Court of Appeals of Indiana | Opinion 82A05-1610-PL-2350 | June 13, 2017 Page 1 of 10

ATTORNEYS FOR APPELLANTS

Keith W. Vonderahe

Robert L. Burkart

Ziemer Stayman Weitzel & Shoulders, 

LLP

Evansville, Indiana

ATTORNEY FOR APPELLEE

Guy A. Relford

The Law Offices of Guy A. 

Relford

Carmel, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

City of Evansville and The 

Evansville Department of Parks 

and Recreation,

Appellants-Defendants,

v.

Benjamin A. Magenheimer,

Appellee-Plaintiff.

June 13, 2017

Court of Appeals Case No.

82A05-1610-PL-2350

Appeal from the Vanderburgh 

Circuit Court

The Honorable Carl A. Heldt, 

Judge

Trial Court Cause No.

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.