                                                            FILED
                                                       Aug 23 2016, 6:10 am

                                                            CLERK
                                                        Indiana Supreme Court
                                                           Court of Appeals
                                                             and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
Matthew J. Schad                                            R. Jeffrey Lowe
George A. Budd, V                                           Crystal G. Rowe
Schad & Schad, P.C.                                         New Albany, Indiana
New Albany, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Kyleigh Nolan,                                              August 23, 2016
Appellant-Plaintiff,                                        Court of Appeals Case No.
                                                            10A04-1510-CT-1824
        v.                                                  Appeal from the Clark Circuit
                                                            Court
Clarksville Police Department                               The Honorable Susan L. Orth,
and Town of Clarksville,                                    Special Judge
Indiana,                                                    Trial Court Cause No.
Appellees-Defendants.                                       10C04-1403-CT-44




Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016              Page 1 of 14
                                           Case Summary
[1]   Nineteen-year-old Kyleigh Nolan volunteered to play the role of a hostage in a

      training exercise being conducted by the Clarksville Police Department. She

      was injured and later sued the police department and the Town of Clarksville.

      The trial court granted summary judgment for the defendants after finding that

      Nolan had failed to provide sufficient pre-suit notice of her claim pursuant to

      the Indiana Tort Claims Act (“ITCA”). While we agree that Nolan failed to

      comply with the statutory-notice requirement, we also conclude that there is a

      genuine issue of material fact as to whether the defendants, by virtue of their

      own conduct following the incident, are estopped from asserting Nolan’s non-

      compliance as a defense. We therefore affirm in part and reverse in part the

      grant of summary judgment in favor of the defendants. On remand, Nolan is

      entitled to present her estoppel claim to the jury at trial.



                             Facts and Procedural History
[2]   In accordance with the standard of review in summary-judgment matters, we

      begin by reciting the evidence most favorable to the non-moving party, Nolan.

      In June 2012, Nolan was employed at a store in the Green Tree Mall in

      Clarksville. The Clarksville Police Department was conducting a training

      exercise at the mall, and Nolan agreed to act as a hostage. As the hostage

      scenario was being played out, Nolan was involved in a collision with officers,

      and her nose was broken. The police department called for an ambulance, but

      Nolan, who was nineteen at the time, declined assistance and called her mother

      Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016   Page 2 of 14
      instead. Nolan’s mother went to the mall, and Chief Mark Palmer, who was

      present for the training exercise, told Nolan and her mother that the police

      department would cover Nolan’s medical expenses relating to the accident.

      Chief Palmer also told them that bills should be sent to the Town of Clarksville

      and that “if they sent them to the Police Department the office manager would

      forward them to the Town’s insurance representative.” Appellant’s App. p.

      162.

[3]   Over the next few months, Nolan continued to contact Chief Palmer, and her

      mother did the same. Nolan attempted to reach him via e-mail and telephone

      in mid-to-late July and then went to the police station in August and tried, but

      was unable, to meet with him to provide medical bills. Nolan’s mother e-

      mailed with Chief Palmer and met with him in person, at which time he told

      her that “the Clarksville Police would be taking care of the bills and not to

      worry about it.” Id. at 127. Nolan’s mother later brought some bills to the

      police department and gave them to a receptionist, who said that she would

      give them to Chief Palmer. However, neither the police department nor the

      Town of Clarksville has ever paid any of Nolan’s medical bills.

[4]   In early 2014, Nolan filed a lawsuit against the police department and the town

      (collectively, “the Town”). The Town filed a motion for summary judgment,

      contending that Nolan had not provided pre-suit notice of her claim within 180

      days of the incident, as required by the ITCA, and that her claim is therefore

      barred. See Ind. Code § 34-13-3-8 (“[A] claim against a political subdivision is



      Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016   Page 3 of 14
      barred unless notice is filed with . . . the governing body of that political

      subdivision . . . within one hundred eighty (180) days after the loss occurs.”).

[5]   In response, Nolan conceded that she had not filed a “formal” notice of claim

      but argued that her contacts with the Town amounted to substantial compliance

      with the statutory requirement. Alternatively, she argued that, even if she had

      not substantially complied with the ITCA, the Town led her to believe that

      formal notice would not be necessary and should therefore be estopped from

      asserting non-compliance as a defense.

[6]   After hearing oral argument from counsel, the trial court granted summary

      judgment in favor of the Town, concluding that Nolan “did not provide

      sufficient notice to Defendants until well after th[e] statutory period had

      expired.” Appellant’s App. p. 16. The court did not specifically address

      Nolan’s estoppel claim in its order.

[7]   Nolan now appeals.



                                 Discussion and Decision
[8]   Nolan contends that the trial court erred by concluding that she failed to

      comply with the pre-suit notice requirement of the ITCA and by granting

      summary judgment in favor of the Town on that basis. It is well established

      that in reviewing a grant of summary judgment, we address the issues de novo,

      giving no deference to the trial court’s decision. Williams v. Tharp, 914 N.E.2d

      756, 761 (Ind. 2009); Ind. Dep’t of Corr. v. Swanson Servs. Corp., 820 N.E.2d 733,

      Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016   Page 4 of 14
      736-37 (Ind. Ct. App. 2005), reh’g denied, trans. denied. Nonetheless, both parties

      agree that we are to review a summary judgment based on non-compliance with

      the ITCA using the deferential “negative judgment” standard, under which we

      reverse “only if the evidence in the record, along with all reasonable inferences,

      is without conflict and leads unerringly to a conclusion opposite that reached by

      the trial court.” Infinity Products, Inc. v. Quandt, 810 N.E.2d 1028, 1032 (Ind.

      2004) (quoting DiMizio v. Romo, 756 N.E.2d 1018, 1021 (Ind. Ct. App. 2001),

      trans. denied), reh’g denied. In support of this proposition, the Town cites Hupp v.

      Hill, 576 N.E.2d 1320 (Ind. Ct. App. 1991), and Nolan cites Fowler v. Brewer,

      773 N.E.2d 858 (Ind. Ct. App. 2002), trans. denied, where we relied on Hupp.


[9]   It is true that, in Hupp, a panel of this Court stated that judgments based on

      non-compliance with the ITCA “are subject to review as negative judgments[.]”

      576 N.E.2d at 1324. For that proposition, the panel cited this Court’s earlier

      decision in Dunn v. City of Indianapolis, 451 N.E.2d 1122 (Ind. Ct. App. 1983),

      reh’g denied. Id. We read Dunn more narrowly. In Dunn, the city raised the

      ITCA defense by way of a motion for summary judgment. 451 N.E.2d at 1123-

      24. At the plaintiff’s request, the trial court set a hearing on the motion. Id.

      Before the hearing, however, the trial court ordered the parties to “stipulate all

      facts necessary for hearing on [the] Tort Claims notice and [to] be ready to

      present any other facts at the hearing” and to “prepare [the] factual issue.” Id.

      at 1124. At the hearing, witnesses were sworn and testified. Id. Thereafter, the

      trial court issued findings of fact and concluded that the plaintiff had failed to

      comply with ITCA notice requirements. Id. On appeal, we explained, “The

      Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016   Page 5 of 14
       record clearly indicates that both the parties and the court considered the

       hearing an evidentiary hearing to resolve the notice issue. The facts were

       disputed by the parties and weighed by the court.” Id. at 1124-25. We then

       went on to review and affirm the trial court’s ruling under the negative-

       judgment standard. Id. at 1125-26. In short, we applied the negative-judgment

       standard because the trial court, after putting the parties on notice, held an

       evidentiary hearing, weighed the evidence, and made findings of fact. See also

       Lett v. State, 519 N.E.2d 749, 750 (Ind. Ct. App. 1988) (citing Dunn for negative-

       judgment standard after trial court held evidentiary hearing regarding ITCA

       compliance), reh’g denied.


[10]   Dunn, then, does not stand for the proposition that all judgments based on non-

       compliance with the ITCA “are subject to review as negative judgments[.]”

       Hupp, 576 N.E.2d at 1324.1 The negative-judgment standard only applies when

       the trial court has weighed the evidence and made factual determinations. See

       Dunn, 451 N.E.2d at 1123-26. When, on the other hand, the trial court grants

       summary judgment based strictly on the parties’ briefs, designated summary-

       judgment evidence, and oral arguments, we apply the traditional, de novo

       summary-judgment standard of review. See, e.g., Lyons v. Richmond Cmty. Sch.




       1
         There are other instances in which we have cited the negative-judgment standard in ITCA summary-
       judgment cases, all of which can be traced back to Hupp. See, e.g., Warrick Cnty. ex rel. Conner v. Hill, 973
       N.E.2d 1138, 1142 (Ind. Ct. App. 2012), trans. denied; Brown v. Alexander, 876 N.E.2d 376, 380 (Ind. Ct. App.
       2007), trans. denied; Fowler, 773 N.E.2d at 861; Porter v. Fort Wayne Cmty. Sch., 743 N.E.2d 341, 344 (Ind. Ct.
       App. 2001), trans. denied; Gregor v. Szarmach, 706 N.E.2d 240, 241-42 (Ind. Ct. App. 1999); Brunton v. Porter
       Mem’l Hosp. Ambulance Serv., 647 N.E.2d 636, 639 (Ind. Ct. App. 1994); see also Hasty v. Floyd Mem’l Hospital,
       612 N.E.2d 119, 121 (Ind. Ct. App. 1992) (citing negative-judgment standard in motion-to-dismiss context).

       Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016                         Page 6 of 14
       Corp., 19 N.E.3d 254, 259 (Ind. 2014); Schoettmer v. Wright, 992 N.E.2d 702, 705

       (Ind. 2013).

[11]   Here, the parties filed their summary-judgment papers, their attorneys made

       oral arguments at a typical summary-judgment hearing, and there is no

       indication that the trial court weighed the evidence or resolved disputed issues

       of fact. Therefore, we will review the trial court’s decision de novo. See

       Williams, 914 N.E.2d at 761; Swanson Servs. Corp., 820 N.E.2d at 736-37. We

       will affirm the grant of summary judgment “if the designated evidentiary matter

       shows that there is no genuine issue as to any material fact and that the moving

       party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). “In

       reviewing the record, we construe all reasonable inferences in favor of the

       nonmoving party.” Gruber v. YMCA of Greater Indianapolis, 34 N.E.3d 264, 266

       (Ind. Ct. App. 2015).


                                    I. Substantial Compliance
[12]   Nolan’s first argument is that even though she did not file a notice with the

       Town in accordance with the ITCA, see I.C. § 34-13-3-8, the contacts that she

       and her mother had with the Town, including the delivery of certain medical

       bills to the police station, put the Town on notice that a claim might be filed

       and therefore amounted to substantial compliance with the statutory-notice

       requirement. Under the doctrine of substantial compliance, the failure to fully

       satisfy the precise notice requirements of the ITCA is excused as long as “the

       purpose of the notice requirement is satisfied.” Schoettmer, 992 N.E.2d at 707


       Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016   Page 7 of 14
       (emphasis added). However, our Supreme Court recently clarified that the

       doctrine can only be invoked by a claimant who has filed a timely notice-of-

       claim that is technically defective, not by a claimant who has filed no notice or

       late notice. Lyons, 19 N.E.3d at 259 (summarily affirming this Court’s holding

       that “substantial compliance cannot exist when the claimant took no steps

       whatsoever to comply with the notice statute” and that claimants who “filed no

       notice-of-claim—defective or otherwise—within 180 days” of loss “did not

       substantially comply with the ITCA notice requirement”). Here, Nolan, like

       the claimants in Lyons, “filed no notice-of-claim—defective or otherwise—

       within 180 days” of the incident. As such, she cannot prevail under the

       doctrine of substantial compliance, and we affirm the trial court’s grant of

       summary judgment in favor of the Town on this issue.2


                                                   II. Estoppel
[13]   While Nolan cannot show that she substantially complied with the ITCA notice

       requirement, we agree with her that there is a genuine issue of material fact as

       to whether the Town should be estopped from asserting her non-compliance as

       a defense. In the ITCA-notice context, the doctrine of estoppel “focuses on

       representations made by the defendant or its agents to the plaintiff, which



       2
         Nolan’s substantial-compliance argument is based in part on the fact that on December 3, 2012, Ingenix
       Subrogation Services wrote to the police department to explain that it had been retained by Nolan’s health
       insurer “to pursue a recovery for medical benefits that have been or may be paid by them on behalf of
       [Nolan] for the treatment of injuries sustained arising out of the above captioned injury.” Appellant’s App. p.
       146. We agree with the Town that this letter did not constitute notice that Nolan, herself, would be filing a
       claim. To the contrary, one reasonable inference to be drawn from the letter is that Nolan had her medical
       expenses paid by her own insurer and, as a result, would not be filing a claim against the Town.

       Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016                        Page 8 of 14
       induce the plaintiff reasonably to believe that formal notice is unnecessary.”

       Allen v. Lake Cnty. Jail, 496 N.E.2d 412, 415 n.3 (Ind. Ct. App. 1986), reh’g

       denied.3


[14]   Our Supreme Court recently explained that a plaintiff claiming estoppel in

       response to an ITCA-notice defense “must show its (1) lack of knowledge and

       of the means of knowledge as to the facts in question, (2) reliance upon the

       conduct of the party estopped, and (3) action based thereon of such a character

       as to change [its] position prejudicially.” Schoettmer, 992 N.E.2d at 709. We

       conclude that Nolan designated ample evidence to survive summary judgment

       on these three elements.

[15]   As to the first element, there is evidence that Chief Palmer represented that the

       Town would cover Nolan’s medical expenses and that Nolan was “not to worry

       about it,” while there is no evidence that Nolan knew or had any way of

       discovering that the Town was not actually going to pay. Regarding the second

       and third elements, there is evidence that Nolan acted in reliance upon Chief

       Palmer’s statements to her detriment. In the months following the accident and




       3
         Such claims generally fall into one of two categories: (1) claims that the political-subdivision defendant
       disguised or failed to disclose its governmental status, see, e.g., Schoettmer, 992 N.E.2d at 709; Gregor v.
       Szarmach, 706 N.E.2d 240, 243 (Ind. Ct. App. 1999), and (2) claims that a known political-subdivision
       defendant made a representation that led the plaintiff to believe that the matter would be settled without the
       need for formal, adversarial procedures, see, e.g., Delaware Cnty. v. Powell, 272 Ind. 82, 393 N.E.2d 190, 192
       (1979); Allen, 496 N.E.2d at 416-17; Coghill v. Badger, 418 N.E.2d 1201 (Ind. Ct. App. 1981), reh’g denied.
       Because Nolan’s claim—that she acted in reliance on Chief Palmer’s statements that her medical bills would
       be paid—falls into the second category, the fact that “the Clarksville Police did not attempt to hide their
       governmental or political-subdivision status,” Appellees’ Br. p. 38, is irrelevant.

       Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016                        Page 9 of 14
       Chief Palmer’s initial promise to pay, instead of filing a tort notice or a lawsuit,

       Nolan e-mailed and called him and eventually went to the police station with

       medical bills in hand, hoping to meet with him—in accordance with Chief

       Palmer’s instruction to submit medical bills to the Town. In addition, Nolan’s

       mother corresponded with Chief Palmer via e-mail, spoke with him in person,

       and gave medical bills to a receptionist who said that they would be given to

       Chief Palmer. Because this evidence could reasonably support a finding of

       estoppel, summary judgment is inappropriate. See Butler v. City of Indianapolis,

       668 N.E.2d 1227, 1228 (Ind. 1996) (“Where material facts conflict, or

       undisputed facts lead to conflicting material inferences, summary judgment is

       inappropriate.”).

[16]   The Town’s attacks on Nolan’s estoppel claim are without merit. It asserts that

       “Nolan apparently did not know of the specific conversations or alleged

       assurances that were purportedly made by Chief Palmer to her mother” and

       that, therefore, “Chief Palmer’s alleged communications to Nolan’s mother do

       not weigh into the equitable-estoppel analysis.” Appellees’ Br. p. 36. In

       support of this argument, the Town notes that Nolan’s affidavit only generally

       refers to her mother’s contact with Chief Palmer and does not specifically state

       that her mother told her about the representations that Chief Palmer made to

       Nolan’s mother in the months after the accident—including that “the

       Clarksville Police would be taking care of the bills and not to worry about it.”

       We first note that even if Nolan’s mother did not share these assurances with

       Nolan, Chief Palmer’s promise of payment on the night of the accident, to both


       Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016   Page 10 of 14
       Nolan and her mother, would be sufficient to permit Nolan’s estoppel claim to

       go forward. Furthermore, given Nolan’s age and the active involvement of her

       mother in this ordeal, beginning at the mall immediately after the accident, it

       would be reasonable to infer that Nolan’s mother was acting as Nolan’s agent

       and made Nolan aware of all communications with Chief Palmer. Therefore,

       Chief Palmer’s communications with Nolan’s mother in the months following

       the accident are relevant to Nolan’s estoppel claim.

[17]   The Town also asserts that Nolan cannot satisfy the detrimental-reliance prongs

       because there is no evidence that “she failed to file the required tort-claim

       notices because Chief Palmer told her Clarksville Police would pay her medical

       bills”—in other words, evidence that Nolan would have filed notice but for

       Chief Palmer’s representations. Appellees’ Br. p. 35. The Town does not cite,

       and we are not aware of, any authority that stands for the proposition that an

       ITCA plaintiff claiming estoppel must show that she was aware of the notice

       requirement and would have filed notice but for some conduct or representation

       by the political subdivision. Nolan need only show that she detrimentally relied

       upon Chief Palmer’s representations. See Schoettmer, 992 N.E.2d at 709. The

       evidence that Nolan and her mother attempted to work with Chief Palmer and

       to follow his instructions regarding the submission of medical bills, rather than

       filing a notice of claim, is sufficient to create a genuine issue of material fact on

       the detrimental-reliance elements.


[18]   Finally, the defendants assert that they are distinct entities, that Nolan’s specific

       factual allegations relate only to the police department, and that the Town of

       Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016   Page 11 of 14
       Clarksville is entitled to summary judgment even if the police department is

       not. The Town did not raise this argument in its motion for summary

       judgment, so it is waived. See Poulard v. Lauth, 793 N.E.2d 1120, 1123 (Ind. Ct.

       App. 2003) (“Issues not raised before the trial court on a summary judgment

       motion cannot be argued for the first time on appeal and are waived.”). In any

       event, they cite no authority in support of their assertion, and we are not

       persuaded. Tellingly, the defendants do not allege that the Town of Clarksville

       was not made aware of Nolan’s injury or her efforts to have her medical bills

       paid. In Clarksville, as in most municipalities, the town and the police

       department are closely affiliated, as evidenced by their admission in discovery

       that Chief Palmer told Nolan and her mother “that any bills that come out of

       [Nolan’s] visit to her family doctor should be sent to the Town of Clarksville and if

       they sent them to the Police Department the office manager would forward them

       to the Town’s insurance representative.” Appellant’s App. p. 162 (emphasis added).

       Our disposition of Nolan’s estoppel claim applies to both defendants.

[19]   In sum, Chief Palmer’s alleged statements, as an agent of the Town, were

       representations that could very well have led Nolan to believe that formal

       notice was unnecessary and to forego filing such notice. Therefore, summary

       judgment is inappropriate on the issue of estoppel. See, e.g., Delaware Cnty. v.

       Powell, 272 Ind. 82, 393 N.E.2d 190, 192 (1979) (reversing summary judgment

       on estoppel where county’s insurer admitted county’s liability, made payments

       to plaintiff, and told plaintiff that county “would take care of everything”);

       Allen, 496 N.E.2d at 416-17 (reversing summary judgment on estoppel where


       Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016   Page 12 of 14
       there was evidence that agent of county jail “actively represented—indeed

       promised—that Allen would be fully reimbursed for his loss, in effect

       representing that litigation would be rendered unnecessary by settlement”); see

       also Coghill v. Badger, 418 N.E.2d 1201, 1208-09 (Ind. Ct. App. 1981) (affirming

       grant of summary judgment on estoppel where there was no representation by

       the defendants that could “reasonably be construed as a promise”), reh’g denied.


[20]   On remand, Nolan is entitled to present her estoppel claim to the jury at trial.

       In Lyons, our Supreme Court found genuine issues of material fact on the

       plaintiffs’ claim that “the discovery rule should apply to excuse [their]

       noncompliance with the ITCA notice requirement” and their alternative claim

       that “the defendants should be estopped from asserting their ITCA notice defense

       because they fraudulently concealed the existence of the Lyonses’ claims.” 19

       N.E.3d at 260-61 (emphasis added). In addressing “how the trial court should

       proceed upon remand,” the Court explained that the issues should be decided

       by the jury:

               The question of whether a plaintiff has complied with the
               requirements of the ITCA is one of law, Schoettmer v. Wright, 992
               N.E.2d 702, 707 (Ind. 2013), but the answer may depend upon
               the resolution of disputed facts. Gregor v. Szarmach, 706 N.E.2d
               240, 241 (Ind. Ct. App. 1999). And the application of the
               discovery rule necessarily involves questions of fact. Wehling v.
               Citizens Nat’l Bank, 586 N.E.2d 840, 843 (Ind. 1992) (stating that
               whether the plaintiffs knew or “in the exercise of ordinary
               diligence” could have known of the defendant’s alleged
               negligence was “a question of fact for the factfinder to answer”).
               When the discovery rule applies, the time for filing does not
               begin to run until the plaintiff knows or in the exercise of
       Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016   Page 13 of 14
               ordinary diligence should know of the tort. Id. Similarly, the
               application of the fraudulent concealment doctrine is a question
               of equity, but it may depend upon questions of fact, which are
               properly answered by the fact-finder. Fager [v. Hundt, 610 N.E.2d
               246, 253 n.5 (Ind. 1993) (“While the fraudulent concealment
               exception is an equitable doctrine, the relevant facts may be
               determined by a jury in the event of trial.”). When the doctrine
               applies, a plaintiff has a reasonable time after discovery of the
               tort to bring his action. Id. at 251.


       Id. at 262.


[21]   We recognize that our Supreme Court previously held that an estoppel claim in

       the ITCA-notice context must be resolved by the trial court before trial. Powell,

       393 N.E.2d at 192; see also Allen, 496 N.E.2d at 417 (relying on Powell in

       reversing summary judgment on plaintiff’s estoppel claim and remanding for

       determination by “trial judge as trier of fact”). However, we see no basis on

       which to treat Nolan’s estoppel claim any differently than the Supreme Court

       treated the fraudulent-concealment/estoppel claim made by the plaintiffs in

       Lyons.4


[22]   Affirmed in part, reversed in part, and remanded for further proceedings.

       Barnes, J., and Mathias, J., concur.




       4
         At times, the Town seems to contend that Nolan’s estoppel claim should fail even if all evidence in her
       favor is believed and that reserving the issue for trial would therefore be unnecessary. However, we have
       already determined that a finding of estoppel would be reasonable under the evidence designated by Nolan.
       Again, even where the facts are undisputed, summary judgment is inappropriate where undisputed facts lead
       to conflicting material inferences. Butler, 668 N.E.2d at 1228.

       Court of Appeals of Indiana | Opinion 10A04-1510-CT-1824 | August 23, 2016                  Page 14 of 14
