Outback Steakhouse of Florida v. Markley

Decision Date25 July 2005
Docket NumberNo. 18A04-0401-CV-13.,18A04-0401-CV-13.
Citation831 N.E.2d 228
PartiesOUTBACK STEAKHOUSE OF FLORIDA, INC., Toncredi, Inc. and John Broz, d/b/a Outback Steakhouse of Muncie, Appellants-Defendants, v. David D. MARKLEY and Lisa K. Markley, Appellees-Plaintiffs.
CourtIndiana Supreme Court

Appeal from the Delaware Circuit Court, Joel D. Roberts, Special Judge.



Karl L. Mulvaney, Nana Quay-Smith, Candace L. Sage, Bingham McHale, LLP, Indianapolis, for Appellants.

P. Gregory Cross, Cross Law Firm, Michael J. Alexander, Alexander Law Firm, Donald K. McClellan, McClellan, McClellan & Arnold, Muncie, for Appellees.


MAY, Judge.

Outback Steakhouse appeals a judgment against it in a personal injury action brought by David and Lisa Markley. The Markleys were injured in an automobile collision with William Whitaker, who had been served alcohol at Outback.1 Outback raises seven issues on appeal, which we consolidate and restate as:

1. Whether a new trial is required based on the Markleys' failure in an interrogatory to disclose a witness' prior statement that Whitaker was intoxicated when Outback served him, or to inform Outback when that witness indicated she would recant her deposition testimony to the contrary;

2. Whether the trial court improperly declined to give an instruction on non-party fault Outback tendered;

3. Whether the trial court improperly limited Outback's impeachment of one of the Markleys' witnesses when the witness had, before trial, admitted he was guilty of wire fraud but the Markleys' counsel did not disclose that information to Outback or the court;

4. Whether the jury's award was artificially inflated due to the Markleys' reference in closing argument to punitive damages after the Markleys had agreed to drop their punitive damages claim and their failure to disclose a witness who would testify about special damages the Markleys suffered.2

We affirm.


On July 21, 1997, the motorcycle the Markleys were riding was hit by a car driven by Whitaker. The Markleys were both seriously injured. David suffered a broken leg and ankle and an injury to his foot. He was unable to continue working as a millwright. Lisa's injuries were more serious. She had internal injuries, a fractured tibia and pelvis, and extensive damage to the urogenital and rectal area. She required numerous surgeries and was unable after the accident to have sexual intercourse or bear children.

Whitaker left the scene. Earlier that evening Whitaker had attended the opening of an Outback restaurant in Muncie where he had drinks. There was conflicting testimony as to his level of intoxication when he left Outback. Whitaker then proceeded to a bar called Van's, where he had more drinks. There was conflicting testimony as to whether the drinks he consumed at Van's contained alcohol. Whitaker left Van's between 10:30 and 11:00 p.m. and hit the Markleys on his way home.

The Markleys sued Outback in 1999, alleging Outback served alcohol to Whitaker when he was visibly intoxicated. Outback served interrogatories on the Markleys asking them to identify evidence on which they would rely on the issue of Whitaker's visible intoxication3 and to provide the names of persons with actual knowledge on that issue. The Markleys' response included several names, but did not mention Patrice Roysdon,4 who served drinks to Whitaker. Roysdon was a server employed by Outback, and she knew Whitaker. The response indicated the interrogatory would be supplemented as discovery proceeded.

In a post-trial deposition, Roysdon testified she told the Markleys' counsel in 1997, about a month after the accident, that she thought Whitaker was visibly intoxicated. The Markleys' counsel confirmed, both during the deposition and in a teleconference with the court during the deposition, that Roysdon had made that statement in 1997. In its motion to dismiss Outback's motion for relief from judgment, the Markleys' counsel stated Roysdon "shortly after [the accident], advised counsel for the Plaintiffs that William Whitaker was intoxicated when he was served alcohol at Outback." (Appellants' App. at 460) (emphasis in original).5

However, the Markleys did not identify Roysdon in their response to Outback's 1999 interrogatories asking for the names of persons on whom they would rely with knowledge of facts supporting the Markleys' allegation that the defendants provided alcoholic beverages to Whitaker with actual knowledge he was visibly intoxicated. Nor did they ever amend their discovery answers to identify Roysdon as someone who would testify Outback served Whitaker with actual knowledge he was visibly intoxicated.

In 2001, Outback's attorney located Roysdon and asked her whether she had served Whitaker when he was visibly intoxicated. She told counsel Whitaker appeared normal when he left Outback and there was no way he was intoxicated. (Appellant's App. at 682.) In her pretrial deposition she stated under oath Whitaker was not visibly intoxicated at Outback.

Outback moved for summary judgment contending there was no evidence of Outback's actual knowledge Whitaker was served when he was visibly intoxicated. The Markleys responded that Whitaker's visible intoxication could be inferred from evidence Whitaker was extremely intoxicated when he arrived at Van's. The Markleys' response did not mention Roysdon. Outback's motion was denied and trial commenced in June of 2002. That proceeding ended in a mistrial after it was learned the Markleys had not disclosed a witness prior to trial. After the witness testified, a juror pointed out he knew the witness. The juror was excluded after he opined the witness was a pathological liar.

A second trial began in June of 2003. During opening statement, Outback told the jury Roysdon would testify Whitaker was not visibly intoxicated, and that no witness would be produced who could testify to the contrary. Outback had subpoenaed her, and she came to court on Thursday, June 19, 2003. Outback's counsel asked her to return the following Tuesday, as the Markleys had not yet finished presenting their case.

Roysdon contacted the Markleys' counsel after speaking with Outback's counsel and met with the Markleys' counsel the Sunday before she was scheduled to testify. She told the Markleys' counsel she planned to change her testimony. The Markleys' counsel did not inform Outback or the trial court of this, nor did the Markleys supplement their discovery responses. Roysdon appeared in court that Monday and the Markleys called her as a witness. Roysdon testified she lied when she gave her deposition in 2001 and that Whitaker was visibly intoxicated and she continued to serve him after she realized he was intoxicated. Outback was not notified the Markleys would call her to testify or that she would contradict the statements she previously made in her deposition.

The jury returned a verdict of $60 million for the Markleys. It allocated 65% of the fault to Outback and 35% to Whitaker, and the trial court accordingly entered judgment against Outback in the amount of $39 million. The trial court also ordered a transcript of Roysdon's testimony be prepared and forwarded to the prosecutor for whatever action he might deem appropriate.

Outback took post-trial depositions of Roysdon and Whitaker and moved to correct error and for relief from judgment. The trial court denied both motions. Additional facts regarding other witnesses and discovery abuse allegations will be provided where relevant below.


We employ an abuse of discretion standard when reviewing the grant or denial of an Ind. Trial Rule 60(B) motion.6 Gifford v. Hartford Steam Boiler Inspection and Ins. Co., 811 N.E.2d 853, 856 (Ind.Ct.App.2004), trans. denied. A trial court abuses its discretion when its judgment is clearly against the logic and effect of the facts and inferences supporting the judgment for relief. Id. Because T.R. 60(B) relief is equitable in nature, the trial court must balance the alleged injustice suffered by the party moving for relief against the interests of the winning party and society in general in the finality of litigation. Id.

Where a party establishes that an unconscionable plan or scheme was used to improperly influence the factfinder's decision, and such acts prevented the losing party from fully and fairly presenting its case or defense, then fraud on the court exists and Rule 60(B) relief is available. Rocca v. Rocca, 760 N.E.2d 677, 680 (Ind.Ct.App.2002), trans. denied 783 N.E.2d 697 (Ind.2002). The standard of appellate review of trial court rulings on motions to correct error is also abuse of discretion. Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048, 1055 (Ind. 2003).

1. The Markleys' Failure to Disclose Roysdon and Her Prior Statement

Outback's primary allegation of error is that the Markleys' failure to reveal a 1997 statement of witness Roysdon, and their failure to immediately disclose during the trial their knowledge Roysdon would recant her deposition testimony, amount to discovery misconduct that requires a new trial. We agree the Markleys' counsel should have supplemented their discovery responses to reveal Roysdon's anticipated testimony after her Sunday meeting with Counsel. However, we need not reverse on that ground because Outback has not demonstrated a different result would have been reached had the Markleys supplemented their discovery regarding Roysdon's testimony.

The Markleys did not identify Roysdon in their response to Outback's 1999 interrogatories asking for the names of persons with knowledge of facts supporting the Markleys' allegation that the defendants provided alcoholic beverages to Whitaker with actual knowledge he was visibly intoxicated.7 Nor did they ever amend their discovery answers to identify Roysdon as someone who would testify Outback served Whitaker with actual knowledge he was visibly...

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1 cases
  • Outback Steakhouse of Florida v. Markley
    • United States
    • Indiana Supreme Court
    • 8 Noviembre 2006
    ...Alexander and McClellan to pay Outback's trial and posttrial attorney fees. The Court of Appeals affirmed. Outback Steakhouse v. Markley, 831 N.E.2d 228, 241 (Ind.Ct.App.2005). We granted transfer. Outback Steakhouse v. Markley, No. 18S04-0602-CV-66, 856 N.E.2d 65, 2006 WL 3218531, 2006 Ind......

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