                                                                         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
