A Lake County man cannot seek damages against another man he was involved in a bar fight with after the Indiana Court of Appeals decided Friday that the plaintiff waited too long to bring up the defendant’s default in court.
In March 2012, William Brandon was at the Buddy & Pal’s Place bar in Schererville attending a birthday party. Thomas Walker was also at the party, although the two men did not know each other.
Brandon and Walker got into an argument at some point, which was broken up by a bar employee, who escorted Walker and two women out of the bar. Once outside, Walker realized that he did not have his cell phone, and one of the women told him that Brandon had taken it. Walker then asked if he could return to the bar to retrieve his phone, and he was escorted back inside.
As he was approaching the table, Brandon stood in his way “to provoke a fight,” prompting Walker to punch him in the forehead. Brandon swung back, slipped and fell and cut his hand on a beer bottle. He was taken to a hospital and underwent surgery.
Later that month, Brandon and his wife filed suit against the bar and Walker. Walker did not file a response, so Brandon filed a motion for default judgment against Walker. A trial court judge found that Walker was in default, at which point Walker filed a pro se letter saying that he disagreed with the charges and had been in contact with Brandon’s lawyer.
Three years later, Walker appeared in court pro se. The final instructions gave the jury the option of assigning fault in the incident based on percentages, with Brandon’s attorney urging the jury to find the bar 85 percent at fault and Walker 15 percent at fault. Instead, the jury found Brandon to be 100 percent at fault.
After the verdict, Brandon requested direction from the judge on the default that had been entered against Walker three years earlier and also filed a motion to correct error and requested a new trial. The judge denied the motion to correct error, saying Brandon did not bring up Walker’s default until after the conclusion of the trial and that Brandon had not objected to Walker’s participation in the trial.
Brandon appealed the denial of his motion to correct, arguing that because Walker had been established as liable by default, the judge should have granted a new trial on damages only. But the Indiana Court of Appeals wrote Friday that it agreed with the trial court’s judgment that Brandon’s silence on Walker’s default during the trial had waived the rights he had by virtue of the default.
“Only when the trial did not turn out the way the Brandon wanted it to turn out and the jury was excused did Brandon raise the issue of default against Walker with the trial court,” Chief Judge Nancy Vaidik wrote for the court Friday. “This was too late.”
The case is William Brandon, Jr. and Sarah Brandon v. Buddy & Pal’s III, Inc. d/b/a/ Buddy & Pal’s Place and Thomas Walker, 45A04-1511-CT-1970.