Gomez v. Adams

Decision Date17 April 1984
Docket NumberNo. 2-882A239,2-882A239
Citation462 N.E.2d 212
PartiesRandall J. GOMEZ, and Nora Security, Inc., Appellants (Defendants Below), v. William E. ADAMS, Jr., Appellee (Plaintiff Below).
CourtIndiana Appellate Court

James W. Riley, Jr., Mark B. Hillis, Callahan, Riley & Hillis, Indianapolis, for appellants Randall J. Gomez and Nora Security, Inc.

Ronald A. Wright, Harlow, Wright & Englert, Indianapolis, for appellant Nora Security, Inc.

Dwight Ritter, Mendelson, Kennedy, Miller, Muller & Hall, Indianapolis, for appellee.


Randall Gomez and Nora Security, Inc., co-defendants, appeal a general jury verdict and judgment against them in the amount of $20,000.00 compensatory damages and $60,000.00 punitive damages upon a complaint alleging, somewhat generally, a right of recovery for false arrest, false imprisonment, malicious prosecution, libel slander, defamation of character, assault and battery, forgery, conversion, and theft. This suit was instituted by Adams subsequent to his arrest for disorderly conduct, public intoxication, and resisting arrest. The issues upon which the jury received specific final instructions did not include libel, slander, defamation, forgery, or theft except as the latter is embraced within the conversion theory. 1

Restated and condensed, the issues bearing on the disposition of this case are as follows:

(1) Whether the trial court erred in denying Gomez's motion for summary judgment on the issue of his liability to Adams, which motion was predicated upon Gomez's discharge in a prior bankruptcy proceeding.

(2) Whether there was probable cause to arrest, detain, and prosecute Adams for disorderly conduct, public intoxication, and resisting arrest.

(3) Whether Nora Security, under the theory of respondeat superior, may be held vicariously liable as a result of Gomez's acts of conversion and forgery. 2

(4) Whether the circumstances surrounding the forging of Adams' endorsement on a stolen check and the use of Adams' check-cashing card to cash the forged check resulted in libel, slander, and defamation of character by Gomez.

(5) Whether the giving of an instruction to the jury to the effect that damages could not be allocated between Gomez and Nora Security was erroneous and prejudicial to Nora Security.

(6) Whether the award of punitive damages must be reversed.


On the evening of June 22, 1980, Adams attended a party at a northside Indianapolis apartment complex. He remained at the party for approximately six hours, until 3:00 A.M., consuming several beers while there. Shortly after Adams left the party, the car in which he and a friend were traveling ran off the road into a ditch and became stuck in mud. After unsuccessful attempts to push the car out of the mud, Adams decided to return to the party for help. Once back at the apartment complex, Adams could not remember the precise location of the apartment in which the party had been, but he knocked on the door of an apartment in which he thought the party had been located. A Mr. Lewis (Lewis) answered the door and, in response to Adams' inquiries, informed Adams that there had been no party in his apartment--Adams was mistaken. At that time, Lewis observed Adams staggering, and later testified that in his opinion, Adams was drunk and didn't know where he was. Lewis closed the door and went back to bed only to be reawakened by Adams, adamantly pounding on his door, loudly insisting that the party had been at the Lewis apartment. On the third repetition of this scenario, Lewis told Adams that he was calling security if the disturbance persisted. The third incident prompted Lewis to phone a complaint to Nora Security, Inc. (Nora Security) which provided security services for the complex.

At 4:30 A.M., Nora Security dispatched security officer Randall Gomez (Gomez) to the apartments to investigate. When Gomez received the dispatch, he was parked at Dunkin Donuts in his security vehicle conferring with security officer Timothy Green (Green) who had just gone off duty and was parked in his own security vehicle. Hearing the call, Green volunteered to follow Gomez to the apartments to provide assistance. At this time, Gomez was authorized to exercise special deputy powers. Green, however, had no arrest or police powers.

Before Gomez and Green arrived, Adams had returned to the parking lot of the complex, found an unlocked car, crawled into the rear seat, and either fell asleep or passed out. When the security officers arrived at the complex, Lewis directed them to the car in which Adams was sleeping. Gomez proceeded to direct the lights of his Nora Security vehicle at the automobile, and then opened the door of the car in which Adams had passed out to arouse him. Only with considerable difficulty was Gomez able to get Adams out of the car. According to Adams, he was slapped, grabbed, and roughly hauled from the car, although testimony is conflicting. When Adams finally emerged on the opposite side of the car, he was met by Gomez and asked for his identification.

The testimony and conclusion of all who observed Adams at this time was that he was intoxicated. He smelled of alcohol, his speech was confused and incoherent, he was unable to answer questions, didn't seem to know where he was, and he staggered, requiring the support of the officers to maintain his balance. He also experienced considerable difficulty in coordinating the physical motions necessary to extract his wallet to produce identification. Once Adams managed to produce identification, Gomez returned with it to his vehicle to radio for further information, leaving Adams with Green. Upon the momentary departure of Gomez, Adams attempted to leave the scene and was, thereafter, physically restrained by Green while Gomez came to his aid. Each of the security officers involved in the incident, including Lieutenant Guffey who had arrived in the meantime, testified that Adams became loud, angry, and hostile. He kicked at the officers, physically resisted their efforts to restrain him, and screamed profanities at them throughout the ordeal. Together, Gomez and Green handcuffed Adams and placed him face down on the ground when he continued to resist. It is Adams' testimony that the security officers kicked him while he was on the ground, although this is denied.

In conformance with Nora Security procedures for arrest, a Marion County Sheriff's Deputy was requested by radio to come and take custody of Adams to transport him to the city lock-up. When the deputy arrived with a police wagon, Gomez turned over Adams, Adams' driver's license, and the paperwork necessary to Adams' arrest, but retained the remaining items of Adams' personal identification including a Preston-Safeway check-cashing card. According to Gomez, he had attached these items to a clipboard in his vehicle while completing the paperwork for Adams' arrest and the clipboard had fallen to the floor of the vehicle where it remained until the end of Gomez's shift.

At the end of his shift, around 8:00 A.M., Gomez returned to the Nora Security office and transferred all objects, including Adams' papers, into his own vehicle, then went home.

The following afternoon, Gomez, in his own car, ran out of gas near a Preston-Safeway store on the northside of Indianapolis. At the time, Gomez had no money and was experiencing financial difficulties. Seeing the clipboard containing Adams' other pieces of identification still in his car, Gomez decided to cash a stolen check at Preston-Safeway using Adams' Preston-Safeway check-cashing card and forging Adams' name. 3

Gomez filled out the check in the amount of $142.00, payable to William Adams, signed a false name at the bottom of the check, and then endorsed the check in Adams' name. A subsequent police investigation into the forgery led first to William Adams, and then to Gomez who turned himself over to the police and confessed.

As a result of these incidents, Adams was charged, initially, with public intoxication, disorderly conduct, and resisting arrest. These charges were later dropped when, at trial, Gomez was unable to appear as a witness because he, himself, was serving jail time in accordance with a plea agreement he had entered into regarding the forgery and two counts of theft. Charges were also filed against Adams for forgery, but were dropped when Gomez was found to be the culprit. Adams then brought the action against Gomez and Nora Security from which this appeal results. Shortly after Adams filed suit, Lieutenant Guffey of Nora Security refiled charges against Adams for resisting arrest, disorderly conduct, and malicious trespass. This second prosecution resulted in a jury trial in which Adams was convicted for disorderly conduct. Also, shortly after Adams filed suit, Gomez obtained a discharge of his debts in a bankruptcy proceeding which allegedly discharged Adams' claim against Gomez and barred suit thereon.


Gomez contends that the trial court erroneously denied his motion for summary judgment on the issue of personal liability to William Adams because his prior discharge of Adams' claim in a bankruptcy proceeding established an absolute defense, thereby barring suit on the issue. Adams, on the other hand, urges that the trial court properly denied Gomez's motion because there were genuine issues of material fact regarding (1) the dischargeability of his claim pursuant to Sec. 523(a)(6) of the Bankruptcy Code, and (2) an alleged absence of notice of the pendency of the A motion for summary judgment is to be granted only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Donahue v. Watson (4th Dist.1980) Ind.App., 411 N.E.2d 741. The party seeking summary judgment has the burden to establish that there is no genuine issue. Conversely, a plaintiff opposing summary judgment may...

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