Court of Appeals of Indiana | Opinion 49A02-1504-CT-210 | March 17, 2016 Page 1 of 13

ATTORNEYS FOR APPELLANT

Nathaniel Lee

Cari L. Sheehan

Lee & Fairman, LLP

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Daniel P. Bowman

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Toni Ball,

Appellant-Plaintiff,

v.

Clifton Jones,

Appellee-Defendant.

March 17, 2016

Court of Appeals Case No.

49A02-1504-CT-210

Appeal from the Marion Superior 

Court

The Honorable Heather A. Welch, 

Judge

Trial Court Cause No.

49D01-1201-CT-2492

Riley, Judge.
Court of Appeals of Indiana | Opinion 49A02-1504-CT-210 | March 17, 2016 Page 2 of 13

STATEMENT OF THE CASE

[1] Appellant-Plaintiff, Toni Ball (Ball), appeals the trial court’s summary judgment 

holding, as a matter of law, that Detective Clifton Jones (Detective Jones) was 

immune from personal liability under the Indiana Tort Claims Act. 

[2] We affirm.

ISSUE

[3] Ball raises two issues on appeal, which we consolidate and restate as: Whether 

the trial court erred in concluding that, as a matter of law, Detective Jones acted 

within the course and scope of his employment as a police officer. 

FACTS AND PROCEDURAL HISTORY

[4] Between March 2009 and October 12, 2010, the Indianapolis Metropolitan 

Police Department’s Strategic Narcotics Section, the ATF/Achilles Unit, and 

the Indiana State Police Drug Enforcement Section conducted a multi-agency, 

long-term narcotics and gang investigation into an organization known as the 

‘Detroit Boys.’ Detective Jones was one of the narcotics detectives assigned to 

the investigation. The Detroit Boys are known as “an armed narcotics 

trafficking organization” that distributes “large quantities of cocaine and 

heroin” in the Indianapolis area, and is “believed to be responsible for 

committing acts of violence.” (Appellee’s App. p. 43). The officers initially 

relied on traditional investigative methods to gather surveillance on the 
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organization. Once these methods were exhausted, the officers obtained a 

wiretap on September 7, 2010.

[5] Based on his training and experience, Detective Jones concluded that the 

Detroit Boys utilized “a sophisticated system to traffic narcotics.” (Appellee’s 

App. p. 43). Specifically, the investigation revealed that the Detroit Boys sold 

narcotics through a telephone system, where drug buyers called a phone 

number, used a code word, and then were directed “to one of the distribution 

houses.” (Appellee’s App. p. 43). Detective Jones determined that Ball 

“participated or was referenced in more than thirteen (13) intercepted and 

pertinent telephone calls with members of the Detroit Boys.” (Appellee’s App. 

p. 43). Detective Jones, along with an assisting detective, also believed they 

personally witnessed Ball travel to, enter, and exit the distribution houses after 

making telephone calls to the Detroit Boys. As a result of this investigation, 

Detective Jones filed an affidavit for probable cause on December 15, 2010, 

after which the State filed an Information charging Ball with two Class B felony 

drug charges. On January 13, 2011, the State dismissed all charges against Ball 

when it was determined that Ball was not the individual who was alleged to 

have committed the crimes.

[6] On January 20, 2012, Ball filed a Complaint with the United States District 

Court for the Southern District of Indiana, alleging that the State of Indiana, 

the Indiana State Police, the City of Indianapolis, the Indianapolis 

Metropolitan Police Department (IMPD), and Detective Jones violated her 

rights under the Fourth Amendment of the United States Constitution and the 
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Indiana Constitution, and that they committed various torts, including fraud, 

perjury, official misconduct, and conspiracy to commit perjury. With respect to 

Detective Jones, Ball claimed that because he “was acting within the course and 

scope of his employment/authority as a Detective of the IMPD for the City,” 

the City was vicariously liable for Detective Jones’ actions. (Appellee’s App. p. 

69). On April 23, 2012, the City, IMPD, and Detective Jones moved for a 

partial judgment on the pleadings as to all of Ball’s claims under state law 

because Ball had failed to file a timely notice of tort claim, as required by the 

Indiana Tort Claims Act (ITCA). On March 25, 2013, the district court granted 

the motion in its entirety, leaving only Ball’s Fourth Amendment claims. See 

Ball v. City of Indianapolis, 2013 WL 1221936 (S.D. Ind. Mar. 25, 2013), aff’d 760 

F.3d 636 (7th Cir. 2014). The district court concluded that Ball’s claims against 

Detective Jones acting in his official capacity were procedurally barred due to 

her failure to file a timely notice of tort claim. Although Ball also argued that 

she did not have to comply with ITCA’s requirement because she had sued 

Detective Jones in his personal capacity, the district court rejected her claim, 

noting that her complaint included “multiple references to [Detective] Jones 

having acted pursuant to his official capacity as a Detective in committing the 

alleged torts.” Id. at *6. Also, the Complaint only contained conclusory 

allegations that Detective Jones acted outside of the scope of his employment 

with IMPD, which failed to satisfy ITCA’s heightened pleading requirement for 

suits against government employees personally. As such, the district court held 

that the City was entitled to judgment on the pleadings as to all of Ball’s state 

law claims against Detective Jones in his official and personal capacity. 
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[7] On March 28, 2013, Ball filed a motion for leave to amend her Complaint “to 

plead only state law claims” against Detective Jones. (Appellee’s App. p. 134). 

In her amended complaint, Ball repled her false arrest and imprisonment claims 

against Detective Jones in his personal capacity. At the same time, she 

appealed the district court’s order to the Seventh Circuit Court of Appeals, 

which affirmed the district court on July 25, 2014. 

[8] On Ball’s request, the case was remanded to the Marion Superior Court, where 

she filed a second amended complaint on April 4, 2014, alleging that Detective 

Jones was personally liable for her false arrest and imprisonment. On 

December 4, 2014, Detective Jones filed a motion for summary judgment, as 

well as a designation of evidence. Ball filed a response in opposition without 

citing or designating any evidence in support of her arguments. On March 4, 

2015, the trial court entered summary judgment in favor of Detective Jones, 

finding, as a matter of law, that his actions were within the course and scope of 

his employment as an IMPD officer. 

[9] On April 6, 2015, Ball filed a notice of appeal, appealing the trial court’s 

summary judgment. On the same day, she also filed a motion for enlargement 

of time to file a motion to correct error with the trial court. Over Detective 

Jones’ objection, the trial court granted Ball’s motion and extended the deadline 

to file a motion to correct error. On May 7, 2015, Ball filed her motion to 

correct error, reiterating the same legal theories already rejected by the trial 

court and claiming for the first time that res judicata barred the trial court from 

holding as a matter of law that Detective Jones was personally immune from 
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suit. On June 16, 2015, the trial court denied Ball’s motion. On July 2, 2015, 

Ball filed an amended notice of appeal, adding the trial court’s denial of her 

motion to correct error to her appeal.

[10] Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Appeal of Motion to Correct Error

[11] Initially we note that after a final judgment is handed down in a particular case, 

a trial court retains only “such continuing jurisdiction as is permitted by the 

judgment itself, or as is given the court by statute or rule.” Waas v. Illinois 

Farmers Ins. Co., 722 N.E.2d 861, 862 (Ind. Ct. App. 2000) (citing Hubbard v, 

Hubbard, 690 N.E.2d 1219, 1221 (Ind. Ct. App. 1998)), reh’g denied . To this 

end, a motion to correct error “shall be filed no later than thirty (30) days after 

the entry of a final judgment is noted in the Chronological Case Summary

[CCS].” Ind. Trial Rule 59(C). Here, the trial court issued its summary 

judgment as “a full, complete, and final [j]udgment on all [C]ounts” on March 

4, 2015, and entered it into the CCS on March 9, 2015. Thus, Ball’s motion to 

correct error should have been filed on or before April 8, 2015. (Appellant’s 

App. p. 284). However, instead Ball requested an enlargement of time to file 

her motion to correct error.

[12] Indiana Trial Rule 6(B) states that "the court may not extend the time for taking 

any action . . . to correct error[] under Rule 59(C) . . . except to the extent and 

under the conditions stated in [the Rule].” T.R. 59(C) does not provide a 
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mechanism to extend the time in which to file a motion to correct error. 

Rather, based on the mandatory phrasing of the Rule, the trial court is not 

afforded any discretion. See T.R. 59(C) (“shall be filed”). Thus, as the trial 

court did not have authority to grant Ball an extension of her time to file her 

motion to correct error, Ball’s motion to correct error filed on May 7, 2015, was 

untimely. We therefore must dismiss Ball’s appeal from the trial court’s denial 

of her motion to correct error. 

II. Appeal of Summary Judgment

A. Standard of Review

[13] Summary judgment is appropriate only when there are no genuine issues of 

material fact and the moving party is entitled to a judgment as a matter of law. 

T.R. 56(C). “A fact is ‘material’ if its resolution would affect the outcome of 

the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the 

parties’ differing accounts of the truth . . . , or if the undisputed facts support 

conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 

2009). 

[14] In reviewing a trial court’s ruling on summary judgment, this court stands in the 

shoes of the trial court, applying the same standards in deciding whether to 

affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 

891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we 

must determine whether there is a genuine issue of material fact and whether 

the trial court has correctly applied the law. Id. at 607-08. In doing so, we 
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consider all of the designated evidence in the light most favorable to the nonmoving party. Id. at 608. The party appealing the grant of summary judgment 

has the burden of persuading this court that the trial court’s ruling was 

improper. Id. When the defendant is the moving party, the defendant must 

show that the undisputed facts negate at least one element of the plaintiff’s 

cause of action or that the defendant has a factually unchallenged affirmative 

defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary 

judgment must be reversed if the record discloses an incorrect application of the 

law to the facts. Id. 

[15] We observe that in the present case, the trial court entered findings of fact and 

conclusions thereon in support of its judgment. Special findings are not 

required in summary judgment proceedings and are not binding on appeal. 

AutoXchange.com, Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct. 

App. 2004). However, such findings offer this court valuable insight into the 

trial court’s rationale for its review and facilitate appellate review. Id.

B. Res Judicata

[16] First, Ball contends that the trial court erred in granting summary judgment to 

Detective Jones because the issues raised in his motion for summary judgment 

had been previously decided by the United States District Court for the 

Southern District of Indiana (District Court Decision), and, therefore, she 

maintains that Detective Jones’ arguments are now barred by res judicata.
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[17] We initially note that Ball failed to raise the res judicata argument in her 

response to Detective Jones’ motion for summary judgment before the trial 

court. As a party cannot raise an issue for the first time on appeal, Ball’s 

argument is waived for our review. See First Farmers Bank, 891 N.E.2d at 615 

n.3.

[18] Waiver notwithstanding, we conclude that Detective Jones’ arguments are not 

barred by the doctrine of res judicata. The doctrine of res judicata bars the 

litigation of a claim after a final judgment has been rendered in a prior action 

involving the same claim between the same parties or their privies. MicroVote 

Gen. Corp. v. Ind. Election Comm’n, 924 N.E.2d 184, 191 (Ind. Ct. App. 2010). 

The principle behind this doctrine, as well as the doctrine of collateral estoppel, 

is the prevention of repetitive litigation of the same dispute. Id. The following 

four requirements must be satisfied for a claim to be precluded under the 

doctrine of res judicata: 1) the former judgment must have been rendered by a 

court of competent jurisdiction; 2) the former judgment must have been 

rendered on the merits; 3) the matter now in issue was, or could have been, 

determined in the prior action; and 4) the controversy adjudicated in the former 

action must have been between the parties to the present suit or their privies. 

Id. Accordingly, res judicata can only be found after a final judgment has been 

rendered. A judgment becomes final if “it disposes of all claims as to all 

parties.” Ind. Appellate Rule 2(H)(1). 

[19] In her amended complaint before the trial court, Ball alleged that Detective 

Jones was personally liable for Ball’s false arrest and imprisonment. Detective 
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Jones responded by filing a motion for summary judgment claiming immunity 

from personal liability under ITCA because his actions fell within the course 

and scope of his employment as an IMPD officer. Ball now points to the 

District Court Decision in support of her argument that Detective Jones is 

barred from claiming immunity, asserting that the District Court already 

decided that issue. However, notwithstanding Ball’s assertion, the District 

Court Decision actually concluded, in part, “[t]he motion for partial judgment 

on the pleadings filed on behalf of the City, IMPD, and Det. Jones is also 

GRANTED. [Ball’s] sole remaining claim is the Fourth Amendment false 

arrest and imprisonment claim against Det. Jones.” (Appellee’s App. p. 131). 

On Ball’s request, the case was then remanded to the Marion Superior Court, 

where she reiterated her claim under the Fourth Amendment against Detective 

Jones. Accordingly, as the District Court did not decide Ball’s state claims, no 

final judgment on the claims’ merits has been issued and res judicata does not 

bar their litigation before the trial court. 

C. Analysis

[20] We now turn to the merits of Ball’s contention. Ball posits that the trial court 

erred in granting summary judgment to Detective Jones because “several 

material issues of fact” remain as to whether Detective Jones acted within the 

scope of his employment as a police officer with IMPD. (Appellant’s Br. p. 10). 

[21] The ITCA governs lawsuits against political subdivisions like the City of 

Indianapolis and against their employees. It requires early notice that a claim 
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exists, and it provides substantial immunity for conduct within the scope of the 

employees’ employment. Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 

452 (Ind. 2000). “The purpose of immunity is to ensure that public employees 

can exercise their independent judgment necessary to carry out their duties 

without threat of harassment by litigation or threats of litigation over decisions 

made within the scope of their employment.” Id. (citing Ind. Dept. of Correction 

v. Stagg, 556 N.E.2d 1338, 1343 (Ind. Ct. App. 1990), trans. denied). The ITCA 

bars suits for which no timely notice has been given.

[22] However, the immunities granted by the ITCA “might be lost when an 

employee acts ‘so far out of the scope of his or her employment as to amount to 

fraud or criminal conduct.’” Celebration Fireworks, Inc., 727 N.E.2d at 452 

(citing Poole v. Clase, 476 N.E.2d 828, 831 (Ind. 1985)); see also Ind. Code § 34-

13-3-5(c). “To be within the scope of employment, conduct must be of the 

same general nature as that authorized, or incidental to the conduct 

authorized.” Id (citing Restatement (Second) Agency § 229 (1958)). “To be 

incidental, however, [an act] must be one which is subordinate to or pertinent 

to an act which the servant is employed to perform.” Id. (citing Restatement 

(Second) Agency § 229 cmt. b (1958)). Even tortious acts may fall within the 

scope of employment. In Kemezy v. Peters, 622 N.E.2d 1296, 1298 (Ind. 1993), 

our supreme court found that an employee’s tortious act may fall within the 

scope of his employment if his purpose was, to an appreciable extent, to further 

his employer’s business. 
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[23] In Gomez v. Adams, 462 N.E.2d 212, 223 (Ind. Ct. App. 1984), Gomez, a 

security officer working for a private security agency, detained Adams during 

an altercation at an apartment complex where Gomez was on duty. While 

waiting for police officers to arrive, Gomez obtained Adams’ personal papers, 

including his check-cashing card. Id. When the officers arrived to take custody 

of Adams, Gomez gave them Adams’ driver’s license but retained the rest of 

the papers. Id. Later that same day, after his shift ended, Gomez forged 

Adams’ name and signature on a check. Id. Concluding that the forgery “was 

divorced in time, place and purpose from Gomez’ employment duties,” the 

court held that “the act of forgery was not committed within the scope of 

Gomez’ employment[.]” Id.

[24] Unlike Gomez, at the time Detective Jones filed the probable cause affidavit, he 

was “on public time, performing a function that was central to the position he 

held.” Celebration Fireworks, 727 N.E.2d at 453. Specifically, as a police officer, 

Detective Jones was authorized to investigate potential drug activity, draft a 

probable cause affidavit, and execute an arrest. Ball has not designated any 

evidence establishing that Detective Jones acted on his own initiative or with no 

intention to perform the service for which he was employed. Rather, Detective 

Jones’ actions in this case are closely associated with actions authorized by 

IMPD and in furtherance of a multi-agency narcotics investigation. 

Accordingly, we conclude that Detective Jones’ action of the alleged 

falsification of the probable cause affidavit was “incidental to the conduct 

authorized” as phrased by the Restatement or, as Kemezy noted, “to an 
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appreciable extent to further his employer’s business.” See Restatement 

(Second) Agency § 229; Kemezy, 622 N.E.2d at 1298. Detective Jones’ actions 

are clearly within the scope of his employment as an IMPD officer and 

therefore are cloaked with immunity under ITCA. 

CONCLUSION

[25] Based on the foregoing, we conclude that the trial court properly granted 

summary judgment to Detective Jones, holding that, as a matter of law, his 

actions were within the course and scope of his employment.

[26] Affirmed.

[27] Najam, J. and May, J. concur