MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Nov 08 2017, 8:47 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Michael P. Quirk Anthony B. Ratliff
Muncie, Indiana Doninger Tuohy & Bailey, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Autumn Lewis and Stephen November 8, 2017
Lewis, Court of Appeals Case No.
Appellants-Plaintiffs, 18A04-1704-CT-702
Appeal from the Delaware Circuit
v. Court
The Honorable Marianne L.
Board of Trustees of the Flavius Vorhees, Judge
J. Witham Memorial Hospital Trial Court Cause No.
d/b/a Willowbend Living 18C01-1502-CT-9
Center,
Appellee-Defendant.
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A04-1704-CT-702 | November 8, 2017 Page 1 of 9
STATEMENT OF THE CASE
[1] Appellants-Plaintiffs, Autumn Lewis (Autumn) and Stephen Lewis
(Collectively, Lewis), appeal the trial court’s summary judgment in favor of
Defendant-Appellee, Board of Trustees of the Flavius J. Witham Memorial
Hospital d/b/a Willowbend Living Center (Witham), on Lewis’ Complaint for
damages.
[2] We affirm.
ISSUES
[3] Lewis presents us with two issues on appeal, which we restate as follows:
(1) Whether Witham’s motion for summary judgment was timely filed; and
(2) Whether the trial court properly granted summary judgment to Witham
because Lewis failed to give a tort claim notice pursuant to the Indiana
Torts Claim Act (ITCA).
FACTS AND PROCEDURAL HISTORY
[4] On February 1, 2013, Autumn slipped and fell on an icy parking lot owned and
controlled by Witham. On February 2, 2015, Lewis filed a Complaint for
damages, alleging Autumn had suffered injuries from her slip and fall. On
March 6, 2015, Witham filed its Answer to the Complaint, in which it raised an
affirmative defense, claiming “Plaintiffs failed to timely provide a tort claim
notice to Witham as required by law; such notice presents a condition
Court of Appeals of Indiana | Memorandum Decision 18A04-1704-CT-702 | November 8, 2017 Page 2 of 9
precedent to filing and prosecuting this action.” (Appellant’s App. Vol. II, p.
12).
[5] On May 1, 2015, the trial court set a trial date of March 29, 2016, and issued
pre-trial deadlines with a dispositive motion deadline on or before December 1,
2015. On February 22, 2016, the trial court vacated the pre-trial and trial dates.
The trial court did not set a new trial date, neither did the trial court issue new
pre-trial deadlines. On September 29, 2016, Witham filed its motion for
summary judgment, a memorandum in support of the motion, and designation
of evidence relied upon. Lewis did not file a response nor designate any
evidence. Following a hearing on October 3, 2016, the trial court granted
summary judgment to Witham, concluding, in pertinent part:
1. As to timeliness: The [c]ourt had previously set a dispositive
motions deadline as December 1, 2015, based on a March 29,
2016, trial date. The parties later vacated the trial date. The
[c]ourt did not establish a new dispositive motion deadline.
The case at this time is not set for jury trial. Therefore, no
prejudice resulted from the Motion’s timing. [Lewis] will not
“lose” their trial date due to the filing. The Motion should be
addressed on its merits.
2. As to notice: [Witham] stated in its Answer, filed on March
6, 2016, in Affirmative Defense No.4, that [Lewis] has failed
to comply with the Tort Claims Act’s Notice requirements.
Therefore, [Lewis] have had ample notice that [Witham]
would claim this defense.
3. As to the Motion: [Witham] presented evidence to show it
was established as a county hospital; it has operated as a
Court of Appeals of Indiana | Memorandum Decision 18A04-1704-CT-702 | November 8, 2017 Page 3 of 9
county hospital; and it operated the facility at question in this
case, Willowbend Living Center. [Witham] has
demonstrated as a matter of law that it is subject to the Tort
Claims Act, and [Lewis] who want to sue Willowbend must
give notice pursuant to the Indiana Tort Claims Act.
4. As a matter of law, unless [Lewis] present evidence to create a
fact issue or present law to establish [Witham] is wrong, the
[c]ourt must grant the summary judgment motion.
5. In Schoettmer v. Wright, 992 N.E.2d 702 (Ind. 2013). The
Indiana Supreme Court held the plaintiff had created an issue
of fact concerning estoppel, i.e., whether the defendant’s
insurance agent had made representations and had acted in
such a way that defendant was estopped from asserting lack of
a Tort Claim Act Notice. The difference between this case
and Schoettmer is that in Schoettmer, plaintiffs presented
evidence by an affidavit and otherwise indicating what
conduct had occurred, constituting estoppel. Here we have
no designated evidence at all to establish a basis for estoppel
or any other defense to the failure to give notice.
(Appellant’s App. Vol. VII, pp. 6-7). On February 6, 2017, Lewis filed a
motion to reconsider/motion to correct error, which was denied by the trial
court.
[6] Lewis now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Timely Motion for Summary Judgment
Court of Appeals of Indiana | Memorandum Decision 18A04-1704-CT-702 | November 8, 2017 Page 4 of 9
[7] Lewis first contends that Witham’s motion for summary judgment was filed
after the deadline for dispositive motions, as set by the trial court, had expired.
Accordingly, Lewis maintains that the trial court should not have considered
Witham’s motion.
[8] By mutual consent of the parties and based on a trial date of March 29, 2016,
the trial court’s pretrial conference order established the dispositive motions
deadline “on or before December 1, 2015.” (Appellant’s App. Vol. II, p. 18).
The parties later vacated the trial date and the trial court failed to set a new
dispositive motion deadline. Witham filed its motion for summary judgment
on September 29, 2016. Accordingly, mindful that the trial court had vacated
the trial date and not established new deadlines, and that Indiana Trial Rule
56(B) provides that Witham “may, at any time, move . . . for a summary
judgment” in its favor, we conclude that the trial court properly addressed
Witham’s motion on its merits.
II. Motion for Summary Judgment
[9] Next, Lewis contends that the trial court erred by entering summary judgment
in favor of Witham because Lewis had failed to comply with ITCA’s notice
requirements. Summary judgment is appropriate only when there are no
genuine issues of material fact and the moving party is entitled to a judgment as
a matter of law. Ind. Trial Rule 56(C). “A fact is material if its resolution
would affect the outcome of the case, and an issue is genuine if a trier of fact is
required to resolve the parties’ differing accounts of the truth . . . , or if the
Court of Appeals of Indiana | Memorandum Decision 18A04-1704-CT-702 | November 8, 2017 Page 5 of 9
undisputed facts support conflicting reasonable inferences.” Williams v. Tharp,
914 N.E.2d 756, 761 (Ind. 2009).
[10] In reviewing a trial court’s ruling on summary judgment, this court stands in the
shoes of the trial court, applying the same standards in deciding whether to
affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,
891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we
must determine whether there is a genuine issue of material fact and whether
the trial court has correctly applied the law. Id. at 607-08. In doing so, we
consider all of the designated evidence in the light most favorable to the non-
moving party. Id. at 608. The party appealing the grant of summary judgment
has the burden of persuading this court that the trial court’s ruling was
improper. Id. When the defendant is the moving party, the defendant must
show that the undisputed facts negate at least one element of the plaintiff’s
cause of action or that the defendant has a factually unchallenged affirmative
defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary
judgment must be reversed if the record discloses an incorrect application of the
law to the facts. Id.
[11] We observe that, in the present case, the trial court entered findings of fact and
conclusions of law in support of its judgment. Special findings are not required
in summary judgment proceedings and are not binding on appeal.
AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.
App. 2004). However, such findings offer this court valuable insight into the
trial court’s rationale for its review and facilitate appellate review. Id.
Court of Appeals of Indiana | Memorandum Decision 18A04-1704-CT-702 | November 8, 2017 Page 6 of 9
[12] The ITCA, in Ind. Code § 34-13-3-8, provides that
a claim against a political subdivision is barred unless notice is
filed with:
(1) the governing body of that political subdivision; . . . .
within one hundred eighty (180) days after the loss occurs.
A political subdivision for purposes of ITCA is defined as a “city or county
hospital.” I.C. § 34-6-2-110(8). In the Complaint, Lewis alleged that the
injuries resulted from a slip and fall on a parking lot owned and controlled by
Witham on February 1, 2013. Approximately two years later, on February 2,
2015, Lewis filed its Complaint against Witham. In its Answer to Lewis’
Complaint, Witham raised the affirmative defense that it had not received a tort
claim notice, thereby alerting Lewis that it was subject to the provisions of the
ITCA. Accordingly, as Lewis filed its Complaint well outside the required one
hundred eighty days after the occurrence of the injury, the trial court properly
granted summary judgment to Witham.
[13] Assuming arguendo that Lewis timely filed its Complaint within the one hundred
eighty day period, we still would affirm the trial court’s summary judgment.
Referencing Schoettmer v. Wright, 992 N.E.2d 702 (Ind. 2013), Lewis claims that
they did not know that Witham was subject to the ITCA’s notice requirements
because “no mention of the facility being owned by a governmental entity was
found.” (Appellant’s Br. p. 10). In Schoettmer, the plaintiffs similarly argued
that “equitable estoppel should apply to bar South Central from raising its
Court of Appeals of Indiana | Memorandum Decision 18A04-1704-CT-702 | November 8, 2017 Page 7 of 9
ITCA notice defense because the Schoettmers were unaware South Central was
a government entity covered by the ITCA. Id. at 709. Our supreme court held
that “[t]he party claiming equitable estoppel 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 his position prejudicially.” Id. Based on
conversations with South Central’s insurance carrier prior to the filing of the
complaint and Schoettmer’s reliance on these representations and conduct
based thereon, the court found that a genuine issue of material fact remained as
to whether equitable estoppel applied. Id.
[14] Here, Witham designated its Answer, with its affirmative defense, as evidence
that an ITCA notice is a precondition to the filing of a lawsuit, as well as the
Public Order establishing Witham as a county hospital, the Secretary of State’s
filing reflecting Witham’s assumed business name, and an affidavit of the Chief
Executive Officer of Witham affirming its operation as a county hospital.
Lewis did not designate any evidence in response. In other words, the record
lacks evidence establishing that Lewis relied upon Witham’s conduct or
representations that could have been interpreted by Lewis that no ITCA notice
was required, let alone any evidence of Lewis’ action in reliance thereon. In
fact, there is no designated evidence indicating that Witham, or any of its
representatives, was even contacted before the filing of the Complaint.
Accordingly, there is no genuine issue of material fact and the trial court
properly entered summary judgment for Witham.
Court of Appeals of Indiana | Memorandum Decision 18A04-1704-CT-702 | November 8, 2017 Page 8 of 9
CONCLUSION
[15] Based on the foregoing, we conclude that Witham timely filed its motion for
summary judgment; and the trial court properly granted summary judgment to
Witham because Lewis failed to give a tort claim notice pursuant to the Indiana
Tort Claim Act.
[16] Robb, J. and Pyle, J. concur
Court of Appeals of Indiana | Memorandum Decision 18A04-1704-CT-702 | November 8, 2017 Page 9 of 9