Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brandon v. Buddy & Pal's III, Inc.

Court of Appeals of Indiana

October 14, 2016

William Brandon, Jr. and Sarah Brandon, Appellants-Plaintiffs,
v.
Buddy & Pal's III, Inc., d/b/a Buddy & Pal's Place and Thomas Walker, Appellees-Defendants.

         Appeal 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 Point, Indiana

          VAIDIK, CHIEF JUDGE.

         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.

         [¶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 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, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.