in the indiana court of appeals town of knightstown,...

IN THE INDIANA COURT OF APPEALS

NO. 33A04-1604-PL-771 TOWN OF KNIGHTSTOWN, Interlocutory Appeal from the Henry Circuit Court Appellant (Defendant Below), No. 33C01-1502-PL-10 v. The Honorable Mary G. Willis, Judge DUDLEY WAINSCOTT The Honorable Jack A. Tandy, Pro Tempore Appellee (Plaintiff Below), SHROYER BROS., INC. (Defendant Below)

CORRECTED BRIEF OF APPELLEE/CROSS-APPELLANT DUDLEY WAINSCOTT

Frederick D. Emhardt [email protected] Josh S. Tatum [email protected] Colin E. Connor [email protected] PLEWS SHADLEY RACHER & BRAUN LLP 1346 N. Delaware Street Indianapolis, IN 46202 317-637-0700 Attorneys for Appellee/Cross-Appellant Dudley Wainscott

Filed: 9/9/2016 5:54:10 PM

mailto:[email protected]



Brief of Appellee/Cross-Appellant Dudley Wainscott

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TABLE OF CONTENTS Table of Authorities ....................................................................................................... 3

Statement of Issues ....................................................................................................... 6

Statement of the Case ................................................................................................... 6

Statement of Facts ......................................................................................................... 8

Summary of Argument ................................................................................................ 10

Argument ..................................................................................................................... 11

Standard of Review ................................................................................................ 11

I. Wainscott timely filed a proper tort-claim notice. ...................................... 11

II. The only reason the trial court found fault with the notice was that it did not state an intent to file a claim—an improper requirement. ................. 14

Wainscott sent notice within 180 days of his loss. ..................................... 15

Wainscott’s notice described the circumstances of the loss. ...................... 15

The notice described the extent of the loss. ................................................ 16

The notice included the time and place the loss occurred.......................... 16

The notice included the name of all necessary persons involved. ............. 17

The notice provided information about the relief sought. .......................... 17

The notice included Wainscott’s residential address. ................................ 18

The notice was in writing and hand-delivered. .......................................... 18

III. Even if Wainscott did not comply with the ITCA, his equitable, nuisance, and breach-of-contract claims survive. ....................................................... 19

Wainscott’s equitable party-wall claim survives apart from the ITCA. .... 19

The ITCA does not affect the nuisance claim for injunctive relief. ........... 21

Genuine issues of material fact preclude summary judgment on Wainscott’s claim on breach of contract. ..................................................... 23

Conclusion .................................................................................................................... 25

Word-Count Certificate ............................................................................................... 26

Certificate of Service .................................................................................................... 27


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TABLE OF AUTHORITIES Cases

Allstate Ins. Co. v. Bradtmueller, 715 N.E.2d 993 (Ind. Ct. App. 1999) .................... 11

AM Gen. LLC v. Armour, 46 N.E.3d 436 (Ind. 2015). ................................................ 11

Baradi v. Hardware Wholesalers Inc., 625 N.E.2d 1259 (Ind. Ct. App. 1993) .......... 11

Bienz v. Bloom, 674 N.E.2d 998 (Ind. Ct. App. 1996), transfer denied ...................... 13

Burggrabe v. Board of Public Works, 469 N.E.2d 1233 (Ind. Ct. App. 1984). ........... 12

Cartwright v. Adair, 27 Ind. App. 293, 61 N.E. 240 (1901) ....................................... 19

Casper Nat’l Bank v. Jones, 329 P.2d 1077 (Wyo. 1958) ............................................ 20

City of E. Chicago v. Gilbert, 59 Ind. App. 613 (1935) ............................................... 12

City of Gary v. Smith & Wesson, 801 N.E.2d 1222 (Ind. 2003) .................................. 22

City of Indianapolis v. Satz, 268 Ind. 581, 377 N.E.2d 623 (Ind. 1978) .................... 14

Collier v. Prater, 544 N.E.2d 497 (Ind. 1989) ....................................................... 11, 13

Galbreath v. City of Indianapolis, 253 Ind. 472 (1970) ........................................ 11, 12

Herald Tel. v. Fatouros, 431 N.E.2d 171 (Ind. Ct. App. 1982) ................................... 24

Ind. Dep’t of State Revenue v. Belterra Resort Ind., LLC, 935 N.E.2d 174 (Ind. 2010)

................................................................................................................................... 23

Indianapolis v. Satz, 268 Ind. 581 (1978) ................................................................... 13

J.C. Penney Co. v. McCarthy, 93 Ind. App. 609, 176 N.E.2d 637 (Ind. Ct. App. 1931)

................................................................................................................................... 19

Kerr v. City of South Bend, 48 N.E.3d 348 (Ind. Ct. App. 2015) ................................ 13

Kiefer v. Dickson, 41 Ind. App. 543, 84 N.E. 523 (1908) ............................................ 19


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List v. Hornbrook, 2 W. Va. 340 (W. Va. 1867) ........................................................... 20

Logansport v. Gammill, 128 Ind. App. 53 (1957) ....................................................... 12

Lyons v. Bassford, 249 S.E.2d 255 (Ga. 1978) ............................................................ 20

Martinsville v. Winscott, 107 Ind. App. 475, (1940) ................................................... 12

McCrary Engineering Corp. v. Town of Upland, 472 N.E.2d 1305 (Ind. Ct. App.

1985) ......................................................................................................................... 24

Merchs. Nat’l Bank v. Simrell’s Sports Bar & Grill, Inc., 741 N.E.2d 383 (Ind. Ct.

App. 2000) ................................................................................................................. 11

Perryman v. Huber, Hunt & Nichols, Inc., 628 N.E.2d 1240 (Ind. Ct. App. 1994) ... 11

Ricketts v. State, 720 N.E.2d 1244 (Ind. Ct. App. 1999) ............................................. 13

Sand Creek Country Club, Ltd. v. CSO Architects, Inc., 582 N.E.2d 872 (Ind. Ct.

App. 1991) ................................................................................................................. 23

Sanders v. Martin, 70 Tenn. 213 (Tenn. 1879) ........................................................... 20

Schoettmer v. Wright, 992 N.E.2d 702 (Ind. 2013) ..................................................... 13

Scott v. Gatson, 492 N.E.2d 337 (Ind. Ct. App. 1986) ................................................ 17

Snyder v. Town of Yorktown, 20 N.E.3d 545 (Ind. Ct. App. 2014) ............................. 13

Sovran Bank, N.A. v. Forman, 7 Va. Cir. 268 (Va. Cir. Ct. 1985) ....................... 20, 21

Volk v. Mich. City, 32 N.E.2d 724 (Ind. Ct. App. 1941) .............................................. 12

Statutes

Ind. Code § 34-6-2-110(4) ............................................................................................. 15

Ind. Code § 34-13-3-8(a) ............................................................................................... 15

Ind. Code § 34-13-3-10 ......................................................................................... passim


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Ind. Code § 34-13-3-12 ........................................................................................... 12, 18

Other Authorities

Black’s Law Dictionary 1815 (10th ed. 2014) ............................................................... 7


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STATEMENT OF ISSUES

1. Whether Dudley Wainscott (“Wainscott”) timely filed a proper tort claim

notice?

2. Whether Wainscott’s equitable party-wall claim is governed by the Indiana

Tort Claims Act (“ITCA”)?

3. Whether the trial court correctly concluded that Wainscott’s nuisance

allegations are not a tort for the purposes of the ITCA?

4. Whether the trial court correctly concluded that genuine issues of material

fact preclude summary judgment on Wainscott’s breach of contract claim?

STATEMENT OF THE CASE

This appeal involves property damage to a historic building that Wainscott owns in

Knightstown, Indiana, called the “Old Lodge.” (App. 119–20, ¶¶ 1–4.) The damage

occurred in 2013, when the building next door was demolished, leaving what had

been a shared load-bearing wall between the two buildings exposed and full of

hundreds of holes. That demolition also may have caused mercury to leak into the

soil and groundwater. The Town of Knightstown (“Knightstown”) owned the

adjacent building, which was known as “Bullet Hole.” (App. 119, ¶ 1.)

Wainscott provided notice of his claim to Knightstown in a letter he sent on

April 14, 2013. (App. 54.) On April 18, 2013, Wainscott attended a Knightstown

Town Council meeting to discuss his claim and hand-delivered the letter to the

council. (App. 120, ¶ 6.) In front of all attending the council meeting, the council

president, Clyde South, promised that Knightstown would fix any issues affecting

the Old Lodge. (App. 120, ¶ 7.) Although Knightstown took the first step of hiring a


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consultant to determine what needed to be done to fix the damage, the town failed

to do anything more. (App. 136–39; 230, ¶ 9.)

Nearly two years after Knightstown’s promise to address the problems,

Wainscott filed suit against Knightstown and Shroyer Brothers, Inc., the company

that demolished the Bullet Hole in 2013. (App. 14.) On November 23, 2015,

Knightstown moved for summary judgment. (App. 48.)

After hearing argument, the trial court entered partial summary judgment

for Knightstown on February 9, 2006. (App. 8–13.) It granted summary judgment to

Knightstown on Wainscott’s party-wall,1 negligence, and Open Records claims but

denied summary judgment on his contract and nuisance claims after determining

that there were disputed material facts:

In summary, the Court finds that ITCA applies to Counts 1 [equitable party-wall claim] and 4 [negligence claim] of the Complaint and that Plaintiff Wainscott did not comply with the requirements of ITCA. Wainscott acknowledged Knightstown did not violate the Open Records Law as alleged in Count 5, and that [Knightstown] was entitled to summary judgment on Count 5. The Court finds there are genuine issues of material fact with respect to the contract allegations of Count 2 [breach-of-contract claim] and the nuisance allegation of Count 3 [nuisance claim] that make summary judgment inappropriate.

WHEREFORE, the Court grants the Plaintiff’s Motion for Summary Judgment with respect to Counts 1, 4 and 5 of Plaintiff’s Complaint and denies the Motion for Summary Judgment with respect to Count 2 and 3.

(App. 13.)

1 Party wall refers to “[a] wall that divides two adjoining, separately owned properties and that is shared by the two property owners as tenants in common.” Black’s Law Dictionary 1815 (10th ed. 2014).


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Knightstown requested the trial court to certify its summary-judgment order

for interlocutory appeal. (App. 6.) The trial court granted Knightstown’s

certification request on March 14, 2016. (App. 158.) The Court of Appeals accepted

this interlocutory appeal on May 9, 2016. (App. 7.) Knightstown filed its notice of

appeal on May 20, 2016. (App. 7.)

STATEMENT OF FACTS

Wainscott owns the Old Lodge, located at 36 Main Street, Knightstown, Indiana.

(App. 119, ¶ 1.) The formerly adjacent Bullet Hole was at 32 Main Street,

Knightstown, Indiana. (App. 119, ¶ 1.) In February 2013, Knightstown hired

Shroyer Brothers, Inc. (“Shroyer”) to demolish the Bullet Hole. (App. 125, ¶ 9.)

Shroyer began demolition on April 1, 2013. (App. 125, ¶ 10.) Knightstown and

Shroyer crushed an unknown amount of vacuum tubes that had not been removed

from the Bullet Hole before demolition, potentially causing mercury to leak into the

soil and groundwater. (App. 119–20, ¶ 3.) The demolition left 161 holes above

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

Bullet Hole and the Old Lodge. (App. 120, ¶ 4.)

In his letter sent just two weeks after the demolition, Wainscott notified

Knightstown of the damage to his building. (App. 54.) The letter included the

circumstances that brought about Wainscott’s loss, the extent of his loss, the time

and place his loss occurred, the names of all persons involved to his knowledge, the

relief requested, and his residence for the relevant time. (App. 54.) On April 18,

2013, Wainscott hand-delivered the letter to the Knightstown Town Council, when

he attended a Knightstown Town Council meeting to discuss the problems with the

demolition project. (App. 120, ¶ 6.)


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The council president promised Wainscott that Knightstown would repair the

shared wall to address any issues affecting the Old Lodge. (App. 56; App. 120, ¶ 7.)

Wainscott believed that the council president had the authority to bind

Knightstown, and Wainscott relied on this promise in waiting to file suit. (App. 120,

¶ 8.)

On May 5, 2013, FPBH, Inc. (“FPBH”) issued an engineering report for

Knightstown outlining items that had not been completed at the demolition project.

The report recommended Knightstown do the following:

a. fill all holes in the shared wall with mortar and place a

breathable sealant on the wall;

b. build a reinforced concrete retaining wall that is temporarily

braced from inside the Old Lodge;

c. backfill the original basement area with sand; and

d. install an underdrain at the Bullet Hole to drain water to a

pump in the alley.

(App. 136–39.) Knightstown failed to follow its engineer’s recommendations. It did

build the retaining wall, but it did not support it with braces inside the Old Lodge

as recommended. Despite Wainscott’s repeated requests, Knightstown failed to

accomplish any of the other items. (App. 120, ¶ 9.)

The shared wall was not designed to be exposed to the elements. As a result,

water has leaked through the wall, and the wall is beginning to crumble. Standing

water has collected in Wainscott’s basement. The standing water has caused

extensive mold to grow in Wainscott’s building. (App. 120–21, ¶ 10.)


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SUMMARY OF ARGUMENT

After Knightstown and Shroyer’s negligent demolition caused significant damage to

Wainscott’s Old Lodge, he timely provided Knightstown notice that complied with

the ITCA. The ITCA is construed liberally in favor of those providing notice. To

meet the act’s requirements, all the notice has to do is fulfill the statutory purpose

of providing the governmental entity with reasonable certainty of the loss and the

surrounding circumstances. Wainscott’s letter to the Knightstown Town Council

met that standard.

Even if Wainscott’s notice did not comply with the ITCA, he has pleaded

three other claims not subject to dismissal under the notice requirements of the

ITCA. First, he pleaded a party-wall claim that sounds in equity, not tort. Indiana

and several other jurisdictions have long recognized equitable duties owed by and to

those sharing party walls to pay for harm done to a party wall. Here, Knightstown

put hundreds of holes in the party wall and made plans to fix them, as equity

required, but did not move forward with its promised plans to fully address the

problem. Second, by damaging the party wall, Knightstown has created a

continuing nuisance, which should be enjoined. This continuing damage is not

subject to the ITCA. Third, Wainscott has pleaded breach of contract. Knightstown

agreed to repair the party wall as part of the demolition of its own building.

Wainscott accepted the promise and agreed to delay filing litigation to compel

repairs. So even if Wainscott’s notice did not comply with the ITCA, the trial court

incorrectly granted summary judgment to Knightstown on Wainscott’s equitable,

nuisance, and contractual claims. The trial court correctly denied Knightstown’s

motion for summary judgment as to Wainscott’s nuisance and breach-of-contract

claims.


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ARGUMENT

Standard of Review

This Court reviews a grant or denial of summary judgment using the same

standard as the trial court. Merchs. Nat’l Bank v. Simrell’s Sports Bar & Grill, Inc.,

741 N.E.2d 383, 386 (Ind. Ct. App. 2000). “The purpose of summary judgment is to

terminate litigation for which there can be no factual dispute and which can be

determined as a matter of law.” Baradi v. Hardware Wholesalers Inc., 625 N.E.2d

1259, 1261 (Ind. Ct. App. 1993). Summary judgment is only appropriate “if no

genuine issues of material fact exist and the moving party is entitled to judgment as

a matter of law.” Allstate Ins. Co. v. Bradtmueller, 715 N.E.2d 993, 996 (Ind. Ct.

App. 1999) (citations omitted). Here, all reasonable inferences are construed in the

light most favorable to Wainscott, as the nonmoving party. AM Gen. LLC v.

Armour, 46 N.E.3d 436, 439 (Ind. 2015). As a derogation of the common law, courts

construe the ITCA narrowly. Collier v. Prater, 544 N.E.2d 497, 498 (Ind. 1989)

(quoting Galbreath v. Indianapolis, 253 Ind. 472, 255 N.E.2d 225 (1970)). The Court

must liberally construe all inferences and resolve all doubts in Wainscott’s favor.

Perryman v. Huber, Hunt & Nichols, Inc., 628 N.E.2d 1240, 1243 (Ind. Ct. App.

1994).

I. Wainscott timely filed a proper tort-claim notice.

The ITCA requires the notice to “describe in a short and plain statement the

facts on which the claim is based.” I.C. § 34-13-3-10. It must “include 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


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of the loss and at the time of filing the notice.” Id. Also, the notice “must be in

writing and must be delivered in person or by registered or certified mail.” I.C. § 34-

13-3-12. These requirements are construed liberally in favor of those providing

notice. Logansport v. Gammill, 128 Ind. App. 53, 60, 145 N.E.2d 908, 912 (1957)

(“the rule of liberal construction applies to whether a notice is sufficiently definite

as to the time place, nature and extent of the injury”); City of Martinsville v.

Winscott, 107 Ind. App. 475, 477, 25 N.E.2d 283, 284 (1940) (stating the court had

“adopted a liberal construction of the rule governing the sufficiency of the notice as

to the nature and extent of the injury”).

The trial court improperly added an additional requirement to the ITCA. The

court found Wainscott’s notice fatally flawed because “it does not state that

Wainscott intends to bring legal action against Knightstown.” (App. 9.) This

requirement is nowhere in the ITCA and is derived from caselaw dealing with

situations in which plaintiffs did not actually comply with the ITCA. Because

Wainscott actually complied with the statute, this caselaw is inapplicable.

Indiana courts have repeatedly held “that if the notice directs the attention of

the officers of the municipality with reasonable certainty to the place of the

accident, the requirements of the notice have been met.” Volk v. Mich. City, 32

N.E.2d 724, 725–26 (Ind. Ct. App. 1941) (citing City of E. Chicago v. Gilbert, 59 Ind.

App. 613, 621, 194 N.E. 193 (1935)); Galbreath v. City of Indianapolis, 253 Ind. 472,

255 N.E.2d 225, 228 (1970); Burggrabe v. Board of Public Works, 469 N.E.2d 1233,

1235 (Ind. Ct. App. 1984). At a minimum, Wainscott’s notice alerted Knightstown to

the place of his loss, which is all that is required.

Nothing else is required of a tort-claim notice. The trial court incorrectly

ruled that a tort-claim notice must advise the defendant of the plaintiff’s intent to

assert a tort claim. (App. 9–10.) This alleged requirement is not in Ind. Code

§ 34-13-3-10 or anywhere else in the ITCA. The trial court concluded that caselaw


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imposes this requirement onto a tort-claim notice. (App. 9–10.) In support, it cited

Collier v. Prater, 544 N.E.2d 497 (Ind. 1989), Bienz v. Bloom, 674 N.E.2d 998 (Ind.

Ct. App. 1996), transfer denied, and Kerr v. City of South Bend, 48 N.E.3d 348 (Ind.

Ct. App. 2015). Knightstown cites Bienz and Kerr as well as Ricketts v. State, 720

N.E.2d 1244, 1246 (Ind. Ct. App. 1999), Indianapolis v. Satz, 268 Ind. 581, 377

N.E.2d 623, 625 (1978), Snyder v. Town of Yorktown, 20 N.E.3d 545, 553 (Ind. Ct.

App. 2014), and Schoettmer v. Wright, 992 N.E.2d 702, 707 (Ind. 2013). (Appellee’s

Br. 15–16.) These cases do not hold that a plaintiff must state an intent to assert a

tort claim to comply with the ITCA.

Those cases hold only that the plaintiffs had not provided any notice of any

claim. To excuse that failure, Indiana courts have allowed plaintiffs who do not

provide notice under the ITCA to go forward with their claims when they have

substantially complied with the notice requirements as long as the purpose of the

notice requirement is satisfied. Schoettmer, 992 N.E.2d at 707. The trial court

improperly imposed this substantial-compliance test on Wainscott when he actually

complied with the ITCA. Since his notice meets all the statutory requirements,

there was no need to resort to an analysis involving substantial compliance. As a

result, none of the cases cited by the trial court of Knightstown are applicable to

this case.

In Ricketts, the plaintiff delivered a letter to the Bureau of Motor Vehicles

asking that a BMV official contact him regarding correcting an inaccuracy on his

driving record. 720 N.E.2d at 1245–46. The BMV never responded to his letter

because the letter did not provide notice of any claim. In Bienz the plaintiff filed a

grievance with the Allen County Board of Commissioners in accordance with

grievance procedures and requested an opportunity to be heard. 674 N.E.2d at

1000–01. The Board never responded because the grievance did not provide notice of

a claim. Id. at 1001. In Snyder v. Town of Yorktown the plaintiff’s attorney sent a


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letter to the town asking for information about a drain project. 20 N.E.3d at 549.

The letter did not provide notice of any claim, and the town did not respond. Id. at

553.

Indianapolis v. Satz, despite Knightstown’s characterization to the contrary,

does not even discuss the intent to assert a tort claim. 268 Ind. 581, 377 N.E.2d at

625. In Satz, the Supreme Court held that the city’s investigation, a signed release,

and the plaintiff’s letter sent to the wrong officials did not constitute substantial

compliance. Id. at 584, 377 N.E.2d at 625. In doing so, the Court never even

mentioned a requirement that notice include a statement of intent to file suit.

Unlike here, none of the governing bodies involved in any of the cited cases

responded to the plaintiffs’ letters because they had not been provided notice of any

claim. Here, after Wainscott provided notice to the town council, Knightstown

responded by hiring an engineer to determine how to repair the damage to

Wainscott’s building. (App. 136–39.) Knightstown was on notice of Wainscott’s claim

and responded accordingly.

Nowhere does the ITCA require that a plaintiff assert its intent to bring a

tort claim to comply with the notice requirement. Wainscott has complied with all

notice requirements of the ITCA, and none of his claims are barred.

II. The only reason the trial court found fault with the notice was that it did not state an intent to file a claim—an improper requirement.

The trial court incorrectly ruled that Wainscott did not comply with the

notice requirements of the ITCA. Wainscott met every requirement found in the

statute. The only reason the trial court granted Knightstown summary judgment is

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

against the town. But this is an improper criterion to impose on a plaintiff who has

actually complied with the ITCA’s content requirements. The trial court’s and


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Knightstown’s incorrect conclusions are based on an incorrect reliance on cases

involving plaintiffs who did not comply with the ITCA. As a result, this Court

should reverse the trial court regarding Wainscott’s tort-claim notice.

Wainscott sent notice within 180 days of his loss.

The ITCA requires that a political subdivision be given written notice of a

tort claim within 180 days after the loss occurs. Ind. Code § 34-13-3-8(a). The

definition of “political subdivision” includes a “town” like Knightstown. Ind. Code

§ 34-6-2-110(4). The trial court correctly did not find any fault in the timeliness of

Wainscott’s notice. (App. 8–13.)

Knightstown and Shroyer began demolishing the Bullet Hole on April 1,

2013. (App. 125, ¶ 10.) The demolition damaged Wainscott’s Old Lodge. (App. 119–

20, ¶¶ 3–4.) On April 14, 2013, Wainscott mailed Knightstown notice of Wainscott’s

loss. (App. 54.) On April 18, 2013, Wainscott hand-delivered this letter to the

Knightstown Town Council. (App. 120, ¶ 6.) This was well within 180 days of

Wainscott’s early April 2013 loss.

Wainscott’s notice described the circumstances of the loss.

The ITCA requires notice to include “the circumstances which brought about

the loss.” I.C. § 34-13-3-10. Wainscott’s April 14, 2013, letter to Knightstown

described the circumstances which brought about his loss:

• “destruction of the building began without my knowledge, and without

notification to 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.”


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(App. 54.) The trial court correctly did not flaw Wainscott’s notice for insufficiently

describing the circumstances.

The notice described the extent of the loss.

The ITCA requires notice to include “the extent of the loss.” I.C. § 34-13-3-10.

Wainscott’s letter to Knightstown also detailed the extent of his loss:

• “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.”

• “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.”

(App. 54.) The trial court correctly found no flaw with Wainscott’s notice in its

description of the loss.

The notice included the time and place the loss occurred.

The ITCA requires notice to include “the time and place the loss occurred.”

I.C. § 34-13-3-10. This is not a slip-and-fall case on government-owned property on

an unknown day. Knightstown hired Shroyer to demolish Knightstown’s own

property in April 2013. Wainscott’s letter contained the date of “4/14/13” at the top

of the letter and notified Knightstown that Wainscott’s property was damaged as a

result of the April 2013 demolition. (App. 54.) The letter also provided the addresses

of the properties at issue: the Bullet Hole at 32 Main Street and Wainscott’s Old

Lodge at 34-38 Main Street. (App. 54.) Wainscott provided the time and place of his


17

loss. The trial court correctly found no flaw with Wainscott’s description of the time

and place the loss occurred.

The notice included the name of all necessary persons involved.

The ITCA requires notice to include “the names of all persons involved if

known.” I.C. § 34-13-3-10. The purpose of Wainscott’s April 14, 2013, letter was to

provide notice of his loss to Knightstown, a political subdivision. The letter did so by

identifying Knightstown as the party responsible for Wainscott’s loss. (App. 54.)

Although the notice did not name Shroyer, naming Knightstown was sufficient

because Knightstown had hired Shroyer to demolish the Bullet Hole and was

therefore responsible for Shroyer. Wainscott complied with this requirement. The

trial court correctly found no flaw in the respect.

The notice provided information about the relief sought.

The ITCA requires notice to include “the amount of the damages sought.” I.C.

§ 34-13-3-10. But a notice is not rendered insufficient by a failure to request money

damages. Scott v. Gatson, 492 N.E.2d 337, 341 (Ind. Ct. App. 1986). In Scott, the

plaintiff provided notice within 11 days after the loss when the dollar amount of any

damages was unknown. The Scott court held, “It makes little sense to penalize a

plaintiff’s promptness when the notice given fulfills the statutory purpose of

informing the political subdivision with reasonable certainty of the accident and

surrounding circumstances.” Id. Similarly, Wainscott provided Knightstown notice

within two weeks of his loss. As in Scott, Wainscott’s notice complies with the ITCA

because it provided Knightstown with reasonable certainty of the circumstances of

the loss.

Although Wainscott’s notice did not request money damages, it did request

specific relief from Knightstown:


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• “All hazardous waste must be removed.”

• “Holes in the basement wall need to be repaired, bricked and tucked.”

• “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.”

• “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.”

• “A two foot ste[e]l 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.”

(App. 54.) These requests put Knightstown on notice regarding what would need to

be corrected to make Wainscott whole. Wainscott complied with this requirement.

The trial court correctly did not fault Wainscott’s notice in its description of the

remedy sought.

The notice included Wainscott’s residential address.

The ITCA requires notice to include “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.

Wainscott’s notice complied with this requirement by including his address in his

letter. (App. 54.) The trial court correctly did not fault Wainscott’s notice in this

respect.

The notice was in writing and hand-delivered.

The ITCA requires notice to “be in writing and must be delivered in person or

by registered or certified mail.” I.C. § 34-13-3-12. Wainscott complied with this

requirement by hand-delivering his April 14, 2013, notice letter to the Knightstown

Town Council at its April 18, 2013, meeting. (App. 119, ¶ 6.) The trial court


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correctly did not find fault in Wainscott’s notice for its mode of communication or

delivery.

Since the notice met all the statutory criteria required by the ITCA, the trial

court had no need to resort to an analysis of substantial compliance. This Court

should reverse summary judgment in Knightstown’s favor.

III. Even if Wainscott did not comply with the ITCA, his equitable, nuisance, and breach-of-contract claims survive.

Wainscott’s equitable party-wall claim survives apart from the ITCA.

Wainscott complied with the ITCA, but even if he had not, his equitable

party-wall claim would survive. The trial court incorrectly concluded that party-wall

claims sound in tort. (App. 10.) But Indiana law holds that owners of a party wall

have equitable duties to each other separate from tort. See, e.g. Kiefer v. Dickson, 41

Ind. App. 543, 549, 84 N.E. 523, 525 (1908) (“Where a wall is a strict party wall,

neither of the adjoining owners has a right to maintain windows therein and equity

will enjoin such maintenance.”); Cartwright v. Adair, 27 Ind. App. 293, 301, 61 N.E.

240, 242 (1901) (Allegations of tortious conduct were unnecessary to award damages

for “infringement of the right to support of a party wall.”).

Knightstown cites J.C. Penney Co. v. McCarthy, 93 Ind. App. 609, 176 N.E.

637 (1931), transfer denied, as holding that a party-wall claim is a tort claim. This is

not what J.C. Penney holds. Whether the parties to a party wall owe each other an

equitable duty to maintain the wall was not an issue in J.C. Penney. J.C. Penney

just determined that that particular case sounded in tort because there was no

breach of contract and the plaintiff had pleaded the party-wall claim as a trespass,

which is a tort. Here, there is a breach of contract, and Wainscott has not alleged

trespass nor pleaded the party-wall claim as a tort. As in the cases above, Wainscott


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has an equitable party-wall claim against Knightstown. Despite Knightstown’s

claim to the contrary, Wainscott’s claim is not limited only to monetary (legal)

damages. His claim is equitable. This claim would survive even if he had not

submitted a timely tort claim notice. The trial court’s summary judgment order as

to Wainscott’s equitable party wall claim should be reversed.

Courts across the country have also held that there is an equitable duty not

to harm a shared wall. Lyons v. Bassford, 249 S.E.2d 255, 260 (Ga. 1978); Sanders

v. Martin, 70 Tenn. 213, 217 (Tenn. 1879); Sovran Bank, N.A. v. Forman, 7 Va. Cir.

268 (Va. Cir. Ct. 1985); List v. Hornbrook, 2 W. Va. 340 (W. Va. 1867); Casper Nat’l

Bank v. Jones, 329 P.2d 1077 (Wyo. 1958). These cases all held that, like

Wainscott’s claim, a party-wall claim is recognized as equitable.

In Casper National Bank, the plaintiff sued an adjoining bank for damages

after the bank’s construction activities caused a party wall to collapse. The Casper

National Bank court analyzed caselaw from other jurisdictions and determined that

“most courts have recognized that a party-wall agreement creates a special

situation which presents equities and property rights differing from those

applicable to other tort problems.” 329 P.2d at 1079. “[T]he owners of a party wall

who … alters the wall or its support has a primary liability to the other owner of the

wall for any damages which may result from a lack of the highest possible care

consistent with the circumstances of the situation.” Id. at 1082.

In Lyons, the plaintiff sought an injunction to prevent an adjoining

landowner from tearing down a fence that the landowners had constructed along

the property line. The Lyons court analogized the shared fence to a party wall. The

court held that “[g]eneral equitable principles and rules are applicable concerning

the protection of rights and interests in party walls.” Lyons, 249 S.E.2d at 260.

In Sanders, the plaintiff and defendant owned adjoining lots that shared a

party wall. The plaintiff built a three-story brick house on his property, which


21

required adding a third story to the party wall and constructing a party wall in a

cellar. The defendant and her tenant built a four-story brick house on her property,

which required raising the party wall another story and digging a cellar on her

property. The plaintiff filed suit requesting that the defendants contribute to the

expense of plaintiff’s previous additions to the party wall that the defendants had

used. The Sanders court held that the parties had an equitable and moral duty to

share in the safe use of the party wall, so the defendants owed contribution for their

use of the wall. Sanders, 70 Tenn. at 217.

In List, the plaintiff built a wall with half on his property and half on the

defendant’s property. Sixteen years later, the defendant built a house on his

property and joined it to the existing wall. The plaintiff sued the defendant, alleging

that the defendant had contracted to pay for half of the construction of the shared

wall. The List court held that no contract existed. List, 2 W. Va. at 342. But the

court did hold that the wall became a party wall when the defendant joined to it,

after which each party owed an equitable duty to the other to keep the party wall in

good repair. Id. at 345-46.

In Sovran Bank, the owners of a former hotel demolished their building

under threat of condemnation. After the demolition all that remained was a party

wall shared with the adjoining property owner. The Sovran Bank court held that

the parties owed each other an equitable duty to keep the party wall in good repair.

7 Va. Cir. at 271.

The ITCA does not affect the nuisance claim for injunctive relief.

Even if Wainscott had not satisfied the tort claim notice requirement, which

he did, the trial court correctly determined that his nuisance claim would still


22

survive. Knightstown admitted in its summary-judgment brief (App. 92) and the

summary-judgment hearing (Tr. 26–27)2 that a nuisance claim for injunctive relief

is not barred by the ITCA. Knightstown admitted in its summary-judgment brief

that Wainscott’s nuisance claim is equitable. (App. 93.) No further inquiry is

needed. Wainscott’s nuisance claim is not barred by the ITCA.

Knightstown claims, that this equitable claim is somehow subject to the

ITCA because nuisance provides damages arising from underlying tortious conduct.

This is incorrect. A nuisance may exist without an underlying tort. City of Gary v.

Smith & Wesson, 801 N.E.2d 1222, 1234 (Ind. 2003). As property owner,

Knightstown has equitable obligations to maintain the party wall. Wainscott’s

nuisance claim would not be barred even if he had not complied with the tort-claim

notice requirement. The trial court correctly determined, “Applying the general

principle of statutory construction that a statute should be strictly construed, the

Court finds that the nuisance allegations of Count 3 are not a tort for purposes of

the ITCA.” (App. 11.)

2 The transcript from the summary-judgment hearing incorrectly lists Mr. Emhardt, counsel for Wainscott, as the attorney stating this. When viewed in the context of the transcript, however, it is evident that Mr. Uhl, counsel for Knightstown, made this statement:

MR. UHL: Could I say one more thing? I am sorry Your Honor. COURT: Sure. [MR. UHL]: If you decide that there is a nuisance claim here for injunctive relief that is not barred by the Tort Claims Act you can still grant summary judgment on any claim for damages—think that’s barred by the lack of Tort Claim Notice.

(Tr. 26–27.)


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Genuine issues of material fact preclude summary judgment on Wainscott’s claim on breach of contract.

The trial court also correctly denied Knightstown’s motion for summary

judgment as to Wainscott’s breach of contract claim. The trial court stated, “The

general rule is that only tort claims are subject to the ITCA. Clearly, the breach of

contract action alleged in Count 2 is not subject to it.” (App. 10.)

“To be valid, a contract need not be in writing … .” Sand Creek Country Club,

Ltd. v. CSO Architects, Inc., 582 N.E.2d 872, 875 (Ind. Ct. App. 1991). “[I]n order to

have a legally binding contract there must be generally an offer, acceptance, and

consideration. To constitute consideration, there must be a benefit accruing to the

promisor or a detriment to the promisee.” Ind. Dep’t of State Revenue v. Belterra

Resort Ind., LLC, 935 N.E.2d 174, 179 (Ind. 2010) (internal citations omitted).

These elements exist here.

On April 18, 2013, the Knightstown Town Council President, Clyde South,

offered that Knightstown would repair the common wall to address any issues

affecting the Old Lodge. (App. 120, ¶ 7.) After South’s offer, Knightstown

commissioned FPBH to prepare an engineering report to fix the damage to

Wainscott’s building. (App. 136–39.) Wainscott accepted this offer. The

consideration for this contract was Wainscott’s agreement to work with the town to

fix any problems caused by the demolition, rather than filing suit to compel

Knightstown to do so. Belterra Resort, 935 N.E.2d at 179 (“A detriment on the other

hand is a legal right the promisee has forborne.”) But Knightstown, failed to repair

the common wall. (App. 120, ¶ 9.) By failing to repair the shared wall, Knightstown

breached its contract with Wainscott. A breach-of-contract claim is not governed by

the ITCA or its notice requirements.

Knightstown claims that the Town Council President did not have authority

to bind Knightstown. Knightstown cites McCrary Engineering Corp. v. Town of


24

Upland, 472 N.E.2d 1305 (Ind. Ct. App. 1985), as support for this claim. The trial

court correctly distinguished McCrary from the facts here. In McCrary, the town

council authorized its president to sign all forms and applications necessary for a

construction project. The town president entered into an employment contract with

McCrary Engineering. The Court of Appeals held that the town president had

exceeded his authority, which was limited to signing contracts, by entering into the

employment agreement. Id. at 1306. Here, there is no evidence that Knightstown’s

town president exceeded his authority by entering into a contract with Wainscott.

In fact, there is evidence that the council assented to the contract by hiring FPBH to

prepare an engineering report to fix the damage to Wainscott’s building. (App. 136–

39.)

Even if South did not have actual authority to bind the town council, an

agent like South may bind his principal through actual or apparent authority.

“Apparent authority is that authority which a third person reasonably believes the

agent to possess because of some manifestation from his principal.” Herald Tel. v.

Fatouros, 431 N.E.2d 171, 175 (Ind. Ct. App. 1982) (internal citations omitted). The

manifestation of the authority “need not be in the form of direct communications,

but rather the placing of the agent in a position to perform acts or make

representations which appear reasonable to a third person is a sufficient

manifestation to endow the agent with apparent authority.” Id. It seemed

reasonable to Wainscott that South in his position as President would be able to

enter into contracts on behalf of Knightstown. (App. 120, ¶ 8.) Placing South in the

position of President of the Knightstown Town Council endowed him with apparent

authority to bind Knightstown to contracts.

Wainscott has a valid breach-of-contract claim against Knightstown. The

trial court correctly concluded that genuine issues of material fact preclude


25

summary judgment in Knightstown’s favor on Wainscott’s claim for breach of

contract.

CONCLUSION

The judgment of the trial court should be reversed as to (1) Wainscott’s compliance

with the notice requirements of the ITCA; (2) Wainscott’s party-wall claim; and

(3) Wainscott’s negligence claim. The judgment of the trial court regarding

Wainscott’s nuisance e and breach of contract claims should be affirmed.

Respectfully submitted,

____________________________________ Frederick D. Emhardt, # 10952-49 Josh S. Tatum, # 28 089-49 Colin E. Connor, #28504-49 Plews Shadley Racher & Braun LLP 1346 North Delaware Street Indianapolis, IN 46202-2415 Tel: (317) 637-0700 Fax: (317) 637-0710

Attorneys for Appellee/Cross-Appellant Dudley Wainscott


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WORD-COUNT CERTIFICATE

In compliance with App. R. 44(E) & (F), I verify that this Brief of Appellee/Cross-

Appellant Dudley Wainscott, including footnotes and excluding the items set forth

in App. R. 44(C), contains no more than 14,000 words.

____________________________________ Josh S. Tatum


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CERTIFICATE OF SERVICE

I certify that this Brief of Appellee/Cross-Appellant Dudley Wainscott was filed and

served on the following using the Indiana E-Filing System on September 9, 2016:

Gary L. Shaw Richard R. Skiles Skiles Detrude 150 East Market Street Suite 200 Indianapolis, IN 46204 (Attorney for Shroyer Bros. Inc.)

James S. Stephenson Joseph M. Hendel Stephenson Morow & Semler 3077 East 98th Street Suite 240 Indianapolis, IN 46280 (Attorney for Town of Knightstown)

____________________________________ Josh S. Tatum

in the indiana court of appeals town of knightstown,...

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