Pedraza v. City of East Chicago
| Decision Date | 09 April 2001 |
| Docket Number | No. 45A03-0005-CV-188.,45A03-0005-CV-188. |
| Citation | 746 N.E.2d 94 |
| Parties | Joseph PEDRAZA; Howard Vanselow; and Nick Dvorscak, Appellants-Defendants, v. CITY OF EAST CHICAGO; Robert A. Patrick, Mayor; City of East Chicago Fire Department; and James Dawson, Fire Chief, Appellees-Plaintiffs. |
| Court | Indiana Appellate Court |
Larry D. Stassin, Hammond, IN, Attorney for Appellants.
Michael W. Bosch, Hammond, IN, Attorney for Appellees.
Plaintiffs-Appellants Joseph Pedraza, Howard Vanselow, and Nick Dvorscak (collectively, "Appellants") appeal from the trial court's order granting summary judgment in favor of Defendants Appellees City of East Chicago, Robert A. Pastrick, Mayor, City of East Chicago Fire Department, and James Dawson, Fire Chief (collectively, "Appellees").
We affirm.
We restate the issues presented by Appellants as follows:
The amended complaint alleges that Appellants are all East Chicago staff firefighters employed by the East Chicago Fire Department. The East Chicago Fire Department divides its firefighters into two categories, line firefighters and staff firefighters. Line firefighters work a schedule of twenty-four hours on duty followed by forty-eight hours off-duty. The staff firefighters, who handle day-to-day administrative chores, work Monday through Friday from 8:00 a.m. to 4:00 p.m.
The amended complaint additionally alleges that line firefighters receive forty-five vacation days each year and staff firefighters receive thirty-five vacation days each year. Line firefighters are allowed to work overtime according to a seniority list, while staff firefighters' names are not placed on that list. Furthermore, staff firefighters receive no compensation for being on call, while staff firefighters within the Inspection Bureau receive an additional $7,000.00 in compensation for both being on call and actual service when called in while on call.
Appellants filed a complaint against Appellees on February 1, 1999, alleging that the differences in vacation time, overtime availability, and differences in on-call compensation between staff firefighters in the Fire Department and Inspection Bureau were arbitrary, discriminatory, and not provided for by law. On April 23, 1999, Appellees filed a motion to dismiss the complaint pursuant to Ind. Trial Rule 12(B)(1) & (6). However, Appellees filed affidavits with the motion to dismiss.
Appellants filed a notice of intent to take default judgment on April 27, 1999, because Appellees had not filed an answer to the complaint. Appellants filed an amended complaint on May 10, 1999. On May 11, 1999, Appellees filed a motion to dismiss the amended complaint. On May 20, 1999, Appellants filed their memorandum of law in opposition to Appellees' motion to dismiss.
The trial court held a hearing on the motion on July 13, 1999. At that hearing the trial court decided to treat the motion as a motion for summary judgment instead of a motion to dismiss. On July 29, 1999, Appellants filed a memorandum of law in opposition to Appellees' motion for summary judgment. On September 10, 1999, Appellees filed a response to Appellants' memorandum opposing summary judgment. A hearing was held on November 15, 1999, after which the trial court granted Appellees' motion for summary judgment. The order reflecting that decision, which is the subject of this appeal, was filed on December 20, 1999.
On January 18, 2000, Appellants filed a motion to correct errors alleging that the trial court erred by granting Appellees' motion for summary judgment. A hearing was held on March 20, 2000. The trial court denied Appellants' motion to correct errors and filed that order on April 25, 2000.
When reviewing a 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted, this court accepts as true the facts alleged in the complaint. Hudgins v. McAtee, 596 N.E.2d 286, 288 (Ind.Ct.App.1992). A T.R. 12(B)(6) motion to dismiss tests the legal sufficiency of the complaint. Right Reason Publications v. Silva, 691 N.E.2d 1347, 1349 (Ind.Ct.App.1998). When reviewing a T.R. 12(B)(6) motion to dismiss, we view the pleadings in the light most favorable to the non-moving party, and draw every reasonable inference in favor of that party. Id. We will affirm a successful T.R. 12(B)(6) motion when a complaint states a set of facts, which, even if true, would not support the relief requested in that complaint. Id. However, if a T.R. 12(B)(6) motion is made, but matters outside the pleading are presented to the trial court and are not excluded by the trial court, then the motion shall be treated as one for summary judgment. See Ind. Trial Rule 12(B).
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. LeBrun v. Conner, 702 N.E.2d 754, 756 (Ind. Ct.App.1998). The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact. Ind.Trial Rule 56(C); Campbell v. Criterion Group, 613 N.E.2d 423, 428 (Ind. Ct.App.1993),on reh'g 621 N.E.2d 342. Once the moving party makes a prima facie showing of the non-existence of a genuine issue of material fact, the burden shifts to the non-moving party to set forth specific facts showing the existence of a genuine issue for trial. T.R. 56(E); Campbell, 613 N.E.2d at 428. We must construe all designated evidence liberally in favor of the non-moving party and resolve any doubt against the moving party. Porter v. Irvin's Interstate Brick & Block Co., Inc., 691 N.E.2d 1363, 1364 (Ind.Ct. App.1998).
Summary judgment is appropriate only when the evidentiary matter designated by the parties 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. Aide v. Chrysler Financial Corp., 699 N.E.2d 1177, 1180 (Ind.Ct.App.1998), trans. denied. Where material facts conflict, or undisputed facts lead to conflicting material inferences, summary judgment is inappropriate. Butler v. City of Indianapolis, 668 N.E.2d 1227, 1228 (Ind.1996). Summary judgment may not be used as a procedural device to avoid a trial on claims that are perceived to be weak. Yin v. Society National Bank Indiana, 665 N.E.2d 58, 65 (Ind.Ct.App.1996), trans. denied; Campbell v. Railroadmen's Federal Savings and Loan Association of Indianapolis, 443 N.E.2d 81, 84 (Ind.Ct.App. 1982).
trans. denied. The appellate court may not reverse the entry of summary judgment on the ground that a genuine issue of material fact exists unless the material fact and the evidence relevant thereto were designated specifically to the trial court. Ind. Trial Rule 56(H). Furthermore, we will sustain the trial court's decision to grant a motion for summary judgment if it is sustainable by any theory or basis found in the record. See Ward v. First Indiana Plaza Joint Venture, 725 N.E.2d 134, 136 (Ind.Ct.App.2000).1
The trial court's order on the motion for summary judgment reads in relevant part as follows:
The Court having reviewed all of the pleadings, memorandums[sic] and designated materials of the parties and having heard argument of counsel hereby GRANTS the Defendants['] motion for summary judgment with respect to both the City and the individual Defendants.
(R. 98).
Appellants argue that we should reverse the trial court's decision to grant Appellees' motion for summary judgment because Appellees are not entitled to notice under the Indiana Tort Claims Act. Appellees had argued, in part, before the trial court in their motion that Appellants were required to comply with the Indiana Tort Claims Act because Appellants alleged that Appellees had acted in an arbitrary and discriminatory way.
We agree with Appellants that this case sounds in contract and not in tort. We previously have held that the immunity provision of the Indiana Tort Claims Act is limited to certain acts by governmental entities resulting in injury to or death of a person, or damage to property. See Underwood v. City of Jasper Mun. Util., 678 N.E.2d 1280, 1283 (Ind.Ct.App.1997)
; Ind. Code § 34-6-2-75(a). The complaint in the case at bar alleges none of those things.
Appellee has not responded to the argument contained in Appellants' brief that the Indiana Tort Claims Act is inapplicable in this situation. Normally, when an appellee fails to...
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