Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Knightstown v. Wainscott

Court of Appeals of Indiana

February 16, 2017

Town of Knightstown, Appellant-Defendant,
v.
Dudley Wainscott, Appellee-Plaintiff.

         Appeal from the Henry Circuit Court The Honorable Mary G. Willis, Judge The Honorable Jack A. Tandy, Judge Pro Tempore Trial Court Cause No. 33C01-1502-PL-10

          ATTORNEYS FOR APPELLANT James S. Stephenson Joseph M. Hendel Stephenson Morow & Semler Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Frederick D. Emhardt Josh S. Tatum Colin E. Conner Plews Shadley Racher & Braun, LLP Indianapolis, Indiana

          Barnes, Judge.

         Case Summary

         [¶1] In this interlocutory appeal, the Town of Knightstown ("Town") appeals the trial court's partial denial of its motion for summary judgment regarding a claim by Dudley Wainscott ("Wainscott"). On cross-appeal, Wainscott appeals the trial court's partial grant of the Town's motion for summary judgment. We affirm in part, reverse in part, and remand.

         Issues

         [¶2] The parties present several issues for our review, which we restate as:

I. whether the trial court properly found that Wainscott failed to file a timely tort claim notice;
II. whether the trial court properly granted summary judgment on Wainscott's negligence and equity claims and denied summary judgment on Wainscott's nuisance claim; and
III. whether the trial court properly denied summary judgment on Wainscott's breach of contract claim.

         Facts

         [¶3] Wainscott owns a historic building called the "Old Lodge" in Knightstown. A building called the "Bullet Hole" was adjacent to the Old Lodge, and the buildings shared a wall. In February 2013, the Town contracted with Shroyer Brothers, Inc. ("Shroyer") to demolish the Bullet Hole, and Shroyer began demolition on April 1, 2013. According to Wainscott, the demolition left "161 holes above ground and 240 holes below ground in the shared, load-bearing wall . . . ." Appellant's App. Vol. II p. 120. Wainscott also alleges that an unknown amount of vacuum tubes that were not removed from the building were crushed during demolition, "potentially causing mercury to leak into the soil and groundwater." Id. at 119.

         [¶4] On April 14, 2013, Wainscott sent the following letter to the Town:

I write to you as a concerned citizen of Knightstown, as well as a property owner directly impacted by the destruction of the Bullet Hole Building at 32 Main St. Despite the fact that I have repeatedly requested to be kept informed, destruction of the building began without my knowledge, and without notification to the citizens of Knightstown. The building at 32 Main Street was destroyed in an unsafe manner leaving the community exposed to construction debris and hazardous waste such as lead, mercury, mold, and lead based paint. The long term impact of this exposure to the children of Knightstown remains to be seen. The fact that no one was injured during the destruction is, indeed, fortunate for the city. A structural engineer MUST be consulted for the remainder of the project to ensure the safety of the citizens of Knightstown.
I am the owner of the Old Lodge Building at 34-38 Main Street. My west wall was shared with the Bullet Hole building. This is a load bearing wall critical to the structural integrity of my building and the doctor's building to the rear. Without proper repair that entire corner of downtown Knightstown is likely to crumble leaving the citizens of Knightstown with an even more dangerous situation. The wall is now exposed to the elements with holes in the 8' x 80' basement wall, major cracks in the 50' x 80' side wall and an exposed roof area shared with the doctor's office.
At a minimum:
1. All hazardous waste must be removed.
2. Holes in the basement wall need to be repaired, bricked and tucked. My basement is currently exposed to hazardous waste which remains at the construction site.
3. Cracks in the main wall need to be repaired, all plaster needs to be removed, and the wall needs to be resealed to ensure that it is water tight. I repeat this is a LOAD BEARING wall. Without proper repairs, supervised by a structural engineer, that entire corner of Knightstown is in danger of crumbling.
4. The roof towards the rear of the building which is shared with the doctor's office needs to be recapped to prevent water damage to the load bearing wall.
What is the city's plan for the open space? If it is to be a parking lot, then all necessary precautions must be taken to protect the west wall of 34-38 Main St. A two foot steal [sic] reinforced concrete barrier should be erected the length of the wall to protect the wall from damage due to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.