)
       (discussing trial court’s role as thirteenth juror), we disagree. There was evidence at trial that Brandon told
       Walker during their verbal argument “I’ll ‘F’ you up, punk” and that when Walker walked back into the bar
       to look for his phone, Walker was calm and Brandon stood in his way “to provoke a fight.” This evidence is
       sufficient for the jury to find that Brandon was 100% at fault. Because of this evidence, this case is
       distinguishable from a case that Brandon cites, Deible v. Poole, 691 N.E.2d 1313 (Ind. Ct. App. 1998), reh’g
       denied, expressly adopted by 702 N.E.2d 1076 (Ind. 1998) (finding that the trial court abused its discretion in
       denying the plaintiff’s motion for a new trial; because the defendant admitted that he caused the car accident
       and that the plaintiff was entitled to recover at least some of her medical bills, prejudicial error occurred when
       the jury found that the plaintiff was 100% at fault).

       Court of Appeals of Indiana | Opinion 45A04-1511-CT-1970 | October 14, 2016                         Page 11 of 11
