The opinion
FILED
Apr 24 2019, 9:10 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEES
Gregory W. Black Curtis T. Hill, Jr.
Gregory W. Black, P.C. Attorney General of Indiana
Plainfield, Indiana
Aaron T. Craft
Josiah Swinney
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bradley K. Buchanan, et al., April 24, 2019
Appellants-Plaintiffs, Court of Appeals Case No.
18A-PL-1758
v. Appeal from the Putnam Circuit
Court
State of Indiana, et al., The Honorable Joseph D. Trout,
Appellees-Defendants. Special Judge
The Honorable Christopher A.
Newton, Special Judge
Trial Court Cause No.
67C01-1208-PL-332
Najam, Judge.
Court of Appeals of Indiana | Opinion 18A-PL-1758 | April 24, 2019 Page 1 of 10
Statement of the Case
[1] Bradley K. Buchanan appeals the trial court’s judgment on the pleadings in
favor of the Indiana Department of Insurance (“IDOI”) as well as the court’s
dismissal of his claims against the Putnam County Prosecutor (“the
Prosecutor”) 1 for failure to state a claim upon which relief can be granted. 2
Buchanan raises five issues for our review, 3 which we restate as the following
two issues:
1. Whether the trial court properly entered judgment on the
pleadings for IDOI on Buchanan’s breach-of-contract
claim.
2. Whether the trial court properly dismissed Buchanan’s
claims against the Prosecutor under the Indiana Tort
Claims Act, Ind. Code §§ 34-13-3-0.1 to -25 (2018).
[2] We affirm.
1
Buchanan formally named Timothy Bookwalter, in his official capacity as the Putnam County Prosecutor,
and Justin Long, in his official capacity as the Chief Deputy Prosecutor under Bookwalter, in his complaint.
Buchanan did not sue either officer personally. Appellees’ App. Vol. II at 71. Buchanan also does not
suggest on appeal that we need to separate our analysis between Bookwalter and Long.
2
Although Buchanan prematurely filed his notice of appeal, the trial court has since entered a final judgment
as to all parties and on all claims, and we thus have jurisdiction over this appeal. Town of Ellettsville v.
Despirito, 87 N.E.3d 9, 11-12 (Ind. 2017).
3
We remind Buchanan’s counsel that “[t]he great rule to be observed in drawing briefs consists in
conciseness with perspicuity.” Gardner v. Stover, 43 Ind. 356, 357 (1873).
Court of Appeals of Indiana | Opinion 18A-PL-1758 | April 24, 2019 Page 2 of 10
Facts and Procedural History
[3] According to Buchanan’s first amended complaint, in September of 2008 he
entered into a settlement agreement with IDOI in which he agreed to surrender
his license to practice and sell insurance and IDOI agreed to terminate ongoing
investigations it was conducting against him. However, IDOI expressly
reserved in that contract the right to “cooperate with any criminal investigation
that has been, or may be, initiated as a result of the allegations in this matter.”
Appellees’ App. Vol. II at 74. Thereafter, IDOI cooperated with state and local
law enforcement in investigating the acts underlying Buchanan’s surrender of
his license, Buchanan pleaded guilty to one charge of felony theft brought by
the Prosecutor relating to those acts, and the trial court sentenced Buchanan to
a term of probation and home detention in the Putnam County Community
Corrections Program.
[4] In July of 2011, while Buchanan was serving his home detention, Putnam
County police officers, in consultation with the Prosecutor, obtained a search
warrant for Buchanan’s residence on the assertion that Buchanan had
committed new, unrelated theft offenses. 4 According to Buchanan’s complaint,
the Prosecutor’s “motive” for obtaining the warrant “included a personal
animus toward Mr. Buchanan, born in part [out] of political consideration.” Id.
at 66. The complaint further alleged that the Prosecutor had obtained the
4
The July 2011 theft allegations were unrelated to Buchanan’s prior insurance offenses, and at no point has
Buchanan suggested that IDOI had any involvement in the July 2011 investigation.
Court of Appeals of Indiana | Opinion 18A-PL-1758 | April 24, 2019 Page 3 of 10
warrant based on “false,” “unreasonable,” and “reckless[] pretenses” and
without “probable cause.” Id. at 66-67. After obtaining the warrant, the
officers executed it, seized various vehicles, and arrested Buchanan. The
Prosecutor then filed various theft charges against Buchanan based on the items
seized. However, after Buchanan had been in jail for forty-two days on those
allegations, the Prosecutor dismissed the charges.
[5] Thereafter, Buchanan filed his first amended complaint 5 in which he sued IDOI
and the Prosecutor. In particular, Buchanan claimed that IDOI breached its
contract with him when it cooperated with state and local law enforcement on
the matters relating to the surrender of his license. See id. at 59-61. Buchanan
also sued the Prosecutor for having maliciously and falsely obtained and
executed a search warrant for Buchanan’s residence and for having filed false
charges against Buchanan, all of which occurred during Buchanan’s term of
home detention. Specifically, Buchanan alleged claims of trespass, malicious
prosecution, abuse of process, invasion of privacy, false arrest, false
imprisonment, improper confinement, emotional distress, and defamation
against the Prosecutor. Buchanan also requested fees, costs, and treble
damages.
[6] IDOI moved for judgment on the pleadings under Indiana Trial Rule 12(C).
Relying on an assertion of immunity, the Prosecutor moved for dismissal of
5
There is no dispute in this appeal that Buchanan complied with the procedural requirements of the Indiana
Tort Claims Act.
Court of Appeals of Indiana | Opinion 18A-PL-1758 | April 24, 2019 Page 4 of 10
Buchanan’s claims under Trial Rule 12(B)(6). Following a hearing, the trial
court granted both motions. 6 This appeal ensued.
Discussion and Decision
Issue One: Judgment on the Pleadings for IDOI
[7] Buchanan first asserts that the trial court erred when it entered judgment on the
pleadings for IDOI under Indiana Trial Rule 12(C). Our Supreme Court has
discussed our standard of review from a judgment on the pleadings as follows:
A motion for judgment on the pleadings under Trial Rule 12(C)
tests the sufficiency of a claim or defense presented in the
pleadings and should be granted only where it is clear from the
face of the complaint that under no circumstances could relief be
granted. Because we base our ruling solely on the pleadings, we
accept as true the material facts alleged in the complaint. . . .
Like a trial court’s 12(B)(6) ruling, we review a 12(C) ruling de
novo.
KS&E Sports v. Runnels, 72 N.E.3d 892, 898 (Ind. 2017) (citations and quotation
marks omitted). Where, as here, a written instrument is attached to the
complaint, the written instrument is part of the pleadings. See, e.g., Noblesville
Redev. Comm’n v. Noblesville Assocs. Ltd. P’ship, 674 N.E.2d 558, 564-65 (Ind.
1996).
6
In its order for the Prosecutor, the trial court stated that it was granting the Prosecutor’s “Motion for
Judgment on the Pleadings.” Appellants’ App. Vol. 2 at 84. But there is no dispute in this appeal that the
trial court’s order should be construed as a grant of relief under Trial Rule 12(B)(6), not Trial Rule 12(C), in
light of the Prosecutor’s actual request. See Appellees’ App. Vol. II at 119.
Court of Appeals of Indiana | Opinion 18A-PL-1758 | April 24, 2019 Page 5 of 10
[8] Buchanan argues on appeal that the trial court erred with respect to his claim
against IDOI because his contract with IDOI did not give IDOI the right to
cooperate with police in criminal investigations relating to the surrender of his
license. See Appellants’ Br. at 34. Buchanan’s argument is not only incorrect,
we cannot see how in good faith he even could have arrived at that position. In
the settlement agreement, IDOI expressly reserved the right to “cooperate with
any criminal investigation that has been, or may be, initiated as a result of the
allegations in this matter.” Appellees’ App. Vol. II at 74. In his complaint,
Buchanan baldly stated that “[t]o ‘cooperate’ is not to ‘foment’ or be a driving
force of the activity in question.” Id. at 60. We reject Buchanan’s purported
distinction. His complaint against IDOI attempts to fault IDOI for having done
what IDOI expressly reserved in the contract the right to do. The trial court
properly entered judgment on the pleadings for IDOI and against Buchanan on
his breach-of-contract claim.
Issue Two: Dismissal of Buchanan’s Claims
against the Prosecutor Under Trial Rule 12(B)(6)
[9] We next turn to Buchanan’s argument that the trial court erred when it
dismissed his claims against the Prosecutor under Trial Rule 12(B)(6) for failure
to state a claim upon which relief can be granted. “A 12(B)(6) motion tests the
legal sufficiency of the complaint,” and we review the trial court’s judgment
under Rule 12(B)(6) de novo. Esserman v. Ind. Dep’t of Envtl. Mgmt., 84 N.E.3d
1185, 1188 (Ind. 2017). As our Supreme Court has explained:
Court of Appeals of Indiana | Opinion 18A-PL-1758 | April 24, 2019 Page 6 of 10
In reviewing a 12(B)(6) motion to dismiss, we look at the
complaint in the light most favorable to the plaintiff, with every
inference drawn in [his] favor, to determine if there is any set of
allegations under which the plaintiff could be granted relief. A
12(B)(6) dismissal is improper unless it appears to a certainty on
the face of the complaint that the complaining party is not
entitled to any relief. Dismissals under T.R. 12(B)(6) are rarely
appropriate. Though Indiana’s notice pleading rules do not
require the complaint to state all elements of a cause of action,
the plaintiff must still plead the operative facts necessary to set
forth an actionable claim.
State v. Am. Fam. Voices, Inc., 898 N.E.2d 293, 295-96 (Ind. 2008) (citations,
quotation marks, and footnote omitted). “[W]e may affirm the grant of a
motion to dismiss if it is sustainable on any theory.” McPeek v. McCardle, 888
N.E.2d 171, 174 (Ind. 2008).
[10] As noted above, Buchanan’s complaint alleged nine claims against the
Prosecutor. But the factual basis for those nine claims comes down to the
following: the Prosecutor’s alleged malicious and false procurement and then
execution of the July 2011 search warrant and the Prosecutor’s ensuing false
charges against Buchanan that were purported to be based on evidence seized
under the warrant. Buchanan’s complaint is clear that those allegedly tortious
acts all occurred while Buchanan was serving his placement in community
corrections.
[11] On appeal the Prosecutor broadly asserts immunity under all circumstances
from claims such as Buchanan’s nine claims here, but we need not decide this
Court of Appeals of Indiana | Opinion 18A-PL-1758 | April 24, 2019 Page 7 of 10
appeal on such categorical grounds. The Indiana Tort Claims Act clearly states
as follows:
A governmental entity or employee acting within the scope of the
employee’s employment is not liable if a loss results from . . .
***
(17) Injury to the person or property of a person under the
supervision of a governmental entity and who is:
(A) on probation; or
(B) assigned to . . . a community corrections program . . . .
I.C. § 34-13-3-3 (2018).
[12] In other words, the State has not consented to be sued or to allow local
governments to be sued under state tort law 7 by persons under the supervision
of a governmental entity while on probation or assigned to a community
corrections program. See id. Likewise, Indiana Code Section 34-13-3-3(16)
generally prohibits persons under the control and jurisdiction of the Department
of Correction from suing the State or local government, although there is an
exception for such persons who have exhausted specific administrative
remedies required of the Department of Correction under Indiana Code Section
7
Buchanan’s complaint does not allege a violation of his federal rights and does not premise any of his
claims on 42 U.S.C. § 1983.
Court of Appeals of Indiana | Opinion 18A-PL-1758 | April 24, 2019 Page 8 of 10
34-13-3-7. There is no parallel administrative procedure for community
corrections programs within the Indiana Tort Claims Act. See I.C. §§ 34-13-3-
0.1 to -25. “We will . . . find a waiver of sovereign immunity only when the
statute at issue contains an unequivocal affirmative statement that clearly
evinces the legislature’s intention to subject the State to suit . . . .” Esserman, 84
N.E.3d at 1192.
[13] Here, the Tort Claims Act contains an unequivocal affirmative statement that
clearly evinces the legislature’s intention not to subject the State or local
government to suit by persons, such as Buchanan, under the supervision of a
governmental entity while on probation or assigned to a community corrections
program. Buchanan’s own complaint recognizes that at the time of the conduct
complained of he was serving his term of home detention under the supervision
of the Putnam County Community Corrections Program. Moreover, although
Buchanan asserts otherwise, we conclude that the factual basis for his claims
against the Prosecutor—procuring and executing a search warrant and filing
charges based on the evidence seized under the warrant—establish, as a matter
of law, that the Prosecutor was acting within the scope of his employment. See
Bushong v. Williamson, 790 N.E.2d 467, 473 (Ind. 2003) (“conduct of the same
general nature as that authorized, or incidental to the conduct authorized, is
within the employee’s scope of employment. . . .”) (omissions and quotation
marks omitted); see also Cox v. Evansville Police Dep’t, 107 N.E.3d 453, 461-65
(Ind. 2018). Accordingly, pursuant to Indiana Code Section 34-13-3-3(17), the
Prosecutor is immune from suit on Buchanan’s claims as alleged. We therefore
Court of Appeals of Indiana | Opinion 18A-PL-1758 | April 24, 2019 Page 9 of 10
affirm the trial court’s dismissal of Buchanan’s claims against the Prosecutor for
failure to state a claim.
Conclusion
[14] In sum, we affirm the trial court’s entry of judgment on the pleadings under
Trial Rule 12(C) for IDOI and dismissal of Buchanan’s claims against the
Prosecutor for failure to state a claim upon which relief can be granted under
Trial Rule 12(B)(6). 8
[15] Affirmed.
Pyle, J., and Altice, J., concur.
8
As we affirm the trial court’s judgment for IDOI and the Prosecutor, we need not consider Buchanan’s
additional argument on appeal that the trial court erred when it disqualified Buchanan’s attorney from
participating in further proceedings against IDOI and the Prosecutor, which order Buchanan’s attorney
appears to have disregarded in this appeal. We leave enforcement of the trial court’s order to the discretion
of the trial court.
Court of Appeals of Indiana | Opinion 18A-PL-1758 | April 24, 2019 Page 10 of 10