City of Evansville and The Evansville Department of Parks and Recreation v. Benjamin A. Magenheimer

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.
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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
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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
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(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).
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(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.
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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.
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[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:
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 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
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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.
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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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