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IN THE INDIANA COURT OF APPEALS
NO. 33A04-1604-PL-771 TOWN OF KNIGHTSTOWN, Interlocutory Appeal from the Henry Circuit Court Appellant (Defendant Below), No. 33C01-1502-PL-10 v. The Honorable Mary G. Willis, Judge DUDLEY WAINSCOTT The Honorable Jack A. Tandy, Pro Tempore Appellee (Plaintiff Below), SHROYER BROS., INC. (Defendant Below)
CORRECTED BRIEF OF APPELLEE/CROSS-APPELLANT DUDLEY WAINSCOTT
Frederick D. Emhardt femhardt@psrb.com Josh S. Tatum jtatum@psrb.com Colin E. Connor cconnor@psrb.com PLEWS SHADLEY RACHER & BRAUN LLP 1346 N. Delaware Street Indianapolis, IN 46202 317-637-0700 Attorneys for Appellee/Cross-Appellant Dudley Wainscott
Filed: 9/9/2016 5:54:10 PM
Brief of Appellee/Cross-Appellant Dudley Wainscott
2
TABLE OF CONTENTS Table of Authorities ....................................................................................................... 3
Statement of Issues ....................................................................................................... 6
Statement of the Case ................................................................................................... 6
Statement of Facts ......................................................................................................... 8
Summary of Argument ................................................................................................ 10
Argument ..................................................................................................................... 11
Standard of Review ................................................................................................ 11
I. Wainscott timely filed a proper tort-claim notice. ...................................... 11
II. The only reason the trial court found fault with the notice was that it did not state an intent to file a claim—an improper requirement. ................. 14
Wainscott sent notice within 180 days of his loss. ..................................... 15
Wainscott’s notice described the circumstances of the loss. ...................... 15
The notice described the extent of the loss. ................................................ 16
The notice included the time and place the loss occurred.......................... 16
The notice included the name of all necessary persons involved. ............. 17
The notice provided information about the relief sought. .......................... 17
The notice included Wainscott’s residential address. ................................ 18
The notice was in writing and hand-delivered. .......................................... 18
III. Even if Wainscott did not comply with the ITCA, his equitable, nuisance, and breach-of-contract claims survive. ....................................................... 19
Wainscott’s equitable party-wall claim survives apart from the ITCA. .... 19
The ITCA does not affect the nuisance claim for injunctive relief. ........... 21
Genuine issues of material fact preclude summary judgment on Wainscott’s claim on breach of contract. ..................................................... 23
Conclusion .................................................................................................................... 25
Word-Count Certificate ............................................................................................... 26
Certificate of Service .................................................................................................... 27
Brief of Appellee/Cross-Appellant Dudley Wainscott
3
TABLE OF AUTHORITIES Cases
Allstate Ins. Co. v. Bradtmueller, 715 N.E.2d 993 (Ind. Ct. App. 1999) .................... 11
AM Gen. LLC v. Armour, 46 N.E.3d 436 (Ind. 2015). ................................................ 11
Baradi v. Hardware Wholesalers Inc., 625 N.E.2d 1259 (Ind. Ct. App. 1993) .......... 11
Bienz v. Bloom, 674 N.E.2d 998 (Ind. Ct. App. 1996), transfer denied ...................... 13
Burggrabe v. Board of Public Works, 469 N.E.2d 1233 (Ind. Ct. App. 1984). ........... 12
Cartwright v. Adair, 27 Ind. App. 293, 61 N.E. 240 (1901) ....................................... 19
Casper Nat’l Bank v. Jones, 329 P.2d 1077 (Wyo. 1958) ............................................ 20
City of E. Chicago v. Gilbert, 59 Ind. App. 613 (1935) ............................................... 12
City of Gary v. Smith & Wesson, 801 N.E.2d 1222 (Ind. 2003) .................................. 22
City of Indianapolis v. Satz, 268 Ind. 581, 377 N.E.2d 623 (Ind. 1978) .................... 14
Collier v. Prater, 544 N.E.2d 497 (Ind. 1989) ....................................................... 11, 13
Galbreath v. City of Indianapolis, 253 Ind. 472 (1970) ........................................ 11, 12
Herald Tel. v. Fatouros, 431 N.E.2d 171 (Ind. Ct. App. 1982) ................................... 24
Ind. Dep’t of State Revenue v. Belterra Resort Ind., LLC, 935 N.E.2d 174 (Ind. 2010)
................................................................................................................................... 23
Indianapolis v. Satz, 268 Ind. 581 (1978) ................................................................... 13
J.C. Penney Co. v. McCarthy, 93 Ind. App. 609, 176 N.E.2d 637 (Ind. Ct. App. 1931)
................................................................................................................................... 19
Kerr v. City of South Bend, 48 N.E.3d 348 (Ind. Ct. App. 2015) ................................ 13
Kiefer v. Dickson, 41 Ind. App. 543, 84 N.E. 523 (1908) ............................................ 19
Brief of Appellee/Cross-Appellant Dudley Wainscott
4
List v. Hornbrook, 2 W. Va. 340 (W. Va. 1867) ........................................................... 20
Logansport v. Gammill, 128 Ind. App. 53 (1957) ....................................................... 12
Lyons v. Bassford, 249 S.E.2d 255 (Ga. 1978) ............................................................ 20
Martinsville v. Winscott, 107 Ind. App. 475, (1940) ................................................... 12
McCrary Engineering Corp. v. Town of Upland, 472 N.E.2d 1305 (Ind. Ct. App.
1985) ......................................................................................................................... 24
Merchs. Nat’l Bank v. Simrell’s Sports Bar & Grill, Inc., 741 N.E.2d 383 (Ind. Ct.
App. 2000) ................................................................................................................. 11
Perryman v. Huber, Hunt & Nichols, Inc., 628 N.E.2d 1240 (Ind. Ct. App. 1994) ... 11
Ricketts v. State, 720 N.E.2d 1244 (Ind. Ct. App. 1999) ............................................. 13
Sand Creek Country Club, Ltd. v. CSO Architects, Inc., 582 N.E.2d 872 (Ind. Ct.
App. 1991) ................................................................................................................. 23
Sanders v. Martin, 70 Tenn. 213 (Tenn. 1879) ........................................................... 20
Schoettmer v. Wright, 992 N.E.2d 702 (Ind. 2013) ..................................................... 13
Scott v. Gatson, 492 N.E.2d 337 (Ind. Ct. App. 1986) ................................................ 17
Snyder v. Town of Yorktown, 20 N.E.3d 545 (Ind. Ct. App. 2014) ............................. 13
Sovran Bank, N.A. v. Forman, 7 Va. Cir. 268 (Va. Cir. Ct. 1985) ....................... 20, 21
Volk v. Mich. City, 32 N.E.2d 724 (Ind. Ct. App. 1941) .............................................. 12
Statutes
Ind. Code § 34-6-2-110(4) ............................................................................................. 15
Ind. Code § 34-13-3-8(a) ............................................................................................... 15
Ind. Code § 34-13-3-10 ......................................................................................... passim
Brief of Appellee/Cross-Appellant Dudley Wainscott
5
Ind. Code § 34-13-3-12 ........................................................................................... 12, 18
Other Authorities
Black’s Law Dictionary 1815 (10th ed. 2014) ............................................................... 7
Brief of Appellee/Cross-Appellant Dudley Wainscott
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STATEMENT OF ISSUES
1. Whether Dudley Wainscott (“Wainscott”) timely filed a proper tort claim
notice?
2. Whether Wainscott’s equitable party-wall claim is governed by the Indiana
Tort Claims Act (“ITCA”)?
3. Whether the trial court correctly concluded that Wainscott’s nuisance
allegations are not a tort for the purposes of the ITCA?
4. Whether the trial court correctly concluded that genuine issues of material
fact preclude summary judgment on Wainscott’s breach of contract claim?
STATEMENT OF THE CASE
This appeal involves property damage to a historic building that Wainscott owns in
Knightstown, Indiana, called the “Old Lodge.” (App. 119–20, ¶¶ 1–4.) The damage
occurred in 2013, when the building next door was demolished, leaving what had
been a shared load-bearing wall between the two buildings exposed and full of
hundreds of holes. That demolition also may have caused mercury to leak into the
soil and groundwater. The Town of Knightstown (“Knightstown”) owned the
adjacent building, which was known as “Bullet Hole.” (App. 119, ¶ 1.)
Wainscott provided notice of his claim to Knightstown in a letter he sent on
April 14, 2013. (App. 54.) On April 18, 2013, Wainscott attended a Knightstown
Town Council meeting to discuss his claim and hand-delivered the letter to the
council. (App. 120, ¶ 6.) In front of all attending the council meeting, the council
president, Clyde South, promised that Knightstown would fix any issues affecting
the Old Lodge. (App. 120, ¶ 7.) Although Knightstown took the first step of hiring a
Brief of Appellee/Cross-Appellant Dudley Wainscott
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consultant to determine what needed to be done to fix the damage, the town failed
to do anything more. (App. 136–39; 230, ¶ 9.)
Nearly two years after Knightstown’s promise to address the problems,
Wainscott filed suit against Knightstown and Shroyer Brothers, Inc., the company
that demolished the Bullet Hole in 2013. (App. 14.) On November 23, 2015,
Knightstown moved for summary judgment. (App. 48.)
After hearing argument, the trial court entered partial summary judgment
for Knightstown on February 9, 2006. (App. 8–13.) It granted summary judgment to
Knightstown on Wainscott’s party-wall,1 negligence, and Open Records claims but
denied summary judgment on his contract and nuisance claims after determining
that there were disputed material facts:
In summary, the Court finds that ITCA applies to Counts 1 [equitable party-wall claim] and 4 [negligence claim] of the Complaint and that Plaintiff Wainscott did not comply with the requirements of ITCA. Wainscott acknowledged Knightstown did not violate the Open Records Law as alleged in Count 5, and that [Knightstown] was entitled to summary judgment on Count 5. The Court finds there are genuine issues of material fact with respect to the contract allegations of Count 2 [breach-of-contract claim] and the nuisance allegation of Count 3 [nuisance claim] that make summary judgment inappropriate.
WHEREFORE, the Court grants the Plaintiff’s Motion for Summary Judgment with respect to Counts 1, 4 and 5 of Plaintiff’s Complaint and denies the Motion for Summary Judgment with respect to Count 2 and 3.
(App. 13.)
1 Party wall refers to “[a] wall that divides two adjoining, separately owned properties and that is shared by the two property owners as tenants in common.” Black’s Law Dictionary 1815 (10th ed. 2014).
Brief of Appellee/Cross-Appellant Dudley Wainscott
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Knightstown requested the trial court to certify its summary-judgment order
for interlocutory appeal. (App. 6.) The trial court granted Knightstown’s
certification request on March 14, 2016. (App. 158.) The Court of Appeals accepted
this interlocutory appeal on May 9, 2016. (App. 7.) Knightstown filed its notice of
appeal on May 20, 2016. (App. 7.)
STATEMENT OF FACTS
Wainscott owns the Old Lodge, located at 36 Main Street, Knightstown, Indiana.
(App. 119, ¶ 1.) The formerly adjacent Bullet Hole was at 32 Main Street,
Knightstown, Indiana. (App. 119, ¶ 1.) In February 2013, Knightstown hired
Shroyer Brothers, Inc. (“Shroyer”) to demolish the Bullet Hole. (App. 125, ¶ 9.)
Shroyer began demolition on April 1, 2013. (App. 125, ¶ 10.) Knightstown and
Shroyer crushed an unknown amount of vacuum tubes that had not been removed
from the Bullet Hole before demolition, potentially causing mercury to leak into the
soil and groundwater. (App. 119–20, ¶ 3.) The demolition left 161 holes above
ground and 240 holes below ground in the shared, load-bearing wall between the
Bullet Hole and the Old Lodge. (App. 120, ¶ 4.)
In his letter sent just two weeks after the demolition, Wainscott notified
Knightstown of the damage to his building. (App. 54.) The letter included the
circumstances that brought about Wainscott’s loss, the extent of his loss, the time
and place his loss occurred, the names of all persons involved to his knowledge, the
relief requested, and his residence for the relevant time. (App. 54.) On April 18,
2013, Wainscott hand-delivered the letter to the Knightstown Town Council, when
he attended a Knightstown Town Council meeting to discuss the problems with the
demolition project. (App. 120, ¶ 6.)
Brief of Appellee/Cross-Appellant Dudley Wainscott
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The council president promised Wainscott that Knightstown would repair the
shared wall to address any issues affecting the Old Lodge. (App. 56; App. 120, ¶ 7.)
Wainscott believed that the council president had the authority to bind
Knightstown, and Wainscott relied on this promise in waiting to file suit. (App. 120,
¶ 8.)
On May 5, 2013, FPBH, Inc. (“FPBH”) issued an engineering report for
Knightstown outlining items that had not been completed at the demolition project.
The report recommended Knightstown do the following:
a. fill all holes in the shared wall with mortar and place a
breathable sealant on the wall;
b. build a reinforced concrete retaining wall that is temporarily
braced from inside the Old Lodge;
c. backfill the original basement area with sand; and
d. install an underdrain at the Bullet Hole to drain water to a
pump in the alley.
(App. 136–39.) Knightstown failed to follow its engineer’s recommendations. It did
build the retaining wall, but it did not support it with braces inside the Old Lodge
as recommended. Despite Wainscott’s repeated requests, Knightstown failed to
accomplish any of the other items. (App. 120, ¶ 9.)
The shared wall was not designed to be exposed to the elements. As a result,
water has leaked through the wall, and the wall is beginning to crumble. Standing
water has collected in Wainscott’s basement. The standing water has caused
extensive mold to grow in Wainscott’s building. (App. 120–21, ¶ 10.)
Brief of Appellee/Cross-Appellant Dudley Wainscott
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SUMMARY OF ARGUMENT
After Knightstown and Shroyer’s negligent demolition caused significant damage to
Wainscott’s Old Lodge, he timely provided Knightstown notice that complied with
the ITCA. The ITCA is construed liberally in favor of those providing notice. To
meet the act’s requirements, all the notice has to do is fulfill the statutory purpose
of providing the governmental entity with reasonable certainty of the loss and the
surrounding circumstances. Wainscott’s letter to the Knightstown Town Council
met that standard.
Even if Wainscott’s notice did not comply with the ITCA, he has pleaded
three other claims not subject to dismissal under the notice requirements of the
ITCA. First, he pleaded a party-wall claim that sounds in equity, not tort. Indiana
and several other jurisdictions have long recognized equitable duties owed by and to
those sharing party walls to pay for harm done to a party wall. Here, Knightstown
put hundreds of holes in the party wall and made plans to fix them, as equity
required, but did not move forward with its promised plans to fully address the
problem. Second, by damaging the party wall, Knightstown has created a
continuing nuisance, which should be enjoined. This continuing damage is not
subject to the ITCA. Third, Wainscott has pleaded breach of contract. Knightstown
agreed to repair the party wall as part of the demolition of its own building.
Wainscott accepted the promise and agreed to delay filing litigation to compel
repairs. So even if Wainscott’s notice did not comply with the ITCA, the trial court
incorrectly granted summary judgment to Knightstown on Wainscott’s equitable,
nuisance, and contractual claims. The trial court correctly denied Knightstown’s
motion for summary judgment as to Wainscott’s nuisance and breach-of-contract
claims.
Brief of Appellee/Cross-Appellant Dudley Wainscott
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ARGUMENT
Standard of Review
This Court reviews a grant or denial of summary judgment using the same
standard as the trial court. Merchs. Nat’l Bank v. Simrell’s Sports Bar & Grill, Inc.,
741 N.E.2d 383, 386 (Ind. Ct. App. 2000). “The purpose of summary judgment is to
terminate litigation for which there can be no factual dispute and which can be
determined as a matter of law.” Baradi v. Hardware Wholesalers Inc., 625 N.E.2d
1259, 1261 (Ind. Ct. App. 1993). Summary judgment is only appropriate “if no
genuine issues of material fact exist and the moving party is entitled to judgment as
a matter of law.” Allstate Ins. Co. v. Bradtmueller, 715 N.E.2d 993, 996 (Ind. Ct.
App. 1999) (citations omitted). Here, all reasonable inferences are construed in the
light most favorable to Wainscott, as the nonmoving party. AM Gen. LLC v.
Armour, 46 N.E.3d 436, 439 (Ind. 2015). As a derogation of the common law, courts
construe the ITCA narrowly. Collier v. Prater, 544 N.E.2d 497, 498 (Ind. 1989)
(quoting Galbreath v. Indianapolis, 253 Ind. 472, 255 N.E.2d 225 (1970)). The Court
must liberally construe all inferences and resolve all doubts in Wainscott’s favor.
Perryman v. Huber, Hunt & Nichols, Inc., 628 N.E.2d 1240, 1243 (Ind. Ct. App.
1994).
I. Wainscott timely filed a proper tort-claim notice.
The ITCA requires the notice to “describe in a short and plain statement the
facts on which the claim is based.” I.C. § 34-13-3-10. It must “include 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
Brief of Appellee/Cross-Appellant Dudley Wainscott
12
of the loss and at the time of filing the notice.” Id. Also, the notice “must be in
writing and must be delivered in person or by registered or certified mail.” I.C. § 34-
13-3-12. These requirements are construed liberally in favor of those providing
notice. Logansport v. Gammill, 128 Ind. App. 53, 60, 145 N.E.2d 908, 912 (1957)
(“the rule of liberal construction applies to whether a notice is sufficiently definite
as to the time place, nature and extent of the injury”); City of Martinsville v.
Winscott, 107 Ind. App. 475, 477, 25 N.E.2d 283, 284 (1940) (stating the court had
“adopted a liberal construction of the rule governing the sufficiency of the notice as
to the nature and extent of the injury”).
The trial court improperly added an additional requirement to the ITCA. The
court found Wainscott’s notice fatally flawed because “it does not state that
Wainscott intends to bring legal action against Knightstown.” (App. 9.) This
requirement is nowhere in the ITCA and is derived from caselaw dealing with
situations in which plaintiffs did not actually comply with the ITCA. Because
Wainscott actually complied with the statute, this caselaw is inapplicable.
Indiana courts have repeatedly held “that if the notice directs the attention of
the officers of the municipality with reasonable certainty to the place of the
accident, the requirements of the notice have been met.” Volk v. Mich. City, 32
N.E.2d 724, 725–26 (Ind. Ct. App. 1941) (citing City of E. Chicago v. Gilbert, 59 Ind.
App. 613, 621, 194 N.E. 193 (1935)); Galbreath v. City of Indianapolis, 253 Ind. 472,
255 N.E.2d 225, 228 (1970); Burggrabe v. Board of Public Works, 469 N.E.2d 1233,
1235 (Ind. Ct. App. 1984). At a minimum, Wainscott’s notice alerted Knightstown to
the place of his loss, which is all that is required.
Nothing else is required of a tort-claim notice. The trial court incorrectly
ruled that a tort-claim notice must advise the defendant of the plaintiff’s intent to
assert a tort claim. (App. 9–10.) This alleged requirement is not in Ind. Code
§ 34-13-3-10 or anywhere else in the ITCA. The trial court concluded that caselaw
Brief of Appellee/Cross-Appellant Dudley Wainscott
13
imposes this requirement onto a tort-claim notice. (App. 9–10.) In support, it cited
Collier v. Prater, 544 N.E.2d 497 (Ind. 1989), Bienz v. Bloom, 674 N.E.2d 998 (Ind.
Ct. App. 1996), transfer denied, and Kerr v. City of South Bend, 48 N.E.3d 348 (Ind.
Ct. App. 2015). Knightstown cites Bienz and Kerr as well as Ricketts v. State, 720
N.E.2d 1244, 1246 (Ind. Ct. App. 1999), Indianapolis v. Satz, 268 Ind. 581, 377
N.E.2d 623, 625 (1978), Snyder v. Town of Yorktown, 20 N.E.3d 545, 553 (Ind. Ct.
App. 2014), and Schoettmer v. Wright, 992 N.E.2d 702, 707 (Ind. 2013). (Appellee’s
Br. 15–16.) These cases do not hold that a plaintiff must state an intent to assert a
tort claim to comply with the ITCA.
Those cases hold only that the plaintiffs had not provided any notice of any
claim. To excuse that failure, Indiana courts have allowed plaintiffs who do not
provide notice under the ITCA to go forward with their claims when they have
substantially complied with the notice requirements as long as the purpose of the
notice requirement is satisfied. Schoettmer, 992 N.E.2d at 707. The trial court
improperly imposed this substantial-compliance test on Wainscott when he actually
complied with the ITCA. Since his notice meets all the statutory requirements,
there was no need to resort to an analysis involving substantial compliance. As a
result, none of the cases cited by the trial court of Knightstown are applicable to
this case.
In Ricketts, the plaintiff delivered a letter to the Bureau of Motor Vehicles
asking that a BMV official contact him regarding correcting an inaccuracy on his
driving record. 720 N.E.2d at 1245–46. The BMV never responded to his letter
because the letter did not provide notice of any claim. In Bienz the plaintiff filed a
grievance with the Allen County Board of Commissioners in accordance with
grievance procedures and requested an opportunity to be heard. 674 N.E.2d at
1000–01. The Board never responded because the grievance did not provide notice of
a claim. Id. at 1001. In Snyder v. Town of Yorktown the plaintiff’s attorney sent a
Brief of Appellee/Cross-Appellant Dudley Wainscott
14
letter to the town asking for information about a drain project. 20 N.E.3d at 549.
The letter did not provide notice of any claim, and the town did not respond. Id. at
553.
Indianapolis v. Satz, despite Knightstown’s characterization to the contrary,
does not even discuss the intent to assert a tort claim. 268 Ind. 581, 377 N.E.2d at
625. In Satz, the Supreme Court held that the city’s investigation, a signed release,
and the plaintiff’s letter sent to the wrong officials did not constitute substantial
compliance. Id. at 584, 377 N.E.2d at 625. In doing so, the Court never even
mentioned a requirement that notice include a statement of intent to file suit.
Unlike here, none of the governing bodies involved in any of the cited cases
responded to the plaintiffs’ letters because they had not been provided notice of any
claim. Here, after Wainscott provided notice to the town council, Knightstown
responded by hiring an engineer to determine how to repair the damage to
Wainscott’s building. (App. 136–39.) Knightstown was on notice of Wainscott’s claim
and responded accordingly.
Nowhere does the ITCA require that a plaintiff assert its intent to bring a
tort claim to comply with the notice requirement. Wainscott has complied with all
notice requirements of the ITCA, and none of his claims are barred.
II. The only reason the trial court found fault with the notice was that it did not state an intent to file a claim—an improper requirement.
The trial court incorrectly ruled that Wainscott did not comply with the
notice requirements of the ITCA. Wainscott met every requirement found in the
statute. The only reason the trial court granted Knightstown summary judgment is
because the notice did not state that Wainscott intended to bring legal action
against the town. But this is an improper criterion to impose on a plaintiff who has
actually complied with the ITCA’s content requirements. The trial court’s and
Brief of Appellee/Cross-Appellant Dudley Wainscott
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Knightstown’s incorrect conclusions are based on an incorrect reliance on cases
involving plaintiffs who did not comply with the ITCA. As a result, this Court
should reverse the trial court regarding Wainscott’s tort-claim notice.
Wainscott sent notice within 180 days of his loss.
The ITCA requires that a political subdivision be given written notice of a
tort claim within 180 days after the loss occurs. Ind. Code § 34-13-3-8(a). The
definition of “political subdivision” includes a “town” like Knightstown. Ind. Code
§ 34-6-2-110(4). The trial court correctly did not find any fault in the timeliness of
Wainscott’s notice. (App. 8–13.)
Knightstown and Shroyer began demolishing the Bullet Hole on April 1,
2013. (App. 125, ¶ 10.) The demolition damaged Wainscott’s Old Lodge. (App. 119–
20, ¶¶ 3–4.) On April 14, 2013, Wainscott mailed Knightstown notice of Wainscott’s
loss. (App. 54.) On April 18, 2013, Wainscott hand-delivered this letter to the
Knightstown Town Council. (App. 120, ¶ 6.) This was well within 180 days of
Wainscott’s early April 2013 loss.
Wainscott’s notice described the circumstances of the loss.
The ITCA requires notice to include “the circumstances which brought about
the loss.” I.C. § 34-13-3-10. Wainscott’s April 14, 2013, letter to Knightstown
described the circumstances which brought about his loss:
• “destruction of the building began without my knowledge, and without
notification to 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.”
Brief of Appellee/Cross-Appellant Dudley Wainscott
16
(App. 54.) The trial court correctly did not flaw Wainscott’s notice for insufficiently
describing the circumstances.
The notice described the extent of the loss.
The ITCA requires notice to include “the extent of the loss.” I.C. § 34-13-3-10.
Wainscott’s letter to Knightstown also detailed the extent of his loss:
• “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.”
• “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.”
(App. 54.) The trial court correctly found no flaw with Wainscott’s notice in its
description of the loss.
The notice included the time and place the loss occurred.
The ITCA requires notice to include “the time and place the loss occurred.”
I.C. § 34-13-3-10. This is not a slip-and-fall case on government-owned property on
an unknown day. Knightstown hired Shroyer to demolish Knightstown’s own
property in April 2013. Wainscott’s letter contained the date of “4/14/13” at the top
of the letter and notified Knightstown that Wainscott’s property was damaged as a
result of the April 2013 demolition. (App. 54.) The letter also provided the addresses
of the properties at issue: the Bullet Hole at 32 Main Street and Wainscott’s Old
Lodge at 34-38 Main Street. (App. 54.) Wainscott provided the time and place of his
Brief of Appellee/Cross-Appellant Dudley Wainscott
17
loss. The trial court correctly found no flaw with Wainscott’s description of the time
and place the loss occurred.
The notice included the name of all necessary persons involved.
The ITCA requires notice to include “the names of all persons involved if
known.” I.C. § 34-13-3-10. The purpose of Wainscott’s April 14, 2013, letter was to
provide notice of his loss to Knightstown, a political subdivision. The letter did so by
identifying Knightstown as the party responsible for Wainscott’s loss. (App. 54.)
Although the notice did not name Shroyer, naming Knightstown was sufficient
because Knightstown had hired Shroyer to demolish the Bullet Hole and was
therefore responsible for Shroyer. Wainscott complied with this requirement. The
trial court correctly found no flaw in the respect.
The notice provided information about the relief sought.
The ITCA requires notice to include “the amount of the damages sought.” I.C.
§ 34-13-3-10. But a notice is not rendered insufficient by a failure to request money
damages. Scott v. Gatson, 492 N.E.2d 337, 341 (Ind. Ct. App. 1986). In Scott, the
plaintiff provided notice within 11 days after the loss when the dollar amount of any
damages was unknown. The Scott court held, “It makes little sense to penalize a
plaintiff’s promptness when the notice given fulfills the statutory purpose of
informing the political subdivision with reasonable certainty of the accident and
surrounding circumstances.” Id. Similarly, Wainscott provided Knightstown notice
within two weeks of his loss. As in Scott, Wainscott’s notice complies with the ITCA
because it provided Knightstown with reasonable certainty of the circumstances of
the loss.
Although Wainscott’s notice did not request money damages, it did request
specific relief from Knightstown:
Brief of Appellee/Cross-Appellant Dudley Wainscott
18
• “All hazardous waste must be removed.”
• “Holes in the basement wall need to be repaired, bricked and tucked.”
• “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.”
• “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.”
• “A two foot ste[e]l 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.”
(App. 54.) These requests put Knightstown on notice regarding what would need to
be corrected to make Wainscott whole. Wainscott complied with this requirement.
The trial court correctly did not fault Wainscott’s notice in its description of the
remedy sought.
The notice included Wainscott’s residential address.
The ITCA requires notice to include “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.
Wainscott’s notice complied with this requirement by including his address in his
letter. (App. 54.) The trial court correctly did not fault Wainscott’s notice in this
respect.
The notice was in writing and hand-delivered.
The ITCA requires notice to “be in writing and must be delivered in person or
by registered or certified mail.” I.C. § 34-13-3-12. Wainscott complied with this
requirement by hand-delivering his April 14, 2013, notice letter to the Knightstown
Town Council at its April 18, 2013, meeting. (App. 119, ¶ 6.) The trial court
Brief of Appellee/Cross-Appellant Dudley Wainscott
19
correctly did not find fault in Wainscott’s notice for its mode of communication or
delivery.
Since the notice met all the statutory criteria required by the ITCA, the trial
court had no need to resort to an analysis of substantial compliance. This Court
should reverse summary judgment in Knightstown’s favor.
III. Even if Wainscott did not comply with the ITCA, his equitable, nuisance, and breach-of-contract claims survive.
Wainscott’s equitable party-wall claim survives apart from the ITCA.
Wainscott complied with the ITCA, but even if he had not, his equitable
party-wall claim would survive. The trial court incorrectly concluded that party-wall
claims sound in tort. (App. 10.) But Indiana law holds that owners of a party wall
have equitable duties to each other separate from tort. See, e.g. Kiefer v. Dickson, 41
Ind. App. 543, 549, 84 N.E. 523, 525 (1908) (“Where a wall is a strict party wall,
neither of the adjoining owners has a right to maintain windows therein and equity
will enjoin such maintenance.”); Cartwright v. Adair, 27 Ind. App. 293, 301, 61 N.E.
240, 242 (1901) (Allegations of tortious conduct were unnecessary to award damages
for “infringement of the right to support of a party wall.”).
Knightstown cites J.C. Penney Co. v. McCarthy, 93 Ind. App. 609, 176 N.E.
637 (1931), transfer denied, as holding that a party-wall claim is a tort claim. This is
not what J.C. Penney holds. Whether the parties to a party wall owe each other an
equitable duty to maintain the wall was not an issue in J.C. Penney. J.C. Penney
just determined that that particular case sounded in tort because there was no
breach of contract and the plaintiff had pleaded the party-wall claim as a trespass,
which is a tort. Here, there is a breach of contract, and Wainscott has not alleged
trespass nor pleaded the party-wall claim as a tort. As in the cases above, Wainscott
Brief of Appellee/Cross-Appellant Dudley Wainscott
20
has an equitable party-wall claim against Knightstown. Despite Knightstown’s
claim to the contrary, Wainscott’s claim is not limited only to monetary (legal)
damages. His claim is equitable. This claim would survive even if he had not
submitted a timely tort claim notice. The trial court’s summary judgment order as
to Wainscott’s equitable party wall claim should be reversed.
Courts across the country have also held that there is an equitable duty not
to harm a shared wall. Lyons v. Bassford, 249 S.E.2d 255, 260 (Ga. 1978); Sanders
v. Martin, 70 Tenn. 213, 217 (Tenn. 1879); Sovran Bank, N.A. v. Forman, 7 Va. Cir.
268 (Va. Cir. Ct. 1985); List v. Hornbrook, 2 W. Va. 340 (W. Va. 1867); Casper Nat’l
Bank v. Jones, 329 P.2d 1077 (Wyo. 1958). These cases all held that, like
Wainscott’s claim, a party-wall claim is recognized as equitable.
In Casper National Bank, the plaintiff sued an adjoining bank for damages
after the bank’s construction activities caused a party wall to collapse. The Casper
National Bank court analyzed caselaw from other jurisdictions and determined that
“most courts have recognized that a party-wall agreement creates a special
situation which presents equities and property rights differing from those
applicable to other tort problems.” 329 P.2d at 1079. “[T]he owners of a party wall
who … alters the wall or its support has a primary liability to the other owner of the
wall for any damages which may result from a lack of the highest possible care
consistent with the circumstances of the situation.” Id. at 1082.
In Lyons, the plaintiff sought an injunction to prevent an adjoining
landowner from tearing down a fence that the landowners had constructed along
the property line. The Lyons court analogized the shared fence to a party wall. The
court held that “[g]eneral equitable principles and rules are applicable concerning
the protection of rights and interests in party walls.” Lyons, 249 S.E.2d at 260.
In Sanders, the plaintiff and defendant owned adjoining lots that shared a
party wall. The plaintiff built a three-story brick house on his property, which
Brief of Appellee/Cross-Appellant Dudley Wainscott
21
required adding a third story to the party wall and constructing a party wall in a
cellar. The defendant and her tenant built a four-story brick house on her property,
which required raising the party wall another story and digging a cellar on her
property. The plaintiff filed suit requesting that the defendants contribute to the
expense of plaintiff’s previous additions to the party wall that the defendants had
used. The Sanders court held that the parties had an equitable and moral duty to
share in the safe use of the party wall, so the defendants owed contribution for their
use of the wall. Sanders, 70 Tenn. at 217.
In List, the plaintiff built a wall with half on his property and half on the
defendant’s property. Sixteen years later, the defendant built a house on his
property and joined it to the existing wall. The plaintiff sued the defendant, alleging
that the defendant had contracted to pay for half of the construction of the shared
wall. The List court held that no contract existed. List, 2 W. Va. at 342. But the
court did hold that the wall became a party wall when the defendant joined to it,
after which each party owed an equitable duty to the other to keep the party wall in
good repair. Id. at 345-46.
In Sovran Bank, the owners of a former hotel demolished their building
under threat of condemnation. After the demolition all that remained was a party
wall shared with the adjoining property owner. The Sovran Bank court held that
the parties owed each other an equitable duty to keep the party wall in good repair.
7 Va. Cir. at 271.
The ITCA does not affect the nuisance claim for injunctive relief.
Even if Wainscott had not satisfied the tort claim notice requirement, which
he did, the trial court correctly determined that his nuisance claim would still
Brief of Appellee/Cross-Appellant Dudley Wainscott
22
survive. Knightstown admitted in its summary-judgment brief (App. 92) and the
summary-judgment hearing (Tr. 26–27)2 that a nuisance claim for injunctive relief
is not barred by the ITCA. Knightstown admitted in its summary-judgment brief
that Wainscott’s nuisance claim is equitable. (App. 93.) No further inquiry is
needed. Wainscott’s nuisance claim is not barred by the ITCA.
Knightstown claims, that this equitable claim is somehow subject to the
ITCA because nuisance provides damages arising from underlying tortious conduct.
This is incorrect. A nuisance may exist without an underlying tort. City of Gary v.
Smith & Wesson, 801 N.E.2d 1222, 1234 (Ind. 2003). As property owner,
Knightstown has equitable obligations to maintain the party wall. Wainscott’s
nuisance claim would not be barred even if he had not complied with the tort-claim
notice requirement. The trial court correctly determined, “Applying the general
principle of statutory construction that a statute should be strictly construed, the
Court finds that the nuisance allegations of Count 3 are not a tort for purposes of
the ITCA.” (App. 11.)
2 The transcript from the summary-judgment hearing incorrectly lists Mr. Emhardt, counsel for Wainscott, as the attorney stating this. When viewed in the context of the transcript, however, it is evident that Mr. Uhl, counsel for Knightstown, made this statement:
MR. UHL: Could I say one more thing? I am sorry Your Honor. COURT: Sure. [MR. UHL]: If you decide that there is a nuisance claim here for injunctive relief that is not barred by the Tort Claims Act you can still grant summary judgment on any claim for damages—think that’s barred by the lack of Tort Claim Notice.
(Tr. 26–27.)
Brief of Appellee/Cross-Appellant Dudley Wainscott
23
Genuine issues of material fact preclude summary judgment on Wainscott’s claim on breach of contract.
The trial court also correctly denied Knightstown’s motion for summary
judgment as to Wainscott’s breach of contract claim. The trial court stated, “The
general rule is that only tort claims are subject to the ITCA. Clearly, the breach of
contract action alleged in Count 2 is not subject to it.” (App. 10.)
“To be valid, a contract need not be in writing … .” Sand Creek Country Club,
Ltd. v. CSO Architects, Inc., 582 N.E.2d 872, 875 (Ind. Ct. App. 1991). “[I]n order to
have a legally binding contract there must be generally an offer, acceptance, and
consideration. To constitute consideration, there must be a benefit accruing to the
promisor or a detriment to the promisee.” Ind. Dep’t of State Revenue v. Belterra
Resort Ind., LLC, 935 N.E.2d 174, 179 (Ind. 2010) (internal citations omitted).
These elements exist here.
On April 18, 2013, the Knightstown Town Council President, Clyde South,
offered that Knightstown would repair the common wall to address any issues
affecting the Old Lodge. (App. 120, ¶ 7.) After South’s offer, Knightstown
commissioned FPBH to prepare an engineering report to fix the damage to
Wainscott’s building. (App. 136–39.) Wainscott accepted this offer. The
consideration for this contract was Wainscott’s agreement to work with the town to
fix any problems caused by the demolition, rather than filing suit to compel
Knightstown to do so. Belterra Resort, 935 N.E.2d at 179 (“A detriment on the other
hand is a legal right the promisee has forborne.”) But Knightstown, failed to repair
the common wall. (App. 120, ¶ 9.) By failing to repair the shared wall, Knightstown
breached its contract with Wainscott. A breach-of-contract claim is not governed by
the ITCA or its notice requirements.
Knightstown claims that the Town Council President did not have authority
to bind Knightstown. Knightstown cites McCrary Engineering Corp. v. Town of
Brief of Appellee/Cross-Appellant Dudley Wainscott
24
Upland, 472 N.E.2d 1305 (Ind. Ct. App. 1985), as support for this claim. The trial
court correctly distinguished McCrary from the facts here. In McCrary, the town
council authorized its president to sign all forms and applications necessary for a
construction project. The town president entered into an employment contract with
McCrary Engineering. The Court of Appeals held that the town president had
exceeded his authority, which was limited to signing contracts, by entering into the
employment agreement. Id. at 1306. Here, there is no evidence that Knightstown’s
town president exceeded his authority by entering into a contract with Wainscott.
In fact, there is evidence that the council assented to the contract by hiring FPBH to
prepare an engineering report to fix the damage to Wainscott’s building. (App. 136–
39.)
Even if South did not have actual authority to bind the town council, an
agent like South may bind his principal through actual or apparent authority.
“Apparent authority is that authority which a third person reasonably believes the
agent to possess because of some manifestation from his principal.” Herald Tel. v.
Fatouros, 431 N.E.2d 171, 175 (Ind. Ct. App. 1982) (internal citations omitted). The
manifestation of the authority “need not be in the form of direct communications,
but rather the placing of the agent in a position to perform acts or make
representations which appear reasonable to a third person is a sufficient
manifestation to endow the agent with apparent authority.” Id. It seemed
reasonable to Wainscott that South in his position as President would be able to
enter into contracts on behalf of Knightstown. (App. 120, ¶ 8.) Placing South in the
position of President of the Knightstown Town Council endowed him with apparent
authority to bind Knightstown to contracts.
Wainscott has a valid breach-of-contract claim against Knightstown. The
trial court correctly concluded that genuine issues of material fact preclude
Brief of Appellee/Cross-Appellant Dudley Wainscott
25
summary judgment in Knightstown’s favor on Wainscott’s claim for breach of
contract.
CONCLUSION
The judgment of the trial court should be reversed as to (1) Wainscott’s compliance
with the notice requirements of the ITCA; (2) Wainscott’s party-wall claim; and
(3) Wainscott’s negligence claim. The judgment of the trial court regarding
Wainscott’s nuisance e and breach of contract claims should be affirmed.
Respectfully submitted,
____________________________________ Frederick D. Emhardt, # 10952-49 Josh S. Tatum, # 28 089-49 Colin E. Connor, #28504-49 Plews Shadley Racher & Braun LLP 1346 North Delaware Street Indianapolis, IN 46202-2415 Tel: (317) 637-0700 Fax: (317) 637-0710
Attorneys for Appellee/Cross-Appellant Dudley Wainscott
Brief of Appellee/Cross-Appellant Dudley Wainscott
26
WORD-COUNT CERTIFICATE
In compliance with App. R. 44(E) & (F), I verify that this Brief of Appellee/Cross-
Appellant Dudley Wainscott, including footnotes and excluding the items set forth
in App. R. 44(C), contains no more than 14,000 words.
____________________________________ Josh S. Tatum
Brief of Appellee/Cross-Appellant Dudley Wainscott
27
CERTIFICATE OF SERVICE
I certify that this Brief of Appellee/Cross-Appellant Dudley Wainscott was filed and
served on the following using the Indiana E-Filing System on September 9, 2016:
Gary L. Shaw Richard R. Skiles Skiles Detrude 150 East Market Street Suite 200 Indianapolis, IN 46204 (Attorney for Shroyer Bros. Inc.)
James S. Stephenson Joseph M. Hendel Stephenson Morow & Semler 3077 East 98th Street Suite 240 Indianapolis, IN 46280 (Attorney for Town of Knightstown)
____________________________________ Josh S. Tatum
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