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




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      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




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[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


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       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.

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[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




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