Brian Young, Dave Wells, Steve Richmond, and Tim Corbett v. Henry Davis, Jr. , 2015 Ind. App. LEXIS 547 ( 2015 )

Aug 04 2015, 9:07 am
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Daniel H. Pfeifer James A. Masters
Jerome W. McKeever A. Robert Masters
Pfeifer, Morgan & Stesiak Nemeth, Feeney, Masters
South Bend, Indiana & Campiti, P.C.
South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian Young, Dave Wells, Steve August 4, 2015
Richmond, and Tim Corbett, Court of Appeals Case No.
71A04-1501-CT-26
Appellants-Plaintiffs,
Appeal from the St. Joseph Superior
v. Court
The Honorable Jenny Pitts Manier,
Judge
Henry Davis, Jr.,
Cause No. 71C01-1405-CT-142
Appellee-Defendant
Baker, Judge.
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[1] Brian Young, Dave Wells, Steve Richmond, and Tim Corbett (collectively, the
Officers) appeal the trial court’s order dismissing their complaint against Henry
Davis. The Officers filed a lawsuit against Davis, a government employee, and
two governmental agencies for actions he took while a government employee.
After the Officers voluntarily dismissed the governmental entities from the
complaint, the trial court granted Davis’s motion to dismiss based on the
Indiana Tort Claims Act (ITCA).1 Finding that the dismissal was erroneous,
we reverse and remand for further proceedings.
Facts
[2] The Officers are South Bend Police officers, and Davis is a member of the
South Bend Common Council (Common Council). On August 9, 2012, Davis
sent the United States Department of Justice a letter accusing the Officers of
racially-based misconduct. In January 2014, the Officers learned that Davis
had allegedly either listened to tapes of the officers’ illegally-recorded private
telephone conversations or that he had talked to someone who had listened to
those tapes. Subsequently, Davis allegedly posted comments on his Facebook
page regarding what he had heard.
[3] On May 14, 2014, the Officers filed a two-count complaint against Davis, the
City of South Bend (the City), and the Common Council. Count I alleged that
Davis had violated provisions of the federal wiretap act and related provisions
1
Ind. Code § 34-13-3-1 et seq.
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in Indiana law by either listening to the Officers’ phone conversations or
receiving information about those conversations. The Officers pleaded liability
in the alternative: on the one hand, the complaint alleged that Davis was acting
in the course and scope of his employment and that the City and Common
Council were vicariously liable; on the other hand, it alternatively alleged that
Davis was personally liable because he was acting outside the scope of his
employment. Count II alleged that Davis was personally liable for defamation
by forwarding correspondence to the Department of Justice.
[4] Although the City and Common Council were served with the Officers’
complaint, they did not appear in the lawsuit or file any responsive pleading.
They also did not enter an appearance on behalf of Davis, who eventually
retained private counsel. On July 17, 2014, the Officers voluntarily dismissed
the City and the Common Council.
[5] On October 17, 2014, the Officers filed an amended complaint against Davis.
The complaint named Davis as the sole defendant, alleging that he had acted
outside the scope and course of his employment, and retained both claims from
the original complaint. Davis moved to dismiss the amended complaint on
December 1, 2014, arguing that the Officers had failed to state a claim against
him. Following a hearing, the trial court granted Davis’s motion on January 9,
2015, finding that the Officers’ claims against Davis were barred by the ITCA.
The Officers now appeal.
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Discussion and Decision
[6] A motion to dismiss for failure to state a claim tests the legal sufficiency of a
claim rather than the facts supporting it. Medley v. Lemmon, 994 N.E.2d 1177,
1182 (Ind. Ct. App. 2013). We apply a de novo standard of review to a trial
court’s ruling on a Trial Rule 12(B)(6) motion to dismiss, determining whether
the allegations on the face of the complaint establish any set of circumstances
under which a plaintiff would be entitled to relief. Id. This case requires us to
review the trial court’s interpretation of the ITCA, and as always, we review
matters of statutory interpretation de novo. Meyer v. Beta Tau House Corp., 31
N.E.3d 501, 513 (Ind. Ct. App. 2015)
[7] The ITCA provides that a government employee may not be named as a party
in a civil suit where he acted “within the scope of [his] employment.” Ind.
Code § 34-13-3-5(a). Subsection 5(b) states that a judgment against the
governmental entity bars an action against the government employee, and, with
one exception, a lawsuit alleging that the employee acted within the scope and
course of his employment bars an action against the employee personally:
A judgment rendered with respect to or a settlement made by a
governmental entity bars an action by the claimant against an
employee, including a member of a board, a committee, a
commission, an authority, or another instrumentality of a
governmental entity, whose conduct gave rise to the claim resulting in
that judgment or settlement. A lawsuit alleging that an employee acted
within the scope of the employee’s employment bars an action by the
claimant against the employee personally. However, if the
governmental entity answers that the employee acted outside the scope
of the employee’s employment, the plaintiff may amend the complaint
and sue the employee personally. . . .
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I.C. § 34-13-3-5(b). Finally, if the circumstances of a lawsuit permit the filing of
a lawsuit against an employee individually, subsection (c) sets forth the
necessary allegations that must be made in such a case:
A lawsuit filed against an employee personally must allege that an act
or omission of the employee that causes a loss is:
(1) criminal;
(2) clearly outside the scope of the employee’s employment;
(3) malicious;
(4) willful and wanton; or
(5) calculated to benefit the employee personally.
The complaint must contain a reasonable factual basis supporting the
allegations.
I.C. § 34-13-3-5(c).
I. Defamation Claim
[8] First, we consider the Officers’ defamation claim. In the Officers’ original
complaint, the defamation claim alleged that Davis’s actions “were not within
the scope of conducting any investigation authorized by the South Bend
Common Council. Henry Davis’ actions were in his individual capacity and a
rogue attempt to damage the plaintiffs by said unfounded allegations.”
Appellants’ App. p. 12. The amended complaint contained identical allegations
with respect to the defamation claim. Id. at 58.
[9] From the start, therefore, the Officers sought only to have Davis held liable as
an individual for defamation. They did not seek to hold any governmental
entities vicariously liable for Davis’s actions as an employee, and they did not
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contend that he was acting as a governmental employee when he committed the
acts that allegedly constitute defamation. Because this claim did not allege that
Davis “acted within the scope of [his] employment,” the claim is not barred by
the ITCA. I.C. § 34-13-3-5(a), -5(b). As a result, it was erroneous to dismiss the
defamation claim pursuant to Trial Rule 12(B)(6). We therefore reverse and
remand for further proceedings on this claim.
II. Wiretap Claim
[10] Next, we turn to the Officers’ claim related to alleged violations of state and
federal law. As opposed to the defamation claim, this claim originally alleged
that Davis was acting within the scope of his employment when he committed
the acts that allegedly violated the statutory provisions at issue. Although the
Officers pleaded in the alternative that Davis acted outside the scope of his
employment, the fact that they named the governmental entities as defendants
and sought to hold those entities vicariously liable makes the dismissal of this
claim more problematic.
[11] There are two provisions of the ITCA that we must consider in addressing the
Officers’ contention that dismissal was erroneous. First, we must consider
whether the voluntary dismissal of the City and the Common Council
constituted a “judgment.” Second, we must consider whether the fact that the
governmental entities did not aver in a responsive pleading that Davis acted
outside the scope of his employment bars an individual claim against Davis.
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A. Is a Voluntary Dismissal a “Judgment”
[12] As noted above, “[a] judgment rendered with respect to . . . a governmental
entity bars an action by the claimant against an employee . . . whose conduct
gave rise to the claim resulting in that judgment[.]” I.C. § 34-13-3-5(b). If we
were to find, as Davis argues we should, that the Officers’ voluntary dismissal
of the City and Common Council constitutes a “judgment” for ITCA purposes,
then the Officers would not be permitted to pursue an individual claim against
Davis for these actions.
[13] Davis directs our attention to two cases that he claims stands for a general
proposition that a dismissal of governmental entities from a complaint
constitutes a judgment for ITCA purposes. In Burks v. Bolerjack, a jail employee
sued the county, sheriff’s office, and the sheriff for a number of tort claims. 427
N.E.2d 887 (Ind. 1981). The defendants filed a motion to dismiss the claim,
which the trial court granted, because Burks had failed to comply with the
notice provisions of the ITCA. Burks argued that even if the governmental
entities were properly dismissed because of the failure to give proper notice, the
claims against the sheriff as an individual should not have been dismissed. Our
Supreme Court disagreed, finding that the dismissal against the government
“was a ‘judgment’ both final and appealable; it left nothing for resolution
between the parties.” Id. at 889. Because a “judgment” had been rendered with
respect to the governmental entities, the claims against the sheriff as an
individual were properly dismissed.
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[14] In Board of Commissioners of Cass County v. Nevitt, the plaintiff sued Cass County
for injuries stemming from a vehicular accident involving a county snow plow.
448 N.E.2d 333 (Ind. Ct. App. 1983). Nevitt also sued the snow plow driver as
an individual. On the day before trial, Nevitt, “[f]or tactical reasons,” filed a
motion for leave to file an amended complaint that dismissed the county as a
party to the action. Id. at 336. The trial court granted the request and found in
favor of the plaintiff following a bench trial. The employee appealed, and this
Court, citing to Burks, found that Nevitt’s voluntary dismissal of the county on
the eve of trial constituted a “judgment” for purposes of the ITCA. Id. at 338-
39. Consequently, any further action against the snow plow driver as an
individual was barred by the ITCA, and the trial court should not have
permitted the trial to take place. Id. at 339.
[15] We simply cannot conclude that a plaintiff’s decision to voluntarily dismiss
governmental entities from a complaint before litigation has even begun equates
to the scenarios contemplated by the Burks and Nevitt Courts. In Burks, judicial
action was required to grant or deny the motion to dismiss. As such, the order
granting dismissal was a “judgment” for ITCA purposes. In Nevitt, because of
the timing of the amended complaint, the plaintiff was required to file a motion
requesting permission to amend, thereby dismissing the governmental entity
from the case. Therefore, judicial action was required to grant or deny that
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motion, and the order granting the amendment and dismissing the government
was a “judgment” for ITCA purposes. 2
[16] Here, in contrast, the Officers made a decision extremely early in the
litigation—before attorneys for the City and Common Council had even filed
appearances—to pursue recovery solely against Davis as an individual. Indiana
Trial Rule 15(A) provides that “[a] party may amend his pleading once as a
matter of course at any time before a responsive pleading is served[.]” In such a
circumstance, the trial court need not, and cannot, rule on the amendment—the
plaintiff is entitled to it as of right. And Trial Rule 41(A)(1)(a) provides that an
action may be dismissed by the plaintiff without order of court by filing a notice of
dismissal before the adverse party has served an answer. Again, no judicial
action is required. Because the Officers here took action at such an early date in
the litigation, they were within their rights to dismiss the City and Common
Council and amend their complaint without first seeking permission from the
trial court. As such, we find Burks and Nevitt distinguishable.
[17] Under these circumstances, we find that the voluntary dismissal of the City and
Common Council did not constitute a “judgment” for purposes of ITCA.
Therefore, the claims against Davis were not barred on this basis.
2
We question whether our colleagues in Nevitt properly applied the decision of our Supreme Court in Burks.
We need not resolve that issue, however, as even if we take the Nevitt holding as it is, we find the case
distinguishable from the circumstances present here.
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B. Lack of a Government Answer
[18] Finally, we must consider the middle portion of subsection 5(b):
A lawsuit alleging that an employee acted within the scope of the
employee’s employment bars an action by the claimant against the
employee personally. However, if the governmental entity answers
that the employee acted outside the scope of the employee’s
employment, the plaintiff may amend the complaint and sue the
employee personally.
I.C. § 34-13-3-5(b). Davis contends that because in this case the City and
Common Council did not file a responsive pleading averring that he was acting
outside the scope of his employment, the Officers were not entitled to seek
recovery from him as an individual.
[19] We have already noted that the City and Common Council were voluntarily
dismissed from the complaint. We have also found that the dismissal did not,
in and of itself, bar the Officers from continuing their lawsuit against Davis
individually. After the dismissal, the Officers amended their complaint,
alleging solely that Davis was acting outside the scope of his employment. At
that time, there was no governmental entity participating in the litigation that could
have filed a pleading on Davis’s actions. Consequently, to say that the absence of
such a pleading is fatal to the Officers’ claims makes little to no sense.
[20] To agree with Davis’s position would be to hand control of litigation over to a
third party. We simply cannot countenance, and cannot conclude that the
General Assembly intended, such a result. We decline to find that a non-party
governmental entity was required to file a pleading before the Officers’
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individual claims against Davis were entitled to proceed. Therefore, we reverse
the trial court’s order with respect to the wiretap claim and remand for further
proceedings.
[21] The judgment of the trial court is reversed and remanded for further
proceedings.
Bailey, J., and Mathias, J., concur.
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