Town of Knightstown v. Dudley Wainscott

FILED
Feb 16 2017, 5:43 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
James S. Stephenson Frederick D. Emhardt
Joseph M. Hendel Josh S. Tatum
Stephenson Morow & Semler Colin E. Conner
Indianapolis, Indiana Plews Shadley Racher &
Braun, LLP
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Town of Knightstown, February 16, 2017
Appellant-Defendant, Court of Appeals Case No.
33A04-1604-PL-771
v. Appeal from the Henry Circuit
Court
Dudley Wainscott, The Honorable Mary G. Willis,
Appellee-Plaintiff. Judge
The Honorable Jack A. Tandy,
Judge Pro Tempore
Trial Court Cause No.
33C01-1502-PL-10

Barnes, Judge.

Case Summary
[1] In this interlocutory appeal, the Town of Knightstown (“Town”) appeals the

trial court’s partial denial of its motion for summary judgment regarding a

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 claim by Dudley Wainscott (“Wainscott”). On cross-appeal, Wainscott appeals

the trial court’s partial grant of the Town’s motion for summary judgment. We

affirm in part, reverse in part, and remand.

Issues
[2] The parties present several issues for our review, which we restate as:

I. whether the trial court properly found that
Wainscott failed to file a timely tort claim
notice;

II. whether the trial court properly granted
summary judgment on Wainscott’s negligence
and equity claims and denied summary
judgment on Wainscott’s nuisance claim; and

III. whether the trial court properly denied
summary judgment on Wainscott’s breach of
contract claim.

Facts
[3] Wainscott owns a historic building called the “Old Lodge” in Knightstown. A

building called the “Bullet Hole” was adjacent to the Old Lodge, and the

buildings shared a wall. In February 2013, the Town contracted with Shroyer

Brothers, Inc. (“Shroyer”) to demolish the Bullet Hole, and Shroyer began

demolition on April 1, 2013. According to Wainscott, the demolition left “161

holes above ground and 240 holes below ground in the shared, load-bearing

wall . . . .” Appellant’s App. Vol. II p. 120. Wainscott also alleges that an

unknown amount of vacuum tubes that were not removed from the building

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 were crushed during demolition, “potentially causing mercury to leak into the

soil and groundwater.” Id. at 119.

[4] On April 14, 2013, Wainscott sent the following letter to the Town:

I write to you as a concerned citizen of Knightstown, as well as a
property owner directly impacted by the destruction of the Bullet
Hole Building at 32 Main St. Despite the fact that I have
repeatedly requested to be kept informed, destruction of the
building began without my knowledge, and without notification
to the citizens of Knightstown. The building at 32 Main Street
was destroyed in an unsafe manner leaving the community
exposed to construction debris and hazardous waste such as lead,
mercury, mold, and lead based paint. The long term impact of
this exposure to the children of Knightstown remains to be seen.
The fact that no one was injured during the destruction is,
indeed, fortunate for the city. A structural engineer MUST be
consulted for the remainder of the project to ensure the safety of
the citizens of Knightstown.

I am the owner of the Old Lodge Building at 34-38 Main Street.
My west wall was shared with the Bullet Hole building. This is a
load bearing wall critical to the structural integrity of my building
and the doctor’s building to the rear. Without proper repair that
entire corner of downtown Knightstown is likely to crumble
leaving the citizens of Knightstown with an even more dangerous
situation. The wall is now exposed to the elements with holes in
the 8’ x 80’ basement wall, major cracks in the 50’ x 80’ side wall
and an exposed roof area shared with the doctor’s office.

At a minimum:

1. All hazardous waste must be removed.

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 2. Holes in the basement wall need to be repaired, bricked and
tucked. My basement is currently exposed to hazardous waste
which remains at the construction site.

3. Cracks in the main wall need to be repaired, all plaster needs
to be removed, and the wall needs to be resealed to ensure that it
is water tight. I repeat this is a LOAD BEARING wall. Without
proper repairs, supervised by a structural engineer, that entire
corner of Knightstown is in danger of crumbling.

4. The roof towards the rear of the building which is shared with
the doctor’s office needs to be recapped to prevent water damage
to the load bearing wall.

What is the city’s plan for the open space? If it is to be a parking
lot, then all necessary precautions must be taken to protect the
west wall of 34-38 Main St. A two foot steal [sic] reinforced
concrete barrier should be erected the length of the wall to protect
the wall from damage due to compacting, and, to keep a driver
from hitting the wall with a car.

Because my previous attempts to work with the City of
Knightstown and to be kept informed were essentially ignored, I
request your signature to acknowledge receipt of this letter. You
are welcome to contact me at any time by phone, ***-***-****,
or by email at *****.

Regards,

D.A. Wainscott

Id. at 24-25.

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[5] Wainscott then attended the April 18, 2013 meeting of the Town Council. The

minutes of the meeting indicate that Clyde South, the Town Council president,

stated: “the town intends to obey the law and if IDEM requires anything of the

town, the town will comply. . . . [H]e also told Mr. Wainscott that if the town

did anything to cause damage to his building, that we would fix the problem.”

Id. at 27. The Town hired an engineer to make recommendations. According

to Wainscott, the Town “failed to follow any of its engineer’s recommendations

to repair the problems caused by its demolition.” Id. at 120. Because the

“shared wall was not designed to be exposed to the elements,” water has leaked

through the wall, leading to standing water and extensive mold in Wainscott’s

building. Id.

[6] In December 2014, Wainscott’s counsel sent a letter to the Town Council

noting that Wainscott’s building was, and continued to be, damaged by the

demolition and that he would be forced to bring litigation against the Town if it

did not stop further damage to the building, repair the damage already done,

and compensate Wainscott for his losses.

[7] In February 2015, Wainscott filed a complaint against the Town and Shroyer

and alleged the following counts: Count I, an equitable claim against the Town;

Count II, a breach of contract claim against the Town; Count III, a nuisance

claim against the Town and Shroyer; Count IV, a negligence claim against the

Town and Shroyer; and Count V, a violation of Indiana’s Access to Public

Records law against the Town. The Town filed a motion for summary

judgment. The Town argued that it was entitled to summary judgment on

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 Counts I, III, and IV because Wainscott had failed to file a timely tort claims

notice under the Indiana Tort Claims Act (“ITCA”). It also argued that it was

entitled to summary judgment on Count II because Wainscott could not show

the existence of a binding contract. As for Count V, the Town alleged that the

claim was moot because Wainscott’s public records requests had been satisfied.

Wainscott responded that his April 2013 letter qualified as a proper tort claims

notice. Alternatively, Wainscott argued that his equitable, nuisance, and

breach of contract claims were not subject to the ITCA.

[8] After a hearing, the trial court entered an order granting in part and denying in

part the Town’s motion for summary judgment. The trial court found:

[T]he only notice Wainscott gave to [the Town] is the letter of
April 14, 2013. If the letter does not comply with the
requirements of the ITCA, Wainscott is barred from bringing suit
against [the Town] for all causes of action covered by the ITCA.
In the letter, Wainscott addresses the Knightstown City Council
and complains about how the demolition of the Bullet Hole
Building has impacted his building, and also poses a danger in
general to the residents of [the Town]. It refers to the
circumstances of the demolition with sufficient clarity as to
location and date as to alert the town to the events of which
Wainscott complains. The letter states the town’s actions may
pose a threat to the general population and refers to potential
long term danger to the children of Knightstown. However, the
letter is missing a crucial element required by the ITCA.

The Court finds the fatal flaw with Wainscott’s letter is that it
does not state that Wainscott intends to bring legal action against
[the Town]. Case law has held this to be a requirement. See
Collier v. Prater, 544 N.E.2d 497 (Ind. 1989), Bienz v. Bloom, 674

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 N.E.2d 998 (Ind. Ct. App. 1996), [trans. denied,] and the very
recent case of Kerr v. City of South Bend, [48 N.E.3d 348 (Ind. Ct.
App. 2015),] decided by the Indiana Court of Appeals on
December 23, 2015.

Actual knowledge or action taken to cure a problem has been
held not to obviate the requirement that an aggrieved party notify
a governmental entity of its intent to pursue a legal claim. In the
case at bar, [the Town] did respond to Wainscott’s concerns by
hiring an engineering firm. Kerr held that actual knowledge of
the event and investigation steps do not relieve an aggrieved
party of the ITCA requirement to state an intent to pursue legal
action.

Appellant’s App. Vol. II pp. 9-10. The trial court noted that the ITCA clearly

applied to Count IV, the negligence claim, and clearly did not apply to Count

II, the breach of contract claim. As for Count I, the equitable duty claim, the

trial court found that it was “in essence a negligence claim,” and was subject to

the ITCA. Id. at 10. As for Count III, the nuisance claim, the trial court found

“that there is not a clear answer in the law as to whether a nuisance action . . .

is governed by the ITCA requirements” and found that the nuisance claim was

“not a tort for purposes of the ITCA.” Id. at 11. Finally, with respect to Count

IV, the breach of contract claim, the trial court found that “there are questions

of fact as to whether South did have authority to bind the town by his

comments,” that the town council did not oppose South’s statements, and that

“disputed legal inferences” could be drawn from South’s statements such that

summary judgment for the Town on the breach of contract claim was

inappropriate. Id. at 12. The trial court also noted that Wainscott

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 acknowledged the Town did not violate the Open Records Law as alleged in

Count V and that the Town was entitled to summary judgment regarding Count

V.1 Ultimately, the trial court granted summary judgment to the Town on

Count I (equity), Count IV (negligence), Count V (Open Records) but denied

the Town’s motion for summary judgment regarding Count II (nuisance) and

Count III (breach of contract). At the Town’s request, the trial court certified

the order for interlocutory appeal, and we accepted the interlocutory appeal

pursuant to Indiana Appellate Rule 14.

Analysis
[9] The parties’ arguments concern the trial court’s partial grant and partial denial

of the Town’s motion for summary judgment. Summary judgment is

appropriate only when the moving party shows there are no genuine issues of

material fact for trial and the moving party is entitled to judgment as a matter of

law. Schoettmer v. Wright, 992 N.E.2d 702, 705 (Ind. 2013); see also Ind. Trial

Rule 56(C). Once that showing is made, the burden shifts to the non-moving

party to rebut. Schoettmer, 992 N.E.2d at 705-06. When ruling on the motion,

the trial court construes all evidence and resolves all doubts in favor of the non-

moving party. Id. at 706. We review the trial court’s grant of summary

1
In one location, the trial court’s order states that “Wainscott was entitled to summary judgment on Count
5.” Appellant’s App. Vol. II p. 13. However, this is clearly a typographical error. The order states that
“Wainscott acknowledges that Knightstown did not violate the Open Records Law as alleged in Count 5”
and later grants summary judgment in the Town’s favor regarding Count V. Id.

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 judgment de novo, and we take “care to ensure that no party is denied his day

in court.” Id.

I. Tort Claims Notice

[10] The first issue is whether the trial court properly found that Wainscott failed to

file a timely tort claim notice. The ITCA provides that a tort claim against a

government entity is barred unless the claimant provides the entity with notice

of the claim within 180 days of the loss.2 Ind. Code § 34-13-3-8; I.C. § 34-13-3-

1. The notice “must describe in a short and plain statement the facts on which

the claim is based,” including “the circumstances which brought about the loss,

the extent of the loss, the time and place the loss occurred, the names of all

persons involved if known, the amount of the damages sought, and the

residence of the person making the claim at the time of the loss and at the time

of filing the notice.” I.C. § 34-13-3-10. The notice must be in writing and

delivered in person or by registered or certified mail. I.C. § 34-13-3-12.

2
Indiana Code Section 34-13-3-8(a) also requires the notice to be filed with the Indiana political subdivision
risk management commission. Indiana Code Section 34-13-3-8(b) notes:
A claim against a political subdivision is not barred for failure to file
notice with the Indiana political subdivision risk management
commission created under IC 27-1-29-5 if the political subdivision was
not a member of the political subdivision risk management fund
established under IC 27-1-29-10 at the time the act or omission took
place.
The Town made no argument concerning this provision in its motion for summary judgment or on appeal.
Consequently, we do not address this requirement.

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[11] Our courts have held that a liberal application of the requirements of the ITCA

notice statute is proper in order to avoid denying plaintiffs an opportunity to

bring a claim where the purpose of the statute has been satisfied. Brown v.

Alexander, 876 N.E.2d 376, 381 (Ind. Ct. App. 2007), trans. denied. The notice

requirement “is intended to ensure that government entities have the

opportunity to investigate the incident giving rise to the claim and prepare a

defense.” Schoettmer, 992 N.E.2d at 706 (citing Galbreath v. City of Indianapolis,

253 Ind. 472, 477, 255 N.E.2d 225, 228 (1970)). “Like any statute in

derogation of the common law, the ITCA ‘must be strictly construed against

limitations on the claimant’s right to bring suit.’” Id. (quoting City of

Indianapolis v. Buschman, 988 N.E.2d 791, 794 (Ind. 2013)). So long as its

essential purpose has been satisfied, the notice requirement “should not

function as ‘a trap for the unwary.’” Id. (quoting Galbreath, 253 Ind. at 480, 255

N.E.2d at 229). “The question of compliance is not a question of fact for the

jury but ultimately a legal determination to be made by the court.” Indiana State

Highway Comm’n v. Morris, 528 N.E.2d 468, 471 (Ind. 1988).

[12] “Our courts have found that not all technical violations of this statute are fatal

to a claim.” Brown, 876 N.E.2d at 381. “Non-compliance has been excused in

certain cases based on the theories of substantial compliance, waiver, and

estoppel.” Id. Substantial compliance is at issue here.3 “In general, a notice

3
The parties do not argue waiver or estoppel.

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 that is filed within the 180 day period, informs the municipality of the

claimant’s intent to make a claim and contains sufficient information which

reasonably affords the municipality an opportunity to promptly investigate the

claim satisfies the purpose of the statute and will be held to substantially comply

with it.” Collier v. Prater, 544 N.E.2d 497, 499 (Ind. 1989). “However, where a

plaintiff, within the 180 day period, fails to file any notice of an intent to make a

claim, actual knowledge of the occurrence on the part of the city, even when

coupled with an investigation of the occurrence, will not suffice to prove

substantial compliance.” Id.

[13] “Substantial compliance with the statutory notice requirements is sufficient

when the purpose of the notice requirement is satisfied.” Schoettmer, 992

N.E.2d at 707. “The purpose of the ITCA’s notice requirements is to provide

the political subdivision the opportunity to investigate the facts surrounding an

accident so that it may determine its liability and prepare a defense.” Porter v.

Fort Wayne Cmty. Sch., 743 N.E.2d 341, 344 (Ind. Ct. App. 2001), trans. denied.

“When deciding whether there has been substantial compliance, this court

reviews whether the notice given was, in fact, sufficiently definite as to time,

place, and nature of the injury.” Id. “‘What constitutes substantial compliance,

while not a question of fact but one of law, is a fact-sensitive determination.’”

Schoettmer, 992 N.E.2d 707 (quoting Collier, 544 N.E.2d at 499).

[14] The trial court found that Wainscott’s April 14, 2013 letter did not comply with

the ITCA because it did not state that Wainscott intended to bring legal action

against the Town. There is no argument regarding the fact that the letter was

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 sent within 180 days of the loss, the letter described the facts on which the claim

is based, the circumstances which brought about the loss, the extent of the loss,

the time and place the loss occurred, the names of all persons involved if

known, the amount of the damages sought, and the residence of the person

making the claim at the time of the loss and at the time of filing the notice, and

that it was either hand delivered or sent by registered or certified mail.4 The

sole issue on appeal is whether the letter included Wainscott’s intent to assert a

claim.

[15] In support of its argument, the Town cites several cases in support of its

assertion that the notice must specifically inform the political subdivision of the

injured party’s intent to assert a tort claim. However, we addressed a similar

issue in Porter v. Fort Wayne Cmty. Sch., 743 N.E.2d 341 (Ind. Ct. App. 2001),

trans. denied, which we find persuasive here. In Porter, the plaintiff was injured

when his vehicle collided with a school bus. A couple weeks after the accident,

his attorney sent the following letter to school officials:

Re: My Client: Thomas Porter

Your Insured: Fort Wayne Community Schools

4
In its motion for summary judgment, the Town challenged whether the letter contained some of these
items. On appeal, however, the Town makes no argument concerning them except to very briefly claim in its
reply brief that the letter failed to include the amount of damages sought. To the extent that the Town’s
argument is cogent, we note that the failure to include a dollar amount of damages does not render a notice
insufficient. Scott v. Gatson, 492 N.E.2d 337, 341 (Ind. Ct. App. 1986). The letter detailed the specific
damages resulting from the demolition and requested specific relief. We conclude that the letter substantially
complied with the requirement to include the amount of damages sought.

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 Date of Accident: September 29, 1997

Dear Ms. Mihavics[:]

Please be advised that I represent the interests of Thomas Porter
as it relates to a collision which occurred on September 29, 1997,
on Cook Road in Allen County. Fort Wayne Community School
bus number 352, driven by Elizabeth Wesner, was exiting
Northrup High School’s parking lot and struck Mr. Porter’s
vehicle in the right front corner, causing significant damage to his
truck as well as physical injuries to himself. From our initial
investigation, it appears as though Fort Wayne Community
Schools was the direct and proximate cause of the accident and,
therefore, this letter is to inform you of our representation of Mr.
Porter. It would be appreciated if you would communicate
directly with me regarding this matter.

We will forward all information to support his claim upon receipt
of the same.

Porter, 743 N.E.2d at 343. The plaintiff eventually filed a complaint against the

school corporation, and the school corporation filed a motion for summary

judgment arguing that the plaintiff had failed to comply with the notice

requirements of the ITCA. The trial court granted summary judgment to the

school corporation, and on appeal, we reversed.

[16] The plaintiff argued that his notice substantially complied with the ITCA, and

the school corporation argued that the notice “did not contain an affirmative

statement of intent to pursue a tort claim and did not otherwise satisfy the

purpose of the notice requirements under the ITCA.” Id. at 344. We held:

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 [The attorney’s] letter was timely filed and included specific
details regarding the collision. And although [the attorney] did
not expressly state that [plaintiff] intended to file a claim against
Fort Wayne and Wesner, [the attorney] stated his representation
of [plaintiff’s] “interests” and that additional information would
be forwarded “to support his claim[.]” Record at 71. We
conclude that [the attorney’s] letter adequately informed Fort
Wayne of [plaintiff’s] intent to make a claim and provided
sufficient information about the collision to facilitate Fort
Wayne’s investigation.

Indeed, the record shows that Fort Wayne considered [plaintiff’s]
letter to be notice of a tort claim. Fort Wayne’s insurance
company assigned a “claim number” to [plaintiff’s] claim and
maintained a file “reflective of [plaintiff’s] condition.” Record at
77. The insurance adjuster had “a general idea of [plaintiff’s]
injuries and initial treatment,” sought to update her file, and
made reference to settling his claim. Record at 77. Fort Wayne’s
conduct, then, was inconsistent with its position that [the
attorney’s] October 16, 1997 letter did not satisfy the purpose of
the ITCA notice requirements. We conclude that [the attorney’s]
letter was sufficiently definite as to time, place, and nature of
[plaintiff’s] injuries and, thus, substantially complied with the
notice requirements of the ITCA. The trial court erred when it
granted Fort Wayne and Wesner’s motion for summary
judgment.

Id. at 344-45.

[17] Similarly, here, Wainscott’s April 2013 letter made the Town aware that its

demolition of the adjacent building had significantly damaged his property and

specifically demanded repairs that the Town needed to perform. The matter

was also discussed at the Town Council meeting, where the Town Council

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 president stated that “if the town did anything to cause damage to his building,

that we would fix the problem.” Appellant’s App. p. 27. In response, the

Town hired an engineer to evaluate the issues. The letter gave the Town an

opportunity to promptly investigate the issues, determine its liability, and

prepare a defense. Although the letter did not specifically state that it was a tort

claims notice or state that Wainscott would be filing legal action, it clearly

stated that the Town had damaged Wainscott’s property and set out the items

that the Town needed to correct. We conclude that, as in Porter, Wainscott

substantially complied with the ITCA because the April 2013 letter adequately

informed the Town of Wainscott’s intent to make a claim. As a result, the trial

court erred when it concluded that the April 2013 letter did not substantially

comply with the ITCA.

II. Negligence, Equity, and Nuisance Claims

[18] The Town challenges the trial court’s failure to grant summary judgment in its

favor on the nuisance claim, and Wainscott challenges the trial court’s grant of

summary judgment to the Town on the equity and negligence claims. The trial

court granted summary judgment to the Town on Wainscott’s negligence and

equity claims because it found Wainscott failed to comply with the notice

requirements of the ITCA. We have concluded that Wainscott’s April 2013

letter substantially complied with the ITCA requirements. Consequently, the

trial court erred by granting summary judgment on the negligence and equity

claims.

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[19] As for the nuisance claim, the trial court concluded that the claim was not

subject to the ITCA, and on appeal, the Town challenges this determination

and argues that the claim is subject to the ITCA and to summary judgment

because Wainscott failed to file a timely notice. We need not address whether

the nuisance claim is subject to the ITCA. Even if the nuisance claim is subject

to the ITCA, our holding that Wainscott substantially complied with the notice

requirements means that the claim is not subject to summary judgment on this

basis.

III. Breach of Contract

[20] The Town argues that the trial court erred by denying its motion for summary

judgment on Wainscott’s breach of contract claim. Wainscott’s breach of

contract claim is based on the Town Council president’s statements to

Wainscott at the April 2013 Town Council meeting. The minutes of the

meeting indicate that the president stated: “the town intends to obey the law

and if IDEM requires anything of the town, the town will comply. . . . [H]e also

told Mr. Wainscott that if the town did anything to cause damage to his

building, that we would fix the problem.” Appellant’s App. Vol. II p. 27.

[21] In his complaint, Wainscott alleged that the Town had agreed to repair the

common wall, that the Town was in breach of its oral contract by failing to

repair the wall, and that Wainscott had suffered damages as a result of the

breach. The Town sought summary judgment on the claim, and the trial court

found that “there are questions of fact as to whether South did have authority to

bind the town by his comments,” that the town council did not oppose South’s
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 statements, and that “disputed legal inferences” could be drawn from South’s

statements such that summary judgment for the Town on the breach of contract

claim was inappropriate. Id. at 12.

[22] On appeal, the Town argues that there was no evidence of an offer, evidence

that Wainscott accepted the offer, evidence of a meeting of the minds, or

evidence of consideration.5 The existence of a contract is a question of law.

Morris v. Crain, 969 N.E.2d 119, 123 (Ind. Ct. App. 2012). “The basic

requirements are offer, acceptance, consideration, and ‘a meeting of the minds

of the contracting parties.’” Id. (quoting Batchelor v. Batchelor, 853 N.E.2d 162,

165 (Ind. Ct. App. 2006)). “For an oral contract to exist, parties have to agree

to all terms of the contract.” Kelly v. Levandoski, 825 N.E.2d 850, 857 (Ind. Ct.

App. 2005), trans. denied. To be valid and enforceable, a contract must be

reasonably definite and certain. Allen v. Clarian Health Partners, Inc., 980 N.E.2d

306, 309 (Ind. 2012).

[23] The only evidence of an alleged contract is South’s statement, which is

memorialized in the minutes of the town council meeting, that “if the town did

anything to cause damage to his building, that we would fix the problem.”

Appellant’s App. Vol. II p. 27. This vague statement simply cannot establish

the necessary elements of a contract. There is no indication that Wainscott

5
The Town also argues that South did not have the authority to “unilaterally bind” the Town to a contract
with Wainscott. Appellant’s Br. p. 25. Because we conclude that no contract was formed, we need not
address this argument.

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 accepted the alleged offer, no evidence of a meeting of the minds of the terms of

the contract, and no evidence of consideration. As a result, we conclude that

the trial court erred when it denied the Town’s motion for summary judgment

on Wainscott’s breach of contract claim.

Conclusion
[24] Wainscott substantially complied with the ITCA notice requirements, and the

trial court erred when it granted the Town’s motion for summary judgment on

his negligence and equity claims. The trial court properly denied summary

judgment on Wainscott’s nuisance claim, but it erred when it denied summary

judgment on Wainscott’s breach of contract claim. We affirm in part, reverse

in part, and remand for proceedings consistent with this opinion.

[25] Affirmed in part, reversed in part, and remanded.

[26] Riley, J., and Bailey, J., concur.

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