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
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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
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
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
Brief of Appellee/Cross-Appellant Dudley Wainscott
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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).
Brief of Appellee/Cross-Appellant Dudley Wainscott
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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.)
Brief of Appellee/Cross-Appellant Dudley Wainscott
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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.)
Brief of Appellee/Cross-Appellant Dudley Wainscott
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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.
Brief of Appellee/Cross-Appellant Dudley Wainscott
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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.
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
Brief of Appellee/Cross-Appellant Dudley 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
Brief of Appellee/Cross-Appellant Dudley Wainscott
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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
Brief of Appellee/Cross-Appellant Dudley Wainscott
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.)
Brief of Appellee/Cross-Appellant Dudley Wainscott
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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
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
Brief of Appellee/Cross-Appellant Dudley Wainscott
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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
Brief of 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
Brief of Appellee/Cross-Appellant Dudley Wainscott
27
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