Hupp v. Hill

• Decision Date: 26 August 1991
• Docket Number: No. 73A01-9101-CV-21,73A01-9101-CV-21
• Citation: 576 N.E.2d 1320
• Parties: Sherry L. HUPP, Individually, and on Behalf of her minor children, Jeremy Joe Davis, and Jason Ray Davis: Jeremy Joe Davis, Jason Ray Davis, Appellants-Plaintiffs, v. Rick HILL, Individually, and in his capacity as Sheriff of the Bartholomew County Sheriff's Department; Bartholomew County Sheriff's Department; Columbus Police Department; Joseph Koenig, Individually, and in his capacity as Prosecuting Attorney for Bartholomew County; Bartholomew County Prosecutor's Office; Richard Eppard; and City of Columbus, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 1320

576 N.E.2d 1320

Sherry L. HUPP, Individually, and on Behalf of her minor

children, Jeremy Joe Davis, and Jason Ray Davis:

Jeremy Joe Davis, Jason Ray Davis, Appellants-Plaintiffs, v. Rick HILL, Individually, and in his capacity as Sheriff of

the Bartholomew County Sheriff's Department; Bartholomew

County Sheriff's Department; Columbus Police Department;

Joseph Koenig, Individually, and in his capacity as

Prosecuting Attorney for Bartholomew County; Bartholomew

County Prosecutor's Office; Richard Eppard; and City of

Columbus, Appellees-Defendants.

No. 73A01-9101-CV-21.

Court of Appeals of Indiana,

First District.

Aug. 26, 1991.

Stephen C. Litz, Indianapolis, for appellants-plaintiffs.

Peter C. King, Virginia E. Hench, Cline, King & King, Columbus, David A. Nowak, Asst. Atty. Gen., Indianapolis, Joseph Thompson, Columbus, Caren Pollack, Stephenson & Kurnik, Indianapolis, William H. Stone, Columbus, for appellees-defendants.

BAKER, Judge.

This appeal calls on us to review the status of the immunity afforded judges and prosecutors in cases brought under the Indiana Tort Claims Act (ITCA). ¹ We must also review the application of ITCA's notice provisions to elected Sheriffs and their departments, and the application of Ind.Trial Rule 15(C) to a John Doe complaint brought under ITCA.

Plaintiff-appellant Sherry Hupp raises five restated issues for our review:

I. Whether a judge pro tempore acts in clear absence of all jurisdiction when he signs a search warrant requested during the term of his appointment, but not prepared for signing until after the expiration of his appointment.

II. Whether a prosecutor's actions in procuring a search warrant from a judge pro tem during and after the judge pro tem's term of appointment and in accompanying sheriff's deputies during the execution of the warrant are protected by absolute immunity.

III. Whether the trial court erred in determining Hupp failed to provide Bartholomew County Sheriff Rick Hill with the notice of claim required under IND.CODE 34-4-16.5-7.

IV. Whether the trial court erred in entering summary judgment for the City of Columbus.

V. Whether the trial court erred in denying Hupp's motion to amend her complaint.

We affirm.

FACTS

On December 11, 1987, defendant-appellee Richard Eppard served as judge pro tempore of the Bartholomew Circuit Court. The term of his appointment ran until 5:00 p.m. Sometime in the early afternoon, defendant-appellee Joseph Koenig, the Bartholomew County Prosecuting Attorney, approached Eppard. Koenig informed Eppard that a search warrant was being prepared for the home of Donald Davis as part of a drug investigation, explained the reasoning Later that evening, Bartholomew County Sheriff's deputies executed the warrant. While searching Davis's home, the deputies found marijuana, hashish, and drug paraphernalia. Davis, plaintiff-appellant Sherry Hupp, and the couple's two minor children were all in the home during the search. Davis and Hupp were arrested. Hupp was released without being charged, and the charges against Davis were dismissed in return for his covenant not to sue.

for the warrant, and requested that Eppard issue the warrant later that afternoon when the documents were completed. Eppard agreed, but Koenig was unable to present the warrant and the supporting probable cause affidavit until after 5:00 p.m. Eppard nonetheless signed the warrant because he knew the situation surrounding the warrant and because Koenig knew none of the elected Bartholomew County judges were available.

Hupp brought suit for herself and the children against Eppard, Koenig individually and in his capacity as Prosecutor, Bartholomew County Sheriff Rick Hill individually and in his capacity as Sheriff, the City of Columbus, and the Columbus Police Department ² under the Indiana Tort Claims Act (ITCA). Count I of the complaint alleged that the warrant was invalid because Eppard's pro tem status had expired before Eppard signed the warrant; that Eppard, Hill, and Koenig all knew or should have known the warrant was invalid due to the expiration of Eppard's pro tem status; that the law enforcement personnel executing the warrant conducted the search in a violent, threatening, and abusive manner towards the plaintiffs; that Hupp was falsely arrested and imprisoned, and that both she and the children suffered emotional distress stemming from the search, arrest, and confinement; and, that Hupp's emotional distress was increased by the subsequent prosecution (albeit terminated) of Davis. Count II incorporated the allegations of Count I and further alleged that the defendants' actions were willful and wanton, and that the plaintiffs were therefore entitled to punitive damages.

After hearings, a change of judge, and repeated hearings, the special judge entered judgment in favor of all the defendants. On appeal, Hupp argues the trial court erred in entering judgment and in refusing to allow Hupp to amend the complaint. Some of the appellees are before us on grants of summary judgment. ³ This being so, we are required to view all the facts in the light most favorable to the non-movant. Hatton v. Fraternal Order of Eagles, Aerie # 4097 (1990), Ind.App., 551 N.E.2d 479, trans. denied. Summary judgment is proper only when no genuine issue of material fact exists. McClure v. Strother (1991), Ind.App., 570 N.E.2d 1319. When the party moving for summary judgment is the defendant, "a showing of the absence of any genuine issue of material fact shifts the burden to the plaintiff to show a genuine issue of material fact does exist." Tucher v. Brothers Auto Salvage Yard, Inc. (1991), Ind.App., 564 N.E.2d 560, 562, trans. denied. Absent a genuine issue of material fact, we will affirm a grant of summary judgment on any theory supported by the record. Stephenson v. Ledbetter (1991), Ind.App., 575 N.E.2d 1035, 1036.

Moreover, in this case, we must approach our review bearing in mind that some of the judgments were entered on the basis of Hupp's failure to comply with the notice provisions of ITCA. "[T]he question of compliance [with ITCA] is a procedural precedent which the plaintiff must prove and which the trial court must determine prior to trial." Indiana Dep't of Highways v. Hughes (1991), Ind.App., 575 N.E.2d 676, 678 (citation omitted); Indiana We turn now to Hupp's claims against each of the defendants.

                State Highway Comm'n v. Morris (1988), Ind., 528 N.E.2d 468, 471.   These judgments based on compliance with ITCA, then, are subject to review as negative judgments, which we will reverse only if contrary to law.  Dunn v. City of Indianapolis (1983), Ind.App., 451 N.E.2d 1122, trans. denied
                

EPPARD

The state of judicial immunity in Indiana is clear. ⁴ In actions brought under ITCA or under 42 U.S.C. Sec. 1983, a judge of a court of general jurisdiction is subject to civil liability only if he or she has acted "in the clear absence of all jurisdiction." Owen v. Vaughn (1985), Ind.App., 479 N.E.2d 83, 86 (quoting Stump v. Sparkman (1978), 435 U.S. 349, 357, 98 S.Ct. 1099, 1105, 55 L.Ed.2d 331, 339). ⁵ The question concerning Eppard, then, becomes whether he acted "in the clear absence of all jurisdiction" when he issued the search warrant after the expiration of his appointment.

A judge pro tempore exercises all the authority and jurisdiction of the regular judge whom the pro tem replaces. Ind.Trial Rule 63(E). Unlike a special judge, whose jurisdiction is limited to a specific assigned case, a pro tem's jurisdiction vis a vis the regular judge is limited only by time. Skipper v. State (1988), Ind., 525 N.E.2d 334. The expiration of the term, however, does not necessarily end a judge pro tem's authority. Once a judge pro tem has begun consideration of a case, that is, begun hearing evidence, he or she has jurisdiction to hear the case to completion. State v. Smith (1973), 260 Ind. 555, 297 N.E.2d 809; State ex rel. Hodshire v. Bingham (1941), 218 Ind. 490, 33 N.E.2d 771; Needham v. Needham (1980), Ind.App., 408 N.E.2d 562, 563, trans. denied.

While this rule is well settled, its boundaries are less so. Our research has revealed no case in which a judge pro tem has been placed in a situation akin to Eppard's. The reported cases, however, reveal a strong inclination to allow a judge pro tem to proceed with a matter commenced during the term of appointment. See, id., and cases cited therein. The inclination is especially strong when, as here, the challenged conduct occurred within a distinct phase of a given proceeding, i.e., the request for, and issuance of, a search warrant, at the outset of judicial proceedings. See Williams v. State (1985), Ind., 485 N.E.2d 100, 101 (no requirement that judge pro tem who presided over guilty plea hearing be the only judge authorized The present case, however, is not the case to decide whether a judge pro tem has jurisdiction to issue a search warrant after the expiration of his term when no regular judge is available and when the prosecutor approached the judge pro tem about the warrant during the term of appointment. That question is rightly to be answered within any criminal proceeding stemming from such a warrant. Here, we need only determine whether Eppard acted in the clear absence of all jurisdiction.

to preside over sentencing, a distinct phase of the case).

In reaching our determination, we are mindful that both our supreme court and the United States Supreme Court have discussed the importance of liberally construing a judge's jurisdiction when judicial immunity is at issue. Cato v. Mayes (1979), 270 Ind. 653, 656, 388 N.E.2d 530, 532; Stump, supra, 435 U.S. at 356, 98 S.Ct. at 1105, 55 L.Ed.2d at 339. Given the readiness of our courts to allow judges pro tem to complete what they have started, coupled with the liberal interpretation we must give to jurisdictional questions under Stump and Cato, as well as the unavailability of any regular judge in this case, we conclude Eppard was not...