                                                                         FILED
                                                                     Apr 25 2019, 5:45 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANTS                                     ATTORNEYS FOR APPELLEE
Jeffrey S. McQuary                                          Curtis T. Hill, Jr.
Brown Tompkins Lory                                         Attorney General of Indiana
Indianapolis, Indiana
                                                            Abigail R. Recker
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

Kailee M. Smith and Jeffrey S.                              April 25, 2019
McQuary,                                                    Court of Appeals Case No.
Appellant-Plaintiffs,                                       18A-MI-1593
                                                            Appeal from the Marion Superior
        v.                                                  Court
                                                            The Honorable Heather A. Welch,
State of Indiana,                                           Judge
Appellee-Plaintiff                                          Trial Court Cause No.
                                                            49D01-1706-MI-23427



May, Judge.




Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019                           Page 1 of 23
[1]   Kailee M. Smith 1 and Jeffrey S. McQuary (collectively, “Appellants”) appeal

      the trial court’s grant of summary judgment in favor of the State on an

      indemnification claim Kailee and McQuary filed against the State

      (“Indemnification Claim”). Appellants present three issues for our

      consideration, which we restate as:


               1. Whether the trial court erred when it found the dismissal of
               Kailee’s state law action in Hancock County (“State Claim”)
               resulted in collateral estoppel that prohibited Appellants from
               arguing Officer Scott Johnson was acting within the scope of his
               employment as a DNR Conservation Officer when he took the
               actions alleged herein;


               2. Whether the trial court erred when it found Appellants did not
               designate sufficient evidence to demonstrate Officer Johnson
               acted within his scope of employment during the relevant events;
               and


               3. Whether the trial court erred when it concluded there were
               not issues of material fact regarding whether Officer Johnson’s
               actions were not noncriminal.


      We reverse and remand.




      1
       Kailee is also referenced as “Kailee Leonard” in portions of the record, as that is her married name, and
      “Kailee Smith” in other portions of the record. We will refer to her as “Kailee” to avoid confusion.

      Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019                               Page 2 of 23
                             Facts and Procedural History                           2




[2]   On December 18, 2012, Kailee struck and killed Johnson’s dog. Kailee stopped

      her car, examined the damage, determined the dog was dead, and drove to her

      fiancé’s house nearby. Kailee and her fiancé drove back to Johnson’s house,

      knocked on his door, and told Johnson what happened. Kailee called police to

      report the accident. Police responded a few hours later, investigated, and wrote

      a report on the incident.


[3]   Sometime in February 2013, Johnson visited the office of the Hancock County

      Prosecutor, which he regularly visited in the course of his duties as a

      Conservation Officer for the Department of Natural Resources of Indiana. He

      visited the office in uniform. At that time, Johnson spoke to the Chief Deputy

      Prosecutor of Hancock County, Tammi Phillips, and told her that Kailee had

      struck and killed his dog. He then indicated he thought Kailee might have

      committed Class B misdemeanor failure to stop after an accident causing

      property damages other than to a vehicle. Phillips told Johnson to speak with

      Stephen Banks, an investigator with the Hancock County Prosecutor’s Office,

      to prepare a probable cause affidavit.


[4]   On June 28, 2013, the Hancock County Prosecutor’s Office charged Kailee

      with Class B misdemeanor failure to stop after an accident causing property




      2
       We held oral argument on March 1, 2019, at the ISBA Women’s Bench Bar Retreat in Culver Cove,
      Indiana. We thank counsel for their excellent advocacy.

      Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019                       Page 3 of 23
      damage other than to a vehicle. The charges were dismissed on May 29, 2014,

      after Johnson admitted in a deposition that Kailee had informed him of the

      incident on the night of the accident.


[5]   On October 15, 2014, Kailee filed a tort claim under Indiana law (“State

      Claim”) in Hancock County Circuit Court, in which she alleged, under Indiana

      law:


              18. Johnson’s actions in procuring [Kailee’s] prosecution
              constitute false arrest and malicious prosecution, negligence and
              intentional infliction of emotional distress under Indiana law.


              19. The State of Indiana was negligent in its supervision of
              Johnson by permitting him to use his police authority to
              prosecute a groundless case.


              20. The State of Indiana is liable for Johnson’s acts and
              omissions under the principle of respondeat superior.


      (Appellee’s App. Vol. II at 77.) Kailee alleged that “[w]hen procuring the

      prosecution of [Kailee,] Johnson acted within the scope of his employment by

      the Indiana Department of Natural Resources.” (Id.)


[6]   On October 16, 2014, Kailee filed a §1983 claim in the U.S. District Court in

      the Southern District of Indiana (“Federal Claim”) alleging, “Johnson’s actions

      in procuring [Kailee’s] prosecution constitute false arrest and malicious

      prosecution in violation of the Fourth Amendment.” (Id. at 96.) Unlike in the

      State Claim, Kailee did not allege in the Federal Claim that Johnson acted


      Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019          Page 4 of 23
      within the course of his employment; instead she alleged, “When procuring the

      prosecution of [Kailee,] Johnson acted under the color of Indiana law.” (Id.)


[7]   On December 10, 2014, the State filed a motion to dismiss the State Claim,

      asserting the claim was barred by the Indiana Tort Claims Act and the State

      could not be held liable under the doctrine of respondeat superior for Officer

      Johnson’s actions because “Johnson was reporting the incident as a victim of a

      crime and not as a law enforcement officer.” (Appellee’s App. Vol. II at 86.) In

      addition, the State argued that even if Officer Johnson’s actions were taken

      within the scope of his employment, “All of [Kailee’s] alleged damages result

      from the initiation of a judicial proceeding – that is, a criminal proceeding

      pertaining to a citation for leaving the scene of an accident.” (Id.) Therefore,

      the State claimed, because Johnson gave a verbal statement to prompt the

      investigation but did not participate in the investigation, he, and thus the State,

      could not be held liable for the damages Kailee alleged. (Id.) The trial court

      granted the State’s motion to dismiss Kailee’s State Claim with prejudice the

      same day. (Id. at 90.)


[8]   The State initially entered an appearance on Officer Johnson’s behalf in the

      Federal Claim. However, on March 12, 2015, the State withdrew that

      representation because “Mr. Johnson has consistently stated that he was acting

      as a private citizen at the time he spoke with the investigator at the prosecutor’s

      office, and after investigation of the facts, the Attorney General’s office has

      found no evidence to show otherwise.” (Id. at 99.) Thus, “the Attorney



      Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019         Page 5 of 23
       General [was] precluded by law from representing him.” (Id.) The District

       Court granted the State’s motion to withdraw.


[9]    On May 11, 2015, Officer Johnson filed a pro se motion to dismiss the Federal

       Claim because Kailee’s claims involved her rights under the United States

       Constitution and “Johnson was never in a position during the course of Steve

       Banks[’], Hancock County Prosecutor[’]s investigator, investigation other than

       that of a private citizen providing a verbal statement.” (Id. at 116.) In addition,

       Officer Johnson noted the dismissal of Kailee’s State Claim in support of his

       motion to dismiss the Federal Claim. The District Court did not rule on Officer

       Johnson’s motion.


[10]   On June 29, 2015, private counsel entered an appearance in District Court on

       Officer Johnson’s behalf. On August 27, 2015, Officer Johnson, via counsel,

       filed another motion to dismiss. The District Court denied Officer Johnson’s

       August 27 motion to dismiss on December 14, 2015. On September 27, 2016,

       Officer Johnson’s private counsel filed a motion to withdraw, and Officer

       Johnson filed a motion requesting appointment of counsel. Two days later, the

       District Court denied both motions as moot.


[11]   On November 29, 2016, the parties filed a joint stipulation of facts. The District

       Court held a jury trial on December 13, 2016. The jury returned a verdict in

       Kailee’s favor, awarding her $10,000.00 in damages. The District Court

       subsequently awarded Kailee an additional $422.00 in costs and $52,040.00 in

       attorney’s fees. Over the next few months, the parties attempted to work out a


       Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019       Page 6 of 23
       payment agreement, and they discussed Officer Johnson filing an

       indemnification claim against the State for the payment of the judgment. In

       May 2017, Appellants drafted a contract by which Officer Johnson assigned his

       right to file an indemnification action against the State to Appellants as partial

       payment for the judgment against him in the Federal Claim. Officer Johnson

       signed the agreement in May, and Appellants signed it in August 2017.


[12]   On June 13, 2017, 3 Appellants filed a complaint for damages and declaratory

       judgment (“Indemnification Claim”), the ruling on which is the subject of this

       appeal. In the complaint, Appellants gave a brief history of the Federal Claim

       and indicated Officer Johnson had assigned his indemnification rights to

       Appellants. Appellants asserted:


                17. The State of Indiana is required to pay the judgment, costs,
                and attorneys[’] fees assessed against Johnson pursuant to Ind.
                Code § 34-13-4-1.


                18. The Court should declare the rights of McQuary, [Kailee],
                and the State of Indiana regarding Johnson’s right to
                indemnification.


       (Id. at 5.)




       3
        The Chronological Case Summary provided in the record is a print out of the public MyCase docket, which
       contains this caveat at the top of the first page: “This is not the official court record. Official records of court
       proceeding may only be obtained directly from the court maintaining a particular record.” (Appellants’ App.
       Vol. II at 2.)

       Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019                                     Page 7 of 23
[13]   On July 31, 2017, the State filed an answer and asserted nine affirmative

       defenses, including: (1) the Indemnification Claim was barred by res judicata and

       issue preclusion based on the earlier dismissal of the State Claim; (2) Officer

       Johnson’s assignment of his indemnification rights was faulty for a variety of

       reasons; and (3) the Indemnification Claim was barred by the Indiana Tort

       Claims Act. (Id. at 8-9.) On October 27, 2017, Appellants filed a motion for

       summary judgment, asserting there were no issues of material fact, Officer

       Johnson was acting within the scope of his employment when he falsely

       reported the alleged crime to the Hancock County’s Prosecutor’s Office, the

       District Court had found Officer Johnson violated Kailee’s Fourth Amendment

       rights, and the State was required to indemnify Officer Johnson. Appellants

       also contended the doctrine of res judicata premised on the dismissal of the State

       Claim did not apply because Kailee did not have an opportunity to fully litigate

       the issues in that case and finding res judicata would be unfair under the

       circumstances.


[14]   On December 6, 2017, the trial court granted Appellants’ motion for summary

       judgment. On December 7, 2017, the parties filed a joint motion for relief from

       the December 6 order, as the parties agreed the State had not been given an

       opportunity to respond to the Appellants’ motion for summary judgment and,

       thus, the decision was premature. The parties asked the court to instead set

       deadlines for the parties based on a case management plan jointly agreed upon.

       The trial court granted that joint motion the same day.




       Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019           Page 8 of 23
[15]   On January 2, 2018, the State filed its response to Appellants’ motion for

       summary judgment in conjunction with the State’s cross-motion for summary

       judgment. In its cross-motion for summary judgment, the State argued there

       existed issues of material fact and Appellants’ Indemnification Claim was

       barred by “claim preclusion/collateral estoppel” based on the dismissal of the

       State Claim. (Id. at 71-2.) Appellants filed their response on January 26, and

       the State filed a reply on February 12.


[16]   On May 1, 2018, the trial court held a hearing on the competing motions for

       summary judgment. On June 12, 2018, the trial court issued an order granting

       the State’s motion for summary judgment, denying Appellants’ motion for

       summary judgment, and dismissing the Indemnification Claim with prejudice.

       The trial court concluded, in relevant part:


               35. Here, the State Claim, which alleged that Johnson was
               acting within the scope of his employment, was dismissed.
               [Kailee] never filed a Motion to Correct Error, sought direct
               appeal of the dismissal or otherwise sought post-judgment relief
               from the Hancock County Circuit Court’s order.


               36. [Appellants] had a full and fair opportunity to litigate the
               State Claim, chose not to act on the dismissal, and instead, opted
               to proceed with the Federal Claim.


                                                       *****


               40. Moreover, [Appellants] are collaterally estopped from
               asserting that Johnson was acting within the scope of his



       Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019         Page 9 of 23
               employment because the issue had been expressly adjudicated in
               favor of the State in the State Claim.


               41. The State of Indiana is entitled to judgment as a matter of
               law.


       (Id. at 15-6.)



                                   Discussion and Decision
[17]   Our standard of review for summary judgment is well-established:


               We review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in
               favor of . . . the non-moving parties, summary judgment is
               appropriate ‘if the designated evidentiary matter shows that there
               is no genuine issue as to any material fact and that the moving
               party is entitled to judgment as a matter of law.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting 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 material facts support conflicting reasonable
               inferences.” Id. (internal citations omitted).


               The initial burden is on the summary-judgment movant to
               “demonstrate the absence of any genuine issue of fact as to a
               determinative issue,” at which point the burden shifts to the non-
               movant to “come forward with contrary evidence” showing an
               issue for the trier of fact. Id. at 761-62 (internal quotation marks
               and substitution omitted). And “[a]lthough the non-moving
               party has the burden on appeal of persuading us that the grant of
               summary judgment was erroneous, we carefully assess the trial
               court’s decision to ensure that he was not improperly denied his

       Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019        Page 10 of 23
        day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
        916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
        omitted).


Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Therefore, for the trial court

to properly grant summary judgment, the movants must have “made a prima

facie showing that their designated evidence negated an element of the

nonmovants’ claims, and, in response, the nonmovants must have failed to

designate evidence to establish a genuine issue of material fact.” Cox v.

Mayerstein-Burnell Co., Inc., 19 N.E.3d 799, 804 (Ind. Ct. App. 2014). We will

affirm a trial court’s decision on summary judgment if it is sustainable on any

theory or basis found in the evidentiary matter designated to the trial court.

United Rural Elec. Membership Corp. v. Ind. Mich. Power Co., 648 N.E.2d 1194,

1196 (Ind. Ct. App. 1995), trans. denied. Additionally,


        [o]ur summary judgment policies aim to protect a party’s day in
        court. While federal practice permits the moving party to show
        merely that the party carrying the burden of proof lacks evidence
        on a necessary element, we impose a more onerous burden—to
        affirmatively negate an opponent’s claim. That permits summary
        judgment to “be precluded by as little as a non-movant’s ‘mere
        designation of a self-serving affidavit.’” Summary judgment is
        not a summary trial, and it is not appropriate just because the
        non-movant appears unlikely to prevail at trial. We “consciously
        err[ ] on the side of letting marginal cases proceed to trial on the
        merits, rather than risk short-circuiting meritorious claims.”


Devereux v. DiBenedetto, 45 N.E.3d 842, 845 (Ind. 2015) (internal citations

omitted).


Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019        Page 11 of 23
[18]   The case before us involves a claim against the State for the payment of

       compensatory damages, costs, and attorney’s fees awarded to Appellants under

       the Federal Claim by virtue of Johnson’s assignment of his right to

       indemnification under Indiana Code section 34-13-4-1, which states, in relevant

       part:


               If a present or former public employee, including a member of a
               board, a committee, a commission, an authority, or another
               instrumentality of a governmental entity, is or could be subject to
               personal civil liability for a loss occurring because of a
               noncriminal act or omission within the scope of the public
               employee’s employment which violates the civil rights laws of the
               United States, the governmental entity (when the governmental
               entity defends or has the opportunity to defend the public
               employee) shall [. . .] pay:


               (1) any judgment (other than for punitive damages) of the claim
               or suit; or


               (2) any judgment for punitive damages, compromise, or
               settlement of the claim or suit if:


                        (A) the governor, in the case of a claim or suit against a
                        state employee; or


                        (B) the governing body of the political subdivision, in the
                        case of a claim or suit against an employee of a political
                        subdivision;


               determines that paying the judgment for punitive damages,
               compromise, or settlement is in the best interest of the
               governmental entity. The governmental entity shall also pay all

       Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019             Page 12 of 23
               costs and fees incurred by or on behalf of a public employee in
               defense of the claim or suit.


[19]   Appellants contend summary judgment in favor of the State is not appropriate

       because Officer Johnson was acting within the scope of his employment when

       he gave the information to the Hancock County Prosecutor that resulted in

       Kailee’s false arrest. In addition, Appellants assert the trial court erred when it

       determined Officer Johnson’s actions were “not noncriminal[,]” (Appellants’

       App. Vol. II at 16), because neither party designated evidence regarding that

       issue from which the trial court could rule on summary judgment. However,

       the State maintains the arguments made by Appellants in the Indemnification

       Claim are barred by the doctrine of collateral estoppel based on the dismissal of

       the State Claim.


                                            Collateral Estoppel
[20]   As we explained in 2444 Acquisitions, LLC v. Fish, 84 N.E.3d 1211 (Ind. Ct. App.

       2017), “collateral estoppel bars the subsequent litigation of a fact or issue that

       was necessarily adjudicated in a former lawsuit if the same fact or issue is

       presented in the subsequent lawsuit.” Id. at 1216.


               There are three requirements for the doctrine of collateral
               estoppel to apply: (1) a final judgment on the merits in a court of
               competent jurisdiction; (2) identity of the issues; and (3) the party
               to be estopped was a party or the privity [sic] of a party in the
               prior action.




       Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019         Page 13 of 23
       Nat’l Wine & Spirits, Inc. v. Ernst & Young, LLP, 976 N.E.2d 699, 704 (Ind. 2012)

       (internal citations omitted) (quoting Small v. Centocor, Inc., 731 N.E.2d 22, 28

       (Ind. Ct. App. 2000), reh’g denied, trans. denied), reh’g denied, cert. denied 569 U.S.

       1018 (2013). The State argues Appellants are collaterally estopped from

       asserting that Johnson was acting within the scope of his employment when he

       violated Kailee’s Fourth Amendment right while acting under the color of state

       law because the question of whether he was acting within the scope of his

       employment was decided when the trial court dismissed Kailee’s State Claim.


                               Initial Requirements of Collateral Estoppel

[21]   Regarding the first requirement, that there be a final judgment on the merits by

       a court of competent jurisdiction, the State notes there is no dispute that the

       Hancock Circuit court is a court of competent jurisdiction. The State contends

       the dismissal order is a final judgment on the merits based on Indiana Trial

       Rule 41(B), which states, in relevant part, “Unless the court in its order for

       dismissal otherwise specifies, a dismissal under this subdivision or subdivision

       (e) of this rule and any dismissal not provided for in this rule, other than

       dismissal for lack of jurisdiction, operates as an adjudication upon the merits.”


[22]   Regarding the second requirement, that there be an identity of issues, the State

       directs us to the claims made in the State Claim and the Indemnification Claim.

       In her State Claim, Kailee alleged: “When procuring the prosecution of

       [Kailee,] Johnson acted within the scope of his employment by the Indiana

       Department of Natural Resources.” (Appellants’ App. Vol. II at 30.) In its

       motion to dismiss the State Claim, the State argued, in part, “Johnson’s acts
       Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019           Page 14 of 23
       cannot be interpreted to be in the scope of his employment[.]” (Id. at 41.) In

       the Indemnification Claim, Appellants alleged: “At the time of Johnson’s

       conversation with officials at the Prosecutor’s Office, he was on duty, in

       uniform, and performing the ordinary functions of his job as a Conservation

       Officer.” (Appellee’s App. Vol II at 3.)


[23]   Regarding the third requirement, that the parties to the two actions be the same

       parties or privies, the State maintains it is undisputed the parties involved in

       both claims are the same, or, in the case of McQuary, in privity with a party in

       both actions. McQuary is in privity with Kailee because he represented her in

       the State Claim. See Small v. Centocor, Inc., 731 N.E.2d 22, 28 (Ind. Ct. App.

       2000) (privity “includes those who control an action, though not a party to it,

       and those whose interests are represented by the party to the action”), reh’g

       denied, trans. denied.


                            Additional Requirements of Collateral Estoppel

[24]   To determine if a party’s claim is barred by collateral estoppel, we also consider

       “whether the party against whom the judgment is pled had a full and fair

       opportunity to litigate the issue, and whether it would be otherwise unfair under

       the circumstances to permit the use of collateral estoppel.” Nat’l Wine & Spirits,

       976 N.E.2d at 704 (quoting Small, 731 N.E.2d at 28). Appellants argue that

       because the trial court’s order on dismissal of the State Claim does not have

       findings, it is unclear which issues were decided, and thus the State has not met

       the threshold for collateral estoppel. In 2444 Acquisitions, we held:


       Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019        Page 15 of 23
                Where collateral estoppel is applicable, the former adjudication
                will be conclusive in the subsequent action even if the two actions
                are on different claims. However, the former adjudication will
                only be conclusive as to those issues that were actually litigated
                and determined therein. Collateral estoppel does not extend to
                matters that were not expressly adjudicated and can be inferred
                only by argument.


       2444 Acquisitions, 84 N.E.3d at 1216 (internal citations omitted).


[25]   Kailee’s State Claim asserted multiple issues. The State requested dismissal

       under the Indiana Tort Claims Act and because Johnson had not been acting

       within the scope of his employment. The trial court dismissed the State Claim

       in an order that contained no findings or conclusions. Thus, the issue of

       whether Officer Johnson was acting within the scope of his employment was

       not expressly adjudicated in the State Claim.


[26]   Further, it would be unfair to preclude Appellants from arguing Officer

       Johnson was acting within the scope of his employment when he told the

       Hancock County Prosecutor that Kailee had left the scene of an accident,

       because that was not adjudicated as part of the Federal Claim. See Robinett v.

       City of Indianapolis, 894 F.3d 876, 881-2 (7th Cir. 2018) (explaining the

       difference between a federal claim of acting “under color of state law” and a

       state claim of acting “within the scope of employment”). Therefore, the trial

       court’s findings and conclusion regarding the issue of collateral estoppel were in

       error.




       Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019          Page 16 of 23
                                          Scope of Employment
[27]   Appellants argue the trial court erred when it determined they had not created a

       genuine issue of material fact regarding whether Officer Johnson was acting

       within the scope of his employment during the relevant incident because, under

       Indiana Code section 34-13-4-1, Officer Johnson must have been doing so for

       the State to be required to indemnify Officer Johnson, and by assignment, the

       Appellants. In the Indemnification Claim, the trial court found:


               37. None of the designated materials raised a genuine issue of
               material fact as to whether Johnson was acting within the scope
               of his employment as a Conservation Officer. At best,
               [Appellants] have provided evidence that he was acting under the
               color of law as was determined in the federal claim.


       (Appellants’ App. Vol. II at 16.)


[28]   Appellants note they designated an affidavit from Officer Johnson in which he

       indicated he was “on duty, in uniform, conducting State business, and

       performing duties that were an ordinary part of [his] employment as a

       Conservation Officer.” (Id. at 25.) Additionally, they direct us to the joint

       stipulation of facts from the Federal Claim in which Appellants and Officer

       Johnson agreed:


               12. In February 2013, Johnson visited the office of the Hancock
               County Prosecutor.


               13. Johnson was at the time of the accident, and is today,
               employed by the Indiana Department of Natural Resources as a
               Conservation Officer.
       Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019      Page 17 of 23
               14. Johnson regularly visits the Hancock County Prosecutor’s
               office in the course of his duties as a Conservation Officer.


               15. Sometime in February 2013 while Johnson was performing
               his duties at the Prosecutor’s Office, Johnson spoke to Tammi
               Phillips, the Chief Deputy Prosecutor, and told her about
               [Kailee] striking and killing [the dog].


       (Id. at 23.)


[29]   In Cox v. Evansville Police Department, 107 N.E.3d 453 (Ind. 2018), our Indiana

       Supreme Court outlined the framework of the scope-of-employment rule:


               The scope-of-employment rule emanates from the concept of
               control. Stropes [ex rel. Taylor v. Heritage House Children’s Ctr. of
               Shelbyville, Inc., 547 N.E.2d 244, 252 (Ind. 1989), reh’g denied]; see
               Dickson v. Waldron, 135 Ind. 507, 516-20, 34 N.E. 506, 509-10
               (1893)[, reh’g denied]. More specifically, it springs from the
               employer’s control over its employees and their employment
               activities: the employer controls whom it hires, what
               employment duties it assigns, how it empowers employees to
               carry out those duties, and how it guards against harm arising
               from employment activities. See Barnett [v. Clark, 889 N.E.2d
               281, 284-5 (Ind. 2008)]; Stropes, 547 N.E.2d at 249-50; Dickson,
               135 Ind. at 516-19, 34 N.E. at 509; City of Indianapolis v. West, 81
               N.E.3d 1069, 1072-73 (Ind. Ct. App. 2017).


               Although scope-of-employment liability is rooted in this control,
               it extends beyond actual or possible control, holding employers
               responsible for some risks inherent in the employment context.
               See Dickson, 135 Ind. at 518, 34 N.E. at 509-10; West, 81 N.E.3d
               at 1072-73; Walgreen Co. v. Hinchy, 21 N.E.3d 99, 107-08 (Ind. Ct.
               App. 2014), trans. denied. Ultimately, the scope of employment
               encompasses the activities that the employer delegates to

       Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019          Page 18 of 23
        employees or authorizes employees to do, plus employees’ acts
        that naturally or predictably arise from those activities. See
        Stropes, 547 N.E.2d at 250; Dickson, 135 Ind. at 518, 34 N.E. at
        509; West, 81 N.E.3d at 1072-73; cf. Tippecanoe Beverages, Inc. v.
        S.A. El Aguila Brewing Co., 833 F.2d 633, 638 (7th Cir. 1987)
        (applying Indiana law).


        This means that the scope of employment - which determines
        whether the employer is liable - may include acts that the
        employer expressly forbids; that violate the employer’s rules,
        orders, or instructions; that the employee commits for self-
        gratification or self-benefit; that breach a sacred professional
        duty; or that are egregious, malicious, or criminal. See, e.g.,
        Warner Trucking, Inc. v. Carolina Cas. Ins., 686 N.E.2d 102, 105
        (Ind. 1997) (trucker’s drunk driving); Stropes, 547 N.E.2d at 245,
        249 (nurse aide’s sexual assault of resident); Walgreen, 21 N.E.3d
        at 103, 109 (pharmacist’s breach of privacy for prescription
        records); Southport Little League v. Vaughan, 734 N.E.2d 261, 266-
        67, 270 (Ind. Ct. App. 2000) (equipment manager’s molestation
        of youths), trans. denied; Gomez v. Adams, 462 N.E.2d 212, 224-25
        (Ind. Ct. App. 1984) (security officer’s conversion of arrestee’s
        check-cashing card).


        The scope of employment extends beyond authorized acts for
        two key reasons. First, it is equitable to hold people responsible
        for some harms arising from activities that benefit them. See
        Dickson, 135 Ind. at 518, 34 N.E. at 510. When employees carry
        out assigned duties, those employment activities “further the
        employer’s business” to an appreciable extent, benefiting the
        employer. Barnett, 889 N.E.2d at 283; see also West, 81 N.E.3d at
        1072. But delegating employment activities also carries an
        inherent risk that those activities will naturally or predictably give
        rise to injurious conduct. See Stropes, 547 N.E.2d at 249-50;
        Dickson, 135 Ind. at 517-18, 34 N.E. at 509; West, 81 N.E.3d at
        1072-73. When that happens, the employer is justly held
        accountable since the risk accompanies the employer’s benefit.
Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019           Page 19 of 23
        See West, 81 N.E.3d at 1072 n.2; Stump v. Ind. Equip. Co., 601
        N.E.2d 398, 403 (Ind. Ct. App. 1992), [reh’g denied,] trans. denied.


        Second, holding employers liable for those injurious acts helps
        prevent recurrence. See Dickson, 135 Ind. at 518, 34 N.E. at 509;
        accord West ex rel. Norris v. Waymire, 114 F.3d 646, 649 (7th Cir.
        1997)[, cert. denied 522 U.S. 932 (1997)]; Tippecanoe Beverages, 833
        F.2d at 638. Employers can take measures - like selecting
        employees carefully and instituting procedures that lessen
        employment dangers - to reduce the likelihood of tortious
        conduct. See Dickson, 135 Ind. at 518, 34 N.E. at 509-10; accord
        Waymire, 114 F.3d at 649; Tippecanoe Beverages, 833 F.2d at 638.
        Since employers have some control over the risk of injurious
        conduct flowing from employment activities, imposing liability
        on employers for that conduct encourages them to take
        preventive action. See Dickson, 135 Ind. at 518, 34 N.E. at 509;
        accord Waymire, 114 F.3d at 649; Tippecanoe Beverages, 833 F.2d at
        638; Mary M. [v. City of Los Angeles], 285 Cal.Rptr. 99, 814 P.2d
        [1342,] 1343 (1991).


        To be clear, the focus in determining the scope of employment
        “must be on how the employment relates to the context in which
        the commission of the wrongful act arose.” Barnett, 889 N.E.2d
        at 285 (quoting Stropes, 547 N.E.2d at 249). When tortious acts
        are so closely associated with the employment that they arise
        naturally or predictably from the activities an employee was
        hired or authorized to do, they are within the scope of
        employment, making the employer liable. West, 81 N.E.3d at
        1072-73. But tortious acts are not within the scope of
        employment when they flow from a course of conduct that is
        independent of activities that serve the employer. Barnett, 889
        N.E.2d at 283-84.


Id. at 461-2.



Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019        Page 20 of 23
[30]   Appellants assert: “[Appellants’] designations indicate that Johnson was

       furthering the State’s business by reporting to a prosecutor what he believed to

       be a crime, something that was a normal part of his job duties.” (Br. of

       Appellant at 13.) The State contends that while Johnson was in a place

       wherein he would normally exercise duties within the scope of his employment

       and in his uniform,


               [t]he evidence supports that Johnson was not acting to further the
               State’s interest when he falsely reported that [Kailee] had left the
               scene of the accident. Instead, Johnson was acting on his own
               behalf when he falsely reported the accident to prosecutors. This
               is not among his job responsibilities as a conversation [sic] officer
               for the Indiana Department of Natural Resources.


       (Br. of Appellee at 23.) Based thereon, we conclude there exists a genuine issue

       of material fact regarding whether Officer Johnson’s action of telling the

       Hancock County Prosecutor that Kailee left the scene of an accident was within

       the scope of Officer Johnson’s employment and thus summary judgment was

       improper. See Cox, 107 N.E.3d at 461-2 (explaining that a person may be acting

       in the scope of his employment even if he engages in tortious conduct); Cf.

       Mayerstein-Burnell Co., Inc., 19 N.E.3d at 804 (summary judgment appropriate

       when movants “made a prima facie showing that their designated evidence

       negated an element of the nonmovants’ claims, and, in response, the

       nonmovants must have failed to designate evidence to establish a genuine issue

       of material fact”).




       Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019         Page 21 of 23
                   Conclusion Johnson’s Act was Not Noncriminal
[31]   To qualify for indemnification from the State under Indiana Code section 34-

       13-4-1, Johnson’s act had to be noncriminal. In its order on the

       Indemnification Claim, the trial court found and concluded:


               38. None of the designated materials raised a genuine issue of
               material fact as to whether Johnson committed a noncriminal act
               resulting in a loss to [Kailee].


               39. Accordingly, Johnson is not entitled to indemnification by
               the State under Ind. Code § 34-13-4-1 as his actions were not
               noncriminal acts nor were they within the scope of his
               employment.


       (Appellants’ App. Vol. II at 16.) Appellants argue this finding and conclusion

       are in error because neither party raised the issue nor did either party designate

       evidence regarding the issue. Appellants note they stated in their memorandum

       in support of their motion for summary judgment that Johnson’s “violation was

       non-criminal[,]” (Appellee’s App. Vol. II at 19), and that the State did not

       respond to that assertion. We agree.


[32]   Indiana Trial Rule 56(c) directs the trial court to make a decision regarding

       summary judgment “from the evidentiary matter designated to the court.” The

       Rule dictates: “The judgment sought shall be rendered forthwith if the

       designated evidentiary matter shows that there is no genuine issue as to any

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

       law.” T.R. 56. In the case before us, neither party designated evidence


       Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019       Page 22 of 23
       regarding whether Officer Johnson’s actions were noncriminal, and therefore

       the trial court’s grant of summary judgment in favor of the State on this issue

       was in error.



                                                 Conclusion
[33]   The trial court erred when it granted summary judgment in favor of the State

       because (1) collateral estoppel did not apply; (2) there existed a genuine issue of

       material fact whether Officer Johnson was acting within the scope of his

       employment at the time of his actions; and (3) the court could not decide

       summary judgment regarding whether Officer Johnson’s acts were noncriminal

       because neither party had designated evidence on that issue. Accordingly, we

       reverse and remand for proceedings consistent with this opinion.


[34]   Reversed and remanded.


       Riley, J. concurs in result without opinion.


       Robb, J. concurs.




       Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019       Page 23 of 23
