Campbell v. El Dee Apartments

• Decision Date: 12 November 1998
• Docket Number: No. 29A05-9710-CV-452,29A05-9710-CV-452
• Citation: 701 N.E.2d 616
• Parties: Rocky CAMPBELL and Jesse Parker, Appellants-Plaintiffs, v. EL DEE APARTMENTS and Criterion Group, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 616

701 N.E.2d 616

Rocky CAMPBELL and Jesse Parker, Appellants-Plaintiffs, v. EL DEE APARTMENTS and Criterion Group, Appellees-Defendants.

No. 29A05-9710-CV-452.

Court of Appeals of Indiana.

Nov. 12, 1998.

Joseph J. Reiswerg, Bryan S. Redding, Mantel, Cohen, Garelick, Reiswerg & Fishman, Indianapolis, for Appellants-Plaintiffs.

Michael E. Simmons, Hume Smith Geddes Green & Simmons, LLP, Indianapolis, for Appellees-Defendants.

OPINION

RUCKER, Judge.

After pending for years this case finally proceeded to trial in the Hamilton County Circuit Court. During the course of proceedings Appellant Jesse Parker died. On the first day of trial Appellant Rocky Campbell moved to substitute himself as the administrator of the Parker estate. The trial court denied the motion and dismissed Parker from this action. Over the next two days Campbell presented his case and then rested. Appellees El Dee Apartments and Criterion Group (collectively "Criterion") moved for judgment on the evidence which the trial court granted. Campbell now appeals raising five issues for our review. We address the following restated issues: (1) Did the trial court err in granting Criterion's motion for judgment on the evidence, (2) Did the trial court err in denying Campbell's motion for substitution, and (3) Did the trial court err in denying Campbell's motion for sanctions and attorney fees.

We affirm in part and reverse in part.

BACKGROUND AND PROCEDURAL HISTORY ¹

In August 1986 children playing with matches started a fire that destroyed much of the federally-subsidized El Dee apartments on East 12th Street in Indianapolis. El Dee Apartments was the landlord and Criterion Group was the property manager. El Dee and Criterion Group believed the apartments were unsafe. As a result they refused to allow the residents to re-enter their damaged apartments until the residents signed general releases relieving El Dee and Criterion Group from any liability occasioned by the re-entry. The residents signed the releases, entered their apartments, and discovered their personal property was not just damaged, but missing entirely. On August 29, 1989, Rocky Campbell, Jesse Parker, Marilyn Johnson, Carolyn Willis, and eleven other plaintiffs filed a complaint against El Dee Apartments, Criterion Group, and Criterion Construction, alleging negligence and conversion. Criterion Construction was responsible for cleaning up after the fire.

The record is not clear regarding the disposition of eleven of the plaintiffs. However no issues have been raised concerning them, and they have not been named as parties in this appeal. The record does show that plaintiff Johnson settled her case with the defendants, and plaintiff Willis agreed to be dismissed from this action. Thus the plaintiffs left remaining are Rocky Campbell and Jesse Parker (collectively "Campbell"). Also, during the course of these proceedings defendant Criterion Construction was dismissed after successfully defending a motion for summary judgment granted in its favor. Thus El Dee Apartments and Criterion Group are the remaining defendants.

This case was finally scheduled for trial by jury on May 5, 1997. In the interim on April 23, 1995, Parker died. Apparently Rocky Campbell filed a petition in probate court to be appointed as administrator of Parker's estate. Based on his alleged status, on the first day of trial Rocky Campbell filed a motion with the trial court to substitute himself in this action as administrator of Parker's estate. Apparently the trial court denied the motion and dismissed Parker as a party in this case.

The case proceeded to trial on Campbell's claim of negligence and conversion. He also sought punitive damages on the conversion claim. At the close of Campbell's case in chief Criterion moved for judgment on the evidence on three grounds: (1) Campbell failed to prove the existence of legal entities known as El Dee Apartments and Criterion Group, (2) Campbell presented no evidence showing a conversion of personal property, and (3) Campbell introduced no evidence showing he was entitled to punitive damages. After entertaining arguments of counsel the trial court granted the motion. This appeal followed.

DISCUSSION

I.

Campbell first contends the trial court erred in granting Criterion's motion for judgment on the evidence. Criterion counters the trial court properly granted the motion because it was "incumbent upon Campbell to prove at trial that (1) El Dee Apartments and Criterion Group, were, in fact, real entities; and (2) that such entities were responsible for Campbell's property during the time period at issue." Appellee's Brief at 6. According to Criterion Campbell proved neither.

The purpose of a motion for judgment on the evidence is to test the legal sufficiency of evidence. Young v. Butts, 685 N.E.2d 147, 149 (Ind.Ct.App.1997). When the issues tried are not supported by sufficient evidence, the trial court is required to withdraw those issues from the jury and enter judgment on them. Id. Our standard for review of a trial court's ruling on a motion for judgment on the evidence is settled. This court is bound by the same standard as the trial court. Kroger Co. Sav-On Store v. Presnell, 515 N.E.2d 538, 543 (Ind.Ct.App.1987), trans. denied. We may not substitute our judgment for that of the jury on questions of fact nor should a motion for judgment on the evidence be granted because the evidence preponderates in favor of the moving party. McQueen v. City of Indianapolis, 412 N.E.2d 138, 139 (Ind.Ct.App.1980). Rather, we determine only: (a) whether there exists any reasonable evidence supporting the plaintiff's claim, and (b) if such evidence does exist, whether the inference supporting the claim can be drawn without undue speculation. Dettman v. Sumner, 474 N.E.2d 100, 104 (Ind.Ct.App.1985).

The foregoing standard of review presupposes of course that the party against whom a motion for judgment on the pleadings is granted had the burden of proof at trial. In this case Criterion asserts that Campbell was required to prove the legal existence of entities known as "El Dee Apartments" and "Criterion Group." ² We disagree.

It is true that the burden of going forward with the evidence may shift during the course of trial. Meyers v. Emerson, 118 Ind.App. 463, 77 N.E.2d 902, 902 (1948); see also Calumet Motor Sales of Hammond, Inc. v. M.F. Cooper Builders, Inc., 140 Ind.App. 624, 221 N.E.2d 438, 441 (1966) ("Once plaintiff-appellee introduced evidence to establish the essential elements of his cause of action, the burden of going forward shifted to defendant-appellant to introduce evidence if, in its opinion, the evidence produced by plaintiff was not correct."). However the initial burden on the plaintiff is merely to prove the material allegations of its complaint by a fair preponderance of the evidence. Kempf v. Himsel, 121 Ind.App. 488, 98 N.E.2d 200, 212 (1951). In this case the essential allegations in Campbell's complaint are that El Dee Apartments and Criterion Group were negligent in protecting Campbell's property and wrongfully converted the property. Campbell did not allege the legal status of either El Dee Apartments or Criterion Group nor was he required to do so. "It is not necessary to aver the capacity of a party to sue or be sued ... or the legal existence of an organization that is made a party." Ind. Trial Rule 9(A). Having made no allegation concerning the legal existence of the defendants in this action Campbell was not required to introduce evidence on this point at trial. Rather, "the burden of proving lack of ... legal existence shall be upon the person asserting lack of it, and shall be pleaded as an affirmative defense." Id. Here, Criterion did not plead lack of legal existence as an affirmative defense. Rather the assertion was set forth in its answer. Assuming for the sake of argument that the answer was in the nature of an affirmative defense, Criterion still had the burden of proving the assertion. Because Criterion's motion for judgment on the evidence was granted at the close of Campbell's case, obviously Criterion never attempted to carry its burden. It was Criterion's obligation and not that of Campbell to introduce evidence at trial proving El Dee Apartments and Criterion Group lacked legal existence.

We also observe that even if Criterion had introduced evidence at trial proving El Dee Apartments and Criterion Group lacked legal existence, such evidence would not have defeated Campbell's claim. In August of 1990 Campbell amended his complaint to allege in pertinent part:

2. At the time of all events complained of, the Defendants, Criterion Group, also known as Criterion Property Management, Inc., was and continue[s] to be a real estate management agency responsible for the management of the Eldee Apartments in Indianapolis, Marion County, Indiana.

3. At the time of all events complained of, the Defendants, El Dee Apartments, also known as El Dee I, owned and operated the apartments located in Indianapolis, Marion County, Indiana and known as El Dee Apartments.

R. at 34-35 (emphasis added). In answer to the complaint, while denying the legal existence of Criterion Group, Criterion did "admit Criterion Property Management, Inc. was the real estate management agency responsible for El Dee Apartments in Indianapolis, Marion County, Indiana as alleged in rhetorical paragraph 2 of Plaintiffs' Amended Complaint for Damages." R. at 47. In further answer to the complaint, Criterion asserted that it "admits and states its proper name to be 'El Dee I, a Limited Partnership', which owned and operated the apartments located in Indianapolis, Marion County, Indiana, and known as El Dee Apartments, as alleged in rhetorical paragraph 3 of Plaintiffs' Amended Complaint For Damages." R. at 48.

Generally, a person may be designated in a legal proceeding by the name which he is commonly known even though it does not constitute his true name....