MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Feb 28 2019, 10:56 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEY FOR APPELLEE
Thomas De Cola Janette E. Surrisi
North Judson, Indiana Wyland Humphrey Clevenger &
Surrisi, LLP
Plymouth, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thomas De Cola, February 28, 2019
Appellant-Plaintiff, Court of Appeals Case No.
18A-CT-2239
v. Appeal from the Pulaski Circuit
Court
Starke County Commissioners, The Honorable Michael Shurn,
Appellee-Defendant. Judge
Trial Court Cause No.
66C01-1801-CT-3
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-2239 | February 28, 2019 Page 1 of 11
STATEMENT OF THE CASE
[1] Appellant-Plaintiff, Thomas De Cola (De Cola), appeals the trial court’s grant
of summary judgment in favor of Appellees-Defendants, Starke County
Commissioners (the Commissioners).
[2] We affirm.
ISSUE
[3] De Cola presents six issues on appeal, which we consolidate and restate as the
following: Whether the trial court properly granted summary judgment in favor
of the Commissioners where De Cola did not comply with the Indiana Tort
Claims Act (ITCA).
FACTS AND PROCEDURAL HISTORY
[4] The undisputed facts in the record show that De Cola owns land adjacent to
former parcel #75-04-36-500-003.000-011, which is a former railroad right-of-
way (the parcel). The instant appeal stems from a tax sale that took place in
Starke County on February 27, 2014, at which De Cola bid on the tax sale
certificate for the parcel (the Certificate). Starke County Auditor Katherine
Chaffins (Auditor Chaffins) and a person who provided the name Herb Kuehn
(Kuehn) also bid on the Certificate. Kuehn placed the highest bid, and De Cola
placed the second-highest bid. Kuehn did not pay his winning bid for the
Certificate, and the Certificate was not offered again for sale by the Auditor’s
office.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-2239 | February 28, 2019 Page 2 of 11
[5] On April 10, 2014, Deputy Auditor Suzanne McCarty (Deputy Auditor
McCarty) sent De Cola and others who owned land adjacent to the parcel a
letter in which she stated that several property owners had provided
documentation from the late 1800s showing that the railroad’s right-of-way was
extinguished when it ceased being used for that purpose. As a result, Deputy
Auditor McCarty informed De Cola and the other land owners that “the
railroad property running through your property in Railroad Township has now
been transferred into the name shown above & all prior taxes have been
removed.” (Appellant’s App. Vol. III, p. 25). Deputy Auditor McCarty offered
to allow De Cola and the other land owners to combine their tax statements for
the railroad property with their existing tax statements. De Cola took
advantage of this offer by submitting the appropriate paperwork to combine the
tax statements for his property.
[6] On October 31, 2017, De Cola filed his Complaint against the Commissioners
in which he made allegations of constructive fraud. De Cola amended his
Complaint once and sought leave to amend his Complaint a second time. On
April 4, 2018, De Cola filed the final version of his Complaint in which he
alleged that as part of a conspiracy originating in the Starke County Auditor’s
Office, someone impersonating Auditor Chaffins and someone impersonating
Kuehn had conspired to “maliciously bid against [De Cola] for the Certificate
to intentionally deny [De Cola] from purchasing the Certificate.” (Appellant’s
App. Vol. III, p. 65). De Cola also alleged that
Court of Appeals of Indiana | Memorandum Decision 18A-CT-2239 | February 28, 2019 Page 3 of 11
[a]fter the sale in the Auditor’s Office, the impersonator of
[Kuehn] conspired with the impersonator of Auditor Chaffins
and Deputy Auditor [McCarty] to not pay for the Certificate, and
to draft a letter [] which contained false material representations.
(Appellant’s App. Vol. III, p. 66). De Cola sought to have a new tax sale
certificate issued to him for the parcel and the award of pro se attorney fees and
his litigation costs.
[7] On April 13, 2018, the Commissioners filed an answer to De Cola’s Complaint
as well as a motion for judgment on the pleadings, which they supported with
an affidavit by Auditor Chaffins and a memorandum. Appended to the
memorandum in support of its motion was a copy of a tort claim notice that De
Cola filed dated July 19, 2017, that was addressed to the Starke County
Commissioners, the Office of the Attorney General, and to the Indiana Political
Subdivision Risk Management Commission. The Starke County Auditor
received this notice on July 21, 2017. In his tort claim notice, De Cola averred
that he was “incapacitated do [sic] to service contacted [sic] disability, which
prevented proper time filing.” (Appellant’s App. Vol. III, p. 152). On May 1,
2018, De Cola filed his response to the Commissioner’s motion for judgment on
the pleadings, which he supported with an affidavit in which he made the
following relevant averments:
10. The impersonator of [] Kuehn told me after the auction that
he had no intentions of paying for the Certificate that he bid on.
***
Court of Appeals of Indiana | Memorandum Decision 18A-CT-2239 | February 28, 2019 Page 4 of 11
15. At the sale, on February 27, 2014, I thought that the
impersonators were legitimate bidders and didn’t suspect fraud
until months later. After obtaining a hindsight perspective of the
situation, I started conducting research into the truth of the
matter.
***
17. I witnessed after the auction, in the Auditor’s Office the two
impersonators conspiring with Deputy Auditor [McCarty] to not
pay for the Certificate, and to draft a letter [] for the adjoining
landowners to obtain sections of the Certificate.
18. I received the letter from the Auditor’s Office in the mail
days later and followed the instructions and advice contained in
the letter. The letter contained a request to combine parcels and
a form [] which is not a state board of accounts prescriptive
document and cites no statutory authority. The letter contained
misrepresentations that adjoining landowners had rights to the
right-of-way fee based upon deeds from the 1800s.
(Appellant’s App. Vol. III, pp. 212-14).
[8] On June 5, 2018, the trial court held a hearing on all pending motions,
including the Commissioners’ motion for judgment on the pleadings, which the
trial court treated as a motion for summary judgment. On July 10, 2018, the
trial court issued its Order granting summary judgment to the Commissioners
and making the following relevant findings:
5. Ind. Code § 34-6-2-110(10) enumerates that the
Commissioners meet the definition of political subdivision.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-2239 | February 28, 2019 Page 5 of 11
6. Ind. Code § 34-13-3-8 provides that tort claims against
political subdivisions are barred unless a plaintiff gives the
subdivision notice within 180 days after the occurrence of any
loss.
7. The Commissioners did not receive notice of a tort claim from
[] De Cola until July 21, 2017. [] De Cola admitted in his notice
of tort claim that his notice was belated.
8. The tax sale and the tax sale conduct in dispute occurred on
February 27, 2014.
9. [] De Cola knew on the day of the sale on February 27, 2018,
[sic] that the highest bidder for the [Certificate] for [the parcel]
was not going to pay. (Affidavit of [] De Cola May 1, 2018, ¶
10).
10. [] De Cola alleges he noted unusual bidding activity the day
of the sale. (Affidavit of [] De Cola May 1, 2018, ¶ 13). [] De
Cola also says he witnessed impersonators conspiring right after
the sale held on February 27, 2014. (Affidavit of [] De Cola May
1, 2018, ¶ 17).
11. However, [] De Cola says he didn’t suspect fraud until
months later after conducting research in the matter. (Affidavit
of [] De Cola May 1, 2018, ¶ 15).
***
15. The [c]ourt finds that [] De Cola was aware of the conduct
he complains of as early as February 27, 2014. And, the [c]ourt
further finds that the common parlance of “months later” means
less than one-year [sic]. Therefore, [] De Cola was on notice of
Court of Appeals of Indiana | Memorandum Decision 18A-CT-2239 | February 28, 2019 Page 6 of 11
any of his claims sometime between February 27, 2014[,] and
February 27, 2015.
16. [] De Cola did not file any sort of tort claim notice until July
21, 2017, which is well beyond the 180-day requirement under
the Indiana Tort Claims Act. [] De Cola did not give proper
notice of his tort claim.
(Appellant’s App. Vol. IV, pp. 37-39). The trial court also found that De Cola
sought an improper remedy for his claimed torts, the Commissioners’ acts were
shielded by governmental immunity, De Cola had waived his claims through
acquiescence, and that the facts as alleged did not show constructive fraud. 1
[9] On July 20, 2018, De Cola filed a motion to open the judgment in which he
argued that the time for filing his tort claim notice was tolled in light of his
incapacitation, the fact that he did not discover his loss until November 17,
2017, during the discovery process, and that the Auditor’s Office concealed his
cause of action from him. On August 8, 2018, De Cola filed a motion to
correct error. The trial court did not rule on De Cola’s motions, but on
September 19, 2019, it entered an order clarifying for De Cola that his motions
were deemed denied after thirty days.
[10] De Cola now appeals. Additional facts will be provided as necessary.
1
The trial court also found that the Commissions had complied in good faith with De Cola’s “voluminous,
repetitive, and/or defective discovery” and that De Cola was not entitled to a jury trial. (Appellant’s App.
Vol. IV, pp. 44-45). De Cola does not appeal those findings and conclusions.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-2239 | February 28, 2019 Page 7 of 11
DISCUSSION AND DECISION
I. Standard of Review
[11] The Commissioners filed a motion for judgment on the pleadings and relied
upon an affidavit and other matters outside the pleadings in support. Such a
motion is treated as a motion for summary judgment. Ind. Trial Rule 12(C).
Summary judgment is appropriate if the designated evidence “shows that there
is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” T.R. 56(C). We review both the grant or
denial of summary judgment de novo and apply the same standard as the trial
court. Kerr v. City of South Bend, 48 N.E.3d 348, 352 (Ind. Ct. App. 2015). “All
disputed facts and doubts as to the existence of material facts must be resolved
in favor of the non-moving party.” Id. The non-moving party has the burden
on appeal to persuade us that the trial court’s grant of summary judgment was
erroneous, but we will carefully assess the trial court’s decision to ensure that
the non-moving party was not improperly denied his day in court. Id.
[12] In addition, we note that 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 18A-CT-2239 | February 28, 2019 Page 8 of 11
II. ITCA Notice
[13] Indiana Code section 34-13-3-8 of the ITCA provides that a claimant alleging a
tort against a political subdivision must file a notice within 180 days after the
alleged loss occurred. Filing of this notice is a condition precedent which must
be fulfilled before suit is brought. Orem v. Ivy Tech State Coll., 711 N.E.2d 864,
869 (Ind. Ct. App. 1999), trans. denied. Failure to comply with the ITCA’s
notice requirement is fatal to a claim and requires dismissal. See, e.g., Weaver v.
Elkhart Cmty. Sch. Corp., 95 N.E.3d 97, 101 (Ind. Ct. App. 2018) (dismissing
Weaver’s claim of constructive fraud for failure to comply with the ITCA notice
requirement). Once a defendant raises the issue of timely compliance with the
ITCA notice requirement, the burden shifts to the plaintiff to prove that he
complied. Id. Whether a party has complied with ITCA’s notice requirement
is a question of law to be determined by the court. Orem, 711 N.E.2d at 869.
[14] Here, De Cola claimed in his Complaint that (1) he was defrauded out of the
Certificate by irregular bidding at the February 27, 2014, tax sale; and (2) the
Auditor’s Office conspired to write a fraudulent tax letter regarding the
ownership of the parcel. Regarding the Certificate, the evidence most favorable
to De Cola was that the imposter Kuehn told De Cola directly after the sale that
he did not intend to pay for the Certificate. Therefore, De Cola sustained his
alleged loss on February 27, 2014, and he knew that day that he had sustained
it. Regarding the fraudulent tax letter, the evidence most favorable to De Cola
was that he observed the conspiracy to write the allegedly fraudulent tax letter
on the day of the sale, February 27, 2014, and he received the letter several days
Court of Appeals of Indiana | Memorandum Decision 18A-CT-2239 | February 28, 2019 Page 9 of 11
after the sale. Therefore, De Cola sustained his loss on February 27, 2014, and
he knew he had sustained his alleged loss by the beginning of March 2014.
However, even taking into consideration that, in an affidavit in opposition to
summary judgment, De Cola averred that he did not suspect fraud until
“months later,” he still would have known about his losses within the 2014
calendar year. (Appellant’s App. Vol. III, p. 213). De Cola did not file his tort
claim notice until July 21, 2017, more than two years later. We conclude that
De Cola’s claims were barred because he failed to file a timely ITCA notice.
I.C. § 34-13-3-8.
[15] On appeal, De Cola continues to assert, as he did in the trial court, that his
cause of action is governed by the six-year statute of limitations provided for
claims of fraud. However, the ITCA notice requirement is not a statute of
limitations, and compliance with the notice requirement is a condition
precedent to filing suit against a political subdivision. Orem, 711 N.E.2d at 869.
De Cola also argues that he was excused from filing a timely ITCA notice
because he was incapacitated, he did not discover his claims until June 20,
2017, when he attempted to obtain a tax deed through his limited liability
company, and that the Auditor’s Office fraudulently concealed his cause of
action from him. However, De Cola did not raise these arguments in the trial
court during the summary judgment proceedings. 2 De Cola offered some of
2
De Cola claimed in his tort claim notice that he was “incapacitated do [sic] to service contacted [sic]
disability, which prevented proper time filing,” but he did not argue this in his summary judgment pleadings
or at the summary judgment hearing. (Appellant’s App. Vol. III, p. 152).
Court of Appeals of Indiana | Memorandum Decision 18A-CT-2239 | February 28, 2019 Page 10 of 11
these arguments in his post-summary judgment motions, but it is a long-
standing rule that a party may not raise an issue or argue a different theory for
the first time in a motion to correct error. T.R. 59; Yater v. Hancock Cty. Bd. of
Health, 677 N.E.2d 526, 530 (Ind. Ct. App. 1997). Because there existed no
genuine issue of material fact that De Cola failed to timely file his ITCA notice,
the Commissioners were entitled to summary judgment as a matter of law. 3
CONCLUSION
[16] Based on the foregoing, we conclude that De Cola’s claims were barred due to
his failure to file a timely ITCA notice and that the trial court correctly
concluded that the Commissioners were entitled to summary judgment as a
matter of law.
[17] Affirmed.
[18] Kirsch, J. and Robb, J. concur
3
Because we have concluded that De Cola’s claims were barred by ITCA’s notice requirement, we do not
address the trial court’s other bases for granting summary judgment in favor of the Commissioners.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-2239 | February 28, 2019 Page 11 of 11