The Board of Commissioners of Union County, Indiana v. Brandye Hendrickson, in her official capacity as Commissioner of the Ind. Dept. of Transportation, and the State of Indiana

FILED
Dec 16 2016, 8:19 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
James R. Williams Gregory F. Zoeller
Matthew L. Kelsey Attorney General of Indiana
DeFUR • Voran, LLP
Muncie, Indiana Andrea E. Rahman
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

The Board of Commissioners of December 16, 2016
Union County, Indiana, Court of Appeals Case No.
Appellant-Plaintiff, 81A01-1603-PL-696
Appeal from the Union Circuit
v. Court
The Honorable Brian D. Hill,
Brandye Hendrickson, in her Special Judge
official capacity as Trial Court Cause No.
Commissioner of the Indiana 81C01-1507-PL-118
Department of Transportation,
and the State of Indiana,
Appellees-Defendants.

Barnes, Judge.

Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 1 of 20
 Case Summary1
[1] The Board of Commissioners of Union County (“the County”) appeals the

dismissal of its complaint against Brandye Hendrickson, in her official capacity

as Commissioner of the Indiana Department of Transportation (“INDOT”),

and INDOT itself (collectively “INDOT”). We reverse and remand.

Issues
[2] The restated issues before us are:

I. whether this court is reviewing the dismissal of a
complaint under Indiana Trial Rule 12(B)(6) or the
granting of summary judgment under Indiana Trial Rule
56;

II. whether the trial court properly concluded that the County
lacked standing to seek a declaratory judgment against
INDOT; and

III. whether the trial court properly concluded that the County
lacked standing to seek an injunction against INDOT.

Facts
[3] The facts as alleged by the County are that, in 2010 or 2011, INDOT performed

construction and repair work on State Highway 27 in the County. The County

1
We heard oral argument in this case on November 3, 2016, at the University of Notre Dame School of
Law. We thank counsel for their helpful arguments and for making the trip to South Bend. We also thank
the administration, faculty, and students of the School of Law, as well as members of the St. Joseph County
bar and judiciary, for their hospitality.

Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 2 of 20
 had no involvement in this roadwork project. During the project, INDOT

allegedly damaged septic systems on the properties of three private landowners

in the County as a result of improper or negligent work. This damage “may

impact other properties and may implicate a broader public health and safety

concern for Union County . . . .” App. p. 25. The County asked INDOT to

investigate and remedy these problems, but INDOT failed to do so.

[4] On July 31, 2015, the County filed a declaratory judgment and injunctive relief

action against Hendrickson and INDOT. The County sought an order

“declaring state highway 27 and any associated storm drain the responsibility of

INDOT and not Union County . . . .” Id. Additionally, it sought an order

“compelling INDOT to immediately remedy any and all negligent and/or

improper construction and repair work that resulted in septic and/or public

health issues . . . .” Id. at 26.

[5] INDOT filed a motion to dismiss, asserting that the County lacked standing to

sue. As part of its response to the motion to dismiss, the County filed an

affidavit from its Sanitarian, Ron Parker. Parker stated in the affidavit, “Upon

information and belief, The Highway Repair has resulted in raw sewage

flowing outside appropriate septic and drainage systems. This poses a public

health and safety risk for Union County, Indiana and proximately caused

violations of the local health code.” Id. at 47.

[6] Two weeks after the County filed its response and Parker’s affidavit, INDOT

filed a motion for an extension of time to file a reply in support of its motion to

Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 3 of 20
 dismiss. However, on the same day INDOT filed that motion, the trial court

granted INDOT’s motion to dismiss, agreeing that the County lacked standing

to bring suit. The trial court did not indicate whether it considered Parker’s

affidavit, nor was a hearing held on the motion to dismiss. The County filed a

motion to correct error. In response, INDOT requested that Parker’s affidavit

be stricken in addition to the motion to correct error being denied. The trial

court denied the motion to correct error, without expressly ruling on the motion

to strike Parker’s affidavit. The County now appeals.

Analysis
I. Motion to Dismiss versus Motion for Summary Judgment

[7] The first issue we address is whether we are reviewing the dismissal of a

complaint under Indiana Trial Rule 12(B)(6) or whether INDOT’s motion to

dismiss was converted to a Trial Rule 56 motion for summary judgment when

the County included Parker’s affidavit with its response to INDOT’s motion.

Trial Rule 12(B) states in part:

If, on a motion, asserting the defense number (6), to dismiss for
failure of the pleading to state a claim upon which relief can be
granted, matters outside the pleading are presented to and not
excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56. In
such case, all parties shall be given reasonable opportunity to
present all material made pertinent to such a motion by Rule 56.

[8] This case is somewhat similar to Carrell v. Ellingwood, 423 N.E.2d 630 (Ind. Ct.

App. 1981). In that case, there was a 12(B)(6) motion to dismiss a will contest

Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 4 of 20
 as untimely. The plaintiffs filed a response to the motion that included an

affidavit. On the same day the response was filed and without notice to the

movant, the trial court entered an order expressly “dismissing” the will contest

as untimely and noting that the plaintiffs had filed an affidavit in their response

to the motion to dismiss. On appeal, this court held that it was error for the

trial court to apparently consider the affidavit in ruling on the motion to dismiss

without providing the other party a reasonable time to present additional

materials to the court for its consideration. Carrell, 423 N.E.2d at 634.

However, this court went on to address, on the merits, whether summary

judgment in favor of the will contest defendant was properly granted; after

considering the affidavit, the court held that it was not and reversed. Id. at 636;

see also Lanni v. National Collegiate Athletic Ass’n, 989 N.E.2d 791, 797 (Ind. Ct.

App. 2013) (holding trial court abused its discretion in converting 12(B)(6)

motion to dismiss into motion for summary judgment). A trial court’s failure to

give explicit notice of its intended conversion of a motion to dismiss to one for

summary judgment is reversible error if a party is not afforded a reasonable

opportunity to respond to the introduction of evidence and that party is thereby

prejudiced. Azhar v. Town of Fishers, 744 N.E.2d 947, 950-51 (Ind. Ct. App.

2001).

[9] Here, the trial court never stated whether it was considering Parker’s affidavit

when ruling on the motion to dismiss; on the other hand, it never expressly

excluded the affidavit from consideration, even after INDOT asked the trial

court to strike it from the record as part of its response to the County’s motion

Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 5 of 20
 to correct error. Additionally, the trial court’s ultimate ruling was that it was

dismissing the complaint. It did not state that it was granting summary

judgment to INDOT, and it gave no indication that it considered Parker’s

affidavit when making its ruling.

[10] At oral argument, counsel for the County conceded that INDOT was not given

an adequate opportunity to respond to Parker’s affidavit. We conclude that it

was erroneous for the trial court to proceed to rule on the motion to dismiss

without clarifying whether it was considering the affidavit, and if so to provide

INDOT an opportunity to respond in accordance with the summary judgment

rules. However, unlike in Carrell, we believe that in the present case it would be

inappropriate to proceed to review this case as a grant of summary judgment,

particularly given the fact that the trial court stated that it was dismissing the

complaint, not granting summary judgment, and because it did not expressly

state that it was considering Parker’s affidavit. Instead, we will review this case

purely as a 12(B)(6) dismissal and assume that the trial court “excluded”

Parker’s affidavit from consideration. As such, we will not consider Parker’s

affidavit in our review. On remand, either party may file for summary

judgment if they so choose.

[11] A motion to dismiss for a plaintiff’s alleged lack of standing may be brought

under Indiana Trial Rule 12(B)(6) for failure to state a claim upon which relief

can be granted. Thomas v. Blackford County Area Bd. Of Zoning Appeals, 907

N.E.2d 988, 990 (Ind. 2009). When ruling upon a 12(B)(6) motion, the

allegations of the complaint must be taken as true. Id. A successful motion to

Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 6 of 20
 dismiss for lack of standing must establish that the lack of standing is apparent

on the face of the complaint. Id. The standard of review for a ruling on a

12(B)(6) motion to dismiss is de novo, and this court owes no deference to the

trial court’s decision. Bellows v. Board of Comm’rs of County of Elkhart, 926

N.E.2d 96, 110 (Ind. Ct. App. 2010).

II. Declaratory Judgment

[12] The County sought two different forms of relief, and different principles apply

to each of them. First, the County sought an order “declaring state highway 27

and any associated storm drain the responsibility of INDOT and not Union

County, Indiana.” App. p. 25. INDOT contends that, by this language, the

County is seeking a preemptive determination that it cannot be held liable to

any private landowners for damage to their property caused by the highway

repair project. We disagree and conclude the County was entitled to seek

declaratory relief on this matter.

[13] The Declaratory Judgment Act states that trial courts may “declare rights,

status, and other legal relations whether or not further relief is or could be

claimed.” Ind. Code § 34-14-1-1. The Act further provides:

Any person interested under a deed, will, written contract, or
other writings constituting a contract, or whose rights, status, or
other legal relations are affected by a statute, municipal
ordinance, contract, or franchise, may have determined any
question of construction or validity arising under the instrument,
statute, ordinance, contract, or franchise and obtain a declaration
of rights, status, or other legal relations thereunder.

Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 7 of 20
 I.C. § 34-14-1-2.2 Additionally, the enumeration of certain types of relief in

parts of the Act, such as section 2, “does not limit or restrict the exercise of the

general powers conferred in section 1 of this chapter in any proceeding where

declaratory relief is sought, in which a judgment or decree will terminate the

controversy or remove an uncertainty.” I.C. § 34-14-1-5.

[14] INDOT suggests in part that the County merely is seeking to shift liability to

INDOT for any potential lawsuits related to the release of sewage along the

highway and that is not a proper use of a declaratory judgment action. It is true

that a party cannot seek a declaratory order determining their liability to third

parties. See Union Fed. Sav. Bank v. Chantilly Farms, Inc., 556 N.E.2d 9, 11 (Ind.

Ct. App. 1990). The proper venue for determining such liability is in any suit

brought by the third party. Id.

[15] Here, however, the County was not seeking any express declaration of its

liability to any third parties, unlike in Chantilly Farms. The ultimate effect of

any declaration regarding responsibility for State Highway 27 is beyond the

scope of the present action. Rather, the County’s request for declaratory

judgment may be viewed as akin to a dispute regarding ownership of or title to

real property, which is an appropriate matter for resolution by declaratory

judgment. See Baxter v. Baxter, 138 Ind. App. 24, 27, 195 N.E.2d 877, 879

2
A “person” is defined as “any person, partnership, limited liability company, joint stock company,
unincorporated association, or society, or municipal or other corporation of any character whatsoever.” I.C.
§ 34-14-1-13. INDOT makes no argument that the County is not a “person” under this definition.

Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 8 of 20
 (1964). Additionally, aside from the matter of possible liability to any

particular third-party private property owners for septic field leakage, a

declaration of responsibility for State Highway 27 and its drainage would clarify

which governmental unit must arrange and pay for any necessary repairs to the

road and drainage system. See Chanley v. State, 596 N.E.2d 933, 934 (Ind. Ct.

App. 1992) (“The State and all counties have a common law duty to exercise

reasonable care in the design, construction, maintenance, and repair of

highways and roads within their control”), trans. denied.

[16] The State also contended at oral argument that the County failed to state an

adequate declaratory judgment claim because it did not precisely specify what

“writing” its claim was based upon with respect to responsibility for State

Highway 27. First, we would note that to the extent there would be a lack of

clarity as to a writing that governed State Highway 27, that would be a matter

for resolution later in the proceedings, if indeed no such writing could be

located, and not a reason for dismissal of the complaint. Second, the

Declaratory Judgment Act clearly states that trial courts may grant declaratory

relief, even if a matter does not strictly fall within one of the stated statutory

parameters for such relief. See I.C. § 34-14-1-5.

[17] Finally and perhaps most importantly, it appears to us that there should be a

relatively simple way of determining responsibility for State Highway 27. We

note that under Indiana Code Section 8-23-4-2(a), INDOT shall designate

which roads constitute the state highway system. INDOT has responsibility for

those streets and roads that make up the state highway system. I.C. § 8-23-1-40.

Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 9 of 20
 Additionally, the INDOT commissioner “shall at all times maintain maps of

Indiana, which must show all the highways that constitute the state highway

system, the arterial and local highway systems of each county, and the arterial

and local street systems of each municipality.” I.C. § 8-23-4-6. According to

these and other highway-related statutes, it should be possible to determine and

issue a declaration as to who bears responsibility for State Highway 27 and its

drainage system. We reverse the dismissal of the County’s request for a

declaratory judgment to that effect.

III. Injunctive Relief

[18] Next, we address the separate issue of whether the County had standing to

pursue injunctive relief against INDOT compelling it “to immediately remedy

any and all negligent and/or improper construction and repair work that

resulted in septic and/or public health issues . . . .” App. at 26. There does not

appear to be any prior reported case in which a locality has attempted to sue a

State entity for negligently causing some kind of physical harm within the

locality. The standing requirement is intended to assure that litigation will be

actively and vigorously contested. State ex rel. Cittadine v. Indiana Dep’t of

Transp., 790 N.E.2d 978, 979 (Ind. 2003). “It focuses on whether the

complaining party is the proper person to invoke the court’s power.” Id. Under

the general standing rule, “only those persons who have a personal stake in the

outcome of the litigation and who show that they have suffered or were in

immediate danger of suffering a direct injury as a result of the complained-of

conduct will be found to have standing.” Id. “It is generally insufficient that a

Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 10 of 20
 plaintiff merely has a general interest common to all members of the public.”

Id.

[19] We further note that the standard for obtaining injunctive relief is different than

the standard for obtaining a declaratory order. A party may seek equitable

injunctive relief if monetary damages are too speculative to quantify. City of

Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, 1246-47 (Ind. 2003).

If a party suffers purely economic injury and there is an adequate remedy at

law, injunctive relief should not be ordered. Indiana Family & Soc. Servs. Admin.

v. Walgreen Co., 769 N.E.2d 158, 162 (Ind. 2002). A party seeking an injunction

generally bears the burden of proving an injury that is certain and irreparable if

the injunction is denied. Ferrell v. Dunescape Beach Club Condominiums Phase I,

Inc., 751 N.E.2d 702, 713 (Ind. Ct. App. 2001). The County here additionally

was seeking a mandatory injunction, which is an injunction “‘that orders an

affirmative act or mandates a specified course of conduct.’” City of Gary v.

Majestic Star Casino, LLC, 905 N.E.2d 1076, 1082 n.6 (Ind. Ct. App. 2009)

(quoting BLACK’S LAW DICTIONARY 800 (8th ed. 2004)), trans. denied. The

principles behind mandatory and prohibitory injunctions are similar, although

courts generally are more reluctant to grant mandatory injunctions. Crossman

Communities, Inc. v. Dean, 767 N.E.2d 1035, 1040 (Ind. Ct. App. 2002).

[20] INDOT generally argues, in part, that, unless the County can show some injury

to property that it owns, as opposed to property owned by private parties, it

cannot have standing to make any claims with respect to septic system leaks

allegedly caused by INDOT’s negligence. Without such a showing, INDOT

Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 11 of 20
 asserts that the County has not suffered a “direct injury” as required to establish

standing. See Cittadine, 790 N.E.2d at 979. INDOT asserts that only directly-

affected property owners could sue. It certainly is true that there is no

allegation of any property directly owned by the County having been affected

by INDOT’s purported negligence. We do not believe, however, that this

precludes the County from having standing to seek this injunction.

[21] In its ruling against the County, the trial court relied upon Jacob Weinberg News

Agency, Inc. v. City of Marion, 163 Ind. App. 181, 322 N.E.2d 730 (1975). The

County claims that case in fact supports a finding that it has standing here. In

that case, a wholesale distributor of pornographic magazines sought to enjoin a

local ordinance from going into effect that would have been enforced against

retailers of those magazines but not the wholesaler. The wholesaler argued that

such enforcement would impact its sales and its First Amendment rights. The

trial court dismissed the wholesaler’s complaint for lack of standing because the

ordinance would not be enforced directly against the wholesaler. This court

reversed, holding that the wholesaler, although not subject directly to

enforcement of the ordinance, was entitled to bring the action in order to

vindicate its own First Amendment rights. Weinberg, 163 Ind. App. at 190, 322

N.E.2d at 735. The County relies on this case for the proposition that a party

does not necessarily have to suffer a “direct injury” in order to have standing to

bring a suit. However, it is readily distinguishable because there was an

assertion that the wholesaler’s First Amendment rights were in fact being

directly impacted by the ordinance. Here, the County is not asserting any

Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 12 of 20
 comparable direct impact on a constitutional right, as opposed to a more

general impact on the County’s citizens’ health.

[22] Still, we conclude that assertion is sufficient to grant the County standing to

seek an order compelling INDOT to repair roadwork that allegedly has the

potential to impact public health and sanitation. Under Indiana’s Home Rule

Act, it is intended that counties be granted “all the powers that they need for the

effective operation of government as to local affairs.” I.C. § 36-1-3-2. A county

may exercise any power it has so long as it is not expressly denied by the

Indiana Constitution or a statute and it is not expressly granted to another

entity. I.C. § 36-1-3-5. “Any doubt as to the existence of a power of a unit shall

be resolved in favor of its existence.” I.C. § 36-1-3-3. It is well understood that

counties “may regulate certain conduct . . . for the promotion of public health,

safety, and welfare.” IND. LAW ENCYCLOPEDIA Counties, § 5 p. 202 (2008); see

also I.C. § 16-20-2-2(a) (requiring counties to establish and maintain a local

health department unless they elect to create a multi-county health department

under Indiana Code Chapter 16-20-3). And, counties as units of government

have the power to sue and be sued. I.C. § 36-1-4-3.

[23] It is true that the Home Rule Act does not allow a county to “prevent a state

agency from carrying out statutorily authorized actions.” Indiana Dep’t of

Natural Res. v. Newton County, 802 N.E.2d 430, 433 (Ind. 2004). In Newton

County, however, the specific question was whether a county could adopt

ordinances purporting to trump the State’s authority to acquire land as

permitted by statute, and our supreme court held that it could not. Id. Here,

Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 13 of 20
 the County is not attempting to prevent INDOT from carrying out any activity;

rather, it is alleging negligence in the manner in which INDOT carried out its

road maintenance. This would generally be a proper subject for a lawsuit

against INDOT. See Chanley, 596 N.E.2d at 934.

[24] We also see no reason why the County would not have standing to make such a

claim, although this is a unique lawsuit. One standing doctrine that is

informative here would be the “public standing” doctrine. The public standing

doctrine applies in cases where public rather than private rights are concerned

and the enforcement of a public rather than a private right is involved.

Cittandine, 790 N.E.2d at 983. The public standing doctrine is an exception to

the general rule that a plaintiff must have a special interest in the outcome of

litigation different from that of the general public. Id. at 980. Public standing

principles may be applied to permit actions challenging various governmental

activities. Id. at 982. In determining whether a plaintiff has shown the requisite

degree of interest to enable it to maintain an action, courts rely upon the

plaintiff’s status as a citizen interested in common with other citizens in the

execution of the law. Old Utica Sch. Pres., Inc. v. Utica Twp., 7 N.E.3d 327, 331-

32 (Ind. Ct. App. 2014), trans. denied. Even if public standing requirements are

met, a plaintiff’s suit is still subject to various limitations, such as the Indiana

Public Lawsuit Act or the requirement of exhaustion of administrative

remedies. Cittadine, 790 N.E.2d at 983.

[25] We are not aware of any case where one governmental entity invoked the

public standing doctrine in order to sue another governmental entity. However,

Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 14 of 20
 if the public standing requirements are met, it is unclear why this could not

occur. In fact, a county arguably is more “public” and would have more

incentive to vigorously litigate an issue affecting its citizens than would an

individual private citizen. It has been said that, although a state may act as

parens patriae on behalf of its citizens, “a county has no sovereign powers and

cannot act as parens patriae, asserting the claims of its residents.” Bd. of

Comm’rs of Howard Cty. v. Kokomo City Plan Comm’n, 263 Ind. 282, 295, 330

N.E.2d 92, 101 (1975). However, later cases have found county standing to sue

the State or one of its agencies with respect to interpretation of a statute or the

constitutionality of a statute. See Newton Cty., 802 N.E.2d at 432-33; State ex rel.

State Bd. of Tax Comm’rs v. Marion Superior Court, Civil Div., Room No. 5, 271 Ind.

374, 377, 392 N.E.2d 1161, 1164-65 (1979). It is unclear why a county should

not also have standing in order to file lawsuits attempting to safeguard the

health and welfare of its citizens.

[26] Another standing doctrine that is worth considering is associational standing.

This court has adopted the test for associational standing formulated by the

United States Supreme Court. That test provides that an “association” has

standing to sue on behalf of its members if: “‘(a) its members would otherwise

have standing to sue in their own right; (b) the interests it seeks to protect are

germane to the organization’s purpose; and (c) neither the claim asserted nor

the relief requested requires the participation of individual members in the

lawsuit.’” Save The Valley, Inc. v. Indiana-Kentucky Elec. Corp., 820 N.E.2d 677,

679–80 (Ind. Ct. App. 2005) (quoting Hunt v. Washington State Apple Advertising

Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 15 of 20
 Comm’n, 432 U.S. 333, 344, 97 S. Ct. 2434, 2442 (1977)), aff’d on r’hg, trans.

denied. “‘If in a proper case the association seeks a declaration, injunction, or

some other form of prospective relief, it can reasonably be supposed that the

remedy, if granted, will inure to the benefit of those members of the association

actually injured.’” Id. (quoting Warth v. Seldin, 422 U.S. 490, 515, 95 S. Ct.

2197, 2213 (1975)). This court also noted that associational standing promotes

judicial economy and efficiency by allowing a single lawsuit and plaintiff and to

avoid repetitive and costly independent actions. Id. at 680 (citing Connecticut

Ass’n of Health Care Facilities v. Worrell, 508 A.2d 743, 747 (Conn. 1986)).

[27] Save The Valley concerned a challenge by citizens’ groups to the granting of a

coal ash landfill permit by the State Department of Environmental

Management to a power station. Ultimately, this court held the citizens’ groups

had standing to challenge the granting of the landfill permit. First, the groups’

members resided, worked, and recreated in the area affected by the landfill, and

those members would be negatively affected by it and its impact on

groundwater. Id. at 682. Second, the groups’ aims were to protect the

environment and advance members’ interest in energy and utility issues, and

the landfill challenge was germane to those purposes. Id. Third, the groups

were not seeking monetary damages on behalf of any members, which would

have required individualized proof, but rather were only challenging the landfill

permit’s issuance. Id.

[28] Save the Valley was concerned specifically with judicial review of an

administrative decision, which is not the case here. However, the associational

Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 16 of 20
 standing doctrine as formulated by the Supreme Court did not arise in the

context of an administrative proceeding and does not seem to necessarily be

limited to such proceedings. In the Hunt case relied upon by Save the Valley, a

Washington state agency that represented apple growers challenged the

constitutionality of a North Carolina statute regulating apple marketing that

was negatively impacting the apple growers. The Supreme Court held that the

agency had standing to challenge the statute on behalf of its members, and its

status as a state agency did not affect that standing. Hunt, 432 U.S. at 344, 97

S. Ct. at 2442. The Supreme Court also noted the “indicia of membership in an

organization” the agency possessed, such as that the members elected the

agency’s directors, only members could serve with the agency, and the members

alone financed its activities, including the costs of the lawsuit at issue. Id. at

344-45, 97 S. Ct. at 2442. It also was irrelevant that apple growers were

required to be members of the agency. Id. at 345, 97 S. Ct. at 2442.

[29] The County is not an “association” in the traditional sense, as it is not a private

entity. However, that was deemed irrelevant in Hunt. County residents also

fund the County through taxes and elect County officials. The complaint here

alleges that INDOT’s roadwork is threatening to cause environmental and

health harms to County residents in the form of sewage contamination.

Protecting the health, safety, and welfare of its citizens is a central purpose of

the County’s activities. Also, the County is not seeking monetary damages

from INDOT but only injunctive relief, which would benefit multiple citizens

and does not require individualized proof. Finally, it would promote judicial

Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 17 of 20
 economy and efficiency if the County were allowed to seek remediation of

septic field damage and sewage leakage on behalf of multiple parties in one

single lawsuit.3 It is logical to apply associational standing principles to this

case.

[30] One final case demonstrating that the County has standing here is King, which

addressed the City of Gary’s lawsuit against gun manufacturers and dealers.

The lawsuit sought damages and injunctive relief and made many claims

against the manufacturers and dealers, including public nuisance and

negligence. One argument made by the defendants in that case was that the

City of Gary lacked standing to bring the suit. Our supreme court rejected this

claim, stating the City of Gary met the standing requirement because it alleged

“it was financially injured through the sale and use of negligently distributed

firearms and by alleging a nuisance within its borders caused by the

defendants.” King, 801 N.E.2d at 1248. Here, although the County is not

seeking damages, it is alleging that INDOT’s activities have caused an

environmental or public health risk within its boundaries, which is similar to

the City of Gary’s claims against the gun manufacturers and dealers.

[31] In sum, we hold that the County has alleged sufficient facts to allow it to have

standing to seek injunctive relief against INDOT for negligently-performed

3
To that end, it also would be highly inefficient to follow INDOT’s suggestion that the County should first
sue the private landowners, demanding that they repair the damaged septic fields on their properties, and that
the landowners could then join INDOT in the lawsuit as a third-party defendant and seek damages for the
cost of repair to their septic fields. We reject this proposed approach to this case.

Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 18 of 20
 roadwork that could cause environmental or public health concerns within the

County. Even without considering Parker’s affidavit, it is reasonable to infer

from the County’s complaint that damage to septic fields could negatively

impact public health. Any doubts as to whether the County’s allegations are

sufficiently detailed would be a matter for additional proceedings in this case,

not for resolution by a motion to dismiss. See Trail v. Boys & Girls Clubs of

Northwest Indiana, 845 N.E.2d 130, 135 (Ind. 2006) (stating that complaint must

plead operative facts necessary to set forth an actionable claim but need not set

out in precise detail the facts upon which the claim is based).4

Conclusion
[32] We have reviewed this case as a Trial Rule 12(B)(6) dismissal of a complaint,

not a granting of summary judgment, and accordingly have disregarded

Parker’s affidavit in considering the merits of the trial court’s ruling. We hold

that the trial court erred in dismissing the County’s action for declaratory

judgment and injunctive relief against INDOT and that the County has

standing to pursue those claims. We reverse and remand for further

proceedings consistent with this opinion.

[33] Reversed and remanded.

4
INDOT has not raised any other possible defenses to the County’s lawsuit at this time beyond the question
of standing and the propriety of seeking declaratory judgment, and any speculation as to such possible
defenses is beyond the scope of this opinion.

Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 19 of 20
Crone, J., and Pyle, J., concur.

Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 20 of 20