Stone v. Wright, Court of Appeals Case No. 18A-CT-3151
Decision Date | 30 September 2019 |
Docket Number | Court of Appeals Case No. 18A-CT-3151 |
Citation | 133 N.E.3d 210 |
Parties | Heather STONE, Appellant, v. Doyle T. WRIGHT and the City of Clinton, Indiana, Appellee. |
Court | Indiana Appellate Court |
Attorney for Appellant: James E. Ayers, Wernle, Ristine & Ayers, Crawfordsville, Indiana
Attorney for Appellees: Daniel J. Paul, Williams Barrett & Wilkowski, LLP, Greenwood, Indiana
[1] Heather Stone appeals the trial court's dismissal of her second amended complaint against Doyle T. Wright and the City of Clinton (the "City," and together with Wright, "Defendants") and denial of her motion for leave to file a third amended complaint. She raises five issues which we consolidate and restate as:
We affirm.
[2] On October 11, 2016, Stone filed a complaint against Wright, the Deputy Chief of Police for the City, and the City alleging that Deputy Chief Wright executed a false affidavit for probable cause on May 6, 2014, asserting that she touched A.M., a child, in a rude, insolent or angry manner resulting in bodily injury, that he conspired with Vermillion County Deputy Prosecutor Gregory S. Carter to charge her with a felony for which there was no probable cause as there was no injury nor any evidence of injury, and that she was wrongfully arrested and held in the Vermillion County Jail. She alleged that she suffered damages "by reason of such false charges, by her estrangement from her child, the expenses of living apart from her husband and family, the disruption of her marriage and home and the embarrassment in her community from the unfounded charges." Appellant's Appendix Volume II at 12.
[3] On December 5, 2016, Defendants filed a motion to dismiss and alleged that state law claims of false arrest and malicious prosecution asserted by Stone were torts, that she filed a Notice of Tort Claim on May 23, 2016, that she failed to timely provide notice of her tort claims, and that they were entitled to immunity for her malicious prosecution claim. Defendants attached a Notice of Claim Against Political Subdivision dated May 25, 2016.
[4] On January 19, 2017, Stone filed a first amended complaint which was similar to the initial complaint. On February 1, 2017, Stone filed a second amended complaint which was similar to the previous complaints but also referred to "causes of action for false arrest and malicious prosecution" and alleged that a remedy under the Fourteenth Amendment and 42 U.S.C. § 1983 was appropriate. Id. at 17.
[5] In February 2017, Defendants filed a Notice of Removal of Civil Action to United States District Court. On August 15, 2017, the United States District Court for the Southern District of Indiana entered an order finding that Stone's false arrest claim began to accrue on May 9, 2014, when the state court found probable cause for battery resulting in bodily injury, issued an arrest warrant, and set an amount for bond. The court found that Stone had until May 9, 2016, to file her false arrest claim but waited until October 11, 2016, to file her complaint, and that "[a]ccordingly, her state law false arrest claim is time-barred by the statute of limitations." Appellees' Appendix Volume II at 58. The court found that Stone's "allegations are insufficient to state a claim for malicious prosecution pursuant to § 1983." Id. at 60. It also stated that "Stone has failed to allege any facts that demonstrate that Defendants acted with malice, and merely provided a conclusory allegation that Chief Deputy Wright acted without probable cause" and that "[a]ccordingly, Ms. Stone has failed to state a § 1983 malicious prosecution claim." Id. at 61. It stated that, "[b]ecause Ms. Stone's § 1983 false arrest and malicious prosecution claims are dismissed pursuant to this Order, her only remaining claims are state law claims of false arrest and malicious prosecution." Id. The court dismissed with prejudice Stone's false arrest and malicious prosecution claims pursuant to 42 U.S.C. § 1983 and remanded her state law claims of false arrest and malicious prosecution back to the Vermillion Circuit Court.1
[6] On September 15, 2017, Defendants filed a motion to dismiss Stone's second amended complaint in the Vermillion Circuit Court pursuant to Ind. Trial Rule 12(B)(6) and asserted again that she failed to timely provide notice of her tort claim regarding her allegation of false arrest and that they were entitled to immunity with respect to her malicious prosecution claim.
[7] On June 11, 2018, the court entered an order granting Defendants' motion to dismiss. On July 12, 2018, Stone filed a motion to correct error. On July 19, 2018, the court entered an order appointing a special judge and scheduled a hearing for August 6, 2018. On August 6, 2018, the court held a hearing at which Stone failed to appear and Defendants filed a response to the motion to correct error. On August 10, 2018, Stone filed a motion for enlargement of time to reply to Defendants' response. A chronological case summary entry dated August 14, 2018, states that Stone did not appear for the hearing on the motion to correct error, the court advised defense counsel that the motion to correct error was being taken under advisement, that Stone had filed a subsequent motion, "which is untimely, but, if [Stone] desires a telephonic conference, then the same may be arranged, otherwise, after August 20, 2018, the Court will consider the issue to be under advisement." Appellant's Appendix Volume II at 8. Following Stone's request, the court held a telephonic conference on August 20, 2018.
[8] On August 27, 2018, Stone filed a motion for leave to file a third amended complaint alleging a claim of intentional infliction of emotional distress and that she served notice of her intent to assert her claims against Defendants on May 20, 2016 and "did so within 180 days of the dismissal of the charges against her ...." Id. at 54. On October 29, 2018, the court held a hearing on Stone's motion to correct error. On November 28, 2018, the court entered an order denying Stone's motion to correct error and motion for leave to file a third amended complaint.
[9] The first issue is whether the trial court erred in dismissing Stone's second amended complaint. Stone alleges that she lived with her husband and two-year-old ward, that her child had a tantrum, and that "[s]ome bystanders took offense at her actions in removing and securing the child, describing her trip to her car as abusive and her securing the seat belt as assault." Appellant's Brief at 8. She asserts that Wright "investigated" and called the Department of Child Services which deemed the charge unsubstantiated. Id. She asserts that public policy supports the position that the claimed immunity be abandoned in cases arising out of false arrest and false imprisonment.
[10] Defendants maintain that Stone waived multiple arguments because she failed to present them to the trial court. They assert that, waiver notwithstanding, Stone's false arrest claim was properly dismissed because she conceded that claim was untimely, her tort claim notice was untimely, the City did not arrest her, the trial court in the criminal case found probable cause existed for her arrest, her claim was barred by the statute of limitations, and the district court's ruling constituted res judicata . They argue that Stone's malicious prosecution claim was properly dismissed because they are immune under the Indiana Tort Claims Act for malicious prosecution, she did not allege that Wright acted outside the course and scope of his employment as a police officer for the City, there was a determination of probable cause by the court in the criminal case, and the complaint does not allege they instituted an action against her, rather, it alleges the Vermillion County Deputy Prosecutor Gregory S. Carter did so.
[11] A motion to dismiss pursuant to Ind. Trial Rule 12(B)(6) tests the legal sufficiency of the complaint. Price v. Ind. Dep't of Child Servs. , 80 N.E.3d 170, 173 (Ind. 2017). The rule requires that we accept as true the facts alleged in the complaint. Id. We review 12(B)(6) motions de novo and will affirm a dismissal if the allegations are incapable of supporting relief under any set of circumstances. Id. We will also affirm a dismissal if the decision is sustainable on any basis in the record. Id.
[12] With respect to Stone's claims of false arrest and imprisonment, Stone asserts that "[t]he two-year statute of limitations for torts set out in I.C. 34-11-2-4 applies ...." Appellant's Brief at 19. Ind. Code § 34-11-2-4 provides that "[a]n action for ... injury to person or character ... must be commenced within two (2) years after the cause of action accrues." See Johnson v. Blackwell , 885 N.E.2d 25, 30 (Ind. Ct. App. 2008) ( ). "In general, the cause of action of a tort claim accrues and the statute of limitations begins to run when the plaintiff knew or, in the exercise of ordinary diligence, could have discovered that an injury had been sustained as a result of the tortious act of another." Id. (quoting Filip v. Block , 879 N.E.2d 1076, 1082 (Ind. 2008) (quotation omitted), reh'g denied ).
[13] "In Livingston v. Consolidated City of Indianapolis , 398 N.E.2d 1302, 1303 (Ind. Ct. App. 1979), this Court held that the plaintiff's causes of action for false arrest, false imprisonment, and assault and battery against the City of Indianapolis and the State of Indiana accrued on the date of the plaintiff's arrest." Johnson , 885 N.E.2d at 30. In Johnson , we observed:
More recently, the United States Supreme Court analyzed the accrual date of a § 1983 cause of action for...
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