                                                                     FILED
                                                                Feb 16 2017, 5:43 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      James S. Stephenson                                        Frederick D. Emhardt
      Joseph M. Hendel                                           Josh S. Tatum
      Stephenson Morow & Semler                                  Colin E. Conner
      Indianapolis, Indiana                                      Plews Shadley Racher &
                                                                   Braun, LLP
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Town of Knightstown,                                       February 16, 2017
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 33A04-1604-PL-771
              v.                                                 Appeal from the Henry Circuit
                                                                 Court
      Dudley Wainscott,                                          The Honorable Mary G. Willis,
      Appellee-Plaintiff.                                        Judge
                                                                 The Honorable Jack A. Tandy,
                                                                 Judge Pro Tempore
                                                                 Trial Court Cause No.
                                                                 33C01-1502-PL-10



      Barnes, Judge.


                                               Case Summary
[1]   In this interlocutory appeal, the Town of Knightstown (“Town”) appeals the

      trial court’s partial denial of its motion for summary judgment regarding a

      Court of Appeals of Indiana | Opinion 33A04-1604-PL-771 | February 16, 2017            Page 1 of 18
      claim by Dudley Wainscott (“Wainscott”). On cross-appeal, Wainscott appeals

      the trial court’s partial grant of the Town’s motion for summary judgment. We

      affirm in part, reverse in part, and remand.


                                                      Issues
[2]   The parties present several issues for our review, which we restate as:


                       I.       whether the trial court properly found that
                                Wainscott failed to file a timely tort claim
                                notice;

                       II.      whether the trial court properly granted
                                summary judgment on Wainscott’s negligence
                                and equity claims and denied summary
                                judgment on Wainscott’s nuisance claim; and

                       III.     whether the trial court properly denied
                                summary judgment on Wainscott’s breach of
                                contract claim.


                                                       Facts
[3]   Wainscott owns a historic building called the “Old Lodge” in Knightstown. A

      building called the “Bullet Hole” was adjacent to the Old Lodge, and the

      buildings shared a wall. In February 2013, the Town contracted with Shroyer

      Brothers, Inc. (“Shroyer”) to demolish the Bullet Hole, and Shroyer began

      demolition on April 1, 2013. According to Wainscott, the demolition left “161

      holes above ground and 240 holes below ground in the shared, load-bearing

      wall . . . .” Appellant’s App. Vol. II p. 120. Wainscott also alleges that an

      unknown amount of vacuum tubes that were not removed from the building


      Court of Appeals of Indiana | Opinion 33A04-1604-PL-771 | February 16, 2017   Page 2 of 18
      were crushed during demolition, “potentially causing mercury to leak into the

      soil and groundwater.” Id. at 119.


[4]   On April 14, 2013, Wainscott sent the following letter to the Town:

              I write to you as a concerned citizen of Knightstown, as well as a
              property owner directly impacted by the destruction of the Bullet
              Hole Building at 32 Main St. Despite the fact that I have
              repeatedly requested to be kept informed, destruction of the
              building began without my knowledge, and without notification
              to the citizens of Knightstown. 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. The long term impact of
              this exposure to the children of Knightstown remains to be seen.
              The fact that no one was injured during the destruction is,
              indeed, fortunate for the city. A structural engineer MUST be
              consulted for the remainder of the project to ensure the safety of
              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. 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.


              At a minimum:


              1. All hazardous waste must be removed.



      Court of Appeals of Indiana | Opinion 33A04-1604-PL-771 | February 16, 2017   Page 3 of 18
        2. Holes in the basement wall need to be repaired, bricked and
        tucked. My basement is currently exposed to hazardous waste
        which remains at the construction site.


        3. 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. I repeat this is a LOAD BEARING wall. Without
        proper repairs, supervised by a structural engineer, that entire
        corner of Knightstown is in danger of crumbling.


        4. 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.


        What is the city’s plan for the open space? If it is to be a parking
        lot, then all necessary precautions must be taken to protect the
        west wall of 34-38 Main St. A two foot steal [sic] 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.


        Because my previous attempts to work with the City of
        Knightstown and to be kept informed were essentially ignored, I
        request your signature to acknowledge receipt of this letter. You
        are welcome to contact me at any time by phone, ***-***-****,
        or by email at *****.


        Regards,


        D.A. Wainscott


Id. at 24-25.




Court of Appeals of Indiana | Opinion 33A04-1604-PL-771 | February 16, 2017   Page 4 of 18
[5]   Wainscott then attended the April 18, 2013 meeting of the Town Council. The

      minutes of the meeting indicate that Clyde South, the Town Council president,

      stated: “the town intends to obey the law and if IDEM requires anything of the

      town, the town will comply. . . . [H]e also told Mr. Wainscott that if the town

      did anything to cause damage to his building, that we would fix the problem.”

      Id. at 27. The Town hired an engineer to make recommendations. According

      to Wainscott, the Town “failed to follow any of its engineer’s recommendations

      to repair the problems caused by its demolition.” Id. at 120. Because the

      “shared wall was not designed to be exposed to the elements,” water has leaked

      through the wall, leading to standing water and extensive mold in Wainscott’s

      building. Id.


[6]   In December 2014, Wainscott’s counsel sent a letter to the Town Council

      noting that Wainscott’s building was, and continued to be, damaged by the

      demolition and that he would be forced to bring litigation against the Town if it

      did not stop further damage to the building, repair the damage already done,

      and compensate Wainscott for his losses.


[7]   In February 2015, Wainscott filed a complaint against the Town and Shroyer

      and alleged the following counts: Count I, an equitable claim against the Town;

      Count II, a breach of contract claim against the Town; Count III, a nuisance

      claim against the Town and Shroyer; Count IV, a negligence claim against the

      Town and Shroyer; and Count V, a violation of Indiana’s Access to Public

      Records law against the Town. The Town filed a motion for summary

      judgment. The Town argued that it was entitled to summary judgment on

      Court of Appeals of Indiana | Opinion 33A04-1604-PL-771 | February 16, 2017   Page 5 of 18
      Counts I, III, and IV because Wainscott had failed to file a timely tort claims

      notice under the Indiana Tort Claims Act (“ITCA”). It also argued that it was

      entitled to summary judgment on Count II because Wainscott could not show

      the existence of a binding contract. As for Count V, the Town alleged that the

      claim was moot because Wainscott’s public records requests had been satisfied.

      Wainscott responded that his April 2013 letter qualified as a proper tort claims

      notice. Alternatively, Wainscott argued that his equitable, nuisance, and

      breach of contract claims were not subject to the ITCA.


[8]   After a hearing, the trial court entered an order granting in part and denying in

      part the Town’s motion for summary judgment. The trial court found:

              [T]he only notice Wainscott gave to [the Town] is the letter of
              April 14, 2013. If the letter does not comply with the
              requirements of the ITCA, Wainscott is barred from bringing suit
              against [the Town] for all causes of action covered by the ITCA.
              In the letter, Wainscott addresses the Knightstown City Council
              and complains about how the demolition of the Bullet Hole
              Building has impacted his building, and also poses a danger in
              general to the residents of [the Town]. It refers to the
              circumstances of the demolition with sufficient clarity as to
              location and date as to alert the town to the events of which
              Wainscott complains. The letter states the town’s actions may
              pose a threat to the general population and refers to potential
              long term danger to the children of Knightstown. However, the
              letter is missing a crucial element required by the ITCA.


              The Court finds the fatal flaw with Wainscott’s letter is that it
              does not state that Wainscott intends to bring legal action against
              [the Town]. Case law has held this to be a requirement. See
              Collier v. Prater, 544 N.E.2d 497 (Ind. 1989), Bienz v. Bloom, 674

      Court of Appeals of Indiana | Opinion 33A04-1604-PL-771 | February 16, 2017   Page 6 of 18
        N.E.2d 998 (Ind. Ct. App. 1996), [trans. denied,] and the very
        recent case of Kerr v. City of South Bend, [48 N.E.3d 348 (Ind. Ct.
        App. 2015),] decided by the Indiana Court of Appeals on
        December 23, 2015.


        Actual knowledge or action taken to cure a problem has been
        held not to obviate the requirement that an aggrieved party notify
        a governmental entity of its intent to pursue a legal claim. In the
        case at bar, [the Town] did respond to Wainscott’s concerns by
        hiring an engineering firm. Kerr held that actual knowledge of
        the event and investigation steps do not relieve an aggrieved
        party of the ITCA requirement to state an intent to pursue legal
        action.


Appellant’s App. Vol. II pp. 9-10. The trial court noted that the ITCA clearly

applied to Count IV, the negligence claim, and clearly did not apply to Count

II, the breach of contract claim. As for Count I, the equitable duty claim, the

trial court found that it was “in essence a negligence claim,” and was subject to

the ITCA. Id. at 10. As for Count III, the nuisance claim, the trial court found

“that there is not a clear answer in the law as to whether a nuisance action . . .

is governed by the ITCA requirements” and found that the nuisance claim was

“not a tort for purposes of the ITCA.” Id. at 11. Finally, with respect to Count

IV, the breach of contract claim, the trial court found that “there are questions

of fact as to whether South did have authority to bind the town by his

comments,” that the town council did not oppose South’s statements, and that

“disputed legal inferences” could be drawn from South’s statements such that

summary judgment for the Town on the breach of contract claim was

inappropriate. Id. at 12. The trial court also noted that Wainscott


Court of Appeals of Indiana | Opinion 33A04-1604-PL-771 | February 16, 2017   Page 7 of 18
      acknowledged the Town did not violate the Open Records Law as alleged in

      Count V and that the Town was entitled to summary judgment regarding Count

      V.1 Ultimately, the trial court granted summary judgment to the Town on

      Count I (equity), Count IV (negligence), Count V (Open Records) but denied

      the Town’s motion for summary judgment regarding Count II (nuisance) and

      Count III (breach of contract). At the Town’s request, the trial court certified

      the order for interlocutory appeal, and we accepted the interlocutory appeal

      pursuant to Indiana Appellate Rule 14.


                                                    Analysis
[9]   The parties’ arguments concern the trial court’s partial grant and partial denial

      of the Town’s motion for summary judgment. Summary judgment is

      appropriate only when the moving party shows there are no genuine issues of

      material fact for trial and the moving party is entitled to judgment as a matter of

      law. Schoettmer v. Wright, 992 N.E.2d 702, 705 (Ind. 2013); see also Ind. Trial

      Rule 56(C). Once that showing is made, the burden shifts to the non-moving

      party to rebut. Schoettmer, 992 N.E.2d at 705-06. When ruling on the motion,

      the trial court construes all evidence and resolves all doubts in favor of the non-

      moving party. Id. at 706. We review the trial court’s grant of summary




      1
       In one location, the trial court’s order states that “Wainscott was entitled to summary judgment on Count
      5.” Appellant’s App. Vol. II p. 13. However, this is clearly a typographical error. The order states that
      “Wainscott acknowledges that Knightstown did not violate the Open Records Law as alleged in Count 5”
      and later grants summary judgment in the Town’s favor regarding Count V. Id.

      Court of Appeals of Indiana | Opinion 33A04-1604-PL-771 | February 16, 2017                     Page 8 of 18
       judgment de novo, and we take “care to ensure that no party is denied his day

       in court.” Id.


                                               I. Tort Claims Notice

[10]   The first issue is whether the trial court properly found that Wainscott failed to

       file a timely tort claim notice. The ITCA provides that a tort claim against a

       government entity is barred unless the claimant provides the entity with notice

       of the claim within 180 days of the loss.2 Ind. Code § 34-13-3-8; I.C. § 34-13-3-

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

       the claim is based,” including “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 of the loss and at the time

       of filing the notice.” I.C. § 34-13-3-10. The notice must be in writing and

       delivered in person or by registered or certified mail. I.C. § 34-13-3-12.




       2
         Indiana Code Section 34-13-3-8(a) also requires the notice to be filed with the Indiana political subdivision
       risk management commission. Indiana Code Section 34-13-3-8(b) notes:
                         A claim against a political subdivision is not barred for failure to file
                         notice with the Indiana political subdivision risk management
                         commission created under IC 27-1-29-5 if the political subdivision was
                         not a member of the political subdivision risk management fund
                         established under IC 27-1-29-10 at the time the act or omission took
                         place.
       The Town made no argument concerning this provision in its motion for summary judgment or on appeal.
       Consequently, we do not address this requirement.

       Court of Appeals of Indiana | Opinion 33A04-1604-PL-771 | February 16, 2017                         Page 9 of 18
[11]   Our courts have held that a liberal application of the requirements of the ITCA

       notice statute is proper in order to avoid denying plaintiffs an opportunity to

       bring a claim where the purpose of the statute has been satisfied. Brown v.

       Alexander, 876 N.E.2d 376, 381 (Ind. Ct. App. 2007), trans. denied. The notice

       requirement “is intended to ensure that government entities have the

       opportunity to investigate the incident giving rise to the claim and prepare a

       defense.” Schoettmer, 992 N.E.2d at 706 (citing Galbreath v. City of Indianapolis,

       253 Ind. 472, 477, 255 N.E.2d 225, 228 (1970)). “Like any statute in

       derogation of the common law, the ITCA ‘must be strictly construed against

       limitations on the claimant’s right to bring suit.’” Id. (quoting City of

       Indianapolis v. Buschman, 988 N.E.2d 791, 794 (Ind. 2013)). So long as its

       essential purpose has been satisfied, the notice requirement “should not

       function as ‘a trap for the unwary.’” Id. (quoting Galbreath, 253 Ind. at 480, 255

       N.E.2d at 229). “The question of compliance is not a question of fact for the

       jury but ultimately a legal determination to be made by the court.” Indiana State

       Highway Comm’n v. Morris, 528 N.E.2d 468, 471 (Ind. 1988).


[12]   “Our courts have found that not all technical violations of this statute are fatal

       to a claim.” Brown, 876 N.E.2d at 381. “Non-compliance has been excused in

       certain cases based on the theories of substantial compliance, waiver, and

       estoppel.” Id. Substantial compliance is at issue here.3 “In general, a notice




       3
           The parties do not argue waiver or estoppel.


       Court of Appeals of Indiana | Opinion 33A04-1604-PL-771 | February 16, 2017   Page 10 of 18
       that is filed within the 180 day period, informs the municipality of the

       claimant’s intent to make a claim and contains sufficient information which

       reasonably affords the municipality an opportunity to promptly investigate the

       claim satisfies the purpose of the statute and will be held to substantially comply

       with it.” Collier v. Prater, 544 N.E.2d 497, 499 (Ind. 1989). “However, where a

       plaintiff, within the 180 day period, fails to file any notice of an intent to make a

       claim, actual knowledge of the occurrence on the part of the city, even when

       coupled with an investigation of the occurrence, will not suffice to prove

       substantial compliance.” Id.


[13]   “Substantial compliance with the statutory notice requirements is sufficient

       when the purpose of the notice requirement is satisfied.” Schoettmer, 992

       N.E.2d at 707. “The purpose of the ITCA’s notice requirements is to provide

       the political subdivision the opportunity to investigate the facts surrounding an

       accident so that it may determine its liability and prepare a defense.” Porter v.

       Fort Wayne Cmty. Sch., 743 N.E.2d 341, 344 (Ind. Ct. App. 2001), trans. denied.

       “When deciding whether there has been substantial compliance, this court

       reviews whether the notice given was, in fact, sufficiently definite as to time,

       place, and nature of the injury.” Id. “‘What constitutes substantial compliance,

       while not a question of fact but one of law, is a fact-sensitive determination.’”

       Schoettmer, 992 N.E.2d 707 (quoting Collier, 544 N.E.2d at 499).


[14]   The trial court found that Wainscott’s April 14, 2013 letter did not comply with

       the ITCA because it did not state that Wainscott intended to bring legal action

       against the Town. There is no argument regarding the fact that the letter was

       Court of Appeals of Indiana | Opinion 33A04-1604-PL-771 | February 16, 2017   Page 11 of 18
       sent within 180 days of the loss, the letter described the facts on which the claim

       is based, 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 of the loss and at the time of filing the notice, and

       that it was either hand delivered or sent by registered or certified mail.4 The

       sole issue on appeal is whether the letter included Wainscott’s intent to assert a

       claim.


[15]   In support of its argument, the Town cites several cases in support of its

       assertion that the notice must specifically inform the political subdivision of the

       injured party’s intent to assert a tort claim. However, we addressed a similar

       issue in Porter v. Fort Wayne Cmty. Sch., 743 N.E.2d 341 (Ind. Ct. App. 2001),

       trans. denied, which we find persuasive here. In Porter, the plaintiff was injured

       when his vehicle collided with a school bus. A couple weeks after the accident,

       his attorney sent the following letter to school officials:

                Re: My Client: Thomas Porter

                Your Insured: Fort Wayne Community Schools




       4
         In its motion for summary judgment, the Town challenged whether the letter contained some of these
       items. On appeal, however, the Town makes no argument concerning them except to very briefly claim in its
       reply brief that the letter failed to include the amount of damages sought. To the extent that the Town’s
       argument is cogent, we note that the failure to include a dollar amount of damages does not render a notice
       insufficient. Scott v. Gatson, 492 N.E.2d 337, 341 (Ind. Ct. App. 1986). The letter detailed the specific
       damages resulting from the demolition and requested specific relief. We conclude that the letter substantially
       complied with the requirement to include the amount of damages sought.

       Court of Appeals of Indiana | Opinion 33A04-1604-PL-771 | February 16, 2017                     Page 12 of 18
               Date of Accident: September 29, 1997



               Dear Ms. Mihavics[:]


               Please be advised that I represent the interests of Thomas Porter
               as it relates to a collision which occurred on September 29, 1997,
               on Cook Road in Allen County. Fort Wayne Community School
               bus number 352, driven by Elizabeth Wesner, was exiting
               Northrup High School’s parking lot and struck Mr. Porter’s
               vehicle in the right front corner, causing significant damage to his
               truck as well as physical injuries to himself. From our initial
               investigation, it appears as though Fort Wayne Community
               Schools was the direct and proximate cause of the accident and,
               therefore, this letter is to inform you of our representation of Mr.
               Porter. It would be appreciated if you would communicate
               directly with me regarding this matter.


               We will forward all information to support his claim upon receipt
               of the same.


       Porter, 743 N.E.2d at 343. The plaintiff eventually filed a complaint against the

       school corporation, and the school corporation filed a motion for summary

       judgment arguing that the plaintiff had failed to comply with the notice

       requirements of the ITCA. The trial court granted summary judgment to the

       school corporation, and on appeal, we reversed.


[16]   The plaintiff argued that his notice substantially complied with the ITCA, and

       the school corporation argued that the notice “did not contain an affirmative

       statement of intent to pursue a tort claim and did not otherwise satisfy the

       purpose of the notice requirements under the ITCA.” Id. at 344. We held:

       Court of Appeals of Indiana | Opinion 33A04-1604-PL-771 | February 16, 2017   Page 13 of 18
               [The attorney’s] letter was timely filed and included specific
               details regarding the collision. And although [the attorney] did
               not expressly state that [plaintiff] intended to file a claim against
               Fort Wayne and Wesner, [the attorney] stated his representation
               of [plaintiff’s] “interests” and that additional information would
               be forwarded “to support his claim[.]” Record at 71. We
               conclude that [the attorney’s] letter adequately informed Fort
               Wayne of [plaintiff’s] intent to make a claim and provided
               sufficient information about the collision to facilitate Fort
               Wayne’s investigation.


               Indeed, the record shows that Fort Wayne considered [plaintiff’s]
               letter to be notice of a tort claim. Fort Wayne’s insurance
               company assigned a “claim number” to [plaintiff’s] claim and
               maintained a file “reflective of [plaintiff’s] condition.” Record at
               77. The insurance adjuster had “a general idea of [plaintiff’s]
               injuries and initial treatment,” sought to update her file, and
               made reference to settling his claim. Record at 77. Fort Wayne’s
               conduct, then, was inconsistent with its position that [the
               attorney’s] October 16, 1997 letter did not satisfy the purpose of
               the ITCA notice requirements. We conclude that [the attorney’s]
               letter was sufficiently definite as to time, place, and nature of
               [plaintiff’s] injuries and, thus, substantially complied with the
               notice requirements of the ITCA. The trial court erred when it
               granted Fort Wayne and Wesner’s motion for summary
               judgment.


       Id. at 344-45.


[17]   Similarly, here, Wainscott’s April 2013 letter made the Town aware that its

       demolition of the adjacent building had significantly damaged his property and

       specifically demanded repairs that the Town needed to perform. The matter

       was also discussed at the Town Council meeting, where the Town Council


       Court of Appeals of Indiana | Opinion 33A04-1604-PL-771 | February 16, 2017   Page 14 of 18
       president stated that “if the town did anything to cause damage to his building,

       that we would fix the problem.” Appellant’s App. p. 27. In response, the

       Town hired an engineer to evaluate the issues. The letter gave the Town an

       opportunity to promptly investigate the issues, determine its liability, and

       prepare a defense. Although the letter did not specifically state that it was a tort

       claims notice or state that Wainscott would be filing legal action, it clearly

       stated that the Town had damaged Wainscott’s property and set out the items

       that the Town needed to correct. We conclude that, as in Porter, Wainscott

       substantially complied with the ITCA because the April 2013 letter adequately

       informed the Town of Wainscott’s intent to make a claim. As a result, the trial

       court erred when it concluded that the April 2013 letter did not substantially

       comply with the ITCA.


                              II. Negligence, Equity, and Nuisance Claims

[18]   The Town challenges the trial court’s failure to grant summary judgment in its

       favor on the nuisance claim, and Wainscott challenges the trial court’s grant of

       summary judgment to the Town on the equity and negligence claims. The trial

       court granted summary judgment to the Town on Wainscott’s negligence and

       equity claims because it found Wainscott failed to comply with the notice

       requirements of the ITCA. We have concluded that Wainscott’s April 2013

       letter substantially complied with the ITCA requirements. Consequently, the

       trial court erred by granting summary judgment on the negligence and equity

       claims.



       Court of Appeals of Indiana | Opinion 33A04-1604-PL-771 | February 16, 2017   Page 15 of 18
[19]   As for the nuisance claim, the trial court concluded that the claim was not

       subject to the ITCA, and on appeal, the Town challenges this determination

       and argues that the claim is subject to the ITCA and to summary judgment

       because Wainscott failed to file a timely notice. We need not address whether

       the nuisance claim is subject to the ITCA. Even if the nuisance claim is subject

       to the ITCA, our holding that Wainscott substantially complied with the notice

       requirements means that the claim is not subject to summary judgment on this

       basis.


                                            III. Breach of Contract

[20]   The Town argues that the trial court erred by denying its motion for summary

       judgment on Wainscott’s breach of contract claim. Wainscott’s breach of

       contract claim is based on the Town Council president’s statements to

       Wainscott at the April 2013 Town Council meeting. The minutes of the

       meeting indicate that the president stated: “the town intends to obey the law

       and if IDEM requires anything of the town, the town will comply. . . . [H]e also

       told Mr. Wainscott that if the town did anything to cause damage to his

       building, that we would fix the problem.” Appellant’s App. Vol. II p. 27.


[21]   In his complaint, Wainscott alleged that the Town had agreed to repair the

       common wall, that the Town was in breach of its oral contract by failing to

       repair the wall, and that Wainscott had suffered damages as a result of the

       breach. The Town sought summary judgment on the claim, and the trial court

       found that “there are questions of fact as to whether South did have authority to

       bind the town by his comments,” that the town council did not oppose South’s
       Court of Appeals of Indiana | Opinion 33A04-1604-PL-771 | February 16, 2017   Page 16 of 18
       statements, and that “disputed legal inferences” could be drawn from South’s

       statements such that summary judgment for the Town on the breach of contract

       claim was inappropriate. Id. at 12.


[22]   On appeal, the Town argues that there was no evidence of an offer, evidence

       that Wainscott accepted the offer, evidence of a meeting of the minds, or

       evidence of consideration.5 The existence of a contract is a question of law.

       Morris v. Crain, 969 N.E.2d 119, 123 (Ind. Ct. App. 2012). “The basic

       requirements are offer, acceptance, consideration, and ‘a meeting of the minds

       of the contracting parties.’” Id. (quoting Batchelor v. Batchelor, 853 N.E.2d 162,

       165 (Ind. Ct. App. 2006)). “For an oral contract to exist, parties have to agree

       to all terms of the contract.” Kelly v. Levandoski, 825 N.E.2d 850, 857 (Ind. Ct.

       App. 2005), trans. denied. To be valid and enforceable, a contract must be

       reasonably definite and certain. Allen v. Clarian Health Partners, Inc., 980 N.E.2d

       306, 309 (Ind. 2012).


[23]   The only evidence of an alleged contract is South’s statement, which is

       memorialized in the minutes of the town council meeting, that “if the town did

       anything to cause damage to his building, that we would fix the problem.”

       Appellant’s App. Vol. II p. 27. This vague statement simply cannot establish

       the necessary elements of a contract. There is no indication that Wainscott




       5
        The Town also argues that South did not have the authority to “unilaterally bind” the Town to a contract
       with Wainscott. Appellant’s Br. p. 25. Because we conclude that no contract was formed, we need not
       address this argument.

       Court of Appeals of Indiana | Opinion 33A04-1604-PL-771 | February 16, 2017                   Page 17 of 18
       accepted the alleged offer, no evidence of a meeting of the minds of the terms of

       the contract, and no evidence of consideration. As a result, we conclude that

       the trial court erred when it denied the Town’s motion for summary judgment

       on Wainscott’s breach of contract claim.


                                                   Conclusion
[24]   Wainscott substantially complied with the ITCA notice requirements, and the

       trial court erred when it granted the Town’s motion for summary judgment on

       his negligence and equity claims. The trial court properly denied summary

       judgment on Wainscott’s nuisance claim, but it erred when it denied summary

       judgment on Wainscott’s breach of contract claim. We affirm in part, reverse

       in part, and remand for proceedings consistent with this opinion.


[25]   Affirmed in part, reversed in part, and remanded.


[26]   Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 33A04-1604-PL-771 | February 16, 2017   Page 18 of 18
