Toni Ball v. Clifton Jones

FILED

Mar 17 2016, 5:53 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE

Nathaniel Lee Daniel P. Bowman

Cari L. Sheehan Indianapolis, Indiana

Lee & Fairman, LLP

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Toni Ball, March 17, 2016

Appellant-Plaintiff, Court of Appeals Case No.

49A02-1504-CT-210

v. Appeal from the Marion Superior

Court

Clifton Jones, The Honorable Heather A. Welch,

Appellee-Defendant. Judge

Trial Court Cause No.

49D01-1201-CT-2492

Riley, Judge.

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STATEMENT OF THE CASE

[1] Appellant-Plaintiff, Toni Ball (Ball), appeals the trial court’s summary judgment

holding, as a matter of law, that Detective Clifton Jones (Detective Jones) was

immune from personal liability under the Indiana Tort Claims Act.

[2] We affirm.

ISSUE

[3] Ball raises two issues on appeal, which we consolidate and restate as: Whether

the trial court erred in concluding that, as a matter of law, Detective Jones acted

within the course and scope of his employment as a police officer.

FACTS AND PROCEDURAL HISTORY

[4] Between March 2009 and October 12, 2010, the Indianapolis Metropolitan

Police Department’s Strategic Narcotics Section, the ATF/Achilles Unit, and

the Indiana State Police Drug Enforcement Section conducted a multi-agency,

long-term narcotics and gang investigation into an organization known as the

‘Detroit Boys.’ Detective Jones was one of the narcotics detectives assigned to

the investigation. The Detroit Boys are known as “an armed narcotics

trafficking organization” that distributes “large quantities of cocaine and

heroin” in the Indianapolis area, and is “believed to be responsible for

committing acts of violence.” (Appellee’s App. p. 43). The officers initially

relied on traditional investigative methods to gather surveillance on the

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organization. Once these methods were exhausted, the officers obtained a

wiretap on September 7, 2010.

[5] Based on his training and experience, Detective Jones concluded that the

Detroit Boys utilized “a sophisticated system to traffic narcotics.” (Appellee’s

App. p. 43). Specifically, the investigation revealed that the Detroit Boys sold

narcotics through a telephone system, where drug buyers called a phone

number, used a code word, and then were directed “to one of the distribution

houses.” (Appellee’s App. p. 43). Detective Jones determined that Ball

“participated or was referenced in more than thirteen (13) intercepted and

pertinent telephone calls with members of the Detroit Boys.” (Appellee’s App.

p. 43). Detective Jones, along with an assisting detective, also believed they

personally witnessed Ball travel to, enter, and exit the distribution houses after

making telephone calls to the Detroit Boys. As a result of this investigation,

Detective Jones filed an affidavit for probable cause on December 15, 2010,

after which the State filed an Information charging Ball with two Class B felony

drug charges. On January 13, 2011, the State dismissed all charges against Ball

when it was determined that Ball was not the individual who was alleged to

have committed the crimes.

[6] On January 20, 2012, Ball filed a Complaint with the United States District

Court for the Southern District of Indiana, alleging that the State of Indiana,

the Indiana State Police, the City of Indianapolis, the Indianapolis

Metropolitan Police Department (IMPD), and Detective Jones violated her

rights under the Fourth Amendment of the United States Constitution and the

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Indiana Constitution, and that they committed various torts, including fraud,

perjury, official misconduct, and conspiracy to commit perjury. With respect to

Detective Jones, Ball claimed that because he “was acting within the course and

scope of his employment/authority as a Detective of the IMPD for the City,”

the City was vicariously liable for Detective Jones’ actions. (Appellee’s App. p.

69). On April 23, 2012, the City, IMPD, and Detective Jones moved for a

partial judgment on the pleadings as to all of Ball’s claims under state law

because Ball had failed to file a timely notice of tort claim, as required by the

Indiana Tort Claims Act (ITCA). On March 25, 2013, the district court granted

the motion in its entirety, leaving only Ball’s Fourth Amendment claims. See

Ball v. City of Indianapolis, 2013 WL 1221936 (S.D. Ind. Mar. 25, 2013), aff’d 760

F.3d 636 (7th Cir. 2014). The district court concluded that Ball’s claims against

Detective Jones acting in his official capacity were procedurally barred due to

her failure to file a timely notice of tort claim. Although Ball also argued that

she did not have to comply with ITCA’s requirement because she had sued

Detective Jones in his personal capacity, the district court rejected her claim,

noting that her complaint included “multiple references to [Detective] Jones

having acted pursuant to his official capacity as a Detective in committing the

alleged torts.” Id. at *6. Also, the Complaint only contained conclusory

allegations that Detective Jones acted outside of the scope of his employment

with IMPD, which failed to satisfy ITCA’s heightened pleading requirement for

suits against government employees personally. As such, the district court held

that the City was entitled to judgment on the pleadings as to all of Ball’s state

law claims against Detective Jones in his official and personal capacity.

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[7] On March 28, 2013, Ball filed a motion for leave to amend her Complaint “to

plead only state law claims” against Detective Jones. (Appellee’s App. p. 134).

In her amended complaint, Ball repled her false arrest and imprisonment claims

against Detective Jones in his personal capacity. At the same time, she

appealed the district court’s order to the Seventh Circuit Court of Appeals,

which affirmed the district court on July 25, 2014.

[8] On Ball’s request, the case was remanded to the Marion Superior Court, where

she filed a second amended complaint on April 4, 2014, alleging that Detective

Jones was personally liable for her false arrest and imprisonment. On

December 4, 2014, Detective Jones filed a motion for summary judgment, as

well as a designation of evidence. Ball filed a response in opposition without

citing or designating any evidence in support of her arguments. On March 4,

2015, the trial court entered summary judgment in favor of Detective Jones,

finding, as a matter of law, that his actions were within the course and scope of

his employment as an IMPD officer.

[9] On April 6, 2015, Ball filed a notice of appeal, appealing the trial court’s

summary judgment. On the same day, she also filed a motion for enlargement

of time to file a motion to correct error with the trial court. Over Detective

Jones’ objection, the trial court granted Ball’s motion and extended the deadline

to file a motion to correct error. On May 7, 2015, Ball filed her motion to

correct error, reiterating the same legal theories already rejected by the trial

court and claiming for the first time that res judicata barred the trial court from

holding as a matter of law that Detective Jones was personally immune from

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suit. On June 16, 2015, the trial court denied Ball’s motion. On July 2, 2015,

Ball filed an amended notice of appeal, adding the trial court’s denial of her

motion to correct error to her appeal.

[10] Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Appeal of Motion to Correct Error

[11] Initially we note that after a final judgment is handed down in a particular case,

a trial court retains only “such continuing jurisdiction as is permitted by the

judgment itself, or as is given the court by statute or rule.” Waas v. Illinois

Farmers Ins. Co., 722 N.E.2d 861, 862 (Ind. Ct. App. 2000) (citing Hubbard v,

Hubbard, 690 N.E.2d 1219, 1221 (Ind. Ct. App. 1998)), reh’g denied . To this

end, a motion to correct error “shall be filed no later than thirty (30) days after

the entry of a final judgment is noted in the Chronological Case Summary

[CCS].” Ind. Trial Rule 59(C). Here, the trial court issued its summary

judgment as “a full, complete, and final [j]udgment on all [C]ounts” on March

4, 2015, and entered it into the CCS on March 9, 2015. Thus, Ball’s motion to

correct error should have been filed on or before April 8, 2015. (Appellant’s

App. p. 284). However, instead Ball requested an enlargement of time to file

her motion to correct error.

[12] Indiana Trial Rule 6(B) states that "the court may not extend the time for taking

any action . . . to correct error[] under Rule 59(C) . . . except to the extent and

under the conditions stated in [the Rule].” T.R. 59(C) does not provide a

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mechanism to extend the time in which to file a motion to correct error.

Rather, based on the mandatory phrasing of the Rule, the trial court is not

afforded any discretion. See T.R. 59(C) (“shall be filed”). Thus, as the trial

court did not have authority to grant Ball an extension of her time to file her

motion to correct error, Ball’s motion to correct error filed on May 7, 2015, was

untimely. We therefore must dismiss Ball’s appeal from the trial court’s denial

of her motion to correct error.

II. Appeal of Summary Judgment

A. Standard of Review

[13] Summary judgment is appropriate only when there are no genuine issues of

material fact and the moving party is entitled to a judgment as a matter of law.

T.R. 56(C). “A fact is ‘material’ if its resolution would affect the outcome of

the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the

parties’ differing accounts of the truth . . . , or if the undisputed facts support

conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.

2009).

[14] In reviewing a trial court’s ruling on summary judgment, this court stands in the

shoes of the trial court, applying the same standards in deciding whether to

affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we

must determine whether there is a genuine issue of material fact and whether

the trial court has correctly applied the law. Id. at 607-08. In doing so, we

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consider all of the designated evidence in the light most favorable to the non-

moving party. Id. at 608. The party appealing the grant of summary judgment

has the burden of persuading this court that the trial court’s ruling was

improper. Id. When the defendant is the moving party, the defendant must

show that the undisputed facts negate at least one element of the plaintiff’s

cause of action or that the defendant has a factually unchallenged affirmative

defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary

judgment must be reversed if the record discloses an incorrect application of the

law to the facts. Id.

[15] We observe that in the present case, the trial court entered findings of fact and

conclusions thereon in support of its judgment. Special findings are not

required in summary judgment proceedings and are not binding on appeal.

AutoXchange.com, Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.

App. 2004). However, such findings offer this court valuable insight into the

trial court’s rationale for its review and facilitate appellate review. Id.

B. Res Judicata

[16] First, Ball contends that the trial court erred in granting summary judgment to

Detective Jones because the issues raised in his motion for summary judgment

had been previously decided by the United States District Court for the

Southern District of Indiana (District Court Decision), and, therefore, she

maintains that Detective Jones’ arguments are now barred by res judicata.

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[17] We initially note that Ball failed to raise the res judicata argument in her

response to Detective Jones’ motion for summary judgment before the trial

court. As a party cannot raise an issue for the first time on appeal, Ball’s

argument is waived for our review. See First Farmers Bank, 891 N.E.2d at 615

n.3.

[18] Waiver notwithstanding, we conclude that Detective Jones’ arguments are not

barred by the doctrine of res judicata. The doctrine of res judicata bars the

litigation of a claim after a final judgment has been rendered in a prior action

involving the same claim between the same parties or their privies. MicroVote

Gen. Corp. v. Ind. Election Comm’n, 924 N.E.2d 184, 191 (Ind. Ct. App. 2010).

The principle behind this doctrine, as well as the doctrine of collateral estoppel,

is the prevention of repetitive litigation of the same dispute. Id. The following

four requirements must be satisfied for a claim to be precluded under the

doctrine of res judicata: 1) the former judgment must have been rendered by a

court of competent jurisdiction; 2) the former judgment must have been

rendered on the merits; 3) the matter now in issue was, or could have been,

determined in the prior action; and 4) the controversy adjudicated in the former

action must have been between the parties to the present suit or their privies.

Id. Accordingly, res judicata can only be found after a final judgment has been

rendered. A judgment becomes final if “it disposes of all claims as to all

parties.” Ind. Appellate Rule 2(H)(1).

[19] In her amended complaint before the trial court, Ball alleged that Detective

Jones was personally liable for Ball’s false arrest and imprisonment. Detective

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Jones responded by filing a motion for summary judgment claiming immunity

from personal liability under ITCA because his actions fell within the course

and scope of his employment as an IMPD officer. Ball now points to the

District Court Decision in support of her argument that Detective Jones is

barred from claiming immunity, asserting that the District Court already

decided that issue. However, notwithstanding Ball’s assertion, the District

Court Decision actually concluded, in part, “[t]he motion for partial judgment

on the pleadings filed on behalf of the City, IMPD, and Det. Jones is also

GRANTED. [Ball’s] sole remaining claim is the Fourth Amendment false

arrest and imprisonment claim against Det. Jones.” (Appellee’s App. p. 131).

On Ball’s request, the case was then remanded to the Marion Superior Court,

where she reiterated her claim under the Fourth Amendment against Detective

Jones. Accordingly, as the District Court did not decide Ball’s state claims, no

final judgment on the claims’ merits has been issued and res judicata does not

bar their litigation before the trial court.

C. Analysis

[20] We now turn to the merits of Ball’s contention. Ball posits that the trial court

erred in granting summary judgment to Detective Jones because “several

material issues of fact” remain as to whether Detective Jones acted within the

scope of his employment as a police officer with IMPD. (Appellant’s Br. p. 10).

[21] The ITCA governs lawsuits against political subdivisions like the City of

Indianapolis and against their employees. It requires early notice that a claim

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exists, and it provides substantial immunity for conduct within the scope of the

employees’ employment. Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450,

452 (Ind. 2000). “The purpose of immunity is to ensure that public employees

can exercise their independent judgment necessary to carry out their duties

without threat of harassment by litigation or threats of litigation over decisions

made within the scope of their employment.” Id. (citing Ind. Dept. of Correction

v. Stagg, 556 N.E.2d 1338, 1343 (Ind. Ct. App. 1990), trans. denied). The ITCA

bars suits for which no timely notice has been given.

[22] However, the immunities granted by the ITCA “might be lost when an

employee acts ‘so far out of the scope of his or her employment as to amount to

fraud or criminal conduct.’” Celebration Fireworks, Inc., 727 N.E.2d at 452

(citing Poole v. Clase, 476 N.E.2d 828, 831 (Ind. 1985)); see also Ind. Code § 34-

13-3-5(c). “To be within the scope of employment, conduct must be of the

same general nature as that authorized, or incidental to the conduct

authorized.” Id (citing Restatement (Second) Agency § 229 (1958)). “To be

incidental, however, [an act] must be one which is subordinate to or pertinent

to an act which the servant is employed to perform.” Id. (citing Restatement

(Second) Agency § 229 cmt. b (1958)). Even tortious acts may fall within the

scope of employment. In Kemezy v. Peters, 622 N.E.2d 1296, 1298 (Ind. 1993),

our supreme court found that an employee’s tortious act may fall within the

scope of his employment if his purpose was, to an appreciable extent, to further

his employer’s business.

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[23] In Gomez v. Adams, 462 N.E.2d 212, 223 (Ind. Ct. App. 1984), Gomez, a

security officer working for a private security agency, detained Adams during

an altercation at an apartment complex where Gomez was on duty. While

waiting for police officers to arrive, Gomez obtained Adams’ personal papers,

including his check-cashing card. Id. When the officers arrived to take custody

of Adams, Gomez gave them Adams’ driver’s license but retained the rest of

the papers. Id. Later that same day, after his shift ended, Gomez forged

Adams’ name and signature on a check. Id. Concluding that the forgery “was

divorced in time, place and purpose from Gomez’ employment duties,” the

court held that “the act of forgery was not committed within the scope of

Gomez’ employment[.]” Id.

[24] Unlike Gomez, at the time Detective Jones filed the probable cause affidavit, he

was “on public time, performing a function that was central to the position he

held.” Celebration Fireworks, 727 N.E.2d at 453. Specifically, as a police officer,

Detective Jones was authorized to investigate potential drug activity, draft a

probable cause affidavit, and execute an arrest. Ball has not designated any

evidence establishing that Detective Jones acted on his own initiative or with no

intention to perform the service for which he was employed. Rather, Detective

Jones’ actions in this case are closely associated with actions authorized by

IMPD and in furtherance of a multi-agency narcotics investigation.

Accordingly, we conclude that Detective Jones’ action of the alleged

falsification of the probable cause affidavit was “incidental to the conduct

authorized” as phrased by the Restatement or, as Kemezy noted, “to an

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appreciable extent to further his employer’s business.” See Restatement

(Second) Agency § 229; Kemezy, 622 N.E.2d at 1298. Detective Jones’ actions

are clearly within the scope of his employment as an IMPD officer and

therefore are cloaked with immunity under ITCA.

CONCLUSION

[25] Based on the foregoing, we conclude that the trial court properly granted

summary judgment to Detective Jones, holding that, as a matter of law, his

actions were within the course and scope of his employment.

[26] Affirmed.

[27] Najam, J. and May, J. concur

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