Row v. Holt

• Citation: 834 N.E.2d 1074
• Decision Date: 30 September 2005
• Docket Number: No. 15A01-0409-CV-405.,15A01-0409-CV-405.
• Parties: George S. ROW, III, Appellant, v. Holly HOLT, Herbert Houseworth, Town of Osgood, Indiana, William Dramann, Sheriff of Ripley County, Indiana, Ripley County Indiana, Board of Commissioners of Ripley County, Indiana, Appellees.
• Court: Supreme Court of Indiana

Page 1074

834 N.E.2d 1074

George S. ROW, III, Appellant, v. Holly HOLT, Herbert Houseworth, Town of Osgood, Indiana, William Dramann, Sheriff of Ripley County, Indiana, Ripley County Indiana, Board of Commissioners of Ripley County, Indiana, Appellees.

No. 15A01-0409-CV-405.

Court of Appeals of Indiana.

September 30, 2005.

George A. Leininger, Gary K. Kemper, Kemper, Collins & Hensley, Madison, IN, for Appellant.

Donald B. Kite, Schultz & Pogue, LLP, Carmel, IN, Attorneys for Herbert S. Houseworth, William H. Dramann, Ripley County, Indiana, and Board of Commissioners of Ripley County

Kirk A. Horn, Mandel, Pollack & Horn, P.C., Indianapolis, Attorney for Holly Holt and the Town of Osgood.

OPINION

MATHIAS, Judge.

George S. Row, III ("Row") appeals the Dearborn Circuit Court's order granting summary judgment in favor of Officer Holly Holt ("Officer Holt") and the Town of Osgood, Indiana (collectively the "Osgood Defendants"); Deputy Herbert Houseworth ("Deputy Houseworth"), William Dramann, the Sheriff of Ripley County, Ripley County, Indiana, and the Board of Commissioners of Ripley County, Indiana (collectively the "Ripley County Defendants") (all defendants collectively referred to as the "Defendants") on Row's complaint alleging state common law claims for false arrest and false imprisonment.¹ Row raises three issues, two of which are dispositive:

I. Whether there are genuine issues of material fact as to whether probable cause existed for Row's arrest and,

II. Whether the Defendants are entitled to qualified immunity.

Concluding that genuine issues of material fact exist as to "false arrest" and "false imprisonment," and, therefore, the law enforcement officials are not entitled to qualified immunity, we reverse summary judgment and remand for further proceedings consistent with this opinion.

Facts and Procedural History

Row was involved in an ongoing dispute with Kenneth Bowling ("Kenneth"),² Keith Bowling, Vince Simon ("Vince"), and Krystall Bowling Simon ("Krystall") (Vince and Krystall collectively will be referred to as the "Simons") after Row terminated the employment of one of the Bowlings at a farm owned by Row. On September 4, 2001, Row received a protective order in Ripley Superior Court that prohibited the Bowlings, Vince, and Krystall "from abusing or threatening to abuse [him] or a member of his household or contacting him, any member of his household, either directly or indirectly, or damaging his property." Appellant's App. pp. 149, 171, 239-40. At the same time, Krystall was granted a protective order against Row with similar restrictions as those noted above.

On September 17, 2001, Row went to an Osgood, Indiana restaurant for lunch where he encountered Kenneth. Kenneth was disturbed by the protective order and accosted Row by screaming, shoving Row in the shoulder, and using profanity. A restaurant employee asked Kenneth to leave. Row encountered Kenneth again in the parking lot of the restaurant. Row feared for his life and telephoned the Osgood Town Marshal and the Ripley County Sheriff's Department for assistance. Neither law enforcement agency responded directly to Row or made Row aware that an investigation was conducted with regard to his request for assistance.

Later that day, Row went back to the same restaurant for dinner. He consumed two beers with his meal. He then went to the residence of Frank Cox ("Cox") in order to inquire about Cox's availability to perform some work for Row. As Row was leaving Cox's house, the Simons saw Row and began a verbal attack based upon their receipt of the protective orders. They summoned Row to speak to them. Row stopped at his car and retrieved a tape recorder that he placed in his shirt pocket. As the Simons continued their verbal tirade, Cox heard the noise from inside of his house. He went outside and observed as Vince and Krystall were "screaming and shouting" at Row. Appellant's App. p. 236. Cox also observed that

Vince Simon and Krystall Simon had come from their property into the alley behind affiant's house and, at one time, even came onto affiant's property while they were screaming at [Row].

Appellant's App. p. 237.

Krystall asked Row whether he had a tape recorder. He confirmed that he did. Krystall then grabbed Row's pocket, ripping the pocket in an attempt to remove the tape recorder. In response, Row pushed Krystall's hand away. Appellant's App. p. 231. Cox observed that Row did not strike Krystall or Vince. Vince pushed Row and told him not to touch his wife. Krystall then pushed Row, "causing him to fly backwards." Appellant's App. p. 151. Row returned to his car and drove home.

The Simons telephoned the police. Officer Holly Holt of the Osgood Police Department received the dispatch and went to speak to the Simons at their residence. Also, Ripley County Deputy Sheriff Herbert Houseworth ("Deputy Houseworth") spoke to Officer Holt in an effort to offer assistance. Until he spoke to Officer Holt, Deputy Houseworth understood that there was a report of an intoxicated driver. Officer Holt explained that there was also a battery allegation and that Deputy Houseworth should attempt to locate Row.

In her deposition testimony, Officer Holt admitted some familiarity with the parties' rancorous relationship. Appellant's App. pp. 333-34. Deputy Houseworth testified, "I could have heard just slight information with that. I had never dealt with it personally." Appellant's App. p. 200. Marshal Stepleton, Officer Holt's supervisor, testified that prior to September 17, 2001, Row had made complaints about the Bowlings and the Simons and that "there has just been an ongoing dispute."³ Appellant's App. p. 196. Also, with regard to information known to local law enforcement agencies, Row testified that:

I on numerous occasions had called the Ripley County Sheriff's Department about the problems, the Indiana State Police in Versailles about the problems, and the Osgood Town Marshal. So there would have been in my assumption some sort of a physical record of those complaints.

Appellant's App. p. 226.

According to Officer Holt's deposition testimony, when she arrived at the Simons' residence they told her that Row:

was over at Frank Cox's, Krystall and Vince was over at their trailer. [Row] had came out, they had gotten into an argument or whatever about some papers that were served on Krystall and Vince. At this time they had stated that this went on, you know for a few minutes just arguing back and forth. She had stated that — they had both stated that [Row] was drinking, you could smell the alcohol on him, and told me that there was a conversation about a tape recorder with everything that had happened on it, and I guess [Row] had shoved Krystall back. Vince then grabbed [Row's] hand and said not to touch his wife, and then it was over with. [Row] said he was calling the cops, Vince and Krystall said they were calling the cops, and then they left. Then [Row left].

Appellant's App. pp. 74-75.

In her deposition, Officer Holt stated that she did not see any marks or any indication of bodily injury to Krystall and that Krystall did not appear to be disheveled. Nonetheless, Officer Holt asked Krystall whether "she wanted to fill out a battery affidavit." Appellant's App. p. 75. Krystall stated that she desired to do so. Officer Holt gave Krystall an affidavit form with blanks. In pertinent part, the affidavit stated:

On or about the 17th day of September, 2001 in [the name of the County is not visible on the affidavit] County, State of Indiana, Sam Row did knowingly touch Krystall R. Simon in [sic] rude, insolent and angry manner, to-wit:

Sam shoved Krystall in the right shoulder with his hand which touching resulting [sic] in bodily injury to shoulder

Appellant's App. p. 69 (underlined portions represent the filled-in blanks on the form).

Officer Holt asked Vince and Krystall to write narrative statements to be placed with the paperwork. Officer Holt "left the statements with them" to complete while she went to Row's house to meet Deputy Houseworth. Appellant's App. p. 76. Officer Holt told Vince and Krystall that she would return for the statements.⁴ In her deposition testimony, Officer Holt also stated that she was not at the Simons' residence "very long. Long enough to hear their side of the story, get the battery affidavit signed and go down the road." Appellant's App. p. 77. Officer Holt did not speak to Cox.

After returning home, and before the law enforcement officer arrived, Row mixed and drank two or three alcoholic beverages. When Deputy Houseworth arrived at Row's residence, he reported that Row was at home, but he waited outside of Row's house until Officer Holt arrived. Row was mixing another drink when he heard the doorbell. In his deposition, Row testified that he

saw two police officers standing there. The officers were Holly Holt . . . and . . . Deputy Herbert S. Houseworth. [Row] opened the door and invited them into his home. [Officer] Holt informed [Row] that they were there to arrest him for assault on Krystall Bowling Simon. [Row] was stunned and in shock at this revelation. [Row] asked [Officer] Holt what she was talking about and [Officer] Holt informed him that Vince Simon and Krystall Bowling Simon had filed a complaint accusing him of assault. [Row] told [Officer] Holt that he had a tape recording of the entire incident and went to the kitchen to get the recording. [Row] brought the recording to the dining room and offered to play the recording for the officers. [Officer] Holt told [Row] that she did not want to hear the recording and that she was taking the recording for evidence. [Row] asked both officers if they had talked to Frank Cox and they stated no. [Row] was then handcuffed and [Deputy] Houseworth transported him to the Ripley County jail[.]

Appellant's App. pp. 152-53. Officer Holt did not show Row the battery affidavit before arresting him. Later, Deputy Houseworth could not...