K Mart Corp. v. Brzezinski

545 N.E.2d 842, 1989 Ind. App. LEXIS 1015, 1989 WL 133064

Opinions

OPINION ON PETITION FOR REHEARING

STATON, Judge.

In a published opinion filed July 20, 1989, 540 NEZ2d 1276, we reversed the trial court's judgment in favor of Brzezinski on her claims against K Mart for malicious prosecution and defamation. She petitions for writ of certiorari and rehearing on the ground that we erroneously concluded the issue of qualified privilege was tried by implied consent. We address this issue to clarify our opinion.

We based our conclusion that the issue was tried by consent on the fact that K Mart raised it in its motion for judgment on the evidence at the close of Brzezinski's case and Brzezinski did not object to the issue being introduced. We further noted that Brzezinski did not object to K Mart's tendered final instruction on qualified privilege. Brzezinski petitions for writ of cer-tiorari to supplement the record with a certified statement of what occurred at the unrecorded instructions conference held in the trial court's chambers. She asserts that the supplemented record would show that she did object to K Mart's tendered final instruction because the issue had not been tried. However, we need not have the record supplemented. Even if Brzezinski did object at the final instructions conference, the fact remains that she did not object when K Mart raised the issue before the close of all the evidence in its TR. 50 motion. We emphasize that the lack of objection at that point was the critical factor leading to our conclusion. Any lack of objection to the final tendered instruction was merely a further indication that the issue was tried by implied consent. Standing alone, the lack of that objection would not lead to the conclusion the issue had been tried by implied consent.

For these reasons, Brzezinski's petition for writ of certiorari is denied and her petition for rehearing on the grounds addressed herein and all other grounds raised is denied.

ROBERTSON, J., concurs. HOFFMAN, J., dissents with separate opinion.