Reed v. City of Evansville

• Decision Date: 29 August 2011
• Docket Number: No. 82A05–1012–PL–768.,82A05–1012–PL–768.
• Citation: 956 N.E.2d 684
• Court: Indiana Appellate Court
• Parties: Steve REED and Lee Ann Reed, Appellants–Plaintiffs,v.CITY OF EVANSVILLE and Evansville Sewer & Water Utility, Appellees–Defendants.

956 N.E.2d 684

Steve REED and Lee Ann Reed, Appellants–Plaintiffs,

v.CITY OF EVANSVILLE and Evansville Sewer & Water Utility, Appellees–Defendants.

No. 82A05–1012–PL–768.

Court of Appeals of Indiana.

Aug. 29, 2011.

Leslie C. Shively, Shively & Associates, P.C., Evansville, IN, Attorney for Appellants.David L. Jones, Robert W. Rock, Evansville, IN, Attorneys for Appellees.

OPINION

ROBB, Chief Judge.

Case Summary and Issues

Steve and Lee Ann Reed appeal the trial court's order granting summary judgment to the City of Evansville and Evansville Sewer and Water Utility (collectively, the “City”). The Reeds raise one issue, which we expand and restate as three: whether the City's supplemental designated evidence must be stricken, whether the Reeds provided timely notice of their tort claims, and whether the City is otherwise entitled to judgment as a matter of law. The City raises on cross-appeal the issue of whether the trial court erred in denying its motion to strike portions of the Reeds' brief in opposition to summary judgment and supporting affidavits. We conclude that none of the City's supplemental evidence need be stricken, a question of fact remains as to whether the Reeds provided timely notice of their tort claims, the City is not otherwise entitled to judgment as a matter of law on the Reeds' claims, and the City's motion to strike was properly denied. Therefore, we reverse and remand for further proceedings.

Facts and Procedural History ¹

In 2003, the Reeds purchased a home within the City of Evansville and the geographic service area of Evansville Sewer and Water Utility. At some point, a discussion with their neighbors led them to believe that a sewer line ran underneath their home, and in March 2007, Steve Reed inquired of the City's contract operator for its sewer system whether this was true.

The City confirmed the presence of the sewer line and obtained the Reeds consent to investigate whether it caused or was causing any environmental problems. The City's efforts included hiring John Shamo, of Preferred Environmental Standards, Inc., to determine whether mold was present. Shamo conducted his investigation on April 27, 2007, and the City conducted further investigations within a week thereafter. Shamo found mold in the crawlspace under the Reeds' home among other problems, presented his findings to the City on June 17, 2007, and over a year later issued a report to the City dated July 1, 2008. The City contends Shamo found no causal relationship between the sewer and the mold, but the Reeds contend Shamo found a causal relationship between the sewer line and the mold and did not tell them about it or tell them at all of his findings.

The City's examination also revealed a leak or breach where the Reeds' “lateral connection” exited the home. Appellants' Appendix at 96. And lastly, the City observed and informed the Reeds of plumbing leaks in the crawlspace underneath the home; though the designated evidence does not clearly state whether the City informed the Reeds of the defective lateral connection.

From May to July 2007, the City worked on sealing off the sewer line underneath the Reeds' home, repairing the lateral connection, constructing an additional lateral line at the edge of the Reeds' property, and repairing and constructing a new driveway. In or after September 2007, the City re-sodded the Reeds' lawn as well.

During roughly the same time period, in early 2007, the Reeds detected an odor in their home and hired SWAT Pest Management, Inc. (“SWAT”) to investigate. SWAT issued a report to the Reeds on April 3, 2007, which indicates it found mold and that the sump pump (a device used to remove water accumulated in a basement) was not working properly.² SWAT attempted to remove the mold but largely failed.

The Reeds continued to have problems with mold, and in May 2008, the Reeds hired Happe & Sons Construction, Inc. (“Happe”) to estimate the cost of the demolition and removal of the Reeds' current home and reconstruction of the same home in the same location. Steve Reed stated in an affidavit that “a representative of” Happe told him the “persistent mold and moisture condition was due to” the sewer line. Appellants' App. at 131. In an affidavit, Ray Happe, Vice–President of Happe, disputed this contention:

At no time during my contact with the Plaintiff, Steve Reed, did I give an opinion as to the cause of the mold found in his home.... If it had been requested, I would have recommended that Mr. Reed employ an expert....

Id. at 162.

The Reeds provided the City with notice of their tort claim in a document signed by the Reeds on June 7, 2008, and marked received by the City on June 18, 2008. The Reeds filed a complaint on July 29, 2008, which they amended on October 17, 2008 to include the City as a party defendant, and amended again in March 2009 and January 2010. As to the City, the Reeds' complaint states that as a result of the sewer being located beneath their home, they incurred and will continue to incur expenses regarding their property, including a loss of the quiet enjoyment and diminution of value of their property, and that their family has suffered health problems. The Reeds also contend they suffered property damage from the City's relocation of the sewer.

In March 2010, the City filed an answer in which among other denials and defenses, it raised the affirmative defense of non-compliance with the Indiana Tort Claims Act (“ITCA”), contending the Reeds failed to provide the City with notice of their claim within 180 days after the alleged loss. In April 2010, the City filed a motion for summary judgment and designated evidence, to which the Reeds filed a brief in opposition and designated evidence. The City filed a reply brief and supplemental designated evidence, and a motion to strike portions of the Reeds' brief in opposition to summary judgment and designated evidence. The trial court denied a motion by the Reeds to strike the City's supplemental designated evidence and the City's motion to strike portions of the Reeds' opposition. In November 2010, the trial court granted the City's motion for summary judgment based solely on the conclusion that the Reeds did not provide the City with timely notice of their claim as required by the ITCA. The Reeds now appeal and the City cross-appeals. Additional facts will be supplied as appropriate.

Discussion and Decision

I. Standard of Review

We review a trial court's summary judgment order de novo. Kovach v. Caligor Midwest, 913 N.E.2d 193, 196 (Ind.2009). We apply the same standard as the trial court: whether the designated evidence 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. Ind. Trial Rule 56(C); Freidline v. Shelby Ins. Co., 774 N.E.2d 37, 39 (Ind.2002). In making this determination, we construe all facts and reasonable inferences in a light most favorable to the non-moving party, Boggs v. Tri–State Radiology, Inc., 730 N.E.2d 692, 695 (Ind.2000), and resolve all doubts as to the existence of a factual issue against the moving party, Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind.1996). The moving party has the initial burden to prove that there are no genuine factual issues and that judgment as a matter of law is appropriate, and only then must the non-moving party respond by setting forth specific facts in the designated evidence demonstrating the opposite is true. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind.1992).

A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute, or where undisputed facts are capable of supporting conflicting inferences on such an issue. Briggs v. Finley, 631 N.E.2d 959, 963 (Ind.Ct.App.1994), trans. denied. We may affirm a trial court's grant of summary judgment upon any theory supported by the designated materials. Sims v. Barnes, 689 N.E.2d 734, 735 (Ind.Ct.App.1997), trans. denied. Additionally, we “may determine in the context of summary judgment a mixed question of law and fact.” Ebbinghouse v. FirstFleet, Inc., 693 N.E.2d 644, 647 n. 2 (Ind.Ct.App.1998), trans. denied.

II. The Reeds' Motion to Strike

The Reeds first contend the City's supplemental designated evidence must be stricken because it was filed along with the City's reply memorandum and not with its original motion for summary judgment and designation of evidence.

We faced a similar issue in Spudich v. N. Indiana Pub. Serv. Co., 745 N.E.2d 281 (Ind.Ct.App.2001), trans. denied, and concluded that “Trial Rule 56(E) allows either party to submit supplemental designations” of evidence for summary judgment. Id. at 289; accord id. at 287. Indeed, it is within the trial court's discretion to permit affidavits (accompanying the motion for summary judgment) to be supplemented by additional affidavits (i.e., accompanying the movant's reply). T.R. 56(E). Accordingly, we decline the Reeds' request to strike the City's supplemental affidavits.

III. Tort Claims Notice

Compliance with the ITCA is a question of law that we review de novo. Brown v. Alexander, 876 N.E.2d 376, 380 (Ind.Ct.App.2007), trans. denied. The ITCA bars tort claims against a political subdivision unless notice of a tort claim is provided within 180 days “after the loss occurs.” Ind.Code § 34–13–3–8(a). A loss is said to occur, “when the plaintiff knew or, in the exercise of ordinary diligence, could have discovered that an injury had been sustained as a result of the tortious act of another.” Wehling v. Citizens Nat'l Bank, 586 N.E.2d 840, 843 (Ind.1992); see Irwin Mortg. Corp. v. Marion Cnty. Treasurer, 816 N.E.2d 439, 447 n. 8 (Ind.Ct.App.2004) (applying the discovery rule to determine when the loss occurred for purposes of tort claim notice under the ITCA). Our supreme court has clarified that a claim subject to the discovery rule accrues when a plaintiff is informed of a “reasonable...