*1 23-1-44-4, that a states successful dissen-
ter is entitled to "interest from HARNESS, Jr., the effec- Appellant- Mark corporate tive date of the action until the Plaintiff, payment, average date of at the rate cur- rently paid by corporation prin- on its Paul SCHMITT and Town of Winona or, none, cipal bank if loans at a rate that Lake, Appellees-Defendants. is fair equitable under all the cireum- Therefore, stances." the Trust maintains No. 43A05-0909-CV-528. that the trial court is not permitted to Appeals Court of of Indiana. regarding any exercise discretion aspect of a prejudgment interest award unless there 25, March 2010. "average is no rate currently paid ... on its principal § bank loans." I.C. 238-1-44-
4.
Notwithstanding contentions, these acknowledges
Trust that Indiana Code
section 23-1-44-4 is not written entirely in
mandatory above, terms. As noted
statute affords the trial court some discre
tion in setting the rate of interest. Be
cause the trial court found that the Trust
contributed lengthy to the delay bring
ing this case to trial-and the sup record
ports finding 4-the Trust should not permitted
be to benefit from delay its own
by receiving eight years' worth of interest. result,
As a we conclude that the trial
eourt did not abuse its discretion in limit
ing the amount of prejudgment interest
that it awarded to the Trust. judgment of the trial court is af-
firmed.
BAILEY, J., ROBB, J., concur. Although 4. the trial court did spe- not cite to 1-47. subsequently The Trust withdrew that regarding cific instances responsi- Trust's request February on 2006. Id. at 24. bility part delay, its in the Chronologi- The CCS also shows that there were several Summary (CCS) cal Case reveals gaps of where no action was taken. time Trust filed its counterclaim for breach of fidu- 11, 16, 19-20, 24-25, Finally, although ciary duty year one after Lees Inns filed the initially begin the trial was January set to petition. Appellant's initial App. p. 6. The 6, 2003, times, the date was moved several engaged Trust frequent practice motion and the trial did not Septem- commence until case, throughout requested this and it pre- ber 2008. liminary injunction on June 2005. Id. at *3 Warsaw, IN, Kolbe, Attorney
David C. Appellant. for UImschneider, Teel, D. Andrew L. Mark Steele, Ramsey, A. William UIimschneider LLP., IN, Malloy, Wayne, Fort Attor- & neys Appellees. for OPINION Judge. MAY, Jr. sued the Town of Mark Harness officers, Lake and one of its Winona "Schmitt"), Schmitt, al (collectively, Paul in a leging unlawfully Schmitt assisted granted eviction. The court trial Schmitt, summary judgment apparent for in ly ground engaged the Schmitt was on anything law enforcement and did not do illegal.1 We affirm. summary judgment never named him as a Defendant in this motion Schmitt
1. In 23.) alleged and that Harness had (Appellees' Response tort at case." Br. fully compensated for his losses. its been find fault with decline Schmitt's invitation to decision, explicitly ad- the trial court did not litigant appeal address on who does not Instead, grounds. it dress either of those against never made in the trial court claim he enter the residence noted Schmitt did not named, and we invite party who was never any person- during eviction of the or "tote regard- our rules Schmitt's counsel to review residence, 6), (App. property al from" the appellee's ing appropriate of an content prevent any place there "to breach of and was brief. (Id.) [sic], law." In his that is enforcement of substantial Schmitt's counsel also devotes only that appellate brief Harness asserts argument fully premise Harness was negligent assisting in the exe- was in any alleged ap- compensated for losses. We illegal cution of an eviction order. offering presumably preciate Schmitt is 46(B)(2) argument App. provides the in R. ground argument this as an alternative appellee's the conten- brief "shall address court, affirming the trial but note Harness did argument." appellant's tions raised in allegation of error in his brief. not make brief, addresses, over a his Schmitt's counsel After Schmitt raised the issue for the first nearly pages, span of seven two "contentions" time, reply responded it in his Harness never raised in his brief. Schmitt Harness brief, Schmitt then moved to strike on which what Schmiit refers first attributes Harness argu- ground impermissible it "contains claim," then as "the so-called intimidation Appel- which was not contained his ment argues Schmitt's Harness waived that claim. (Appellees' Brief." Motion to Strike at lant's "never amended his counsel notes Harness claim," simultaneously with and Harness complaint to such a In an order issued add officer, deny opinion, the Motion to Strike. we identity but has this "knew the of the (Ind.2009). AND PROCEDURAL FACTS Our re designat to those materials HISTORY view is limited Mangold ed to the trial court. ex rel. to the non- facts most favorable Res., Mangold Dep't v. Ind. Natural Harness, that Harness moving party, (Ind.2001). We must a house on contract buying was carefully summary review a decision on January 2007 Car- On Hunter Carlile. party improp to ensure a is not judgment and asked went to the station lile erly day denied its court. accompany prop- him to the that an officer summary judgment legal We affirm buying while Carlile erty Harness *4 evi changed supported by designated basis the an eviction notice and served Davis, did not have a court order dence. Ins. v. 860 locks. Carlile Cincinnati Co. permit (Ind.Ct.App.2007). would the eviction. N.E.2d 922 The persuading bears the burden of appellant and Schmitt arrived at the When Carlile summary judgment erroneous. us was residence, present but Harness was Linton, resident, Daniel was. another 1. Immunity eviction, questioned Linton he
When gun. place his hand his saw § provides: Ind.Code 34-13-3-3 Linton to feel threatened This caused entity A or an governmental employee per that the unlawful eviction was "such acting seope employee's within the of the 2 challenge." without resistance or formed if employment is not liable a loss results (Appellant's App. at proper- Linton and both removed Carlile x # x * x x ty changed from the house and Carlile and Harness learned of the eviction locks. (8) of adoption and enforcement or a police report. went to the station to file (includ- adopt or a law failure to enforce by town There he was told an assistant ing regulations), rules and unless the act if he police report marshal that he filed a of enforcement constitutes false arrest outstanding be arrested on an war- would imprisonment. or false report Harness filed the and was rant. determining whether Indiana custody. taken into 34-18-3-3(8) § provides Code AND DECISION DISCUSSION officer, we first determine for a acting whether the officer was within The standard of review of a sum scope employment of his or her when the in mary judgment is the same as that used and, second, injury plaintiff to a occurred summary judgment ap the trial court: is engaged whether the officer in the was only no propriate genuine where there is City enforcement of law at time. moving party of material fact and the issue of Davis, judgment is entitled to as a matter of law. Anderson 364 (Ind.Ct.App.2001), trans. denied. We hold (Ind. Reed, Lean v. 2007). of acting seope that Schmitt was within the determining summary whether in law en- employment engaged his appropriate, is we construe all judgment to accompanied foreement when he Carlile facts and reasonable inferences favor Scheible, house. nonmoving party. Jackson v. Harness's deposition, purported made that in an affidavit. where he to describe Linton statement eviction, present during detail Linton's with Carlile was not more interaction Harness description the event in his but offered and Schmitt. initially apparent passenger operat- that it is not who was a in a vehicle We note relative, by his why before us whether or ed intoxicated to drive from the record go through the vehicle home rather than "false," notice was or even that the eviction preparing paperwork the effort of arrest contemplated by there an "eviction" as was for the two subjects, intoxicated were requiring an "eviction notice." statutes liability immune from for damages re- him- complaint In his Harness described sulting from deaths two innocent mo- as a "contract purchaser" self the house torists, another, injuries caused accompanied which Schmitt Carlile. relative). by driving the drunk purported The record does not include the notice, Therefore, but there is evidence Harness at 365. not in an extent default such Carlile performance officer's in an his duties eject him. was entitled illegal otherwise manner does not neces sarily take those activities outside the assuming purposes Even of ar scope employment beyond his or gument wrongful there was a eviction and realm of law enforcement. Id. at n. 4. *5 Schmitt's involvement in it negligent, say We cannot Schmitt was act he could lability. still be immune from In ing outside the scope his duties when he Davis, Davis City's contended the use of a agreed accompany to to Carlile Harness's police dog was not law enforcement be "An employee's scope house. of employ City the dog despite cause used the know ment involving consists activities the ing it inappropriately people had attacked pursuit of governmental entity's the pur past. the appeared We noted there pose." King v. Security, Northeast 790 authority suggesting be no that when a 474, (Ind.2003), reh'g N.E.2d 483 denied. police officer performs neg his duties in a This includes "conduct ... of the same manner, ligent the longer officer is no authorized, general nature that as or inci a "enforcing law": dental to the conduct authorized." Cele To exempt negligent acts immunity from Fireworks, Smith, bration Inc. v. 727 Act, under the explicit purpose 450, (Ind.2000) 453 (quoting Re which government is to shield entities (Second) (1958)). Agency § statement 229 from liability for resulting losses from departments Police required, are among the performance of governmen various things, other to preserve peace, pre functions, tal large would render the act offenses, health, guard vent public and en ly is, all, meaningless. It after the Tort 36-8-3-10(a)(1), § force laws. Ind.Code Indeed, police may Claims Act. officers (2), (14). (7), expected "[PJlolice be immune when their conduct is inten only to enforce the criminal laws but also tortious, tionally City see v. Anderson distress, to aid those in abate from hazards (Ind. Weatherford, 714 N.E.2d materializing, perform and an infinite vari Ct.App.1999), trans. denied (holding that ety of other tasks calculated to enhance police officers were immune from labili safety maintain the of communities." ty for damages resulting alleged State, (Ind. Fair v. 627 N.E.2d intentional infliction of emotional dis 1993). tress), and even "egregious" when it is State, (Ind. Nieto apparently contrary to law. Minks Ct.App.1986),we Pina, (Ind.Ct.App.1999), noted: [v. 382-383 36-8-3-6(c)(4) (1982) (holding s. provides denied] IC tran that police officers police who instructed an officers of a municipality "[the intoxicated and teenager, unlicensed ... suppress shall all breaches peace within knowledge...." their peace, [Schmitt] would not gone have upon" the Harness property. officer, [WJhen whether in uni- (Appellees' not, 89.) form or it upon takes himself to App. Harness, in his deposition, enforce the law in order to maintain agreed. asked, He was "And [Schmitt] peace and order for the benefit of the was there essentially keep the peace, public, the officer is performing official would that be fair?" Harness replied, duties as a officer. "Keep peace protect [Carlile], or yeah, know, case someone-you one of us- (citations omitted). Id. at 282 We decline came over there angry or something." suppression to hold of a breach of the Harness agreed Schmitt was at the house peace is outside seope of a police officer's "just altercation, avoid an physical dut ies.3 (Id. 25.) altercation." Harness next argues Schmitt cannot as- sert because he was not We decline enfore- to hold an officer's presence ing any place law: "The actions of at a Hunter where a Car- breach of peace might is, anticipated be lisle law, as matter of were upon [sic] based a false 'eviction notice' The creation and outside the execution of an definition of "law enforce- 'eviction notice carries with it no lawful Davis, ment." we noted "law enforce- (Br. authority." ment" Appellant at includes "activitly] in which a gov- cannot find summary judgment erroneous ernment entity or employees its compel or ground attempt because the to compel execution of the obedience of anoth- laws, eviction notice er was not the regulations, "law en- rules or or sanction *6 in forcement" which or attempt to engaged. thereof," was sanction a violation and therefore was "enforcement of a law" The trial court found the officer was within the meaning of the tort claims act. "present residence to pre [Harness's]l 743 N.E.2d vent place4 [sic], breach of that is
enforcement of law." (Appellant's App. at The tort claims act "does not contain a affidavit; 6.) Schmitt so testified in his restriction which requires that a law en- he "present for legitimate pur law foreement officer arrest someone before pose of maintaining peace" and but for the officer's actions fall within the immuni- request Carlile's that he "present be ty dur provisions" of the Daggett act. v. ing the eviction process to maintain the Police, Indiana State 1151, 812 N.E.2d Benton, 3. Harness Since does not address that basis for stat- our court has identified utory immunity exceptions or the to it. See, exceptions. several such e.g., ... State, 427, (Ind. Fair v. 627 N.E.2d 431 only exceptions stated statutory to the 1993) (recognizing immunity for "police acts of law enforcement are are ex pected only not false to imprisonment, arrest or enforce the criminal and our distress, Supreme laws but recognized Court also to aid has those in an additional hazards, exception prevent abate potential use of excessive Kemezy force. hazards Peters, 1296, materializing, (Ind. 1993). from perform v. an infi 622 N.E.2d 1297 scope governmental But the variety immunity nite is of other tasks calculated to statutory grounds limited to listed in the enhance safety and maintain the of com tort City claims act. Benton v. Oakland munities"). City, (Ind.1999), 721 Supreme N.E.2d 224 Savieo, our Id. at 1277-78. City we held the Court observed the common law doctrine of immunity had for a officer's failure to sovereign immunity abrogated had been in prevent a suicide. Id. at 1278. respects, almost all and we noted in Savieo v. Haven, 1272, City New presume, 824 N.E.2d 1277 4. We parties, as do the that the trial (Ind.Ct.App.2005), court peace. meant breach of trans. denied: 168 appellate will assess is not. We 66.5 He There we held (Ind.Ct.App.2004).
1153 inwho appellant an damages only against who officers enforcement by law actions ap frivolous wholly professionals medical faith maintains emergency bad assist 192, who need Rosen, individuals restraining combative v. 765 peal. Wallace seope of within the are treatment is not medical Harness's (Ind.Ct.App.2002). the tort provision the "enforcement" restraint use extreme appeal. an such Id. claims act. to discretionary power exercising our when of the re- appeal because officers damages enforcement award law [When in restrain- request to assist spond to the exercise chilling effect on potential are the officers patients, combative ing Society, appeal. Indiana CPA right they to the extent law enforcing the GoMembers, Inc., 777 N.E.2d v. Inc. injuring from patient preventing strong showing A (Ind.Ct.App.2002). professionals. the medical himself and/or appellate an award of justify required is pro- they receive consequence, aAs imposed is not and the sanction damages, "enforcement" of the tections merit, but some mere lack of punish Holding otherwise in the ITCA. found egregious. thing more the officers likely prevent would job. part of their a routine performing may be "sub appeal Bad faith on Id. at 1158-54. v. Ma "procedural," Manous stantive" or (Ind. on the opinion no express nousogianakis, we
While
accuses Har
Ct.App.2005), and Schmitt
actions
vel non of Carlile's
wrongfulness
im
bad faith
note it is
Substantive
participation, we
ness of both.
and Schmitt's
job
wrongdoing
officer's
because
of a
conscious
part"
plies
"routine
obliquity."
individuals
situations
moral
accompany private
purpose or
"dishonest
of Wallace,
concern that a breach
there is a
where
pro
There is
appeal has sufficient Attorney 2. Fees Rules Appellate with the compliance. cient attorney's fees appellate an award of entitled to argues he is
Schmitt inappropriate. would be Appellate Rule attorney fees under Ind. appeal, arguments make 66(E) "may he did not we assess App. provides
5. R. motion, length, petition, addressing arguments or damages appeal, if or those an then Dam- or in bad faith. response, is frivolous written "appearing to have been filed a brief require maxi- discretion and ages be in the Court's in a manner calculated shall may attorneys' fees. The Court shall include by oppos- expenditure of time both mum the case for execution." remand reviewing Ind. CPA ing party and the court." GoMembers, Inc., Soc'y, Inc. v. explained in note it is Schmitt's As above 6. (Ind.Ct.App.2002). has, attributing by Harness counsel who faith, procedural practice fraught To show bad is potential with the points to a number of shortcom abuse. It creates the impression brief, ings including repossession being in Harness's deficien eviction or is effect- facts, pursuant ed appendix, authority although cies in the statement of court way the officer no knowing has whether formatting statement of the case and some the eviction or repossession is lawful correctly that Schmitt's counsel or issues When, here, unlawful. as (Appellants' characterizes as "trivial." Re officer puts his hand on his sponse gun Br. at 38 n. when the eviction We do find questioned by is rightfully upon these flaws to be so or one who is flagrant significant it property, heightens as to taint the that false im- appeal as vexatious and we pression. procedural decline to find bad faith that warrant the imposition attorneys
would I think there are questions material fees.7 fact whether the police officer here was eviction, assisting in an unlawful and I prevail
To on a substantive bad grant would reverse the summary judg- claim, party faith must show that the ment and remand for trial. appellant's argument contentions and Manous, utterly plausibility. devoid of all designated 768. There is suggesting
evidence Schmitt assisted in a eviction;
wrongful against while we hold
Harness on grounds, we cannot
say claim Harness's is inconsistent with advocacy grounded
"reasonable in estab SCOTT, Appellant- Robert L. legal principles" "utterly lished or devoid Defendant, GoMembers, plausibility." all See N.E.2d at 753. affirm the trial court. Indiana, Appellee-Plaintiff. STATE of
Affirmed. No. 79A05-0812-CR-746. DARDEN, J., concurs. of Appeals Court of Indiana. J., KIRSCH, with separate dissents March opinion. *8 Transfer Denied June KIRSCH, Judge, dissenting.
I respectfully dissent. may
While it not be improper per se for
an armed and uniformed officer to
accompany private party to the seene of
self-help repossession, eviction or such a respects. 7. Both briefs were deficient some apparently tions of evidence unrelated to Schmitt's argu- allegations Statement of Facts included appeal, error Harness made on ment, inappropriate part large which is in that part "transparent and is in the kind of appellate County Towing, an attempt argument" brief. Line Inc. [appellant's] to discredit Co., County disapproved Towing, that we Line Cincinnati Ins. (Ind.Ct.App.1999), trans. denied 735 N.E.2d informing rather than "a vehicle this (Ind.2000). lengthy It includes recita- court." Id.