IN THE

COURT OF APPEALS OF INDIANA

ERNESTINE WALDON, )

CHRISTINE HAMPSHIRE, AND )

VERGIE SMALL, )

)

Appellants-Plaintiffs, )

)

 vs. ) No. 18A02-1203-PL-222

)

DONNA WILKINS, MD, )

JOSHUA WILLIAMS, )

RODNEY BARBER, AND )

CARL BARBER, JR., )

)

Appellees-Defendants. )

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES

ERNESTINE WALDON: BARBER AND BARBER:

DALE W. ARNETT JENNIFER M. HERRMANN

Winchester, Indiana Kightlinger & Gray, LLP

Indianapolis, Indiana

CRYSTAL G. ROWE

Kightlinger & Gray, LLP

New Albany, Indiana

ATTORNEYS FOR APPELLEES

WILKINS AND WILLIAMS:

JAMES S. STEPHENSON

IAN L. STEWART

Stephenson, Morow & Semler

Indianapolis, Indiana

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.
2

APPEAL FROM THE DELAWARE CIRCUIT COURT

The Honorable Marianne L. Vorhees, Judge

Cause No. 18C01-1110-PL-27

February 11, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge 

Ernestine Waldon (“Waldon”) appeals the Delaware Circuit Court’s order 

dismissing her complaint against certain employees of the Delaware County Health 

Department. In this litigation, spanning over six years, Waldon is seeking damages for 

removal and/or destruction of certain personal property, which was confiscated by the 

Health Department pursuant to a 2005 demolition order issued by the Delaware Circuit 

Court. 

We affirm in part, reverse in part, and remand for proceedings consistent with this 

appeal.

Facts and Procedural History

Facts pertinent to this appeal were discussed in Waldon’s prior appeal of the 2005 

demolition order, and are as follows:

Defendants owned a mobile home located at 12220 North 600 West 

in Gaston, Delaware County, Indiana (“Property”). On August 29, 2005, 

the Delaware County Health Department posted two notices at that address. 

The first was captioned “OFFICIAL NOTICE: ABATEMENT ORDER OF 

UNLAWFUL CONDITION.” The notice stated: “You are hereby notified 

that the Delaware County Health Officer, and her designated representative 

have determined that a condition exists on the [Property] which may 

transmit, generate or promote disease, pursuant to [Indiana Code §] 16-20-

1-25.” Specifically, the notice explained that “trash/debris must be removed 

& properly discarded,” that “inside home must be thoroughly cleaned & 
3

sanitized,” and that “[the Property] must be properly mowed & cleared of 

tall weeds.” The notice gave Defendants until September 12, 2005, to 

rectify those conditions. Further, the document provided: “Should you fail 

to respond to this order, an injunction will be filed in the Delaware Circuit 

Court to obtain a court order requiring you to comply with the above stated 

condition(s).” 

The second document was captioned “NOTICE: ORDER TO DEEM 

STATED DWELLING AS UNFIT FOR HUMAN HABITATION.” The 

notice indicated that the Property suffered from a “[w]ant of repair” and the 

“[e]xistence on the premises of an unsanitary condition that is likely to 

cause sickness among occupants of the dwelling.” The county deemed the 

Property unfit for human habitation and ordered the Property vacated by 

September 3, 2005.

On September 29, 2005, Donna Wilkins, M.D. (“Wilkins”), the 

health officer for Delaware County, filed a Complaint for Injunctive Relief 

and Declare Property a Public Nuisance and Request for Attorney Fees 

(“Complaint”) against the Defendants. Wilkins alleged that the situation 

that existed at the Property “may promote, transmit or generate disease to 

wit, that said residence contains excessive trash and debris and the outside 

property is unkempt.” Wilkins asked the trial court to declare the Property a 

public nuisance and requested the abatement of the nuisance. Specifically, 

Wilkins asked for an order “permitting a health officer to take whatever 

means necessary to bring the property into compliance[.]” On the same day, 

Wilkins filed a request for an emergency hearing in the matter. The trial 

court granted the request and set the matter for an emergency hearing on 

October 14, 2005. Copies of the Complaint, the summons, and the order 

setting the emergency hearing were delivered to the Property on October 4, 

2005. The summons explained that the Defendants had twenty days to 

respond to Wilkins’ Complaint.

Two days before the scheduled hearing, on October 12, 2005, 

Waldon filed a handwritten request for a continuance, apparently because 

she needed more time to find an attorney and because her granddaughter 

was scheduled to have surgery on October 14. The trial court summarily 

denied Waldon’s request the same day.

The emergency hearing was held as scheduled on October 14. The 

Defendants did not appear at the hearing, nor did anyone appear on their 

behalf. Joshua Williams, an employee of the Delaware County Health 

Department, testified as to his observations regarding the condition of the 

Property and produced photographs of the Property. When asked, “[I]s it 

suitable to be cleaned up or are you requesting for authority to have it 

removed?” Williams responded, “For removal.” The same day, the trial 

court entered judgment in favor of Wilkins, finding, in pertinent part:
4

1. That the [Property] violates the health codes of Delaware County 

and the Junk Car Ordinance of Delaware County.

2. That the Defendants have ten (10) days from the date of this Order 

to remove any personal property of value.

3. That after said ten (10) days, the Health Department shall be 

authorized to remove from the premises the modular building and all 

personal property and debris located on the real estate.

4. That the Plaintiff shall report to the Court the costs of said efforts 

which shall then be assessed as a judgment against the Defendants 

and the real estate.

5. That the Defendants shall also pay a reasonable attorney fee in the 

amount of Seven Hundred Fifty Dollars ($750.00) to counsel for the 

Plaintiff . . . within 60 days from the date of this order.

* * * *

7. That the costs of removing the modular building and all personal 

property and debris from the premises and attorney fees shall 

constitute a judgment against the Defendants.

Waldon and her daughter went to the Property on October 26, 2005, 

to find that the mobile home had been demolished and that people were 

taking away the personal property that remained.

Nearly two months later, on December 21, 2005, the Defendants 

filed their Motion to Set Aside Default Judgment and Petition for Order 

Requiring Plaintiff to Return Defendant’s Property, which the trial court 

denied. Defendants then filed a motion to correct error, which the trial court 

also denied. Defendants now appeal.

Waldon v. Wilkins, 859 N.E.2d 395, No. 18A04-0604-CV-199, Slip op. at 1-3 (Ind. Ct. 

App. Dec. 29, 2006), trans. denied (record citations omitted).

Waldon and her co-defendants appealed the demolition order arguing lack of 

personal jurisdiction, violation of their due process rights, that the trial court’s demolition 

order was unwarranted because they were not given an adequate opportunity to remedy 

the property’s unlawful condition, and that relief from judgment was necessary pursuant 

to Trial Rule 60(B)(3) due to misconduct of an adverse party. Our court rejected their 

arguments, and we also observed:
5

[T]o the extent that Defendants are entitled to any relief regarding their 

personal property, that relief must come by way of a lawsuit against the 

individuals and entities involved with the execution of the order. Our task 

here was to review the validity of the order, which we have done.

Determining whether Defendants’ rights were violated in the execution of 

the order is the domain of Indiana’s trial courts.

Id. at 6. Waldon and her co-defendants filed a petition to transfer the case to our supreme 

court, which the court denied. They then unsuccessfully sought certiorari to the United 

States Supreme Court, which writ was denied on November 26, 2007.

Approximately six weeks before the United States Supreme Court denied the writ 

of certiorari, Waldon and Vergie Small filed a 42 U.S.C. § 1983 claim in the United 

States District Court for the Southern District of Indiana against Wilkins and her 

employees alleging that their personal property was taken without just compensation in 

violation of the Fifth Amendment of the United States Constitution. The Federal District 

Court dismissed the complaint, and Waldon and Small appealed the dismissal to the 

Seventh Circuit Court of Appeals. On August 13, 2010, the Seventh Circuit affirmed the 

district court’s dismissal after concluding that the complaint failed to state a claim under 

Federal Rule of Procedure 12(b)(6). Appellant’s App. p. 126. The court concluded that 

“a takings claim is unripe because the plaintiffs have not alleged that they have sought 

and been denied compensation at the state level,” their procedural due process claim was 

meritless, and that they failed to state a claim under the Fourth Amendment. Id. at 126-

27. Waldon and Small also sought certiorari of the Seventh Circuit’s decision, which 

writ was denied on March 7, 2011. 
6

More than six months later, Waldon, Small, and Christine Hampshire filed the 

complaint at issue in this appeal. They named the following Delaware County Health 

Department employees as defendants: Dr. Donna Wilkins, Joshua Williams, Rodney 

Barber and Carl Barber, Jr. (collectively “the Appellees”). Waldon, Small and 

Hampshire alleged conversion of their personal property, requested replevin of their 

property, and alleged willful destruction of property “thereby committing the crime of 

criminal mischief[.]” Id. at 20. Dr. Wilkins and Williams filed a motion to dismiss the

complaint, but before a hearing could be held on that motion, Waldon and her coplaintiffs filed an amended complaint. The amended complaint alleged damage to real 

property, detention of personal property, fraud, unjust enrichment, and requested punitive 

damages.

The Appellees filed motions to dismiss the amended complaint and a hearing was 

held on the motions on January 6, 2012. The Appellees argued that Waldon, Small and 

Hampshire’s claims were barred by the statute of limitations and the doctrine of res 

judicata. The Appellees also argued that they were entitled to quasi-judicial immunity 

because, as agents of the Health Department, they were acting pursuant to a valid court 

order. On January 11, 2012, the trial court dismissed the complaint with prejudice. 

Waldon, Small and Hampshire filed a motion to correct error, which the trial court 

denied on February 20, 2012. In that order, the court specifically ruled that the claims are 

barred by the doctrine of res judicata and statute of limitations, the failure to file a timely 

tort claim notice, and by the doctrine of immunity afforded to public officials in their 
7

execution of enforcing a court order. Id. at 10. Waldon now appeals.

1

 Additional facts 

will be provided as necessary.

I. Immunity

Waldon has unsuccessfully litigated the trial court’s demolition order for more 

than seven years. In this latest challenge, the Appellees argued several reasons for 

dismissing the amended complaint with prejudice. The most compelling reason for 

dismissal of the amended complaint is the doctrine of judicial or quasi-judicial immunity.

“It is well-settled that judges are entitled to absolute judicial immunity for all 

actions taken in the judge’s judicial capacity, unless those actions are taken in the 

complete absence of any jurisdiction.” Droscha v. Sheperd, 931 N.E.2d 882, 888-89 (Ind. 

Ct. App. 2010) (citing Mendenhall v. City of Indpls., 717 N.E.2d 1218, 1226 (Ind. Ct.

App. 1999), trans. denied). “The underlying purpose of the immunity is to preserve 

judicial independence in the decision-making process.” Id. “The same policies that 

underlie the grant of absolute judicial immunity to judges justify the grant of immunity to 

non-judicial officers who perform quasi-judicial functions.” Id. “Absolute judicial 

immunity therefore extends to persons performing tasks so integral or intertwined with 

the judicial process that these persons are considered an arm of the judicial officer who is 

immune.” Id.

To determine whether a person is entitled to the benefit of judicial immunity, we 

apply the functional approach and look to the nature of the function performed, not the 

 1 The appellant’s attorney entered an appearance in this appeal only on Waldon’s behalf. Small and 

Hampshire have not entered appearances in this appeal.
8

identity of the person who performed it. Id. Consistent with that principle, our courts 

have held that “the act of executing or enforcing a court order is a function intrinsically 

associated with judicial proceedings,” and therefore, “a non-judicial officer who acts in 

furtherance of a valid court order cannot be deprived of immunity.” See e.g., Newman v. 

Deiter, 702 N.E.2d 1093, 1100 (Ind. Ct. App. 1998), trans. denied.

Waldon concedes that the Delaware Circuit Court entered an order authorizing the 

Delaware County Health Department to remove the personal property located on the

Gaston, Indiana real estate. Appellant’s App. p. 57. The Appellees removed the personal 

property pursuant to that court order. Specifically, the court order authorized the Health 

Department “to remove from the premises the modular building and all personal property 

and debris located on the real estate.” Id. at 97. For this reason, we conclude that the 

Appellees were entitled to judicial or quasi-judicial immunity and cannot be found liable 

to Waldon for claims seeking monetary damages that arise from the removal of the

property.

Moreover, the Appellees were acting within the scope of their government 

employment, and were therefore immune from liability under the Indiana Tort Claims 

Act. See Long v. Barrett, 818 N.E.2d 18, 24 (Ind. Ct. App. 2004), trans. denied. The Act 

“allows government employees acting in the scope of their employment the 

freedom to carry out their duties without the fear of litigation.” When the 

employee’s conduct is “‘of the same general nature as that authorized, or 

incidental to the conduct authorized,’” it is “within the scope of 

employment.” Whether certain acts of an employee are within the scope of 

employment “may be determined as a matter of law” if the designated 

materials conclusively demonstrate. 

Id. (citations omitted).
9

An action may not be brought against a government employee personally unless 

there is “an allegation that the ‘act or omission of the employee’ is either (a) malicious or 

(b) willful and wanton, and (2) the complaint ‘must contain a reasonable factual basis 

supporting the allegations.’” Id. (quoting I.C. § 34–13–3–5(b)). The Appellees were 

executing the trial court’s demolition order when they removed Waldon’s personal 

property. And the factual allegations in the complaint concerning removal of the 

personal property do not allege any conduct that can colorably establish that the 

Appellees acted in a malicious or willful and wanted manner in their execution of the trial 

court’s order.2 For these reasons, the Torts Claims Act also immunizes the Appellees 

from liability for their removal of Waldon’s personal property.

II. Replevin

However, pursuant to Indiana Code section 32-35-2-1, Waldon also alleged that 

the Appellees continue to unlawfully possess her personal property, and requested that 

the court order the Appellees to return the property to her. See Appellant’s App. p. 60. 

Indiana Code section 32-35-2-1 provides where personal property is “wrongfully taken or 

unlawfully detained from the owner or personal claiming possession of the property . . . 

the owner or claimant may bring an action for possession of the property.” See also 

Dawson v. Fifth Third Bank, 965 N.E.2d 730, 735 (Ind. Ct. App. 2012) (“A replevin 

action is a speedy statutory remedy designed to allow one to recover possession of 

 2 Most of Waldon’s allegations center around the fact that Waldon and her family members arrived on the 

premises on the date the Appellees were executing the trial court’s demolition order. Waldon demanded 

that the Appellees turn the personal property over to them. Consistent with the order, the Appellees 

refused their demands and removed the property from the premises. Waldon and her family were also 

informed that they would be taken to jail if they interfered with the removal of their personal property.
10

property wrongfully held or detained as well as any damages incidental to the 

detention.”) (citing United Farm Family Mut. Ins. Co. v. Michalski, 814 N.E.2d 1060, 

1066 (Ind. Ct. App. 2004)). To recover in an action for replevin, a plaintiff must prove 

his title or right to possession; that the property is unlawfully detained; and that the 

defendant wrongfully holds possession. United Farm Family, 814 N.E.2d at 1067; see

also Deere & Co. v. New Holland Rochester, Inc., 935 N.E.2d 267, 269 (Ind. Ct. App.

2010).

Waldon’s replevin claim is governed by a six-year statute of limitations. See 

Estate of Verdak v. Butler Univ., 856 N.E.2d 126, 133 (Ind. Ct. App. 2006) (citing Ind. 

Code § 34-11-2-7)). The Appellees removed Waldon’s personal property as required by 

the trial court’s demolition order on October 25-26, 2005. Waldon filed the complaint in 

this case on October 21, 2011. Therefore, the replevin claim is not barred by the statute 

of limitations.3

The replevin claim also survives application of the doctrine of res judicata. Res 

judicata serves to prevent repetitious litigation of disputes which are essentially the same. 

MicroVote General Corp. v. Ind. Election Comm’n, 924 N.E.2d 184, 191 (Ind. Ct. App. 

2010). The doctrine consists of two distinct components, claim preclusion and issue 

preclusion. 

Claim preclusion is applicable when a final judgment on the merits has 

been rendered and acts to bar a subsequent action on the same claim 

between the same parties. When claim preclusion applies, all matters that 

were or might have been litigated are deemed conclusively decided by the 

 3 Waldon filed a timely tort claim notice on April 14, 2006, less than six months after her property was 

removed from her Gaston, Indiana real estate.
11

judgment in the prior action. Claim preclusion applies when the following 

four factors are present: (1) the former judgment was rendered by a court of 

competent jurisdiction; (2) the former judgment was rendered on the merits;

(3) the matter now at issue was, or could have been, determined in the prior 

action; and (4) the controversy adjudicated in the former action was 

between parties to the present suit or their privies.

Dawson v. Estate of Ott, 796 N.E.2d 1190, 1195 (Ind. Ct. App. 2003). 

The only contested factor is whether Waldon’s claims were or could have been 

determined in the prior action. “[I]t has long been the case that res judicata ‘embraces 

not only what was actually determined, but every matter which the parties could have had 

litigated in the cause. The judgment in the former case is conclusive and bars a 

subsequent action if an opportunity was presented to litigate the entire subject matter in 

the first action.’” Finke v. N. Ind. Pub. Serv. Co., 899 N.E.2d 5, 10 (Ind. Ct. App. 2008) 

(citations omitted). 

After failing to appear in the proceedings that resulted in the trial court’s decision 

to issue the demolition order, Waldon filed a motion to set aside the demolition order and 

for return of the personal property on December 21, 2005. After that motion was denied, 

Waldon filed an appeal. Our court affirmed trial court’s judgment, but concerning her 

request for return of the personal property, our court agreed with the Appellees that

[T]o the extent that Defendants are entitled to any relief regarding their 

personal property, that relief must come by way of a lawsuit against the 

individuals and entities involved with the execution of the order. Our task 

here was to review the validity of the order, which we have done. 

Determining whether Defendants’ rights were violated in the execution of 

the order is the domain of Indiana’s trial courts.

Waldon, No. 18A04-0604-CV-199, Slip op. at 6. Accordingly, Waldon’s request for 

return of their property was not adjudicated in that litigation.
12

Next, Waldon filed a complaint against the Appellees in federal district court, and 

when the Appellees’ motion to dismiss the complaint was granted, filed an appeal to the 

Seventh Circuit. The Seventh Circuit rejected Waldon’s takings, procedural due process, 

and Fourth Amendment Claims concerning the seizure of their property. But Waldon’s 

state law replevin claim was not adjudicated on its merits in the federal litigation, and is 

therefore not barred by the doctrine of res judicata.4

Conclusion

For all of these reasons, we conclude that the trial court properly dismissed

Waldon’s claims against the Appellees arising from the Appellees execution of the trial 

court’s demolition order under the doctrine of quasi-judicial immunity and immunity 

arising from the Indiana Tort Claims Act. However, the trial court erred when it 

dismissed Waldon’s replevin claim contained in the amended complaint. Although the 

Waldon may have great difficulty prevailing on that claim under the facts of this case, she 

should not be denied her day in court.

We affirm in part, reverse in part, and remand with instructions to the trial court to 

reinstate Waldon’s replevin claim. 

KIRSCH, J., and CRONE, J., concur.

 4 Waldon certainly could have raised the replevin claim in the federal complaint against the Appellees. 

See Daimler Chrysler Corp. v. Cuno, 547 U.S. 332, 350 (2006) (stating “federal-question jurisdiction 

over a claim may authorize a federal court to exercise jurisdiction over state-law claims that may be 

viewed as part of the same case because they ‘derive from a common nucleus of operative fact’ as the 

federal claim”) (citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966)). However, 

“if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the 

state claims should be dismissed as well.” Gibbs, 383 U.S. at 726. We may reasonably assume that the 

federal district court and Seventh Circuit Court of Appeals would have declined to exercise supplemental 

jurisdiction over Waldon’s replevin claim if it had been raised in the federal complaint. We therefore will 

not conclude that Waldon’s replevin claim is barred by the doctrine of res judicata simply by virtue of the 

fact that it could have been raised in the federal litigation.