Court of Appeals of Indiana | Memorandum Decision 18A-CT-2239 | February 28, 2019 Page 1 of 11

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

APPELLANT PRO SE

Thomas De Cola

North Judson, Indiana

ATTORNEY FOR APPELLEE

Janette E. Surrisi

Wyland Humphrey Clevenger & 

Surrisi, LLP

Plymouth, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Thomas De Cola,

Appellant-Plaintiff,

v.

Starke County Commissioners,

Appellee-Defendant.

February 28, 2019

Court of Appeals Case No.

18A-CT-2239

Appeal from the Pulaski Circuit 

Court

The Honorable Michael Shurn, 

Judge

Trial Court Cause No.

66C01-1801-CT-3

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-2239 | February 28, 2019 Page 2 of 11

STATEMENT OF THE CASE

[1] Appellant-Plaintiff, Thomas De Cola (De Cola), appeals the trial court’s grant 

of summary judgment in favor of Appellees-Defendants, Starke County 

Commissioners (the Commissioners). 

[2] We affirm.

ISSUE

[3] De Cola presents six issues on appeal, which we consolidate and restate as the 

following: Whether the trial court properly granted summary judgment in favor 

of the Commissioners where De Cola did not comply with the Indiana Tort 

Claims Act (ITCA).

FACTS AND PROCEDURAL HISTORY

[4] The undisputed facts in the record show that De Cola owns land adjacent to 

former parcel #75-04-36-500-003.000-011, which is a former railroad right-ofway (the parcel). The instant appeal stems from a tax sale that took place in 

Starke County on February 27, 2014, at which De Cola bid on the tax sale 

certificate for the parcel (the Certificate). Starke County Auditor Katherine 

Chaffins (Auditor Chaffins) and a person who provided the name Herb Kuehn 

(Kuehn) also bid on the Certificate. Kuehn placed the highest bid, and De Cola 

placed the second-highest bid. Kuehn did not pay his winning bid for the 

Certificate, and the Certificate was not offered again for sale by the Auditor’s 

office.
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[5] On April 10, 2014, Deputy Auditor Suzanne McCarty (Deputy Auditor 

McCarty) sent De Cola and others who owned land adjacent to the parcel a 

letter in which she stated that several property owners had provided 

documentation from the late 1800s showing that the railroad’s right-of-way was 

extinguished when it ceased being used for that purpose. As a result, Deputy 

Auditor McCarty informed De Cola and the other land owners that “the 

railroad property running through your property in Railroad Township has now 

been transferred into the name shown above & all prior taxes have been 

removed.” (Appellant’s App. Vol. III, p. 25). Deputy Auditor McCarty offered 

to allow De Cola and the other land owners to combine their tax statements for 

the railroad property with their existing tax statements. De Cola took 

advantage of this offer by submitting the appropriate paperwork to combine the 

tax statements for his property. 

[6] On October 31, 2017, De Cola filed his Complaint against the Commissioners

in which he made allegations of constructive fraud. De Cola amended his 

Complaint once and sought leave to amend his Complaint a second time. On 

April 4, 2018, De Cola filed the final version of his Complaint in which he 

alleged that as part of a conspiracy originating in the Starke County Auditor’s 

Office, someone impersonating Auditor Chaffins and someone impersonating 

Kuehn had conspired to “maliciously bid against [De Cola] for the Certificate 

to intentionally deny [De Cola] from purchasing the Certificate.” (Appellant’s 

App. Vol. III, p. 65). De Cola also alleged that 
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[a]fter the sale in the Auditor’s Office, the impersonator of 

[Kuehn] conspired with the impersonator of Auditor Chaffins 

and Deputy Auditor [McCarty] to not pay for the Certificate, and 

to draft a letter [] which contained false material representations.

(Appellant’s App. Vol. III, p. 66). De Cola sought to have a new tax sale 

certificate issued to him for the parcel and the award of pro se attorney fees and 

his litigation costs. 

[7] On April 13, 2018, the Commissioners filed an answer to De Cola’s Complaint 

as well as a motion for judgment on the pleadings, which they supported with 

an affidavit by Auditor Chaffins and a memorandum. Appended to the 

memorandum in support of its motion was a copy of a tort claim notice that De 

Cola filed dated July 19, 2017, that was addressed to the Starke County 

Commissioners, the Office of the Attorney General, and to the Indiana Political 

Subdivision Risk Management Commission. The Starke County Auditor 

received this notice on July 21, 2017. In his tort claim notice, De Cola averred 

that he was “incapacitated do [sic] to service contacted [sic] disability, which 

prevented proper time filing.” (Appellant’s App. Vol. III, p. 152). On May 1, 

2018, De Cola filed his response to the Commissioner’s motion for judgment on 

the pleadings, which he supported with an affidavit in which he made the 

following relevant averments:

10. The impersonator of [] Kuehn told me after the auction that 

he had no intentions of paying for the Certificate that he bid on. 

* * * 
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15. At the sale, on February 27, 2014, I thought that the 

impersonators were legitimate bidders and didn’t suspect fraud 

until months later. After obtaining a hindsight perspective of the 

situation, I started conducting research into the truth of the 

matter.

* * *

17. I witnessed after the auction, in the Auditor’s Office the two 

impersonators conspiring with Deputy Auditor [McCarty] to not 

pay for the Certificate, and to draft a letter [] for the adjoining 

landowners to obtain sections of the Certificate.

18. I received the letter from the Auditor’s Office in the mail 

days later and followed the instructions and advice contained in 

the letter. The letter contained a request to combine parcels and 

a form [] which is not a state board of accounts prescriptive 

document and cites no statutory authority. The letter contained 

misrepresentations that adjoining landowners had rights to the 

right-of-way fee based upon deeds from the 1800s. 

(Appellant’s App. Vol. III, pp. 212-14). 

[8] On June 5, 2018, the trial court held a hearing on all pending motions, 

including the Commissioners’ motion for judgment on the pleadings, which the 

trial court treated as a motion for summary judgment. On July 10, 2018, the 

trial court issued its Order granting summary judgment to the Commissioners

and making the following relevant findings:

5. Ind. Code § 34-6-2-110(10) enumerates that the 

Commissioners meet the definition of political subdivision. 
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6. Ind. Code § 34-13-3-8 provides that tort claims against 

political subdivisions are barred unless a plaintiff gives the 

subdivision notice within 180 days after the occurrence of any 

loss. 

7. The Commissioners did not receive notice of a tort claim from 

[] De Cola until July 21, 2017. [] De Cola admitted in his notice 

of tort claim that his notice was belated. 

8. The tax sale and the tax sale conduct in dispute occurred on 

February 27, 2014. 

9. [] De Cola knew on the day of the sale on February 27, 2018, 

[sic] that the highest bidder for the [Certificate] for [the parcel] 

was not going to pay. (Affidavit of [] De Cola May 1, 2018, ¶ 

10). 

10. [] De Cola alleges he noted unusual bidding activity the day 

of the sale. (Affidavit of [] De Cola May 1, 2018, ¶ 13). [] De 

Cola also says he witnessed impersonators conspiring right after 

the sale held on February 27, 2014. (Affidavit of [] De Cola May 

1, 2018, ¶ 17). 

11. However, [] De Cola says he didn’t suspect fraud until 

months later after conducting research in the matter. (Affidavit 

of [] De Cola May 1, 2018, ¶ 15). 

* * *

15. The [c]ourt finds that [] De Cola was aware of the conduct 

he complains of as early as February 27, 2014. And, the [c]ourt 

further finds that the common parlance of “months later” means 

less than one-year [sic]. Therefore, [] De Cola was on notice of 
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any of his claims sometime between February 27, 2014[,] and 

February 27, 2015.

16. [] De Cola did not file any sort of tort claim notice until July 

21, 2017, which is well beyond the 180-day requirement under 

the Indiana Tort Claims Act. [] De Cola did not give proper 

notice of his tort claim. 

(Appellant’s App. Vol. IV, pp. 37-39). The trial court also found that De Cola 

sought an improper remedy for his claimed torts, the Commissioners’ acts were

shielded by governmental immunity, De Cola had waived his claims through 

acquiescence, and that the facts as alleged did not show constructive fraud.1

 

[9] On July 20, 2018, De Cola filed a motion to open the judgment in which he 

argued that the time for filing his tort claim notice was tolled in light of his 

incapacitation, the fact that he did not discover his loss until November 17,

2017, during the discovery process, and that the Auditor’s Office concealed his 

cause of action from him. On August 8, 2018, De Cola filed a motion to 

correct error. The trial court did not rule on De Cola’s motions, but on 

September 19, 2019, it entered an order clarifying for De Cola that his motions 

were deemed denied after thirty days. 

[10] De Cola now appeals. Additional facts will be provided as necessary.

 

1

 The trial court also found that the Commissions had complied in good faith with De Cola’s “voluminous, 

repetitive, and/or defective discovery” and that De Cola was not entitled to a jury trial. (Appellant’s App. 

Vol. IV, pp. 44-45). De Cola does not appeal those findings and conclusions. 
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DISCUSSION AND DECISION

I. Standard of Review

[11] The Commissioners filed a motion for judgment on the pleadings and relied 

upon an affidavit and other matters outside the pleadings in support. Such a 

motion is treated as a motion for summary judgment. Ind. Trial Rule 12(C). 

Summary judgment is appropriate if 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.” T.R. 56(C). We review both the grant or 

denial of summary judgment de novo and apply the same standard as the trial 

court. Kerr v. City of South Bend, 48 N.E.3d 348, 352 (Ind. Ct. App. 2015). “All 

disputed facts and doubts as to the existence of material facts must be resolved 

in favor of the non-moving party.” Id. The non-moving party has the burden 

on appeal to persuade us that the trial court’s grant of summary judgment was 

erroneous, but we will carefully assess the trial court’s decision to ensure that 

the non-moving party was not improperly denied his day in court. Id. 

[12] In addition, we note that the trial court entered 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. AutoXchange.com. Inc. v. 

Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct. App. 2004). However, 

such findings offer this court valuable insight into the trial court’s rationale for 

its review and facilitate appellate review. Id.
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II. ITCA Notice

[13] Indiana Code section 34-13-3-8 of the ITCA provides that a claimant alleging a 

tort against a political subdivision must file a notice within 180 days after the 

alleged loss occurred. Filing of this notice is a condition precedent which must 

be fulfilled before suit is brought. Orem v. Ivy Tech State Coll., 711 N.E.2d 864, 

869 (Ind. Ct. App. 1999), trans. denied. Failure to comply with the ITCA’s 

notice requirement is fatal to a claim and requires dismissal. See, e.g., Weaver v. 

Elkhart Cmty. Sch. Corp., 95 N.E.3d 97, 101 (Ind. Ct. App. 2018) (dismissing 

Weaver’s claim of constructive fraud for failure to comply with the ITCA notice 

requirement). Once a defendant raises the issue of timely compliance with the 

ITCA notice requirement, the burden shifts to the plaintiff to prove that he 

complied. Id. Whether a party has complied with ITCA’s notice requirement 

is a question of law to be determined by the court. Orem, 711 N.E.2d at 869. 

[14] Here, De Cola claimed in his Complaint that (1) he was defrauded out of the 

Certificate by irregular bidding at the February 27, 2014, tax sale; and (2) the

Auditor’s Office conspired to write a fraudulent tax letter regarding the 

ownership of the parcel. Regarding the Certificate, the evidence most favorable 

to De Cola was that the imposter Kuehn told De Cola directly after the sale that 

he did not intend to pay for the Certificate. Therefore, De Cola sustained his 

alleged loss on February 27, 2014, and he knew that day that he had sustained 

it. Regarding the fraudulent tax letter, the evidence most favorable to De Cola 

was that he observed the conspiracy to write the allegedly fraudulent tax letter 

on the day of the sale, February 27, 2014, and he received the letter several days 
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after the sale. Therefore, De Cola sustained his loss on February 27, 2014, and 

he knew he had sustained his alleged loss by the beginning of March 2014. 

However, even taking into consideration that, in an affidavit in opposition to 

summary judgment, De Cola averred that he did not suspect fraud until 

“months later,” he still would have known about his losses within the 2014 

calendar year. (Appellant’s App. Vol. III, p. 213). De Cola did not file his tort 

claim notice until July 21, 2017, more than two years later. We conclude that 

De Cola’s claims were barred because he failed to file a timely ITCA notice. 

I.C. § 34-13-3-8. 

[15] On appeal, De Cola continues to assert, as he did in the trial court, that his 

cause of action is governed by the six-year statute of limitations provided for 

claims of fraud. However, the ITCA notice requirement is not a statute of 

limitations, and compliance with the notice requirement is a condition 

precedent to filing suit against a political subdivision. Orem, 711 N.E.2d at 869. 

De Cola also argues that he was excused from filing a timely ITCA notice 

because he was incapacitated, he did not discover his claims until June 20, 

2017, when he attempted to obtain a tax deed through his limited liability 

company, and that the Auditor’s Office fraudulently concealed his cause of 

action from him. However, De Cola did not raise these arguments in the trial 

court during the summary judgment proceedings.2

 De Cola offered some of 

 

2

 De Cola claimed in his tort claim notice that he was “incapacitated do [sic] to service contacted [sic] 

disability, which prevented proper time filing,” but he did not argue this in his summary judgment pleadings 

or at the summary judgment hearing. (Appellant’s App. Vol. III, p. 152). 
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these arguments in his post-summary judgment motions, but it is a longstanding rule that a party may not raise an issue or argue a different theory for 

the first time in a motion to correct error. T.R. 59; Yater v. Hancock Cty. Bd. of 

Health, 677 N.E.2d 526, 530 (Ind. Ct. App. 1997). Because there existed no 

genuine issue of material fact that De Cola failed to timely file his ITCA notice, 

the Commissioners were entitled to summary judgment as a matter of law.3

 

CONCLUSION

[16] Based on the foregoing, we conclude that De Cola’s claims were barred due to 

his failure to file a timely ITCA notice and that the trial court correctly 

concluded that the Commissioners were entitled to summary judgment as a 

matter of law.

[17] Affirmed. 

[18] Kirsch, J. and Robb, J. concur

 

3

 Because we have concluded that De Cola’s claims were barred by ITCA’s notice requirement, we do not 

address the trial court’s other bases for granting summary judgment in favor of the Commissioners.