Court of Appeals of Indiana | Memorandum Decision 18A04-1704-CT-702 | November 8, 2017 Page 1 of 9

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.

ATTORNEY FOR APPELLANT

Michael P. Quirk

Muncie, Indiana

ATTORNEY FOR APPELLEE

Anthony B. Ratliff

Doninger Tuohy & Bailey, LLP

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Autumn Lewis and Stephen 

Lewis,

Appellants-Plaintiffs,

v.

Board of Trustees of the Flavius 

J. Witham Memorial Hospital 

d/b/a Willowbend Living 

Center,

Appellee-Defendant.

November 8, 2017

Court of Appeals Case No.

18A04-1704-CT-702

Appeal from the Delaware Circuit 

Court

The Honorable Marianne L. 

Vorhees, Judge

Trial Court Cause No.

18C01-1502-CT-9

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A04-1704-CT-702 | November 8, 2017 Page 2 of 9

STATEMENT OF THE CASE

[1] Appellants-Plaintiffs, Autumn Lewis (Autumn) and Stephen Lewis 

(Collectively, Lewis), appeal the trial court’s summary judgment in favor of 

Defendant-Appellee, Board of Trustees of the Flavius J. Witham Memorial 

Hospital d/b/a Willowbend Living Center (Witham), on Lewis’ Complaint for 

damages. 

[2] We affirm.

ISSUES

[3] Lewis presents us with two issues on appeal, which we restate as follows: 

(1) Whether Witham’s motion for summary judgment was timely filed; and 

(2) Whether the trial court properly granted summary judgment to Witham 

because Lewis failed to give a tort claim notice pursuant to the Indiana 

Torts Claim Act (ITCA). 

FACTS AND PROCEDURAL HISTORY

[4] On February 1, 2013, Autumn slipped and fell on an icy parking lot owned and 

controlled by Witham. On February 2, 2015, Lewis filed a Complaint for 

damages, alleging Autumn had suffered injuries from her slip and fall. On 

March 6, 2015, Witham filed its Answer to the Complaint, in which it raised an 

affirmative defense, claiming “Plaintiffs failed to timely provide a tort claim 

notice to Witham as required by law; such notice presents a condition 
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precedent to filing and prosecuting this action.” (Appellant’s App. Vol. II, p. 

12). 

[5] On May 1, 2015, the trial court set a trial date of March 29, 2016, and issued 

pre-trial deadlines with a dispositive motion deadline on or before December 1, 

2015. On February 22, 2016, the trial court vacated the pre-trial and trial dates. 

The trial court did not set a new trial date, neither did the trial court issue new 

pre-trial deadlines. On September 29, 2016, Witham filed its motion for 

summary judgment, a memorandum in support of the motion, and designation 

of evidence relied upon. Lewis did not file a response nor designate any 

evidence. Following a hearing on October 3, 2016, the trial court granted 

summary judgment to Witham, concluding, in pertinent part:

1. As to timeliness: The [c]ourt had previously set a dispositive 

motions deadline as December 1, 2015, based on a March 29, 

2016, trial date. The parties later vacated the trial date. The 

[c]ourt did not establish a new dispositive motion deadline. 

The case at this time is not set for jury trial. Therefore, no 

prejudice resulted from the Motion’s timing. [Lewis] will not 

“lose” their trial date due to the filing. The Motion should be 

addressed on its merits.

2. As to notice: [Witham] stated in its Answer, filed on March 

6, 2016, in Affirmative Defense No.4, that [Lewis] has failed 

to comply with the Tort Claims Act’s Notice requirements. 

Therefore, [Lewis] have had ample notice that [Witham] 

would claim this defense.

3. As to the Motion: [Witham] presented evidence to show it 

was established as a county hospital; it has operated as a 
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county hospital; and it operated the facility at question in this 

case, Willowbend Living Center. [Witham] has 

demonstrated as a matter of law that it is subject to the Tort 

Claims Act, and [Lewis] who want to sue Willowbend must 

give notice pursuant to the Indiana Tort Claims Act.

4. As a matter of law, unless [Lewis] present evidence to create a 

fact issue or present law to establish [Witham] is wrong, the 

[c]ourt must grant the summary judgment motion.

5. In Schoettmer v. Wright, 992 N.E.2d 702 (Ind. 2013). The 

Indiana Supreme Court held the plaintiff had created an issue 

of fact concerning estoppel, i.e., whether the defendant’s 

insurance agent had made representations and had acted in 

such a way that defendant was estopped from asserting lack of 

a Tort Claim Act Notice. The difference between this case 

and Schoettmer is that in Schoettmer, plaintiffs presented 

evidence by an affidavit and otherwise indicating what 

conduct had occurred, constituting estoppel. Here we have 

no designated evidence at all to establish a basis for estoppel 

or any other defense to the failure to give notice.

(Appellant’s App. Vol. VII, pp. 6-7). On February 6, 2017, Lewis filed a 

motion to reconsider/motion to correct error, which was denied by the trial 

court.

[6] Lewis now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Timely Motion for Summary Judgment
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[7] Lewis first contends that Witham’s motion for summary judgment was filed 

after the deadline for dispositive motions, as set by the trial court, had expired. 

Accordingly, Lewis maintains that the trial court should not have considered 

Witham’s motion. 

[8] By mutual consent of the parties and based on a trial date of March 29, 2016, 

the trial court’s pretrial conference order established the dispositive motions 

deadline “on or before December 1, 2015.” (Appellant’s App. Vol. II, p. 18). 

The parties later vacated the trial date and the trial court failed to set a new 

dispositive motion deadline. Witham filed its motion for summary judgment 

on September 29, 2016. Accordingly, mindful that the trial court had vacated 

the trial date and not established new deadlines, and that Indiana Trial Rule 

56(B) provides that Witham “may, at any time, move . . . for a summary 

judgment” in its favor, we conclude that the trial court properly addressed 

Witham’s motion on its merits. 

II. Motion for Summary Judgment

[9] Next, Lewis contends that the trial court erred by entering summary judgment 

in favor of Witham because Lewis had failed to comply with ITCA’s notice 

requirements. Summary judgment is appropriate only when there are no 

genuine issues of material fact and the moving party is entitled to a judgment as 

a matter of law. Ind. Trial Rule 56(C). “A fact is material if its resolution 

would affect the outcome of the case, and an issue is genuine if a trier of fact is 

required to resolve the parties’ differing accounts of the truth . . . , or if the 
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undisputed facts support conflicting reasonable inferences.” Williams v. Tharp, 

914 N.E.2d 756, 761 (Ind. 2009). 

[10] In reviewing a trial court’s ruling on summary judgment, this court stands in the 

shoes of the trial court, applying the same standards in deciding whether to 

affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 

891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we 

must determine whether there is a genuine issue of material fact and whether 

the trial court has correctly applied the law. Id. at 607-08. In doing so, we 

consider all of the designated evidence in the light most favorable to the nonmoving party. Id. at 608. The party appealing the grant of summary judgment 

has the burden of persuading this court that the trial court’s ruling was 

improper. Id. When the 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. Id. Accordingly, the grant of summary 

judgment must be reversed if the record discloses an incorrect application of the 

law to the facts. Id. 

[11] We observe that, in the present case, 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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[12] The ITCA, in Ind. Code § 34-13-3-8, provides that 

a claim against a political subdivision is barred unless notice is

filed with:

(1) the governing body of that political subdivision; . . . .

within one hundred eighty (180) days after the loss occurs.

A political subdivision for purposes of ITCA is defined as a “city or county 

hospital.” I.C. § 34-6-2-110(8). In the Complaint, Lewis alleged that the 

injuries resulted from a slip and fall on a parking lot owned and controlled by 

Witham on February 1, 2013. Approximately two years later, on February 2, 

2015, Lewis filed its Complaint against Witham. In its Answer to Lewis’ 

Complaint, Witham raised the affirmative defense that it had not received a tort 

claim notice, thereby alerting Lewis that it was subject to the provisions of the 

ITCA. Accordingly, as Lewis filed its Complaint well outside the required one 

hundred eighty days after the occurrence of the injury, the trial court properly 

granted summary judgment to Witham.

[13] Assuming arguendo that Lewis timely filed its Complaint within the one hundred 

eighty day period, we still would affirm the trial court’s summary judgment. 

Referencing Schoettmer v. Wright, 992 N.E.2d 702 (Ind. 2013), Lewis claims that 

they did not know that Witham was subject to the ITCA’s notice requirements 

because “no mention of the facility being owned by a governmental entity was 

found.” (Appellant’s Br. p. 10). In Schoettmer, the plaintiffs similarly argued 

that “equitable estoppel should apply to bar South Central from raising its 
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ITCA notice defense because the Schoettmers were unaware South Central was 

a government entity covered by the ITCA. Id. at 709. Our supreme court held 

that “[t]he party claiming equitable estoppel must show its (1) lack of 

knowledge and of the means of knowledge as to the facts in question, (2) 

reliance upon the conduct of the party estopped, and (3) action based thereon of 

such a character as to change his position prejudicially.” Id. Based on 

conversations with South Central’s insurance carrier prior to the filing of the 

complaint and Schoettmer’s reliance on these representations and conduct 

based thereon, the court found that a genuine issue of material fact remained as 

to whether equitable estoppel applied. Id. 

[14] Here, Witham designated its Answer, with its affirmative defense, as evidence

that an ITCA notice is a precondition to the filing of a lawsuit, as well as the 

Public Order establishing Witham as a county hospital, the Secretary of State’s

filing reflecting Witham’s assumed business name, and an affidavit of the Chief 

Executive Officer of Witham affirming its operation as a county hospital. 

Lewis did not designate any evidence in response. In other words, the record 

lacks evidence establishing that Lewis relied upon Witham’s conduct or 

representations that could have been interpreted by Lewis that no ITCA notice 

was required, let alone any evidence of Lewis’ action in reliance thereon. In 

fact, there is no designated evidence indicating that Witham, or any of its 

representatives, was even contacted before the filing of the Complaint. 

Accordingly, there is no genuine issue of material fact and the trial court 

properly entered summary judgment for Witham. 
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CONCLUSION

[15] Based on the foregoing, we conclude that Witham timely filed its motion for 

summary judgment; and the trial court properly granted summary judgment to 

Witham because Lewis failed to give a tort claim notice pursuant to the Indiana 

Tort Claim Act.

[16] Robb, J. and Pyle, J. concur