MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                 Aug 24 2016, 10:42 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                             CLERK
                                                                  Indiana Supreme Court
court except for the purpose of establishing                         Court of Appeals
                                                                       and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Darnail Lyles                                            Gregory F. Zoeller
Gary, Indiana                                            Attorney General of Indiana
                                                         Frances Barrow
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Katrina Morgan,                                          August 24, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         37A03-1603-CT-693
        v.                                               Appeal from the Jasper Superior
                                                         Court
Lake County Juvenile Center,                             The Honorable James R. Ahler,
Lake Superior Court, Juvenile                            Judge
Division and Juvenile Division                           Trial Court Cause No.
Judge,                                                   37D01-1308-CT-621
Appellees-Defendants




Court of Appeals of Indiana | Memorandum Decision 37A03-1603-CT-693 | August 24, 2016     Page 1 of 6
      Baker, Judge.


[1]   Katrina Morgan appeals the grant of summary judgment by the trial court in

      favor of the Lake County Superior Court, Juvenile Division (the Juvenile

      Court), and the Judge of that Court (the Judge). She argues that the tort claim

      notice she served on other defendants constituted substantial compliance with

      the notice requirements of the Indiana Tort Claims Act.1 Finding that Morgan

      did not timely notify the Juvenile Court or the Judge, we affirm.


                                                     Facts
[2]   In November 2008, fourteen-year-old D.M. was residing in the Lake County

      Juvenile Detention Center (the Detention Center). On November 16, 2008,

      D.M. was in the facility’s gym when he suddenly became unresponsive. Within

      the hour, he passed away.


[3]   On May 12, 2009, Katrina Morgan’s counsel served a tort claim notice on the

      Detention Center, the Lake County Board of Commissioners (the Board), and

      the Indiana Political Subdivision Risk Management Commission. Morgan

      never served any notice to Indiana’s Office of Attorney General (Attorney

      General). The May 12 notice, however, was brought to the Attorney General’s

      attention, and the office responded to Morgan on June 10, 2009: “Based on the

      information provided, it does not appear that the State of Indiana has any




      1
          Ind. Code § 34-13-3-1, et seq.


      Court of Appeals of Indiana | Memorandum Decision 37A03-1603-CT-693 | August 24, 2016   Page 2 of 6
      connection with this case. Unless you have some theory that would include the

      State of Indiana as a party, this claim will be filed with no further action.”

      Appellant’s App. p. 221. On December 9, 2009, Morgan filed a complaint for

      wrongful death against the Detention Center and the Board.


[4]   Nearly four years after she sent out her tort claim notice, on March 12, 2013,

      Morgan filed a motion to join the Judge as a defendant. The trial court granted

      the motion and granted Morgan leave to file an amended complaint. Her

      amended complaint also added the Juvenile Court as a defendant.


[5]   On March 6, 2015, the Juvenile Court and the Judge (collectively, the New

      Defendants) moved to file an amended answer, adding the affirmative defense

      of lack of tort claim notice. After this motion was granted and the answer

      amended, the New Defendants moved for summary judgment. After a hearing,

      the trial court granted the New Defendants’ motion for summary judgment. It

      explained:

              In this case it is undisputed that on May 12, 2009, Morgan
              directed a tort claim notice (the “Notice”) to the Lake County
              Juvenile Center, the Lake County Board of Commissioners, and
              the Indiana Political Subdivision Risk Management
              Commission. The Court finds that, as a matter of law, the
              Notice is not sufficient under the ITCA to put the Lake Superior
              Court, Juvenile Division and the Juvenile Division Judge on
              timely notice of her claim.




      Court of Appeals of Indiana | Memorandum Decision 37A03-1603-CT-693 | August 24, 2016   Page 3 of 6
      Appellant’s App. p. 315-16. Morgan now appeals.2


                                       Discussion and Decision
[6]   When reviewing a trial court’s ruling on summary judgment, we stand in the

      shoes of the trial court, applying the same standards in deciding whether to

      affirm or reverse. Kramer v. Focus Realty Group, LLC, 51 N.E.3d 1240, 1243

      (Ind. Ct. App. 2016). Therefore, we look to whether there are genuine issues of

      material fact and whether the moving party is entitled to judgment as a matter

      of law. Ind. Trial Rule 56 (C).


[7]   Under the Indiana Tort Claims Act (ITCA), a claim for monetary damages

      against the state is barred unless notice is filed with the Attorney General or the

      state agency involved within 270 days after the loss. Ind. Code § 34-13-3-6.

      The notice must describe in a short and plain statement the facts on which the

      claim is based. I.C. § 34-13-3-10. A claimant’s failure to provide the notice

      required by the ITCA entitles the state to a dismissal. Ind. Dep’t of Corr. v. Hulen,

      582 N.E.2d 380, 380-81 (Ind. 1991).


[8]   Morgan claims that she substantially complied with the ITCA notice

      requirements. As the claimant, she bears the burden of establishing substantial

      compliance. Chang v. Purdue Univ., 985 N.E.2d 35, 52 (Ind. Ct. App. 2013). In

      determining whether substantial compliance is established, we look to the




      2
          Morgan’s claims against the other defendants are still ongoing.


      Court of Appeals of Indiana | Memorandum Decision 37A03-1603-CT-693 | August 24, 2016   Page 4 of 6
       purpose of the notice requirements, which is “to inform state officials with

       reasonable certainty of the accident or incident and surrounding circumstances

       and to advise of the injured party’s intent to assert a tort claim so that the state

       may investigate, determine its possible liability, and prepare a defense to the

       claim.” Id. Whether a party has substantially complied with the notice

       requirement of the ITCA is a question of law. Id.


[9]    Morgan argues that the New Defendants had notice of her claim on May 12,

       2009, when she served the Detention Center, because the Detention Center was

       established by the Juvenile Court and operated under the Judge. She also

       points to the Attorney General’s letter of June 10, 2009; she argues that this

       proves that the Attorney General knew of her claim within the prescribed 270

       days, and that she therefore substantially complied with the ITCA notice

       requirements.


[10]   We disagree. While the Attorney General was aware of Morgan’s tort claim

       notice, it was unaware that Morgan intended to seek recovery from a state

       entity. As our caselaw makes clear, the ITCA notice requirements are intended

       to notify governmental entities that litigation is imminent so that they may

       prepare a defense. Although Morgan timely notified several county-level

       entities that litigation was imminent, the Juvenile Court and the Judge have

       gone nearly four years without the opportunity to prepare any defense because

       they were never notified that they were being sued.




       Court of Appeals of Indiana | Memorandum Decision 37A03-1603-CT-693 | August 24, 2016   Page 5 of 6
[11]   We would like to commend the Attorney General for the June 10, 2009, letter,

       which informed Morgan that she had not served notice on any state entities.

       Although it was not required to do so, the Attorney General went out of the

       way to enable Morgan to properly notify the state in case she planned to sue a

       state entity. When Morgan received the letter, she still had two more months to

       send a timely notice indicating her intent to sue the state. Instead, she waited

       nearly four years to add the New Defendants.


[12]   While we are hesitant to deny a claimant’s day in court based on minor and

       harmless technical violations of the ITCA, e.g., Galbreath v. City of Indianapolis,

       253 Ind. 472, 255 N.E.2d 225 (1970), we do not believe that Morgan has fallen

       into a trap for the unwary. She knew that the state did not believe that it was a

       possible defendant in her lawsuit, and she had ample time to file a tort claim

       notice to that effect, but she chose not to. Therefore, her claims against the

       New Defendants are barred, and the trial court did not err by entering summary

       judgment in their favor. Her claims against the properly-notified defendants

       may continue.


[13]   The judgment of the trial court is affirmed and remanded for further

       proceedings with regard to the remaining defendants.


       Vaidik, C.J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 37A03-1603-CT-693 | August 24, 2016   Page 6 of 6
