Village of College Corner v. TOWN WEST COLLEGE CORNER

• Decision Date: 23 April 2002
• Docket Number: No. 81A04-0110-CV-424.,81A04-0110-CV-424.
• Citation: 766 N.E.2d 742
• Parties: VILLAGE OF COLLEGE CORNER, Ohio and Board of Public Affairs, Village of College Corner, Ohio, Appellants-Defendants, v. TOWN OF WEST COLLEGE CORNER, Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

766 N.E.2d 742

VILLAGE OF COLLEGE CORNER, Ohio and Board of Public Affairs, Village of College Corner, Ohio, Appellants-Defendants, v. TOWN OF WEST COLLEGE CORNER, Indiana, Appellee-Plaintiff.

No. 81A04-0110-CV-424.

Court of Appeals of Indiana.

April 23, 2002.

F. Harrison Green, F. Harrison Green Co., L.P.A., Cincinnati, OH, Gregory B. Smith, Smith & Smith Law Offices, Muncie, IN, Attorneys for Appellants.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellants, Village of College Corner, Ohio (College Corner) and Board of Public Affairs, Village of College Corner, Ohio (hereinafter collectively referred to as "the Village"), appeal the trial court's grant of summary judgment in favor of Appellee, Town of West College Corner, Indiana (the Town).

We reverse.

ISSUE

The Village raises two issues on appeal, which we consolidate and restate as follows: whether the trial court erred in granting summary judgment in favor of the Town.

FACTS AND PROCEDURAL HISTORY

On October 24, 1996, the Town filed a Suit on Account against College Corner in the Union Circuit Court. The Suit on Account alleged that College Corner "has failed to pay the full required sewage treatment user fee and now owes Plaintiff [the Town] the sum of eighteen thousand nine hundred twenty-seven dollars ($18,927) as of October 1, 1996, which amount is wholly due and unpaid." (Appellants' App. A). On November 18, 1996, College Corner filed a Notice of Removal and a Motion to Stay Action, asserting that the United States District Court for the Southern District of Ohio had jurisdiction based on the parties' diversity of citizenship. Also on November 18, 1996, College Corner filed a separate action in federal court against the Town, "alleging claims that arise out of the same contract between the parties." (Appellants' App. D). On December 11, 1996, the Town moved to remand both cases. On May 28, 1997, the federal court granted the motion as to the original suit, but it retained jurisdiction of College Corner's claims against the Town.

On July 14, 1997, the Town filed a Motion for Default Judgment against College Corner in the Union Circuit Court. The trial court denied the motion on August 2, 1999. On July 21, 1997, College Corner filed a Motion to Dismiss against the Town. The trial court denied the motion on September 20, 1999.

On August 16, 1999, the Village¹ filed its Answer, Counterclaims and Cross-Claims. The Village designated seven (7) causes of action for which it sought relief, which are stated as follows: temporary and preliminary injunctive relief, breach of contract (nuisance), nonperformance of contract conditions, abuse of process, malicious prosecution, trespass, and misrepresentation and bad faith. On September 22, 1999, the Town filed its Answer to Counterclaim and Cross-Claim. On November 12, 1999, the Town filed its Amended Answer and Affirmative Defense to Counterclaim and Cross-Claim. In its amended answer, the Town, by way of an affirmative defense, asserted that "it has never received notice of any claimed loss by either the Village of College Corner, Ohio or the Board of Public Affairs of the Village of College Corner, Ohio." (Appellants' App. O). The Town did not assert this defense in its original answer. On November 22, 1999, the trial court issued its Order Granting Leave to Amend Answer. Subsequently, the amended answer was refiled on December 2, 1999.

Both the Town and the Village moved for summary judgment. The Town's motion was predicated upon the affirmative defense that the Village had not given notice pursuant to the Indiana Tort Claims Act (the ITCA) of the claims alleged in its Answer, Counterclaims and Cross-Claims. On June 4, 2001, a hearing was held. The trial court noted that the original basis for the lawsuit (i.e., claims of the Town for sewage fees from the Village) had been resolved by an agreement between the officials of the two (2) communities, was adopted by the trial court, and culminated in payment of sewer fees by the Village to the Town. Thus, the trial court stated "[t]he remaining issues subject to the present motions are comprised of the claims in the Village's counterclaims and cross-claims filed in its answer August 16, 1999." (Appellant's App. J).

On June 13, 2001, summary judgment was granted for the Town and against the Village as to the causes of action in the Village's Answer, Counterclaims and Cross-Claims for breach of contract (nuisance), nonperformance of contract conditions, abuse of process, malicious prosecution, trespass, and misrepresentation and bad faith. Summary judgment was denied to all parties as to the issue of temporary and preliminary injunctive relief. In reaching its conclusion, the trial court reasoned, "[t]he Village has failed to comply with the Indiana Tort Claims Act with respect to the torts alleged.... Whether there is a necessity of injunctive relief to assure the Town's compliance with the parties[`] contract remains an open issue." (Appellants' App. J).

The Village now appeals.

DISCUSSION AND DECISION

The Village argues that the trial court erred in granting summary judgment in favor of the Town. Specifically, the Village argues that its failure to comply with the notice requirement of the ITCA does not foreclose its claims against the Town.

I. Failure to File a Brief

At the outset, we note that the Town did not file an appellee's brief. When an appellee does not submit a brief, an appellant may prevail by making a prima facie case of error. Nat'l Oil & Gas, Inc. v. Gingrich, 716 N.E.2d 491, 497 (Ind. Ct.App.1999). Prima facie in this context is defined as " `at first sight, on first appearance, or on the face of it.' " Kentucky Truck Sales, Inc. v. Review Bd. of Indiana Dep't of Workforce Dev., 725 N.E.2d 523, 526 (Ind.Ct.App.2000) (quoting Santana v. Santana, 708 N.E.2d 886, 887 (Ind.Ct.App. 1999)). Such a rule protects this court and relieves it from the burden of controverting arguments advanced for reversal, a duty which properly remains with counsel for the appellee. Nat'l Oil & Gas, Inc., 716 N.E.2d at 497.

II. Summary Judgment

In Brunton v. Porter Memorial Hosp. Ambulance Service, 647 N.E.2d 636, 638-39 (Ind.Ct.App.1994), this court held:

The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law. Ind.Trial Rule 56(C); Fawley v. Martin's Supermarkets, Inc. (1993), Ind.App., 618 N.E.2d 10, 12, trans. denied. The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact. T.R. 56(C); Campbell v. Criterion Group (1993), Ind.App., 613 N.E.2d 423, 428, 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. Summary judgment will be affirmed on appeal if it is sustainable on any theory or basis found in the evidentiary matter designated to the trial court. Fawley, 618 N.E.2d at 12.

On appeal, we are normally bound by the same standard as the trial court and we must consider all matters which were designated at the summary judgment stage in the light most favorable to the non-moving party. T.R. 56(C); Campbell, 613 N.E.2d at 428. However, the question of compliance with the ITCA is a "procedural precedent which the plaintiff must prove and which the trial court must determine prior to trial." Hupp v. Hill (1991), Ind.App., 576 N.E.2d 1320, 1323 (quoting Indiana Dep't of Highways v. Hughes (1991), Ind.App., 575 N.E.2d 676, 678; Indiana State Highway Commission v. Morris (1988), Ind., 528 N.E.2d 468, 471). Accordingly, a summary judgment based on the plaintiff's failure to comply with the notice provisions of the Act is "subject to review as [a] negative judgment[ ], which we will reverse only if contrary to law." Id. at 1323-1324.

A. Contract Claims

The Village argues that the trial court erred in granting summary judgment in favor of the Town with respect to the Village's claims of breach of contract (nuisance) and nonperformance of contract conditions. This court has held that "[t]he clear intention of this act [ITCA] was to set up a uniform body of law to govern the prosecution of tort claims, and only tort claims, against the State and other governmental entities, including counties." Gonser v. Bd. of Comm'rs for Owen County, 177 Ind.App. 74, 78, 378 N.E.2d 425, 427 (1978) (emphasis added).

In its breach of contract (nuisance) claim, the Village maintained that the Town "has failed to duly and substantially perform its obligations of the master agreement for the treatment of sewer waste water." (Appellants' App. I). In its nonperformance of contract conditions claim, the Village argued that since the signing of the master agreement the Village "has repeatedly attempted to completely cooperate in the performance of the agreements and has stood ready, willing and able to assist in said performance, but Town has refused to take steps necessary to effectuate the necessary improvements in the performance of the sewer treatment plant." (Appellants' App. I). These claims clearly stem from the contract between the Town and the Village. These claims are not tort claims.

Accordingly, we find that the Village has made a showing of prima facie error. See Nat'l Oil & Gas, Inc., 716 N.E.2d at 497. Therefore, we hold that the trial court erred in granting summary judgment in favor of the Town as to these claims, because the Village was not required to comply with the ITCA with respect to contract claims.

B. The ITCA

The Village contends that the trial court erred in granting summary judgment in favor of the Town as to the remaining issues—abuse of process, malicious prosecution, trespass, and misrepresentation and bad faith. The Village recognizes that these...