Kimbrell v. City of Lafayette, 2-1082A365

• Decision Date: 25 August 1983
• Docket Number: No. 2-1082A365,2-1082A365
• Parties: Leslie KIMBRELL, Appellant (Plaintiff Below), v. CITY OF LAFAYETTE, Indiana; Ronald Milks, Chief of Police, Lafayette Police Department; Police Merit Board of the City of Lafayette, Indiana; and John Dewenter, Donald Blue, Edward Clark, Thomas L. Brooks, and Robert Cooper, its members, Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 73

454 N.E.2d 73

Leslie KIMBRELL, Appellant (Plaintiff Below), v. CITY OF LAFAYETTE, Indiana; Ronald Milks, Chief of Police Lafayette Police Department; Police Merit Board of the City of Lafayette, Indiana; and John Dewenter, Donald Blue Edward Clark, Thomas L. Brooks, and Robert Cooper, its members, Appellees (Defendants Below).

No. 2-1082A365.

Court of Appeals of Indiana Third District.

Aug. 25, 1983.

Jeffrey A. Cooke, Robert S. Laszynski, Cooke, Bache & Moore, Lafayette, for appellant.

Robert L. Bauman, Heide, Gambs & Mucker, Lafayette, for appellees City of Lafayette and Ronald Milks.

Robert C. Reiling, Jr., Dickson, Reiling, Tucker & Withered, Lafayette, for appellee Police Merit Board of the City of Lafayette.

HOFFMAN, Presiding Judge.

Appellant Leslie Kimbrell had been a police officer with the City of Lafayette Police Department for ten years. In November 1980, the internal investigation arm of the LPD received information that certain police officers withheld information concerning the commission of a burglary. An investigation into the matter was begun.

On November 12, 1980, Kimbrell was brought before Lieutenant Leach, head of the Internal Affairs Division of the LPD, for questioning regarding the burglary at issue. The questioning was hostile and stressful to the participants. Kimbrell admitted withholding information about the burglary.

After being questioned Kimbrell discussed the consequences of his admission with the chief of police. Subsequently, Kimbrell resigned from the police force. On December 15, 1980, Kimbrell petitioned the Police Merit Board for review of the proceedings culminating in his resignation. Upon advice and motion of counsel to the Merit Board, Kimbrell's petition was dismissed on the ground the Board lacked jurisdiction to review a police officer's voluntary resignation.

Kimbrell then pursued this matter before a trial court. At trial after Kimbrell had presented his case-in-chief, the defense moved for dismissal of the cause of action pursuant to Ind.Rules of Procedure, Trial Rule 41(B). The motion was granted and this appeal results.

On appeal Kimbrell raises several issues for review which have been renumbered and restated:

(1) whether the decision of the trial court is contrary to law inasmuch as appellant submitted sufficient evidence in support of his burden of proof establishing the "hearing" held on November 12, 1980 violated appellant's rights to due process;

(2) whether the trial court's decision is contrary to law inasmuch as appellant submitted sufficient evidence to satisfy his burden of proof establishing that he was deprived of his right to due process by the Merit Board's dismissal of his petition for review;

(3) whether the trial court's determination that appellant failed to comply with Merit Board rules regarding reinstatement is supported by the evidence; and

(4) whether the decision of the trial court is contrary to law because appellant submitted sufficient evidence supporting his burden of proof establishing that he was deprived of his right to due process by the Merit Board counsel's dual role as advocate and advisor.

Pursuant to the recent amendment to T.R. 41(B), a trial court may weigh the evidence, determine the credibility of witnesses, and decide whether the party with the burden of proof has established a right to relief during the case-in-chief. See Supreme Court Committee Note, West's AIC Title 34, Trial Rule 41(B), (Supp.1982). On review this Court will not replace the judgment of the trial court with its own unless clearly erroneous. This standard of review is consistent with the amendment to T.R. 41(B) and review of the trial court's entry of special findings requested by appellant.

The purpose of special findings is to provide the parties and the reviewing court with a clear illustration of the theory upon which the case was decided, thus facilitating review of the matter. Morphew v. Morphew, (1981) Ind.App., 419 N.E.2d 770. The findings are adequate if they are sufficient to support a valid legal basis for the result reached by the trial court. Sandoval v . Hamersley, (1981) Ind.App., 419 N.E.2d 813. Findings made by the trial court are construed together liberally in support of the judgment and will be deemed sufficient if supported by evidence of probative value. Morphew v. Morphew, supra. The judgment of the trial court will be upheld if sustainable on any theory, and the findings of fact will not be disturbed unless found to be clearly erroneous. Bird v. Del. Muncie Metropolitan Plan. Com'n, (1981) Ind.App., 416 N.E.2d 482. A finding is clearly erroneous when there are no facts or inferences to be drawn therefrom which support the finding. Indiana Industries, Inc. v. Wedge Products, (1982) Ind .App., 430 N.E.2d 419.

In the case at bar the trial court made the following findings which are pertinent to a discussion of the first issue raised by appellant:

"2. On November 12, 1980, Plaintiff was summoned to Headquarters where he was questioned by Lieutenant Thomas Leach, in the presence of Lieutenant Cooper and Sergeant Eberle, about his knowledge of, and his failure to disclose information relating to a burglary and theft at Country Junction Lounge.

"3. He was informed that Leach, as Special Services Officer, was investigating the possible withholding of information by Plaintiff, after Leach obtained information from Carol Cox concerning her participation in the crimes and admissions she had made to Plaintiff.

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"5. During the questioning, Plaintiff admitted he had received information about the burglary and theft from Carol Cox, and failed to report it to the Department.

"6. Following the questioning, Plaintiff asked Chief Milks what recommendation he would make to the Lafayette Police Civil Service Commission regarding the matter.

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"8. Plaintiff then decided to resign from the Lafayette Police Department and signed and submitted his resignation to Chief Milks." (Emphasis added.)

Based on these findings the trial court reached the following conclusion:

"1. Plaintiff's decision to resign was voluntarily made with...