Dunn v. City of Indianapolis

Decision Date03 August 1983
Docket NumberNo. 1-383A84,1-383A84
Citation451 N.E.2d 1122
PartiesHarry DUNN, Jr., Plaintiff-Appellant, v. CITY OF INDIANAPOLIS and James Highbaugh, Defendants-Appellees.
CourtIndiana Appellate Court

Louis Buddy Yosha, Mark C. Ladendorf, Yosha & Cline, Indianapolis, Thomas Brenton, Brenton & Brenton, Danville, for plaintiff-appellant.

Richard S. Ewing, Danford R. Due, Stewart, Irwin, Gilliom, Fuller & Meyer, Robert M. Kelso, Indianapolis, for defendants-appellees.

RATLIFF, Judge.

STATEMENT OF THE CASE

Appellant Harry Dunn, Jr. appeals from a judgment of the Hendricks Circuit Court finding Dunn failed to comply with the notice provision of the Indiana Tort Claims Act. We affirm.

FACTS

On April 6, 1977, Dunn and James Highbaugh, both Indianapolis police officers, went to a tavern while off-duty. Outside the tavern, Highbaugh drew his gun in an exhibition of his quick-draw abilities. The weapon discharged resulting in Dunn's quadraplegia. After regaining what mobility he could, Dunn was discharged from the hospital in October 1977. Exactly two (2) years after the shooting, Dunn brought suit against Highbaugh and the City of Indianapolis (city). On September 7, 1982, a hearing was held, at Dunn's behest, to determine whether Dunn had complied with the notice requirement of the Tort Claims Act. The court purported to grant summary judgment for the city on the notice issue. Subsequently, the court amended its findings and conclusions on the hearing to show that they were the result of an evidentiary hearing and not a summary judgment. From this decision, Dunn now appeals.

ISSUES

Dunn raises three issues on appeal. Combined and rephrased, they are as follows:

1. Did the trial court err in holding an evidentiary hearing on the notice issue and in thereafter amending its findings and conclusions?

2. Did the trial court err in determining that Dunn's claim was barred for failure to comply with the notice requirement of the Tort Claims Act?

DISCUSSION AND DECISION
Issue One

The trial court correctly amended its findings and conclusions to comport with the actual nature of the proceedings.

Appellant argues that the hearing of September 7, 1982, was a hearing on the city's motion for summary judgment and not an evidentiary hearing. Accordingly, Dunn maintains that the court weighed evidence and, thereby, incorrectly granted summary judgment for the defendants. Appellees contend that everyone knew the hearing was to be an evidentiary hearing on the notice requirement of the Tort Claims Act. They contend that the court, therefore, properly weighed evidence as the finder of fact and then mistakenly designated its judgment for defendants as a grant of summary judgment. We are constrained to agree with the city.

After the court had set a trial date, Dunn filed his denominated Motion for Hearing in Lieu of Trial Setting to resolve the question of compliance with the notice provision of the Tort Claims Act. The court removed the cause from the trial calender and ordered the parties to "stipulate all facts necessary for hearing on [the] Tort Claims notice and [to] be ready to present any other facts at the hearing ...." Record at 183. By its entry of June 30, 1982, the court ordered the parties to "prepare [the] factual issue." Record at 193. At the hearing itself, just prior to the swearing of witnesses, the following colloquy took place:

"Mr. Due: Just for purposes of clarity your honor, it was defendant's, City's, understanding that we were here to try the notice issue in this case which....

"The Court: That is my understanding.

"Mr. Due: Rather than determine a motion for summary judgment.

"The Court: This comes up that way though. 1 Ok? Yes, you are here to present facts.

"Mr. Due: Well, it is my understanding that we are here to have the court make a determination, not to determine whether or not there is a genuine issue of fact, but, to actually determine those facts.

"The Court: Ok. That is my understanding of where we are."

Record at 338. Dunn's counsel was present at this exchange but said nothing to indicate that he thought other than that the hearing was an evidentiary hearing to determine the factual issues. Dunn thereafter tendered findings of fact and conclusions of law. The court's order of September 15, 1982, then states, in part, that "[t]he Court having had under advisement the Motion for Summary Judgment by the City of Indianapolis now finds that there is no genuine issue of a material fact on the question raised by the Motion for Summary Judgment...." Record at 276. On December 28, 1982, the court made the following entry:

"The Court having considered the Court's Findings of Fact and Conclusions of Law entered 9-15-82, the evidence in the hearing of 9-7-82, plaintiff's Motion to Correct Errors filed 12-13-82 and the City of Indianapolis' Statement in the Opposition to Motion to Correct Errors and Memorandum in Support of the City of Indianapolis' Statement in Opposition to Motion to Correct Errors hereby finds that the Findings and Conclusions of Law and Judgment entered 9-15-82 should be amended to reflect that they were the result of an evidentiary hearing pursuant to which the Court weighed all material evidence and found in favor of the defendant City of Indianapolis on the issue of compliance with the notice requirement of the Tort Claims Act as is reflected by the Findings of Fact...."

Record at 312.

From the course of the proceedings herein set out, we cannot but reach the conclusion that the trial court inadvertently denominated the evidentiary hearing a summary judgment in its entry of September 15. The record clearly indicates that both the parties and the court considered the hearing an evidentiary hearing to resolve the notice issue. The facts were disputed by the parties and weighed by the court. The court then later corrected its findings to reflect the true nature of the disposition . Dunn cannot now allege that the court improperly weighed evidence . There was no error in amending the findings.

Issue Two

The trial court did not err in determining that Dunn's claim was barred for failure to comply with the notice requirement.

Dunn argues that the court erred in finding that the city had not waived compliance with the notice provision and in failing to find that Dunn was incompetent so as to prolong the period within which he could file the notice. We cannot agree.

The Tort Claims Act requires that notice be served upon the appropriate governmental body within 180 days of the injury or loss for which relief is sought. Ind.Code Secs. 34-4-16.5-6, -7 (1983). It is undisputed that the only written notice given the City of Indianapolis was 490 days after the shooting. This is clearly not within the required period. Appellant argues, however, that...

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    • United States
    • Indiana Appellate Court
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    ...of an occurrence, even when coupled with routine investigation, does not constitute substantial compliance. Dunn v. City of Indianapolis (1983), Ind.App., 451 N.E.2d 1122; City of Indianapolis v. Satz (1978), 268 Ind. 581, 377 N.E.2d 623; Geyer v. City of Logansport (1977), 267 Ind. 334, 37......
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