                                                                           Jun 18 2015, 9:44 am




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEES
      Brent Welke                                                 Gregory F. Zoeller
      Indianapolis, Indiana                                       Attorney General of Indiana
                                                                  Kathy Bradley
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      John Feldhake,                                              June 18, 2015

      Appellant-Petitioner,                                       Court of Appeals Case No.
                                                                  32A05-1406-CT-248
              v.                                                  Appeal from the Hendricks Superior
                                                                  Court

      Edwin Buss, Latoya Lane, and                                Lower Court Cause No.
                                                                  32D04-1105-CT-63
      Nathan Walters,
                                                                  The Honorable Mark A. Smith,
      Appellees-Respondent.                                       Judge




      Pyle, Judge.


                                        Statement of the Case
[1]   John Feldhake (“Feldhake”) appeals the trial court’s grant of summary

      judgment in favor of Edwin Buss (“Buss”), Latoya Lane (“Lane”), and Nathan

      Walters (“Walters”), (collectively, “the Defendants”) on his personal injury

      claim. On appeal, Feldhake claims that the trial court erred in granting

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      summary judgment because the Defendants based their motion on defects in the

      complaint and failed to designate factual evidence in support of their motion.

      In addition, he claims that the trial court erred in considering the Defendants’

      motion for summary judgment while discovery was ongoing. Defendants argue

      that they are entitled to summary judgment because Feldhake did not comply

      with various requirements of the Indiana Tort Claims Act (“ITCA”). We

      affirm the trial court’s grant of summary judgment because Feldhake’s

      complaint did not comply with the ITCA’s pleading requirements to sue a

      government employee individually or its notice requirements.


[2]   We affirm.


                                                       Issue
              Whether the trial court erred in granting summary judgment in
              favor of the Defendants.

                                                       Facts
[3]   The facts most favorable to Feldhake are that in May 2009, Feldhake was

      incarcerated at the Plainfield Re-entry Educational Facility, a Department of

      Correction (“DOC") facility. At that time, Buss was the commissioner of

      DOC, Lane was the interim superintendent of the facility, and Walters was a

      maintenance supervisor at the facility. On May 17, 2009, Feldhake was

      assigned to a crew that was painting a house at the facility owned by DOC.


[4]   On May 20, 2009, Feldhake and three other inmates entered the bed of a pickup

      truck being driven by Walters so that they could go to the house. Once


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      Feldhake was in the bed of the pickup truck, Walters started it “with a lurch”

      and accelerated “at an unreasonable rate of acceleration.” (App. 13). Feldhake

      was thrown against the tailgate of the pickup truck. The tailgate opened, and

      Feldhake fell from the truck. He landed on his head and sustained head, neck,

      and back injuries.


[5]   On May 17, 2011, Feldhake filed a complaint against the Defendants,

      individually and in their official capacities as employees of the DOC. Feldhake

      alleged that Walters’s operation of the truck had caused his injuries, and that

      Lane had failed to comply with DOC procedures in reporting the accident.1 He

      did not file a notice of tort claim with the Attorney General. On December 2,

      2011, the trial court issued a Trial Rule 41(E) order because Feldhake took no

      other action after filing his complaint. On February 14, 2012, Feldhake filed a

      motion for default judgment, and the Defendants filed a motion for an

      enlargement of time. On February 16, 2012, the trial court granted the

      Defendants’ motion for an enlargement of time, and it denied Feldhake’s

      motion for default judgment.


[6]   Buss and Walters filed an answer to the complaint on March 16, 2012. Lane

      was not served with a summons and complaint until August 20, 2012, and she

      filed her answer on September 11, 2012. On November 1, 2013, the

      Defendants filed a motion for summary judgment and supporting




      1
          Feldhake’s complaint does not state how Buss was at fault for his injuries.


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       memorandum arguing, “Plaintiff’s claims [were] barred under various

       provisions of the [ITCA].” (App. 28). On December 30, 2013, Feldhake filed a

       response with his designation of evidence.


[7]    On March 20, 2014, the trial court held a hearing on the motion for summary

       judgment, and the trial court granted the Defendants’ motion four days later.

       Thereafter, Feldhake filed a motion to correct error, which was subsequently

       denied. Feldhake now appeals.


                                                     Decision
[8]    Feldhake claims that the trial court erred by granting the Defendants’ motion

       for summary judgment.


[9]    We review summary judgment de novo, applying the same standard as the trial

       court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Summary judgment

       is appropriate only where the designated evidence shows “that there is no

       genuine issue as to any material fact and that the moving party is entitled to

       judgment as a matter of law.” Ind. Trial Rule 56(C). On review, we may

       affirm a grant of summary judgment on any grounds supported by the

       designated evidence. Catt v. Board of Com’rs of Knox Cnty., 779 N.E.2d 1, 3 (Ind.

       2002).


[10]   The moving party “bears the initial burden of making a prima facie showing

       that there are no genuine issues of material fact and that it is entitled to

       judgment as a matter of law.” Gill v. Evansville Sheet Metal Works, Inc., 970

       N.E.2d 633, 637 (Ind. 2012). If the moving party meets this burden, then the
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       non-moving party must designate evidence demonstrating a genuine issue of

       material fact. Id. “[A]n adverse party may not rest upon the mere allegations

       or denials of his pleading, but his response, by affidavits or as otherwise

       provided in this rule, must set forth specific facts showing that there is a genuine

       issue for trial.” T.R. 56(E). When a 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. Dible v. City of Lafayette, 713

       N.E.2d 269, 272 (Ind. 1999).


[11]   “Just as the trial court does, we resolve all questions and view all evidence in

       the light most favorable to the non-moving party, so as to not improperly deny

       him his day in court.” Alldredge v. Good Samaritan Home, Inc., 9 N.E.3d 1257,

       1259 (Ind. 2014) (internal citations omitted). We “consciously err[] on the side

       of letting marginal cases proceed to trial on the merits, rather than risk short-

       circuiting meritorious claims.” Hughley, 15 N.E.3d at 1003.


[12]   Feldhake makes several procedural arguments that, though not dispositive,

       should be addressed.


[13]   First, he claims that the Defendants’ motion for summary judgment was based

       entirely on defects in his pleading and should have been addressed in a motion

       to dismiss. However, Feldhake cites no authority requiring the Defendants to

       file a motion to dismiss before filing a motion for summary judgment.

       Therefore, his argument is waived. Ind. Appellate Rule 46(A)(8)(a). Waiver


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       notwithstanding, the Defendants’ did not err by choosing to file a motion for

       summary judgment. Indiana Trial Rule 56(B) provides that “[a] party against

       whom a claim, counterclaim, or cross-claim is asserted or a declaratory

       judgment is sought may, at any time, move with or without supporting affidavits

       for a summary judgment in his favor as to all or any part thereof.” (emphasis

       added). In addition—as the Defendants clearly noted—had they filed a motion

       to dismiss or for judgment on the pleadings, the trial court would have treated it

       as a motion for summary judgment because Feldhake designated materials

       outside of the pleadings. See T.R. 12(B); (C). Accordingly, the trial rules did

       not require the Defendants to file a motion to dismiss instead of a motion for

       summary judgment.


[14]   Next, Feldhake claims that the Defendants “made no designations, but only

       attacked [his] pleadings[,]” thus requiring denial of their motion. (Feldhake’s

       Br. 7). However, the Defendants designated the facts from Feldhake’s

       complaint, which must be treated as true for the purposes of considering a

       motion for summary judgment. Cowe by Cowe v. Forum Group, Inc., 575 N.E.2d

       630, 633 (Ind. 1991). Moreover, T.R. 56(C) provides that “[a]t the time of

       filing the motion or response, a party shall designate to the court all parts of

       pleadings, depositions, answers to interrogatories, admissions, matters of judicial

       notice, and any other matters on which it relies for the purposes of the motion.

       (emphasis added). Again, we find no error here.


[15]   Finally, Feldhake claims that the trial court abused its discretion in considering

       a motion for summary judgment while discovery was ongoing. Yet, as we

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       previously mentioned, T.R. 56(B) allows a defendant to file for summary

       judgment at any time. Furthermore, the purpose of summary judgment is to

       end litigation about which there can be no factual dispute and which may be

       determined as a matter of law. Shelter Ins. Co. v. Woolems, 759 N.E.2d 1151,

       1153 (Ind. Ct. App. 2001), trans. denied. Thus, the trial court did not err in

       considering the motion for summary judgment even though discovery was

       ongoing. Having addressed Feldhake’s procedural claims, we turn our

       attention to the merits of the motion for summary judgment.


[16]   Feldhake essentially claims that he raised a genuine issue of material fact

       regarding whether Walters’s behaved in a manner allowing him to be sued

       individually, even though Walters was a government employee. See INDIANA

       CODE § 34-13-3-5(c). In response, the Defendants claim that Feldhake failed to

       comply with the specific pleading requirement under the ITCA, thus making

       summary judgment appropriate.


[17]   In general, a plaintiff may not maintain an action against a government

       employee if that employee was acting within the scope of his employment.

       IND. CODE § 34-13-3-5(a). To sue a government employee personally, the

       plaintiff “must allege that an act or omission of the employee that causes a loss

       is: (1) criminal; (2) clearly outside the scope of the employee’s employment; (3)

       malicious; (4) willful and wanton; or (5) calculated to benefit the employee

       personally.” I.C. § 34-13-3-5(c).




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[18]   Here, Feldhake’s complaint failed to allege that any of the Defendants’ actions

       were criminal, outside the scope of their employment, malicious, willful and

       wanton, or calculated for their benefit. Additionally, Feldhake did not offer

       any evidence required under INDIANA CODE § 34-13-3-5(c) until the hearing on

       the motion for summary judgment. We have previously held that when a

       plaintiff fails to comply with the pleading requirement of INDIANA CODE § 34-

       13-3-5(c) and does not cure the defect with an amended complaint, the claim

       against the employee is barred and summary judgment is appropriate. Miner v.

       Southwest School Corp., 755 N.E.2d 1110, 1115 (Ind. Ct. App. 2001).

       Accordingly, the trial court did not err in granting summary judgment to the

       Defendants in their individual capacities.


[19]   However, because Feldhake also sued the Defendants in their official

       capacities, our analysis does not stop here. Because Feldhake sued the

       employees in their official capacities, INDIANA CODE § 34-13-3-6 required

       Feldhake to give notice to the Attorney General or the DOC within two

       hundred seventy (270) days of his accident.2 Feldhake was injured on May 20,

       2009, and did not submit a notice of tort claim to the Attorney General.

       Instead, he filed his complaint on May 17, 2011, well beyond the deadline.

       INDIANA CODE § 34-13-3-9 makes an exception for a plaintiff’s incapacitation

       and grants an additional one hundred eighty (180) days to file a claim after the



       2
        Though the DOC was not officially named in the complaint, our supreme court has held that “in an action
       governed by the Trial Rules, designating state employees as defendants by name or position is sufficient to
       sue a state agency.” Niksich v. Cotton, 810 N.E.2d 1003, 1007 (Ind. 2004).

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       incapacity is removed. However, while “[a] prisoner’s ability to provide notice

       in a timely fashion may be impaired by his incarceration, [] the mere status of

       being incarcerated, without more, by no means renders compliance with the

       notice statute impossible.” McGill v. Ind. Dep’t. of Correction, 636 N.E.2d 199,

       204 (Ind. Ct. App. 1994), reh’g. denied. Again, Feldhake filed his complaint

       almost two years after his accident, and the record is devoid of any plausible

       reason for Feldhake’s delay. Accordingly, we also affirm the trial court’s grant

       of summary judgment based on Feldhake’s failure to file his claim in a timely

       manner.


[20]   Affirmed.


       Barnes, J., and May, J., concur.




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