Court of Appeals of Indiana | Opinion 32A05-1406-CT-248 | June 18, 2015 Page 1 of 9

ATTORNEY FOR APPELLANT

Brent Welke 

Indianapolis, Indiana

ATTORNEYS FOR APPELLEES

Gregory F. Zoeller

Attorney General of Indiana

Kathy Bradley

Deputy Attorney General

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

John Feldhake,

Appellant-Petitioner,

v.

Edwin Buss, Latoya Lane, and 

Nathan Walters,

Appellees-Respondent.

June 18, 2015

Court of Appeals Case No.

32A05-1406-CT-248

Appeal from the Hendricks Superior 

Court

Lower Court Cause No.

32D04-1105-CT-63

The Honorable Mark A. Smith, 

Judge

Pyle, Judge.

Statement of the Case

[1] John Feldhake (“Feldhake”) appeals the trial court’s grant of summary 

judgment in favor of Edwin Buss (“Buss”), Latoya Lane (“Lane”), and Nathan 

Walters (“Walters”), (collectively, “the Defendants”) on his personal injury 

claim. On appeal, Feldhake claims that the trial court erred in granting 
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summary judgment because the Defendants based their motion on defects in the 

complaint and failed to designate factual evidence in support of their motion. 

In addition, he claims that the trial court erred in considering the Defendants’ 

motion for summary judgment while discovery was ongoing. Defendants argue 

that they are entitled to summary judgment because Feldhake did not comply 

with various requirements of the Indiana Tort Claims Act (“ITCA”). We 

affirm the trial court’s grant of summary judgment because Feldhake’s 

complaint did not comply with the ITCA’s pleading requirements to sue a 

government employee individually or its notice requirements. 

[2] We affirm.

Issue

Whether the trial court erred in granting summary judgment in 

favor of the Defendants.

Facts

[3] The facts most favorable to Feldhake are that in May 2009, Feldhake was 

incarcerated at the Plainfield Re-entry Educational Facility, a Department of 

Correction (“DOC") facility. At that time, Buss was the commissioner of 

DOC, Lane was the interim superintendent of the facility, and Walters was a 

maintenance supervisor at the facility. On May 17, 2009, Feldhake was 

assigned to a crew that was painting a house at the facility owned by DOC. 

[4] On May 20, 2009, Feldhake and three other inmates entered the bed of a pickup 

truck being driven by Walters so that they could go to the house. Once 
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Feldhake was in the bed of the pickup truck, Walters started it “with a lurch” 

and accelerated “at an unreasonable rate of acceleration.” (App. 13). Feldhake 

was thrown against the tailgate of the pickup truck. The tailgate opened, and 

Feldhake fell from the truck. He landed on his head and sustained head, neck, 

and back injuries. 

[5] On May 17, 2011, Feldhake filed a complaint against the Defendants,

individually and in their official capacities as employees of the DOC. Feldhake 

alleged that Walters’s operation of the truck had caused his injuries, and that 

Lane had failed to comply with DOC procedures in reporting the accident.

1 He 

did not file a notice of tort claim with the Attorney General. On December 2, 

2011, the trial court issued a Trial Rule 41(E) order because Feldhake took no 

other action after filing his complaint. On February 14, 2012, Feldhake filed a 

motion for default judgment, and the Defendants filed a motion for an 

enlargement of time. On February 16, 2012, the trial court granted the 

Defendants’ motion for an enlargement of time, and it denied Feldhake’s

motion for default judgment.

[6] Buss and Walters filed an answer to the complaint on March 16, 2012. Lane 

was not served with a summons and complaint until August 20, 2012, and she 

filed her answer on September 11, 2012. On November 1, 2013, the 

Defendants filed a motion for summary judgment and supporting 

 

1

Feldhake’s complaint does not state how Buss was at fault for his injuries.
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memorandum arguing, “Plaintiff’s claims [were] barred under various 

provisions of the [ITCA].” (App. 28). On December 30, 2013, Feldhake filed a 

response with his designation of evidence.

[7] On March 20, 2014, the trial court held a hearing on the motion for summary 

judgment, and the trial court granted the Defendants’ motion four days later.

Thereafter, Feldhake filed a motion to correct error, which was subsequently 

denied. Feldhake now appeals.

Decision

[8] Feldhake claims that the trial court erred by granting the Defendants’ motion 

for summary judgment.

[9] We review summary judgment de novo, applying the same standard as the trial 

court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Summary judgment 

is appropriate only where 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). On review, we may 

affirm a grant of summary judgment on any grounds supported by the 

designated evidence. Catt v. Board of Com’rs of Knox Cnty., 779 N.E.2d 1, 3 (Ind. 

2002). 

[10] The moving party “bears the initial burden of making a prima facie showing 

that there are no genuine issues of material fact and that it is entitled to 

judgment as a matter of law.” Gill v. Evansville Sheet Metal Works, Inc., 970 

N.E.2d 633, 637 (Ind. 2012). If the moving party meets this burden, then the 
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non-moving party must designate evidence demonstrating a genuine issue of 

material fact. Id. “[A]n adverse party may not rest upon the mere allegations 

or denials of his pleading, but his response, by affidavits or as otherwise 

provided in this rule, must set forth specific facts showing that there is a genuine 

issue for trial.” T.R. 56(E). When a defendant is the moving party, the 

defendant must show that the undisputed facts negate at least one element of 

the plaintiff’s cause of action or that the defendant has a factually unchallenged 

affirmative defense that bars the plaintiff’s claim. Dible v. City of Lafayette, 713 

N.E.2d 269, 272 (Ind. 1999). 

[11] “Just as the trial court does, we resolve all questions and view all evidence in 

the light most favorable to the non-moving party, so as to not improperly deny 

him his day in court.” Alldredge v. Good Samaritan Home, Inc., 9 N.E.3d 1257, 

1259 (Ind. 2014) (internal citations omitted). We “consciously err[] on the side 

of letting marginal cases proceed to trial on the merits, rather than risk shortcircuiting meritorious claims.” Hughley, 15 N.E.3d at 1003. 

[12] Feldhake makes several procedural arguments that, though not dispositive, 

should be addressed. 

[13] First, he claims that the Defendants’ motion for summary judgment was based 

entirely on defects in his pleading and should have been addressed in a motion 

to dismiss. However, Feldhake cites no authority requiring the Defendants to 

file a motion to dismiss before filing a motion for summary judgment. 

Therefore, his argument is waived. Ind. Appellate Rule 46(A)(8)(a). Waiver 
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notwithstanding, the Defendants’ did not err by choosing to file a motion for 

summary judgment. Indiana Trial Rule 56(B) provides that “[a] party against 

whom a claim, counterclaim, or cross-claim is asserted or a declaratory 

judgment is sought may, at any time, move with or without supporting affidavits 

for a summary judgment in his favor as to all or any part thereof.” (emphasis 

added). In addition—as the Defendants clearly noted—had they filed a motion 

to dismiss or for judgment on the pleadings, the trial court would have treated it

as a motion for summary judgment because Feldhake designated materials 

outside of the pleadings. See T.R. 12(B); (C). Accordingly, the trial rules did 

not require the Defendants to file a motion to dismiss instead of a motion for 

summary judgment.

[14] Next, Feldhake claims that the Defendants “made no designations, but only 

attacked [his] pleadings[,]” thus requiring denial of their motion. (Feldhake’s 

Br. 7). However, the Defendants designated the facts from Feldhake’s 

complaint, which must be treated as true for the purposes of considering a 

motion for summary judgment. Cowe by Cowe v. Forum Group, Inc., 575 N.E.2d 

630, 633 (Ind. 1991). Moreover, T.R. 56(C) provides that “[a]t the time of 

filing the motion or response, a party shall designate to the court all parts of 

pleadings, depositions, answers to interrogatories, admissions, matters of judicial 

notice, and any other matters on which it relies for the purposes of the motion. 

(emphasis added). Again, we find no error here.

[15] Finally, Feldhake claims that the trial court abused its discretion in considering 

a motion for summary judgment while discovery was ongoing. Yet, as we 
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previously mentioned, T.R. 56(B) allows a defendant to file for summary 

judgment at any time. Furthermore, 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. Shelter Ins. Co. v. Woolems, 759 N.E.2d 1151, 

1153 (Ind. Ct. App. 2001), trans. denied. Thus, the trial court did not err in 

considering the motion for summary judgment even though discovery was 

ongoing. Having addressed Feldhake’s procedural claims, we turn our 

attention to the merits of the motion for summary judgment. 

[16] Feldhake essentially claims that he raised a genuine issue of material fact 

regarding whether Walters’s behaved in a manner allowing him to be sued

individually, even though Walters was a government employee. See INDIANA 

CODE § 34-13-3-5(c). In response, the Defendants claim that Feldhake failed to 

comply with the specific pleading requirement under the ITCA, thus making 

summary judgment appropriate. 

[17] In general, a plaintiff may not maintain an action against a government 

employee if that employee was acting within the scope of his employment. 

IND. CODE § 34-13-3-5(a). To sue a government employee personally, the 

plaintiff “must allege that an act or omission of the employee that causes a loss 

is: (1) criminal; (2) clearly outside the scope of the employee’s employment; (3) 

malicious; (4) willful and wanton; or (5) calculated to benefit the employee 

personally.” I.C. § 34-13-3-5(c).
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[18] Here, Feldhake’s complaint failed to allege that any of the Defendants’ actions

were criminal, outside the scope of their employment, malicious, willful and 

wanton, or calculated for their benefit. Additionally, Feldhake did not offer 

any evidence required under INDIANA CODE § 34-13-3-5(c) until the hearing on 

the motion for summary judgment. We have previously held that when a 

plaintiff fails to comply with the pleading requirement of INDIANA CODE § 34-

13-3-5(c) and does not cure the defect with an amended complaint, the claim 

against the employee is barred and summary judgment is appropriate. Miner v. 

Southwest School Corp., 755 N.E.2d 1110, 1115 (Ind. Ct. App. 2001). 

Accordingly, the trial court did not err in granting summary judgment to the 

Defendants in their individual capacities. 

[19] However, because Feldhake also sued the Defendants in their official 

capacities, our analysis does not stop here. Because Feldhake sued the

employees in their official capacities, INDIANA CODE § 34-13-3-6 required 

Feldhake to give notice to the Attorney General or the DOC within two 

hundred seventy (270) days of his accident.2 Feldhake was injured on May 20, 

2009, and did not submit a notice of tort claim to the Attorney General. 

Instead, he filed his complaint on May 17, 2011, well beyond the deadline. 

INDIANA CODE § 34-13-3-9 makes an exception for a plaintiff’s incapacitation 

and grants an additional one hundred eighty (180) days to file a claim after the 

 

2 Though the DOC was not officially named in the complaint, our supreme court has held that “in an action 

governed by the Trial Rules, designating state employees as defendants by name or position is sufficient to 

sue a state agency.” Niksich v. Cotton, 810 N.E.2d 1003, 1007 (Ind. 2004).
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incapacity is removed. However, while “[a] prisoner’s ability to provide notice 

in a timely fashion may be impaired by his incarceration, [] the mere status of 

being incarcerated, without more, by no means renders compliance with the 

notice statute impossible.” McGill v. Ind. Dep’t. of Correction, 636 N.E.2d 199, 

204 (Ind. Ct. App. 1994), reh’g. denied. Again, Feldhake filed his complaint

almost two years after his accident, and the record is devoid of any plausible 

reason for Feldhake’s delay. Accordingly, we also affirm the trial court’s grant 

of summary judgment based on Feldhake’s failure to file his claim in a timely 

manner. 

[20] Affirmed.

Barnes, J., and May, J., concur.