William Brandon, Jr. and Sarah Brandon, Appellants-Plaintiffs,
Buddy & Pal's III, Inc., d/b/a Buddy & Pal's Place and Thomas Walker, Appellees-Defendants.
from the Lake Superior Court The Honorable Bruce D. Parent,
Judge Trial Court Cause No. 45D04-1206-CT-178
ATTORNEY FOR APPELLANT Benjamen W. Murphy Law Office of Ben
Murphy Griffith, Indiana
ATTORNEYS FOR APPELLEE Anthony F. Tavitas Adam Tavitas Crown
VAIDIK, CHIEF JUDGE.
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.
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.
and Procedural History
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.
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.
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
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 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
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.
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, ...