Court of Appeals of IndianaHearing oral argument at

Culver Cove Resort & Conference CenterCulver, IN

Friday, March 1 @ 12:15 p.m.

Kailee M. Smith and Jeffrey S. McQuary

v. State of Indiana

18A-MI-01593

On appeal from the Marion Superior Court

SYNOPSIS

After obtaining a judgment in federal court, Smith and her attorney, McQuary, entered into an agreement wherein Johnson assigned his right to indemnification against the State to Smith and McQuary. Smith and McQuary filed the claim that is the subject of this appeal to enforce Johnson's right of indemnification against the State. Both parties filed motions for summary judgment. The trial court granted summary judgment in favor of the State.

Smith and McQuary appeal the trial court’s grant of summary judgment in favor of the State, arguing (1) that the trial court erred when it found Smith and McQuary had not designated evidence to support their claim that Johnson was acting within his scope of employment; (2) that the State's argument that Johnson's act was not non-criminal had not been raised prior the motion for summary judgment and the State designated no evidence to support that claim; and (3) that the dismissal of Smith's state claim did not collaterally estop Smith and McQuary from asserting Johnson acted within the scope of his employment because the trial court did not indicate its reason for dismissal.

Riley continued from p. 3international legal experience. In 2008, she co-founded the Legal Aid Centre of Eldoret, Kenya (LACE), which provides legal access to justice for HIV/AIDS patients in the AMPATH medical center. In 2011, Judge Riley traveled with the Washington, D.C.-based International Judicial Academy to The Hague, Netherlands, to observe the International Criminal Court and two International Criminal Tribunals that are hearing cases from Sierra Leone and the former Yugoslavia. And in 2012 she participated in the 3rd Sino-U.S. Law Conference, which was held in Beijing at the National Judges College of the People’s Republic of China, which oversees all aspects of that country’s judicial training, placement and promotion. In 2013 Judge Riley attended the Justice Academy of Turkey where she presented her paper about Ethic Rules in the U.S. Judge Riley has two sons and two grandsons. She was retained on the Court by election in 1996, 2006, and 2016.

May continued from p. 3chaired the Specialization Committee. She is currently on an Advisory Panel to the Specialization Committee. In 2005, she was named to the Indiana Pro Bono Commission and in July 2008, she was named as Chair of that Commission. While chair, she worked with the fourteen pro bono districts to train lawyers and mediators on how to assist homeowners facing foreclosure. In addition, she was a member of the Board of Directors of the Indiana Continuing Legal Education Forum from 1994-1999 and has been a co-chair of ICLEF’s Indiana Trial Advocacy College from 2001 to present. Judge May also serves on the Civil Instruction Committee, an Indiana Judicial Conference Committee, which has been working to translate all of the civil jury instructions into “plain English.” She frequently speaks on legal topics to attorneys, other judges, schools, and other professional and community organizations. In 2003, Judge May was named to the American Bar Association’s Standing Committee on Attorney Specialization. She is now special counsel to that committee. In the spring of 2004, Judge May became adjunct faculty at Robert H. McKinney School of Law, where she teaches a trial advocacy course. Also in the spring of 2004, she was awarded an Honorary Doctor of Civil Law from the University of Southern Indiana. In 2015, Judge May became a member of the American Board of Trial Advocates. Judge May was retained on the Court of Appeals in 2010, and lives in Marion County.

Robb continued from p. 3Board member of the Indiana State Bar Association, the Fellows of the Indiana State Bar Foundation, Tippecanoe County Bar Association, National Association of Women Judges, the Indiana University School of Law- Indianapolis Alumni Association, the Bankruptcy Section and the Appellate Practice Section of the Indiana State Bar Association, Appellate Judges Conference of the American Bar Association, the Appellate Judges Education Institute, and the Council of Chief Judges of State Courts of Appeal. She is the Appellate Judges Conference Delegate to the American Bar Association's House of Delegates. She has also been a Board member of the Indianapolis Bar Association, the Indianapolis Bar Foundation, and the Senior Council Section of the Indianapolis Bar Association. She was the moderator for the 2005-2006 and Chair for the 2006-2007 Indianapolis Bar Association’s Bar Leader Series. Judge Robb is a member of the American Bar Foundation, American Judicature Society, and is a Master Fellow of the Indiana State Bar Foundation and a Senior Distinguished Fellow of the Indianapolis Bar Foundation. Judge Robb Chaired the 2004 National Association of Women Judges' annual conference, the 2010 ABA's Appellate Judges Council - Appellate Judges Education Institute's national Summit for Judges, lawyers and Staff attorneys, the 2015 annual conference of the Council of Judges of State Courts of Appeal, and co-chaired the Education committee of the 2016 International Association of Women Judges Biennial Conference held in Washington, D.C. She is a frequent speaker on legal topics for attorneys, other judges, and professional, civic and community organizations. In addition, she was a member of the ABA Committee that accredits law schools and continues to assist in the accreditation process by reviewing and evaluating law schools and their programs. Judge Robb is an elected member of the American Law Institute (ALI). Judge Robb was Founding Chair of Governor Bowen’s Commission on the Status of Women; was a recipient of a 1993 Indiana State Bar Association’s “Celebrating 100 Years of Women in the Legal Profession” award; the 2001 Maynard K. Hine distinguished alumni award given in recognition of support and service to IUPUI and Indiana University; the 2004 Bernadette Perham “Indiana Women of Achievement” Award , bestowed by Ball State University to honor of one of their outstanding professors; the 2005 Indiana State Bar Association’s Women in the Law Recognition Award; the 2006 Tippecanoe County YWCA Salute to Women “Women of Distinction” Award; the 2007 Warren G. Harding High School, Warren, Ohio, Distinguished Alumni Award; the 2010 Indiana University Alumni Association President’s Award, a 2010 Indiana Lawyer Distinguished Barrister Award, the 2011 Indianapolis Bar Association Women and the Law Committee’s Antoinette Dakin Leach Award, the 2011 David Hamacher Award from the Appellate Practice Section of the Indiana State Bar Association, a 20112 Indiana Business Business Journal Woman of Influence award, a 2012 Senate/House Concurrent Resolution in her honor, a 2014 Indiana Women's Commission Trailblazer award and one of five women to ever receive the special recognition as a "Trailblazer," and a 2014 Indiana University Robert H. McKinney School of Law Distinguished Alumni award. Judge Robb authored “Reflections of Baseball, Life and the Law” in the Indiana State Bar Association’s journal, Res Gestae and “Running Bases, Winning Cases: Why the Grand Old Game of Baseball is like the legal profession” in the ABA’s journal. She also authored a chapter on Supreme Court Justice Leonard Hackney in, Indiana Supreme Court Justices, and co-authored a chapter, “From Juvenile Courts to Family Courts,” in Essays on Indiana Legal History. She also co-authored, with her judicial law clerks, a law review note, "Do You Want To Know a Secret? Do You Promise Not to Tell? Whoa Oh Oh: Judges, Opinion and Judicial Notice," in the 2016 Indiana Law Review. Judge Robb was retained on the Court of Appeals in 2000 and 2010, is married to a professor at Purdue University. Their son, a graduate of the United States Naval Academy, is a Lieutenant Commander on active duty in the United States Navy.

Court of Appeals Mission Statement“To serve all people by providing equal justice under law”

Today’s Panel of Judges

Patricia A. Riley, was named to the Court of Appeals of Indiana by Governor Evan Bayh in January of 1994. A native of Rensselaer, Indiana, Judge Riley earned her bachelor’s degree from Indiana University-Bloomington in 1971 and her law degree from the Indiana University School of Law-Indianapolis in 1974. Early in her career she served as a Deputy Prosecutor in Marion County and a public defender in Marion and Jasper counties before entering into private practice in Jasper County. She served as a judge of the Jasper Superior Court from 1990 to 1993. She is a former associate professor at St. Joseph’s College in Rensselaer and the Indiana University School of Law-Indianapolis. Judge Riley’s legal memberships include the Indianapolis Bar Association, the Marion County Bar Association, and the Indiana State Bar Association. Judge Riley is the former chair of the Appellate Practice Section of the Indiana State Bar Association, and is a member of the ABA’s Judicial Division. She is a member of the Indiana Judges Association and the National Association of Women Judges. Judge Riley’s civic associations include being on the Board of Directors of Recycle Force. She serves on the Board of Visitors of the Robert H. McKinney School of Law –Alumni Association, and is a member of the Indianapolis Metro Rotary Club. She also has extensive continued on p. 4

Melissa S. May, was appointed to the Indiana Court of Appeals by Governor Frank O’Bannon in April of 1998. She was born in Elkhart, Indiana. She received a B.S. in criminal justice from Indiana University-South Bend and, in 1984, a J.D. from Indiana University School of Law-Indianapolis. She is also a graduate of the Graduate Program for Indiana Judges.

Prior to her appointment to the Court, Judge May practiced law for fourteen years in Evansville, Indiana, where she focused on insurance defense and personal injury litigation.

Judge May has been active in local, state, and national bar associations and bar foundations. She served the Indiana Bar Association on the Board of Managers from 1992-1994, as Chair of the Litigation Section from 1998-1999, as Counsel to the President from 2000-2001, as Chair of the Appellate Practice Section from 2008-2009, and as Secretary to the Board of Governors in 2008-2009. She is also a member of the Indianapolis Bar Association and the Evansville Bar Association. She is a fellow of the Indiana Bar Foundation and is currently serving on their Board of Directors. Judge May is a fellow for the American Bar Association, and a Master Fellow of the Indianapolis Bar Association.

From 1999 until December 2004, Judge May was a member of Indiana’s Continuing Legal Education Commission, where she continued on p. 4

Margret G. Robb, was appointed to the Court of Appeals of Indiana in July 1998 by Governor Frank O’Bannon. She holds a B.S. and an M.S. in Business Economics from Purdue University, a Magna Cum Laude J.D. from Indiana University Robert H. McKinney School of Law and is a graduate of the Graduate Program for Indiana Judges. In 2011 she began a three year term as Chief Judge; the first woman to hold that position in the Court’s more than 100 year history. Prior to her appointment to the Court, Judge Robb was, for 20 years, engaged in the general practice of law in Lafayette, and served as a Chapter 11, 12 and a standing Chapter 7 Bankruptcy trustee for the Northern District of Indiana. She was a registered family and civil mediator and served as a Tippecanoe County Deputy Public Defender. Judge Robb chaired the Supreme Court Task Force on Family Courts and the Supreme Court task force for the development of Trial Court Local Rules, is a member of the planning committee for the Supreme Court Graduate Judges Program, has also served as a member of the Indiana Board of Law Examiners, the Governance Committee of the Supreme Court IOLTA (Interest on Lawyer Trust Account) Committee; the Federal Advisory Committee on Local Rules for the Federal Court for the Northern District of Indiana; and the Federal Advisory Committee for the Expediting of Federal Litigation. She has been both an officer and continued on p. 4

Attorneys For The PartiesAppellant AttorneyJeffrey S. McQuary was raised in an Air Force family and grew up in California, Virginia, and Germany. He received a bachelor's degree from DePauw University in 1986, a master's degree from Columbia University in 1988, and a J.D. from Emory University in 1992. His practice has emphasized government litigation since starting his legal career at the Indiana Attorney General's Office. Since 2005 he has represented plaintiffs in civil rights litigation.

Appellee AttorneyAbigail R. Recker is a Deputy Attorney General in the civil appeals section of the Office of the Indiana Attorney General. Mrs. Recker joined the office in 2014 as a deputy in child services appeals where her primary focus was on child in need of services and termination of parental rights cases. In 2017 child services appeals and civil appeals merged into one section and Mrs. Recker began working on a broad range of cases representing the State of Indiana and all of its state agencies. Mrs. Recker graduated from Indiana State University in 2011 with a double major in political science and legal studies, and in 2014 from Indiana University Robert H. McKinney School of Law. Mrs. Recker is originally from Danville, Illinois, and now lives in Westfield, Indiana, with her husband and two daughters.

About the Court of AppealsAs the second-highest court in Indiana, the Court of Appeals hears appeals from the state’s trial courts and some state agencies. The Court does not preside over trials and must accept all appeals sent to it, with the exception of:

• Cases in which the death penalty or life-without-parole is rendered (appealed directly to the IndianaSupreme Court);

• Cases in which statutes are declared unconstitutional by a trial court (automatically appealed to theSupreme Court);

• Attorney disciplinary cases (which also go to the Supreme Court); and,• Cases involving taxation (which go to the Indiana Tax Court).

As a result, the 15 members of the Court issue approximately 2,000 written opinions each year. A decision of the Court of Appeals of Indiana is final unless granted further review by the Indiana Supreme Court.

The Court hears cases only in three-judge panels. All panels have statewide jurisdiction and rotate three times per year. Cases are randomly assigned. In addition, there is no deadline for the Court to reach a decision in each case; however, the Court strives to issue decisions within four months of receiving an appeal. Opinions are often issued earlier.

What happens after oral argument? After oral argument, the judges confer to decide the outcome. A designated writing judge drafts an opinion for the others’ review. Final language may involve several drafts and significant collaboration. Generally, opinions affirm or reverse lower court rulings in whole. But some affirm in part, some reverse in part, and some do both. Not infrequently, the opinion instructs the trial court about the next appropriate course of action. Many opinions are unanimous, although non-unanimous decisions (2-1) are not uncommon. Dissenting judges usually express their views in a separate opinion that becomes part of the permanent record of the case. Judges might also write separate, concurring opinions that emphasize different points of law or facts than the main opinion. No rules or laws govern how fast the court must issue an opinion. But the court strives to decide cases within four months of receiving all briefs, transcripts and other records. Once issued, all opinions are published on www.courts.in.gov and maintained in the permanent records of the Clerk of Appellate Courts. Parties can appeal decisions of the Court of Appeals to the Indiana Supreme Court by filing a petition to transfer within a prescribed number of days. But transfer is not automatic; the Supreme Court can grant or deny transfer with or without giving a reason. If the petition is denied, the Appeals Court decision stands.

The Honorable Patricia A. Riley

Jasper County

The Honorable Melissa S. May

Vanderburgh County

The Honorable Margret G. Robb

Tippecanoe County