Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decisio n 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.

ATTORNEY FOR APPELLANTS : JULIE J. HAVENITH Travelers Staff Counsel Office Merrillville, Indiana



## IN THE

COURT OF APPEALS OF INDIANA

TOWN OF GRIFFITH and the GRIFFITH ) FIRE DEPARTMENT, ) ) Appellants

- Defendants, ) ) vs. ) No. 45A03

- 1107

- CT

- 302 ) T.M. SOMERS FIRE EQUIPMENT, INC., ) ) Appellee

- Plaintiff. )

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Calvin D. Hawkins, Judge Cause No. 45D02

- 0901

- CT

- 6
MARCH 9, 2012 MEMORANDUM DECISION
- NOT FOR PUBLICATION

BARTEAU , Senior Judge2 STATEMENT OF THE CASE The Town of Griffith and the Griffi th Fire Department (collectively, “Griffith”) appeal the trial court’s denial of their motion for summary judgment. We reverse and remand.
ISSUE Griffith raise s several issues, which we consolidat e and restate as: whether the tr ial court erred by denying Griffith’s motion for summary judgment.

FACTS AND PROCEDURAL HISTORY The facts in keeping with our standard of review are as follows. In March 2008, the Fire Department received sealed bids for f ire protection equipment. The f ire c hief opened the bids , and T.M. Somers Fire Equi pment, Inc. (“TMSFE”) , had the lowest bid.
T he Fire Department held a meeting on March 14, 2008, to evaluate the bids , and Thomas Somers, the president of TMSFE , was denie d entry to the meeting. T MSFE was not awarded the bid, and it subsequently complained that there was a conflict of interest because one of the trustees participating in the selection process also represented one of the bidders. Because of this claim, all of the bids were rejected and a sec ond bidding process beg a n. T MSFE was not permitted to submit a bid in the second bidding process because of an alleged conflict of interest. Before the submission of bids, Five Alarm Fire Equipment was permitted to take measurements of the firefighters. On June 9, 2008, the
f ire c hief opened the bids from the second bidding process but did not announce the results

.3

T MSFE sent a letter dated June 13, 2008, to the Griffith town attorney. In the letter, T MSFE indicated th at the second b idding process was improper . T MSFE asserted that it did not have a conflict of interest and was therefore wrongfully excluded from bidding . T MSFE also asserted that Five Alarm Fire Equipment exercised undue influence over the bidding proce ss and had an unfair advantage: Five Alarm has exercised undue influence over the bidding process because the bid specifications were prepared by Danny Michels. Michels was a Trustee on the Selection Committee as well as an employee of Five Alarm. Five A larm had an unfair advantage over all of the other bidders because they had actual measurements and sizes of the individual fire fighters while the other bidders did not have this information nor is it in the specifications as issued. Appellants’ App. p. 57. T MSFE therefore requested that the second bidding process be cancelled and a new bidding process be instituted. On June 14, 2008, the f

ire c hief held a meeting to evaluate the bids. Somers asked the f ire c hief if he could attend the meeting but was denied. On July 2, 2008, the Fire Department began receiving items from Five Alarm Fire Equipment

. On July 8, 2008, the f ire c hief called a special unadvertised membership meeting to award the contract to Five Alarm Fire Equipment

. In a formal complaint to the Indiana P ublic A ccess C ounselor dated July 16, 2008, Somers claimed that the Fire Department had committed open door violations during the bidding for fire protection equipment by denying him entry to meetings on March 14, 2008, and June 14, 2008. On December 22, 2008, TMSFE sent Griffith a Notice of Claim, in which it argued that it had suffered damages as a result of Griffith’s “violations of the open door law and failure to award to [the] lowest bidder.” Id. at 61.4

In January 2009, T MSFE filed a complaint against Griffith alleging that it “violated [the Fire Department’s] by

- laws, the ‘open door law,’ and Title 44

– Emergency Management and Assistance Bid Procedures, acted in an illegal, unfair and arbitrary manner, and showed favoritism in the award of the fire protection equipment and flagrant disregard of the public interest and the rights of the Plaintiff.” Id. at 54

- 55. In its re sponsive pleading, Griffith asserted as affirmative defense s that TMSFE’s claims were barred for failure to time ly file its complaint under the Indiana Open Door Law and failure to timely file a notice of tort claim under the Indiana Tort Claims Act. Griffith later filed a motion for summary judgment. In its motion, Griffith argued in part that T MSFE : (1) wa s barre d from raising claims under the Indiana Open Door Law because it failed to timely file a complaint; ( 2 ) wa s barred from raising its other claims because it fail ed to timely file a notice of tort claim as required by the Indiana Tort Claims Act ; and ( 3 ) can not recover damages or prejudgment interest . T MSFE did not timely file a response to Griffith’s motion for summary judgment and instead filed a
motion for an extension of time to file a response after the time to file a response had already expired. Afte r a hearing, t he trial court denied TMSFE’s motion for an extension of time, granted Griffith’s motion for summary judgment as to damages and prejudgment interest , and d enied summary judgment in all other respects. Upon Griffith’s request, the
trial court certified its order for interlocutory appeal, and this Court accepted jurisdiction.
DISCUSSION AND DECISION Griffith contend s that the trial court erred by denying its motion for summary judgment. When reviewing the entry or denial of summary judgment, our standard of5

review is the same as that of the trial court: summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co. , 904 N.E.2d 1267, 1269

- 70 (Ind. 2009). All facts established by the designated evidence and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. Naugle v. Beech Grove City Sch. , 864 N.E.2 d 1058, 1062 (Ind. 2007). We initially note that T MSFE did not file an appellee’s brief. In such a case , we need not undertake the burden of developing arguments for the appellee, and we apply a less stringent standard of review with respect to showings o f reversible error. Ferguson
v. Stevens , 851 N.E.2d 1028, 1031 (Ind. Ct. App. 2006). That is, we may reverse if the appellants establish prima facie error, which is an error at first sight, on first appearance, or on the face of it. Id. Griffith present s multiple arguments as to why the tr ial court erred by denying its motion for summary judgment; however, two are dispositive: (1) whether TMSFE is barred from raising claims under the Indiana Open Door Law because it failed to timely file its complaint an d (2) whether TMSFE is barred from raising its other claims because it failed to timely file a n otice of tort claim as required by the Indiana Tort Claims Act.
I. INDIANA OPEN DOOR LAW The Indiana Open Door Law seeks to assure that government business is

c onducted openly so that the general public may be fully informed. See Ind. Code § 5

- 14

- 1.5

- 1 (1987); Lake Cnty. Trust Co. v. Advisory Plan Comm’n of Lake Cnty. , 9046

N.E.2d 1274, 1279 (Ind. 2009). The Indiana Open Door Law establishes a thirty

- day time pe riod to file a complaint: Regardless of whether a formal complaint or an informal inquiry is pending before the public access counselor, any action to declare any policy, decision, or final action of a governing body void, or to enter an injunction which w ould invalidate any policy, decision, or final action of a governing body, based on violation of this chapter occurring before the action is commenced, shall be commenced:

. . . (2) . . . within thirty (30) days of either: (A) the date of the act or fa ilure to act complained of; or (B) the date that the plaintiff knew or should have known that the act or failure to act complained of had occurred; whichever is later. Ind. Code § 5

- 14

- 1.5

- 7(b) (2007). Here, the alleged open door violations occurred on March 14, 2008, and June 14, 2008, when Somers was denied entry to the Fire Department meetings to evaluate bids. TMSFE’s January 2009 complaint alleging open door violations is therefore well beyond the thirty

- day time period set forth by statute

. See C ity of Jeffersonville v. Envtl. Mgmt. Corp. , 954 N.E.2d 1000, 1011 (Ind. Ct. App. 2011) (ope n door complaints against city and city’s sewer board barred where they were filed more than thirty days after plaint iff should have known about alleged violations)

. In addition, as noted by the statute, TMSFE’s complaint is time

- barred regardless of the fact that Somers filed a formal complaint with the P ublic A ccess C ounselor

. II. INDIANA TORT CLAIMS ACT The Indiana Tort Claims Act (“ITCA”) bars tort claims again st a political subdivision unless notice of a tort claim is filed within 180 days after the loss occurs. Ind. Code § 34

- 13

- 3

- 8(a) (1998); Davidson v. Perron , 716 N.E.2d 29, 33 (Ind. Ct. App.7

1999), trans. denied . Compliance with the notice provisions of the ITCA is a procedural precedent that the plaintiff must prove and that the trial court must determine before trial. Davidson , 716 N.E.2d at 34. When a plaintiff fails to give the required notice, the defendant has an affirmative defense that must be r aised in a responsive pleading to the plaintiff’s complaint. Id. Once the defendant raises failure to comply with the ITCA’s notice requirements as an affirmative defense, the burden shifts to the plaintiff to prove compliance. Id. Here, TMSFE sent the Griffith town attorney a letter dated June 13, 2008, in which TMSFE alleged that it was wrongfully excluded from the bidding process and that Five Alarm Fire Equipment had exercised undue influence o ver the bidding process and had an unfair advantage. By June 13, 2008, then, TMSFE knew of its claim of irregularities in the bidding process, and it had 1 80 days from this date to file a notice of tort claim in compliance with the ITCA. Instead, it did not file its notice of tort claim until December 22, 200 8, which is 192 days later

. We therefore conclude that TMSFE’s
claims are barred for failure to timely file a notice as required by the ITCA

. See Daugherty v. Dearborn Cnty. , 827 N.E.2d 34, 36

- 37 (Ind. Ct. App. 2005) (tort claim against county and county engineer barred where notice of tort claim filed beyond 180

- day time period), trans. denied

. CONCLUSION For the reasons stated, we conclude that the trial court erred by denying Griffith’s
motion for summary judgment. We reverse the trial court’s judg ment and remand with
i nstructions to grant summary judgment for Griffith.8

Reversed and remanded with instructions

. VAIDIK, J., and MATHIAS, J., concur.