                                                                               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.




Court of Appeals of Indiana | Opinion 49A02-1504-CT-210 | March 17, 2016                           Page 1 of 13
                                    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



      Court of Appeals of Indiana | Opinion 49A02-1504-CT-210 | March 17, 2016    Page 2 of 13
      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

      Court of Appeals of Indiana | Opinion 49A02-1504-CT-210 | March 17, 2016   Page 3 of 13
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.
Court of Appeals of Indiana | Opinion 49A02-1504-CT-210 | March 17, 2016   Page 4 of 13
[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

      Court of Appeals of Indiana | Opinion 49A02-1504-CT-210 | March 17, 2016    Page 5 of 13
       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
       Court of Appeals of Indiana | Opinion 49A02-1504-CT-210 | March 17, 2016    Page 6 of 13
       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

       Court of Appeals of Indiana | Opinion 49A02-1504-CT-210 | March 17, 2016     Page 7 of 13
       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.




       Court of Appeals of Indiana | Opinion 49A02-1504-CT-210 | March 17, 2016      Page 8 of 13
[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

       Court of Appeals of Indiana | Opinion 49A02-1504-CT-210 | March 17, 2016   Page 9 of 13
       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


       Court of Appeals of Indiana | Opinion 49A02-1504-CT-210 | March 17, 2016   Page 10 of 13
       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.




       Court of Appeals of Indiana | Opinion 49A02-1504-CT-210 | March 17, 2016   Page 11 of 13
[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


       Court of Appeals of Indiana | Opinion 49A02-1504-CT-210 | March 17, 2016   Page 12 of 13
       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




       Court of Appeals of Indiana | Opinion 49A02-1504-CT-210 | March 17, 2016   Page 13 of 13
