ATTORNEYS FOR APPELLANTS: ATTORNEY FOR APPELLEE:
JOSEPH J. REISWERG MICHAEL E. SIMMONS
BRYAN S. REDDING Hume Smith Geddes Green &
Mantel, Cohen, Garelick, Reiswerg & Simmons, LLP
Fishman Indianapolis, Indiana
ROCKY CAMPBELL and JESSE PARKER, ) ) Appellants-Plaintiffs, ) ) vs. ) No. 29A05-9710-CV-452 ) EL DEE APARTMENTS and ) CRITERION GROUP, ) Appellees-Defendants. )
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.
(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."See footnote 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
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. Wherry v. Backelman, 126 Ind. App. 136, 130 N.E.2d 777, 778 (1955). Further, the character in which anyone is made a party to an action is determined from the allegations in the complaint. State ex rel. Young v. Niblack, 229 Ind. 596, 99 N,E.2d 839, 841 (1951). It is clear that Campbell identified the proper parties to this action. That Campbell included the names by which the parties are also known is of no moment. It is equally clear that the allegations in Campbell's
complaint asserted a cause of action against both EL Dee I, and Criterion Property
the very entities who were defending themselves in court.
We conclude the trial court erred in granting Criterion's motion for judgment on the evidence on grounds that Campbell failed to prove the legal existence of the two entities. We therefore reverse the judgment of the trial court on this issue and remand for a new trial.See footnote 3
court based the denial on the fact that the personal representative had not yet been sworn."
Brief of Appellants at 16. Other than an unsigned Motion To Substitute Parties filed marked
May 5, 1997, there is nothing in the record concerning the motion including arguments of
counsel or the trial court's ruling. The record shows only that the motion was filed. Indeed
Campbell does not direct this court's attention to any portion of the record in support of his
allegation of error. It is the duty of the Appellant to demonstrate reversible error. Nehi
Beverage Co., Inc. v. Petri, 537 N.E.2d 78, 81 (Ind. Ct. App. 1989) trans. denied. This court
will not sift through a record to locate error so that we might state Appellant's case for him.
In a related argument Campbell also complains the trial court erred in dismissing Parker from this case. Campbell lacks standing to raise this issue. The question of standing focuses on whether the complaining party is the proper person to invoke the court's power. Darlage v. Drummond, 576 N.E.2d 1303, 1308 (Ind. Ct. App. 1991). The standing rule bars litigants from asserting the right or legal interests of others in order to obtain relief from injury themselves. Matter of S.L. v. Steuben County Dept. of Pub. Welfare, 599 N.E.2d 227, 229 (Ind. Ct. App. 1992). In his personal capacity Campbell may not assert the legal interest of another party to this litigation. Here, only the representative of Parker's estate may assert Parker's interest. As we have already held the issue of whether the trial court erred in failing to substitute Campbell as the representative of Parker's estate has been waived.
neither frivolous, unreasonable, nor groundless. We agree and conclude the trial court did
not err or abuse its discretion.
We also disagree with Campbell's contention that the trial court erred in failing to sanction the defendants' attorney. Pursuant to T.R. 11, an attorney may be subjected to appropriate disciplinary action for a wilful violation of T.R. 11. There is no showing that there was a wilful violation. Thus, we affirm the trial court's order.
Judgment affirmed in part and reversed in part. This cause is remanded for a new trial.
SHARPNACK, C.J., and BAILEY, J., concur.
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