FILED
Aug 23 2016, 6:10 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
Matthew J. Schad R. Jeffrey Lowe
George A. Budd, V Crystal G. Rowe
Schad & Schad, P.C. New Albany, Indiana
New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kyleigh Nolan, August 23, 2016
Appellant-Plaintiff, Court of Appeals Case No.
10A04-1510-CT-1824
v. Appeal from the Clark Circuit
Court
Clarksville Police Department The Honorable Susan L. Orth,
and Town of Clarksville, Special Judge
Indiana, Trial Court Cause No.
Appellees-Defendants. 10C04-1403-CT-44
Vaidik, Chief Judge.
Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016 Page 1 of 14
Case Summary
[1] Nineteen-year-old Kyleigh Nolan volunteered to play the role of a hostage in a
training exercise being conducted by the Clarksville Police Department. She
was injured and later sued the police department and the Town of Clarksville.
The trial court granted summary judgment for the defendants after finding that
Nolan had failed to provide sufficient pre-suit notice of her claim pursuant to
the Indiana Tort Claims Act (“ITCA”). While we agree that Nolan failed to
comply with the statutory-notice requirement, we also conclude that there is a
genuine issue of material fact as to whether the defendants, by virtue of their
own conduct following the incident, are estopped from asserting Nolan’s non-
compliance as a defense. We therefore affirm in part and reverse in part the
grant of summary judgment in favor of the defendants. On remand, Nolan is
entitled to present her estoppel claim to the jury at trial.
Facts and Procedural History
[2] In accordance with the standard of review in summary-judgment matters, we
begin by reciting the evidence most favorable to the non-moving party, Nolan.
In June 2012, Nolan was employed at a store in the Green Tree Mall in
Clarksville. The Clarksville Police Department was conducting a training
exercise at the mall, and Nolan agreed to act as a hostage. As the hostage
scenario was being played out, Nolan was involved in a collision with officers,
and her nose was broken. The police department called for an ambulance, but
Nolan, who was nineteen at the time, declined assistance and called her mother
Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016 Page 2 of 14
instead. Nolan’s mother went to the mall, and Chief Mark Palmer, who was
present for the training exercise, told Nolan and her mother that the police
department would cover Nolan’s medical expenses relating to the accident.
Chief Palmer also told them that bills should be sent to the Town of Clarksville
and that “if they sent them to the Police Department the office manager would
forward them to the Town’s insurance representative.” Appellant’s App. p.
162.
[3] Over the next few months, Nolan continued to contact Chief Palmer, and her
mother did the same. Nolan attempted to reach him via e-mail and telephone
in mid-to-late July and then went to the police station in August and tried, but
was unable, to meet with him to provide medical bills. Nolan’s mother e-
mailed with Chief Palmer and met with him in person, at which time he told
her that “the Clarksville Police would be taking care of the bills and not to
worry about it.” Id. at 127. Nolan’s mother later brought some bills to the
police department and gave them to a receptionist, who said that she would
give them to Chief Palmer. However, neither the police department nor the
Town of Clarksville has ever paid any of Nolan’s medical bills.
[4] In early 2014, Nolan filed a lawsuit against the police department and the town
(collectively, “the Town”). The Town filed a motion for summary judgment,
contending that Nolan had not provided pre-suit notice of her claim within 180
days of the incident, as required by the ITCA, and that her claim is therefore
barred. See Ind. Code § 34-13-3-8 (“[A] claim against a political subdivision is
Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016 Page 3 of 14
barred unless notice is filed with . . . the governing body of that political
subdivision . . . within one hundred eighty (180) days after the loss occurs.”).
[5] In response, Nolan conceded that she had not filed a “formal” notice of claim
but argued that her contacts with the Town amounted to substantial compliance
with the statutory requirement. Alternatively, she argued that, even if she had
not substantially complied with the ITCA, the Town led her to believe that
formal notice would not be necessary and should therefore be estopped from
asserting non-compliance as a defense.
[6] After hearing oral argument from counsel, the trial court granted summary
judgment in favor of the Town, concluding that Nolan “did not provide
sufficient notice to Defendants until well after th[e] statutory period had
expired.” Appellant’s App. p. 16. The court did not specifically address
Nolan’s estoppel claim in its order.
[7] Nolan now appeals.
Discussion and Decision
[8] Nolan contends that the trial court erred by concluding that she failed to
comply with the pre-suit notice requirement of the ITCA and by granting
summary judgment in favor of the Town on that basis. It is well established
that in reviewing a grant of summary judgment, we address the issues de novo,
giving no deference to the trial court’s decision. Williams v. Tharp, 914 N.E.2d
756, 761 (Ind. 2009); Ind. Dep’t of Corr. v. Swanson Servs. Corp., 820 N.E.2d 733,
Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016 Page 4 of 14
736-37 (Ind. Ct. App. 2005), reh’g denied, trans. denied. Nonetheless, both parties
agree that we are to review a summary judgment based on non-compliance with
the ITCA using the deferential “negative judgment” standard, under which we
reverse “only if the evidence in the record, along with all reasonable inferences,
is without conflict and leads unerringly to a conclusion opposite that reached by
the trial court.” Infinity Products, Inc. v. Quandt, 810 N.E.2d 1028, 1032 (Ind.
2004) (quoting DiMizio v. Romo, 756 N.E.2d 1018, 1021 (Ind. Ct. App. 2001),
trans. denied), reh’g denied. In support of this proposition, the Town cites Hupp v.
Hill, 576 N.E.2d 1320 (Ind. Ct. App. 1991), and Nolan cites Fowler v. Brewer,
773 N.E.2d 858 (Ind. Ct. App. 2002), trans. denied, where we relied on Hupp.
[9] It is true that, in Hupp, a panel of this Court stated that judgments based on
non-compliance with the ITCA “are subject to review as negative judgments[.]”
576 N.E.2d at 1324. For that proposition, the panel cited this Court’s earlier
decision in Dunn v. City of Indianapolis, 451 N.E.2d 1122 (Ind. Ct. App. 1983),
reh’g denied. Id. We read Dunn more narrowly. In Dunn, the city raised the
ITCA defense by way of a motion for summary judgment. 451 N.E.2d at 1123-
24. At the plaintiff’s request, the trial court set a hearing on the motion. Id.
Before the hearing, however, the trial court ordered the parties to “stipulate all
facts necessary for hearing on [the] Tort Claims notice and [to] be ready to
present any other facts at the hearing” and to “prepare [the] factual issue.” Id.
at 1124. At the hearing, witnesses were sworn and testified. Id. Thereafter, the
trial court issued findings of fact and concluded that the plaintiff had failed to
comply with ITCA notice requirements. Id. On appeal, we explained, “The
Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016 Page 5 of 14
record clearly indicates that both the parties and the court considered the
hearing an evidentiary hearing to resolve the notice issue. The facts were
disputed by the parties and weighed by the court.” Id. at 1124-25. We then
went on to review and affirm the trial court’s ruling under the negative-
judgment standard. Id. at 1125-26. In short, we applied the negative-judgment
standard because the trial court, after putting the parties on notice, held an
evidentiary hearing, weighed the evidence, and made findings of fact. See also
Lett v. State, 519 N.E.2d 749, 750 (Ind. Ct. App. 1988) (citing Dunn for negative-
judgment standard after trial court held evidentiary hearing regarding ITCA
compliance), reh’g denied.
[10] Dunn, then, does not stand for the proposition that all judgments based on non-
compliance with the ITCA “are subject to review as negative judgments[.]”
Hupp, 576 N.E.2d at 1324.1 The negative-judgment standard only applies when
the trial court has weighed the evidence and made factual determinations. See
Dunn, 451 N.E.2d at 1123-26. When, on the other hand, the trial court grants
summary judgment based strictly on the parties’ briefs, designated summary-
judgment evidence, and oral arguments, we apply the traditional, de novo
summary-judgment standard of review. See, e.g., Lyons v. Richmond Cmty. Sch.
1
There are other instances in which we have cited the negative-judgment standard in ITCA summary-
judgment cases, all of which can be traced back to Hupp. See, e.g., Warrick Cnty. ex rel. Conner v. Hill, 973
N.E.2d 1138, 1142 (Ind. Ct. App. 2012), trans. denied; Brown v. Alexander, 876 N.E.2d 376, 380 (Ind. Ct. App.
2007), trans. denied; Fowler, 773 N.E.2d at 861; Porter v. Fort Wayne Cmty. Sch., 743 N.E.2d 341, 344 (Ind. Ct.
App. 2001), trans. denied; Gregor v. Szarmach, 706 N.E.2d 240, 241-42 (Ind. Ct. App. 1999); Brunton v. Porter
Mem’l Hosp. Ambulance Serv., 647 N.E.2d 636, 639 (Ind. Ct. App. 1994); see also Hasty v. Floyd Mem’l Hospital,
612 N.E.2d 119, 121 (Ind. Ct. App. 1992) (citing negative-judgment standard in motion-to-dismiss context).
Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016 Page 6 of 14
Corp., 19 N.E.3d 254, 259 (Ind. 2014); Schoettmer v. Wright, 992 N.E.2d 702, 705
(Ind. 2013).
[11] Here, the parties filed their summary-judgment papers, their attorneys made
oral arguments at a typical summary-judgment hearing, and there is no
indication that the trial court weighed the evidence or resolved disputed issues
of fact. Therefore, we will review the trial court’s decision de novo. See
Williams, 914 N.E.2d at 761; Swanson Servs. Corp., 820 N.E.2d at 736-37. We
will affirm the grant of summary judgment “if the designated evidentiary matter
shows that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). “In
reviewing the record, we construe all reasonable inferences in favor of the
nonmoving party.” Gruber v. YMCA of Greater Indianapolis, 34 N.E.3d 264, 266
(Ind. Ct. App. 2015).
I. Substantial Compliance
[12] Nolan’s first argument is that even though she did not file a notice with the
Town in accordance with the ITCA, see I.C. § 34-13-3-8, the contacts that she
and her mother had with the Town, including the delivery of certain medical
bills to the police station, put the Town on notice that a claim might be filed
and therefore amounted to substantial compliance with the statutory-notice
requirement. Under the doctrine of substantial compliance, the failure to fully
satisfy the precise notice requirements of the ITCA is excused as long as “the
purpose of the notice requirement is satisfied.” Schoettmer, 992 N.E.2d at 707
Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016 Page 7 of 14
(emphasis added). However, our Supreme Court recently clarified that the
doctrine can only be invoked by a claimant who has filed a timely notice-of-
claim that is technically defective, not by a claimant who has filed no notice or
late notice. Lyons, 19 N.E.3d at 259 (summarily affirming this Court’s holding
that “substantial compliance cannot exist when the claimant took no steps
whatsoever to comply with the notice statute” and that claimants who “filed no
notice-of-claim—defective or otherwise—within 180 days” of loss “did not
substantially comply with the ITCA notice requirement”). Here, Nolan, like
the claimants in Lyons, “filed no notice-of-claim—defective or otherwise—
within 180 days” of the incident. As such, she cannot prevail under the
doctrine of substantial compliance, and we affirm the trial court’s grant of
summary judgment in favor of the Town on this issue.2
II. Estoppel
[13] While Nolan cannot show that she substantially complied with the ITCA notice
requirement, we agree with her that there is a genuine issue of material fact as
to whether the Town should be estopped from asserting her non-compliance as
a defense. In the ITCA-notice context, the doctrine of estoppel “focuses on
representations made by the defendant or its agents to the plaintiff, which
2
Nolan’s substantial-compliance argument is based in part on the fact that on December 3, 2012, Ingenix
Subrogation Services wrote to the police department to explain that it had been retained by Nolan’s health
insurer “to pursue a recovery for medical benefits that have been or may be paid by them on behalf of
[Nolan] for the treatment of injuries sustained arising out of the above captioned injury.” Appellant’s App. p.
146. We agree with the Town that this letter did not constitute notice that Nolan, herself, would be filing a
claim. To the contrary, one reasonable inference to be drawn from the letter is that Nolan had her medical
expenses paid by her own insurer and, as a result, would not be filing a claim against the Town.
Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016 Page 8 of 14
induce the plaintiff reasonably to believe that formal notice is unnecessary.”
Allen v. Lake Cnty. Jail, 496 N.E.2d 412, 415 n.3 (Ind. Ct. App. 1986), reh’g
denied.3
[14] Our Supreme Court recently explained that a plaintiff claiming estoppel in
response to an ITCA-notice defense “must show its (1) lack of knowledge and
of the means of knowledge as to the facts in question, (2) reliance upon the
conduct of the party estopped, and (3) action based thereon of such a character
as to change [its] position prejudicially.” Schoettmer, 992 N.E.2d at 709. We
conclude that Nolan designated ample evidence to survive summary judgment
on these three elements.
[15] As to the first element, there is evidence that Chief Palmer represented that the
Town would cover Nolan’s medical expenses and that Nolan was “not to worry
about it,” while there is no evidence that Nolan knew or had any way of
discovering that the Town was not actually going to pay. Regarding the second
and third elements, there is evidence that Nolan acted in reliance upon Chief
Palmer’s statements to her detriment. In the months following the accident and
3
Such claims generally fall into one of two categories: (1) claims that the political-subdivision defendant
disguised or failed to disclose its governmental status, see, e.g., Schoettmer, 992 N.E.2d at 709; Gregor v.
Szarmach, 706 N.E.2d 240, 243 (Ind. Ct. App. 1999), and (2) claims that a known political-subdivision
defendant made a representation that led the plaintiff to believe that the matter would be settled without the
need for formal, adversarial procedures, see, e.g., Delaware Cnty. v. Powell, 272 Ind. 82, 393 N.E.2d 190, 192
(1979); Allen, 496 N.E.2d at 416-17; Coghill v. Badger, 418 N.E.2d 1201 (Ind. Ct. App. 1981), reh’g denied.
Because Nolan’s claim—that she acted in reliance on Chief Palmer’s statements that her medical bills would
be paid—falls into the second category, the fact that “the Clarksville Police did not attempt to hide their
governmental or political-subdivision status,” Appellees’ Br. p. 38, is irrelevant.
Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016 Page 9 of 14
Chief Palmer’s initial promise to pay, instead of filing a tort notice or a lawsuit,
Nolan e-mailed and called him and eventually went to the police station with
medical bills in hand, hoping to meet with him—in accordance with Chief
Palmer’s instruction to submit medical bills to the Town. In addition, Nolan’s
mother corresponded with Chief Palmer via e-mail, spoke with him in person,
and gave medical bills to a receptionist who said that they would be given to
Chief Palmer. Because this evidence could reasonably support a finding of
estoppel, summary judgment is inappropriate. See Butler v. City of Indianapolis,
668 N.E.2d 1227, 1228 (Ind. 1996) (“Where material facts conflict, or
undisputed facts lead to conflicting material inferences, summary judgment is
inappropriate.”).
[16] The Town’s attacks on Nolan’s estoppel claim are without merit. It asserts that
“Nolan apparently did not know of the specific conversations or alleged
assurances that were purportedly made by Chief Palmer to her mother” and
that, therefore, “Chief Palmer’s alleged communications to Nolan’s mother do
not weigh into the equitable-estoppel analysis.” Appellees’ Br. p. 36. In
support of this argument, the Town notes that Nolan’s affidavit only generally
refers to her mother’s contact with Chief Palmer and does not specifically state
that her mother told her about the representations that Chief Palmer made to
Nolan’s mother in the months after the accident—including that “the
Clarksville Police would be taking care of the bills and not to worry about it.”
We first note that even if Nolan’s mother did not share these assurances with
Nolan, Chief Palmer’s promise of payment on the night of the accident, to both
Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016 Page 10 of 14
Nolan and her mother, would be sufficient to permit Nolan’s estoppel claim to
go forward. Furthermore, given Nolan’s age and the active involvement of her
mother in this ordeal, beginning at the mall immediately after the accident, it
would be reasonable to infer that Nolan’s mother was acting as Nolan’s agent
and made Nolan aware of all communications with Chief Palmer. Therefore,
Chief Palmer’s communications with Nolan’s mother in the months following
the accident are relevant to Nolan’s estoppel claim.
[17] The Town also asserts that Nolan cannot satisfy the detrimental-reliance prongs
because there is no evidence that “she failed to file the required tort-claim
notices because Chief Palmer told her Clarksville Police would pay her medical
bills”—in other words, evidence that Nolan would have filed notice but for
Chief Palmer’s representations. Appellees’ Br. p. 35. The Town does not cite,
and we are not aware of, any authority that stands for the proposition that an
ITCA plaintiff claiming estoppel must show that she was aware of the notice
requirement and would have filed notice but for some conduct or representation
by the political subdivision. Nolan need only show that she detrimentally relied
upon Chief Palmer’s representations. See Schoettmer, 992 N.E.2d at 709. The
evidence that Nolan and her mother attempted to work with Chief Palmer and
to follow his instructions regarding the submission of medical bills, rather than
filing a notice of claim, is sufficient to create a genuine issue of material fact on
the detrimental-reliance elements.
[18] Finally, the defendants assert that they are distinct entities, that Nolan’s specific
factual allegations relate only to the police department, and that the Town of
Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016 Page 11 of 14
Clarksville is entitled to summary judgment even if the police department is
not. The Town did not raise this argument in its motion for summary
judgment, so it is waived. See Poulard v. Lauth, 793 N.E.2d 1120, 1123 (Ind. Ct.
App. 2003) (“Issues not raised before the trial court on a summary judgment
motion cannot be argued for the first time on appeal and are waived.”). In any
event, they cite no authority in support of their assertion, and we are not
persuaded. Tellingly, the defendants do not allege that the Town of Clarksville
was not made aware of Nolan’s injury or her efforts to have her medical bills
paid. In Clarksville, as in most municipalities, the town and the police
department are closely affiliated, as evidenced by their admission in discovery
that Chief Palmer told Nolan and her mother “that any bills that come out of
[Nolan’s] visit to her family doctor should be sent to the Town of Clarksville and if
they sent them to the Police Department the office manager would forward them
to the Town’s insurance representative.” Appellant’s App. p. 162 (emphasis added).
Our disposition of Nolan’s estoppel claim applies to both defendants.
[19] In sum, Chief Palmer’s alleged statements, as an agent of the Town, were
representations that could very well have led Nolan to believe that formal
notice was unnecessary and to forego filing such notice. Therefore, summary
judgment is inappropriate on the issue of estoppel. See, e.g., Delaware Cnty. v.
Powell, 272 Ind. 82, 393 N.E.2d 190, 192 (1979) (reversing summary judgment
on estoppel where county’s insurer admitted county’s liability, made payments
to plaintiff, and told plaintiff that county “would take care of everything”);
Allen, 496 N.E.2d at 416-17 (reversing summary judgment on estoppel where
Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016 Page 12 of 14
there was evidence that agent of county jail “actively represented—indeed
promised—that Allen would be fully reimbursed for his loss, in effect
representing that litigation would be rendered unnecessary by settlement”); see
also Coghill v. Badger, 418 N.E.2d 1201, 1208-09 (Ind. Ct. App. 1981) (affirming
grant of summary judgment on estoppel where there was no representation by
the defendants that could “reasonably be construed as a promise”), reh’g denied.
[20] On remand, Nolan is entitled to present her estoppel claim to the jury at trial.
In Lyons, our Supreme Court found genuine issues of material fact on the
plaintiffs’ claim that “the discovery rule should apply to excuse [their]
noncompliance with the ITCA notice requirement” and their alternative claim
that “the defendants should be estopped from asserting their ITCA notice defense
because they fraudulently concealed the existence of the Lyonses’ claims.” 19
N.E.3d at 260-61 (emphasis added). In addressing “how the trial court should
proceed upon remand,” the Court explained that the issues should be decided
by the jury:
The question of whether a plaintiff has complied with the
requirements of the ITCA is one of law, Schoettmer v. Wright, 992
N.E.2d 702, 707 (Ind. 2013), but the answer may depend upon
the resolution of disputed facts. Gregor v. Szarmach, 706 N.E.2d
240, 241 (Ind. Ct. App. 1999). And the application of the
discovery rule necessarily involves questions of fact. Wehling v.
Citizens Nat’l Bank, 586 N.E.2d 840, 843 (Ind. 1992) (stating that
whether the plaintiffs knew or “in the exercise of ordinary
diligence” could have known of the defendant’s alleged
negligence was “a question of fact for the factfinder to answer”).
When the discovery rule applies, the time for filing does not
begin to run until the plaintiff knows or in the exercise of
Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016 Page 13 of 14
ordinary diligence should know of the tort. Id. Similarly, the
application of the fraudulent concealment doctrine is a question
of equity, but it may depend upon questions of fact, which are
properly answered by the fact-finder. Fager [v. Hundt, 610 N.E.2d
246, 253 n.5 (Ind. 1993) (“While the fraudulent concealment
exception is an equitable doctrine, the relevant facts may be
determined by a jury in the event of trial.”). When the doctrine
applies, a plaintiff has a reasonable time after discovery of the
tort to bring his action. Id. at 251.
Id. at 262.
[21] We recognize that our Supreme Court previously held that an estoppel claim in
the ITCA-notice context must be resolved by the trial court before trial. Powell,
393 N.E.2d at 192; see also Allen, 496 N.E.2d at 417 (relying on Powell in
reversing summary judgment on plaintiff’s estoppel claim and remanding for
determination by “trial judge as trier of fact”). However, we see no basis on
which to treat Nolan’s estoppel claim any differently than the Supreme Court
treated the fraudulent-concealment/estoppel claim made by the plaintiffs in
Lyons.4
[22] Affirmed in part, reversed in part, and remanded for further proceedings.
Barnes, J., and Mathias, J., concur.
4
At times, the Town seems to contend that Nolan’s estoppel claim should fail even if all evidence in her
favor is believed and that reserving the issue for trial would therefore be unnecessary. However, we have
already determined that a finding of estoppel would be reasonable under the evidence designated by Nolan.
Again, even where the facts are undisputed, summary judgment is inappropriate where undisputed facts lead
to conflicting material inferences. Butler, 668 N.E.2d at 1228.
Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016 Page 14 of 14