Kailee M. Smith and Jeffrey S. McQuary, Appellant-Plaintiffs,
State of Indiana, Appellee-Plaintiff
from the Marion Superior Court The Honorable Heather A.
Welch, Judge Trial Court Cause No. 49D01-1706-MI-23427
Attorney for Appellants Jeffrey S. McQuary Brown Tompkins
Lory Indianapolis, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Abigail R. Recker Deputy Attorney General
Kailee M. Smith 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.
reverse and remand.
and Procedural History 
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.
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
On June 28, 2013, the Hancock County Prosecutor's Office
charged Kailee with Class B misdemeanor failure to stop after
an accident causing property 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.
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
(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.)
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 within the course of his employment; instead
she alleged, "When procuring the prosecution of [Kailee,
] Johnson acted under the color of Indiana law."
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.)
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 General [was] precluded by
law from representing him." (Id.) The District
Court granted the State's motion to withdraw.
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.
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.
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 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.
On June 13, 2017,  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
(Id. at 5.)
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.
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.
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. (I ...