Leo Mach. & Tool, Inc. v. Poe Volunteer Fire Dept., Inc.

• Decision Date: 12 November 2010
• Docket Number: No. 02A03-1003-PL-143.,02A03-1003-PL-143.
• Citation: 936 N.E.2d 855
• Parties: LEO MACHINE & TOOL, INC. and Elmotec Statomat, Inc., Appellants-Plaintiffs, v. POE VOLUNTEER FIRE DEPARTMENT, INC., a/k/a Poe Community Volunteer Fire Department, Inc., a/k/a Poe Volunteer Fire Department and Anderson Excavating, Inc., Appellee-Defendants.
• Court: Indiana Appellate Court

936 N.E.2d 855

LEO MACHINE & TOOL, INC. and Elmotec Statomat, Inc., Appellants-Plaintiffs,

v.POE VOLUNTEER FIRE DEPARTMENT, INC., a/k/a Poe Community Volunteer Fire Department, Inc., a/k/a Poe Volunteer Fire Department and Anderson Excavating, Inc.,¹ Appellee-Defendants.

No. 02A03-1003-PL-143.

Court of Appeals of Indiana.

Nov. 12, 2010.

Denver C. Jordan, Bradley J. Buchheit, Blume, Connelly, Jordan, Stucky & Lauer, Fort Wayne, IN, Attorneys for Appellants.

Paul T. Fulkerson, Laura C. Bonadies, Indianapolis, IN, Attorneys for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellants-Plaintiffs, Leo Machine & Tool, Inc. (Leo Machine & Tool) and Elmotec Statomat, Inc. (Elmotec) (collectively, Leo Machine), appeal the trial court's summary judgment deciding that Appellee-Defendant, Poe Volunteer Fire Department (Poe Fire Department), is immune from liability under the Indiana Tort Claims Act, thereby denying Leo Machine's Complaint for damages suffered as a result of a fire.

We affirm.

ISSUE

Leo Machine raises one issue on appeal, which we restate as: Whether the trial court erred in finding that Poe Fire Department is immune from liability under Indiana's Tort Claims Act.

FACTS AND PROCEDURAL HISTORY

Leo Machine & Tool was the tenant of a two-story commercial building in Fort Wayne, Indiana. Elmotec used a small office on the second floor of Leo Machine & Tool's building and coordinated the joint projects worked on by Leo Machine & Tool and Elmotec. At approximately 4:00 p.m. on August 27, 2007, David Smith (Smith), a Leo Machine & Tool employee, discovered a fire between the interior and exterior walls of the building. After unsuccessfully trying to extinguish the fire with a fire extinguisher, he called 911.

As various fire departments began to arrive, Assistant Chief of the Hoagland Fire Department, Greg Lepper (Assistant Chief Lepper), assumed the responsibilities of incident commander. New Haven Fire Department Chief Jon Bennett (Chief Bennett) also responded to the fire. When he observed the fire, Chief Bennett noticed the sagging roof and questioned the structural stability of the burning building. Relying on his experience of thirty-two years as a firefighter, Chief Bennett suggested to Assistant Chief Lepper not to allow any firefighters to go inside Leo Machine's building. Assistant Chief Lepper determined that the heat from the fire was too intense for standard firefighting equipment to handle. After consultation with Chief Bennett, Assistant Chief Lepper decided to retain an excavator to aid in the firefighting efforts.

Around 6:40 p.m., after receiving approval of Leo Machine & Tool's insurance company, Assistant Chief Lepper contracted with Anderson Excavating, Inc. (Anderson), who arrived on the scene at 8:00 p.m. A first plan, suggested by Chief Bennett, involved the excavator lifting the roof off of the building to gain access to the flames inside. Chief Bennett left the scene before the process was started.

At 7:35 p.m., prior to Anderson's arrival, the Fire Arson Specialized Team of Allen County (FAST) arrived. After observing the fire, FAST's lead investigator, Robert Shanabarger (Shanabarger), opined that "the fire was not completely under control. Shortly after that, it may have been under control, [ ] which [ ] just means that it's not going to spread anywhere else to any otherbuildings, but it was [ ] not out." (Appellants' App. p. 394).

At 8:00 p.m., Assistant Chief Stan Klepper (Assistant Chief Klepper) of the Poe Fire Department arrived at Leo Machine's building and assumed incident command from Assistant Chief Lepper. In discussing the fire scene with Assistant Chief Lepper, Assistant Chief Klepper was informed that "the decision had been made [ ] to breach a wall with the excavator and attempt to get to the scene of the fire still inside the building." (Appellants' App. p. 376). When this plan was executed, it failed because "the integrity of the wall was as such from the fire load that the minute the excavator breached it, it collapsed." (Appellants' App. p. 378). Next, Assistant Chief Klepper instructed Anderson to reach into the building with the excavator's boom and to drag burning material out so the fire could be externally extinguished. Ultimately, it became necessary to require Anderson to open each wall of the building in order to extinguish the fire. During the firefighting efforts, all of Leo Machine's machinery, equipment, tools and work in progress located on the first floor were destroyed. Eventually, the fire was extinguished after seven hours, resulting in the complete destruction of the building and loss of personal property.

On March 28, 2008 and April 2, 2008, Leo Machine & Tool and Elmotec respectively filed a Complaint against Anderson. On April 17, 2008, Leo Machine & Tool filed a Complaint against Poe Fire Department; on April 28, 2008, Elmotec filed a similar suit. In their Complaint, Leo Machine contends that (1) the total destruction of the premises and the resulting damage to Leo Machine's personal property was unnecessary; and (2) Poe Fire Department wrongfully prevented Leo Machine from recovering their equipment and other personal property located in the building prior to its destruction. The trial court consolidated the cases.

On October 12, 2009, Poe Fire Department and Anderson each filed a motion for summary judgment, both alleging immunity under the Indiana Tort Claims Act and under the common law. On December 7, 2009, Leo Machine filed their joint response. On December 17, 2009, Anderson filed its reply and five days later, Poe Fire Department filed the same. On December 22, 2009, the trial court conducted a hearing on the motions for summary judgment. On February 1, 2010, in a very elaborate and detailed Order, the trial court granted Poe Fire Department's and Anderson's motions for summary judgment.

Leo Machine now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

Leo Machine contends that the trial court erred in granting Poe Fire Department's and Anderson's motions for summary judgment because Poe Fire Department and Anderson are immune under Indiana's Tort Claim Act. Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). In reviewing a trial court's ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind.Ct.App.2008), trans. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. In doing so, we consider all of thedesignated evidence in the light most favorable to the non-moving party. Id. at 608. The party appealing the grant of summary judgment has the burden of persuading this court that the trial court's ruling was improper. Id. When the 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 plaintiffs claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id. When the parties have filed cross-motions on summary judgment, we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id.

We observe that in the present case, the trial court entered detailed and helpful findings of fact and conclusions of law in support of its judgment. Special findings are not required in summary judgment proceedings and are not binding on appeal. Id. However, such findings offer this court valuable insight into the trial court's rationale for its review and facilitate appellate review. Id.

It is well established that to make a determination in a summary judgment proceeding, neither the trial court nor the reviewing court may look beyond the evidence specifically designated to the trial court. Bambi's Roofing, Inc. v. Moriarty, 859 N.E.2d 347, 351 (Ind.Ct.App.2006). As such, Indiana Trial Rule 56(C) requires each party to a summary judgment motion "to 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 purposes of the motion." Id. More significantly, T.R. 56(H) specifically prohibits appellate courts from reversing a grant of summary judgment "on the ground that there is a genuine issue of material fact unless the material fact and the evidence relevant thereto shall have been specifically designated to the trial court."

In the case before us, Leo Machine filed a two-volume Appendix in addition to an addendum to its appellate brief. However, conspicuously absent from the Appendix is either party's motion for summary judgment and designations of evidence. Although Leo Machine included all the designated evidence in its Appendix, without the designation of evidence filed before the trial court we are at a loss as to what precise designated evidence we are permitted to review. It is well settled that the duty of presenting a record adequate for intelligent appellate review on points assigned as error falls upon the appellant. See Ind. Appellate Rules 49(A) and 50. Where, as here, the record seriously impedes a de novo review of the trial court's entry of summary judgment, it is well within our purview to dismiss Leo Machine's appeal. Bambi's Roofing, Inc., 859 N.E.2d at 352. Nevertheless, instead of dismissing the appeal, we issued an order on September 23, 2010, ordering Leo Machine to file a supplemental appendix containing all relevant documents, which it did on October...