*1 has not met his burden of Husband also has not Husband decree. the dissolution the trial court abused its showing that or rele meaningful argument presented granted when it relief Wife's discretion to the record citations vant First, QDRO. to submit a revised motion R. Ind.App. See argument. argument supported has not his Husband 46(A)(8)(a). Thus, argument is waived. motion falls under Trial Rule addition, we note that 60(B)(1). Thus, he has not shown duty to di nondelegable a trial court had than one untimely filed more motion § 31-15- See Ind.Code property. vide the decree. And after the dissolution year Henderson, 401 7-4; v. Henderson why the has not demonstrated Husband (under dissolution (Ind.Ct.App.1980) request a should not be treated as motion proper court shall divide statute "the 60(B)8). Fur- Trial Rule for relief under a revised motion to submit ty"). Wife's claim, and ther, a meritorious alleged Wife part QDRO informed injustice any Husband has not shown pension was for distributing the the decree grant- from trial court's order resulted and, a nullity a as purposes all intents and has failed to ing relief. And Husband com result, trial court had not materially that the trial court's order show property. parties' divided the pletely terms of the dissolution decree. altered the had an affirmative the trial court Husband has not met his burden decree in order duty to amend the the trial court abused its showing that duty It fulfilled that pension. divide request when it Wife's discretion when, granting order Wife's through the Therefore, QDRO. we to submit revised motion, method for provided it a workable granting the trial court's order affirm interest Husband's determining Wife's QDRO. a revised motion to submit Wife's ERISA and the compliance with pension Affirmed. plan. pension DARDEN, J., FRIEDLANDER, J., and Conclusion concur. has not met his burden Husband the trial court erred when showing that a revised motion submit
treated Wife's judg- from motion for relief
QDRO as a stated that the disso-
ment. Wife's motion implemented could not be lution decree HOCHSTETLER, Marvin J. requirements light of ERISA written Appellant-Plaintiff, plan, pension in Husband's provisions and QDRO that she asked to submit DE HIGHWAY the decree. ELKHART COUNTY strictly comply with would not PARTMENT, Elkhart Sher to submit requested Wife Specifically, Department iff's include a limi- QDRO that did not revised Commissioners, Appellees-Defen receiving payments begin tation that she dants. age of 65. reaching upon Husband such, Wife's denominated as
Although not No. 20A05-0602-CV-98. request for tantamount to a request was of Indiana. Appeals Court Trial Rule judgment under relief from a 25, 2006. Oct. 60(B). Thus, not err trial court did relief as one for it treated her motion when judgment. *2 Stesiak, Pfeifer,
Jeffrey Morgan J. & Stesiak, Bend, IN, South Attorney for Ap- pellant. Deboni,
Michael F*. Sara MacLaugh- J. lin, Yoder, Ainlay, Buckingham, Ulmer & Goshen, IN, Attorneys for Appellees. OPINION NAJAM, Judge.
STATEMENT OF THE CASE Marvin J. Hochstetler appeals from the trial granting court's order the motion of Elkhart Highway Department ("Highway Department"), Elkhart County Department, Sheriff's and Elkhart County "Elkhart") (collectively Commissioners for summary judgment on Hochstetler's com- plaint alleging injuries that he sustained County's result of Elkhart negligence. presents single issue for re- view, namely, whether the trial court erred in fa- Roads 385 39. As result judgment when accident, County. Highway Department re- vor of particular ceived a of that tree ob- We reverse. struction at 5:00 a.m. Barricades were *3 around the placed downed tree between AND FACTS PROCEDURAL a.m., HISTORY 6:30 and 7:00 and road crews arrived roadway to remove the tree from the at 12, 2001, a At a.m. on June storm 1:00 8:15 a.m. County. After passed through Elkhart storm, Department employ- Highway a complaint a against Hochstetler filed indicating a that there prepared report
ee County, injuries alleging that his fifty-six of fallen trees and reports were "negligence were the result of the and on roads. Because limbs County]." Appel- carelessness of [Elkhart trees, Highway a Ganger, fallen Robert App. County lant's at 11. Elkhart filed a telephone fielded Department employee, summary judgment, claiming it motion for reporting night, fallen trees that calls under Indiana was immune clean-up crews at began dispatching he 34-18-8-8(8). After a hear- Code Section 1:30 ing, the trial court Elkhart Coun- a.m. a.m., ty's motion. Hochstetler filed a motion to a call at 2:00 Ganger received error, correct which the trial court denied a across the reported which a woman tree ensued. hearing. appeal 4 after a This County road on Road north of State of the Indiana Toll Road 120 and south hung up, Ganger the caller
Road. After AND DISCUSSION DECISION County Road Four runs the realized that reviewing judgment, When County and that County width of Elkhart this court views the same matters and not inter- Road 4 and State Road 120 do the trial court and issues that were before identify Ganger could not sect. Because Tay Estate process. follows the same location of the fallen tree from the v. Med. Inves Taylor lor ex rel. Muncie report, dispatch he did not crew caller's (Ind.Ct. tors, L.P., 466, 469 727 N.E.2d 4 County that time to Road to remove at construe all App.2000), trans. denied. We thereafter, Shortly Ganger re- the tree. to be facts and reasonable inferences roadway of a in the on ceived a tree of the non- drawn from those facts favor 4 Roads 13 Road between Cmty. v. Am. Mul. moving party. Jesse 15. The reference to Roads Co., 420, (Ind.Ct.App. 725 N.E.2d 423 Ins. coordinates provided 13 and 15 east/west 2000), Summary judgment trans. denied. helped Ganger pinpoint the location designated when the evi appropriate in, that call came the fallen tree. When genu that there is no dence demonstrates while, for a in] "and no more calls [came and that ine issue of material fact fallen tree on [Ganger] [the assume{[d] judgment moving party is entitled County Road would have been taken 4] 56(C). The Trial Rule matter of law. Ind. at Appellant's App. care of." 49. to termi summary judgment purpose can be no litigation about which there morning, am. Ho- nate
At 5:00 the same dispute and which can be injured County material factual driving on chstetler a matter of law. Zawistoski 4 a tree that resolved as Road when his vehicle struck 790, Co., B. 727 N.E.2d 792 during 4 Glick had fallen across Road Gene If trial court's en storm, (Ind.Ct.App.2000). bodily injuries. and he sustained can sustained try summary judgment be The accident occurred between 734 record, any theory (internal omitted). in the we basis Id. at 3 citations Gov- negligence ernmental "assumes
must affirm. Ledbetter v. Ball Mem'l 1113, liability." but denies Id. at 5. Whether Hosp., (Ind.Ct.App. 724 N.E.2d 1116 governmental entity is immune from liabil- 2000), Even if the trial trans. denied. ity under the Act is a of law for non-moving party believes courts, although may include an trial, prevail will not at where material development. City extended factual conflicting facts conflict or inferences arise 998, Reffitt, Hammond v. facts, summary undisputed judg from the (Ind.Ct.App.2008), trans. denied. ment Schrum v. should not be entered. (Ind.Ct. argues ques Moskaluk, that a material *4 tion of fact App.1995), trans. denied. exists as whether the condi temporary
tion was
in
contemplated
contends
the
34-13-3-8@8).
Indiana Code Section
This
granted
trial court erred when it
court addressed the
of
meaning
"tempo
judgment.
particular, Hochstetler ar
rary"
provision
in that
in
City
Dzierba v.
gues that
the trial court erred when it
(Ind.Ct.
Michigan City,
1. The is owned United States Army Corps Engineers. "remedy enough whether .it had time Likewise, uncontested Caff fact. entity question no notice the situation" is a material had immunity the acci- Again, although condition before id. hazardous See There, county law, on a road answering question a driver dent. early morning a ditch because may development crashed into of factual require at 1001. un- Reffitt, issues. See out a culvert heavy rains had washed against suit The driver filed der the road. the trial court erred when it On board commissioners. summary judgment of Elkhart favor summary judgment in favor of appeal County. board, supreme our court observed contends that its knowl whether the condition is that "the focus of Road 4 is edge of the fallen tree is whether the permanent required not to determine be time and body has had the dispositive cause the issue is whether the failed to do remove the obstruction but Elk- temporary permanent. or condition (citation Catt, at 5 orait- TT9 N.E.2d so." hart also relies on Catt to ted). apparently designated no driver its contention that constructive history prior aside from the *5 material actual determine knowledge required is not to notice of the to show the board's wash-outs or temporary per whether a condition is condition, road but hazardous County Elkhart agree with We of the same cul- prior that wash-outs held manent. that the is whether the fallen overall issue perma- did not render the condition vert temporary permanent. was But tree sum- the court affirmed
nent. Id. County Elkhart The misunderstands Catt. in of the board under mary judgment favor that specifically court in case noted 34-18-8-8(8). Indiana Code Section that knowledge the board did not have Here, the burden of Hochstetler bears thus, culvert; oppor washed it had no out county had showing that the time and an Catt, remedy the situation. See to tunity to remove the fallen tree. To opportunity County N.E.2d at 5. Elkhart also cites 779 end, a has shown that (Ind. State, 783 to Leinbach v. 587 N.E.2d Highway Depart- telephoned citizen support argument to its Ct.App.1992), that a report ment at 2:00 a.m. to tree a in the case before us was the fallen tree 4 County Road north of State lying across Leinbach, In winter temporary Indiana Toll Road 120 and south condition. of low rain fell and then froze because County. in Elkhart Hochstetler's Road overpass an to temperatures, causing be later, about three hours accident occurred died as the ice-covered. A motorist come Highway Depart- at 5:00 am. When the overpassa few result of accidenton the report, gave the caller an ment received that In a began. storm hours after the winter County enough information that Elkhart against estate resulting suit Leinbackh's County on notice to investi- put Elkhart entities, affirmed this court governmental the fallen tree. A subse- gate and locate summary judgment governmental for the turned out to quent reported caller what held immunity on the issue. We entities 4, County fallen tree on Road be another icy "there can no doubt be relieved Elk- that information and whether Leinbach's overpass when condition of duty investigate County hart of its condi 'temporary was a accident occurred the first of a fallen tree location of which results public thoroughfare of a tion question of fact. County on Road (no that Elkhart if it were determined ...." at 735 citation Even from weather Id. tree, notice of the fallen County had was decided original). in But Leinbach Here, dy court's deci- the situation. there is an issue of years supreme ten before our Catt, specifically sion in where the fact to whether the caller's 2:00 material whether the enti- County considered report put inquiry am. Elkhart on an ty opportunity had notice of the location of a fallen tree on in remedy a condition order to determine though subsequent Road even temporary. condition was We whether the adequately caller identified the location of that precedent. must follow what turned out to be another fallen tree if on the same road. Even we were to Elkhart also cites to Van Bree v. report gave conclude that the first notice (Ind. County, Harrison tree, of the location of the fallen whether denied, in Ct.App.1992), trams. an Elkhart had in that the fallen tree this its contention situation, given fifty-five temporary case was a condition. case, other trees and limbs had to be cleared young parents driver and her sued inju governmental entities to recover for roads from the same storm, ries the driver sustained when she struck a is a of material fact to be county dump icy county an road. truck on deciding determined in condi- whether the highway department had received temporary. tion of the fallen tree was road, complaints about the condition of the Following light and in ques- Catt these icy early which had been since the week fact, tions of material we hold that the trial granting judgment of the accident. In on granted summary court erred when it the evidence favor of the judgment favor of Elkhart entities, determined, part, the trial court the issue of under Indiana Code *6 governmental that im the entities were 34-13-3-8(8). Section mune from under a to predecessor Reversed. Indiana Code Section.2 On affirmed, appeal, court holding this that DARDEN, J., concurs. duty present "the was on Van Bree to FRIEDLANDER, J., dissents with evidence that the road had become defec separate opinion. tive because of the snow and ice and that county opportunity the had time and FRIEDLANDER, Judge, dissenting. Bree, remove it." Id. at But 1118. Van I grant would affirm the of Leinbach, years like was decided ten be judgment in County, favor of Elkhart And, supreme fore the court decided Catt. respectfully therefore dissent. further, in order determine whether the county opportunity had an the upon The statute which this case must condition, road it first had to be of aware states, entity be decided "[a] that condition. . is not if liable a loss results from ... that, temporary public [tlhe condition of a thor- We conclude in the context of oughfare ... that results from weather." 34-13-3-8(8), Indiana Code Section wheth- temporary 34-13-3-8(8) er a condition is (West, must be deter- § Ann. Ind.Code through ap- PREMISE 2006 (1) Public Laws by mined first deciding whether the governmental entity proved through had and effective March (2) 2006). so, it, govern- condition and if whether On the of face would seem the entity mental an opportunity squarely had to reme- facts before us fit within the predecessor 2. The to Indiana 16.5-3(3), Section part Code which in relevant is identical 34-13-3-3(3) immunity provision. is Indiana Code Section 34-4- to the current
737
early
everything
not so broad as to include
In the
is
provision.
of this
boundaries
"not
Bree v.
12, 2001,
permanent".
that
Van
a violent
of June
morning hours
at 1117.
Harrison
We
county
onto a
a tree down
storm blew
might
period
infer from this that a
of four
later, a
four hours
Approximately
road.
days
creation of a
or five
between the
injured when his vehicle
motorist was
dangerous
condition and an accident
roadway
Clearly, the
struck that
tree.
thereby
long enough,
caused
when con
caused
bad weather.
obstruction was
isolation,
to cast doubt
upon
sidered
otherwise,
allege
not
but
Hochstetler does
temporariness
court
the condition. The
fact
questions of
contends there remain
decided, however,
elapsed
time alone
whether the condi-
necessary to determine
question.
did not settle the
Also consid
meaning
"temporary"
tion was
within
temporariness analysis
in the
was the
ered
34-13-3-3(8).
majority
§
IC.
entity's
opportunity to reme
agrees.
fact,
dy
upon
the situation.
In
it is
City Michigan
v.
Analyzing Dzierba
the judgment
basis
affirmed
City,
(Ind.Ct.App.2003)
N.E.2d 463
immunity, stating
there was no evidence
Comm'rs,
N.E.2d 1
Bd.
and Catt v.
Of
jury
"from
could
which
infer
(Ind.2002),
majority concludes the
had an
to treat
immunity hinges-and
County's claim of
days
passed.
five
had
road before"
Van
(1)
questions:
ultimately fails-upon two
County,
Bree v. Harrison
584 N.E.2d at
County have notice of the fallen
did the
regard
The court noted in that
1118.
(2)
tree,
so,
if
it have time to
did
supervisor's
testimony
county
the accident oc
remove the tree before
for
a thousand miles
responsible
"was
over
reversing
In
trial court's rul
curred?
had
roads and that
the crews
rejects
ing,
majority
both Leinbach
spreading
grav
been out all week
salt and
State,
(Ind.Ct.App.1992)
As to the first it undisputed Hochstetler's accident. that the first person who called to had no and was immune on that the downed tree in question Comm'rs, described a basis. See Catt v. Bd. Of trace, Moreover, location that was impossible to given N.E.2d 1. scope facing the after- problems early morning in the
math of the storm 12, 2001, and the fact that
hours of June at seene less than five
bad a crew fell, I believe this fits
hours after the tree temporary condition
the definition of "a
... that results from the weather." IC. 34-1838-8-3(8).
§ I understand
majority this is a factual believes jury. for the On
that should be reserved however, facts, I
these believe we should that, law,
hold as a matter of this condition meaning "temporary" within immune
the statute and the therefor. Sherry Stowers,
Alan STOWERS
Appellants-Plaintiffs,
CLINTON CENTRAL SCHOOL
CORPORATION, Appellee
-Defendant.
No. 49A02-0504-CV-288. Appeals
Court of of Indiana.
Oct. 2006.