FILED
Oct 03 2018, 5:31 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Erik S. Mroz Brent W. Huber
David A. Temple Derek R. Molter
Sean T. Devenney Kaitlyn J. Marschke
Drewry Simmons Vornehm, LLP Ice Miller LLP
Carmel, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Elkhart Foundry & Machine October 3, 2018
Co., Inc., Court of Appeals Case No.
Appellant-Defendant, 20A03-1709-CT-2136
Appeal from the Elkhart Superior
v. Court
The Honorable Stephen R.
City of Elkhart Redevelopment Bowers, Judge
Commission for the City of Trial Court Cause No.
Elkhart, 20D02-1602-CT-50
Appellee-Plaintiff
Vaidik, Chief Judge.
Case Summary
[1] This case concerns the efforts of the City of Elkhart and its Redevelopment
Commission (“the City”) to rehabilitate a former industrial site situated along
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the Elkhart River in the city’s downtown. The City has sued Elkhart Foundry
& Machine Co. (“the Foundry”), which operated on the site until 2004. One of
the statutes relied upon by the City is Indiana Code section 13-30-9-2, which
took effect in 1998 and which, generally stated, provides that a person who
cleans up a contaminated site can bring an “environmental legal action” (ELA)
for the recovery of cleanup costs against a person who contributed to the
contamination.
[2] At issue in this appeal is the meaning of a related statute, Indiana Code section
34-11-2-11.5, which took effect in 2011 and provides that the plaintiff in an
ELA can seek to recover “[t]he costs incurred not more than ten (10) years
before the date the action is brought, even if the person or any other person also
incurred costs more than ten (10) years before the date the action is brought.”
The City contends that this is a statute of limitation requiring that an ELA be
filed within ten years of the incurrence of the cost(s) sought to be recovered and
that its ELA was timely under this provision. The Foundry, on the other hand,
argues that Section 34-11-2-11.5 is merely a cap on the damages recoverable in
an ELA. According to the Foundry, an ELA is subject to the six-year
limitation period established by Indiana Code section 34-11-2-7(3) for “[a]ctions
for injuries to property other than personal property,” and the City’s ELA is
untimely under this provision. The trial court, in an excellent, 23-page order,
agreed with the City that Section 34-11-2-11.5 is a statute of limitation and that
its ELA was timely filed. We affirm the trial court in this and all other respects.
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Facts and Procedural History
[3] The site at issue is located at 318 S. Elkhart Avenue in Elkhart. Beginning in
the early 1900s, the Foundry operated an iron foundry on the site. The
Foundry went out of business in 2004. In 2007, the Foundry voluntarily
dissolved as an Indiana corporation, and a subsidiary of one of the Foundry’s
creditors took ownership of the site through a court-appointed receiver. The
same year, the City began looking into purchasing the site and learned that it
was contaminated. (The record reflects some uncertainty as to when various
city agencies learned about the contamination, but for purposes of this appeal
the parties proceed as though the City learned in 2007.) In 2010, the City
purchased the site for $1,000,000 and began remediation work.
[4] In February 2016, the City filed suit against the Foundry. The City alleged that
the Foundry caused the contamination and asserted: (1) an ELA under Indiana
Code section 13-30-9-2; (2) claims under Indiana Code chapter 13-25-4, which
the parties refer to as “mini-CERCLA” because of its relationship to the federal
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), 42 U.S.C. §§ 9601-9675; and (3) a nuisance claim. The Foundry
filed a motion for summary judgment on all the City’s claims. After a hearing,
the trial court granted the Foundry’s motion as to the City’s mini-CERCLA and
nuisance claims but denied it as to the ELA.
[5] The Foundry now appeals the denial of its motion as to the ELA, and the City
cross-appeals the grant of the motion on its other claims.
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Discussion and Decision
[6] We review motions for summary judgment de novo. Hughley v. State, 15
N.E.3d 1000, 1003 (Ind. 2014).
I. ELA
[7] The Foundry contends that the trial court should have granted it summary
judgment on the City’s ELA. The filing of an ELA is allowed by Indiana Code
section 13-30-9-2, which provides:
A person may, regardless of whether the person caused or
contributed to the release of a hazardous substance or petroleum
into the surface or subsurface soil or groundwater that poses a
risk to human health and the environment, bring an
environmental legal action against a person that caused or
contributed to the release to recover reasonable costs of a
removal or remedial action involving the hazardous substances
or petroleum.
Our Supreme Court has explained that the “overall purpose” of the legislation
that authorized ELAs (Public Law 59-1997) was the rescue and redevelopment
of “brownfields”—inactive or underused parcels of industrial or commercial
real estate that are, or are perceived to be, contaminated. Cooper Indus., LLC v.
City of South Bend, 899 N.E.2d 1274, 1281 (Ind. 2009). The Court added:
[T]he legislature enacted the ELA statute to shift the financial
burden of environmental remediation to the parties responsible
for creating contaminations. In effect, this scheme creates an
incentive for potential buyers of contaminated land who might be
deterred by the substantial costs to clean up the land, thus
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preventing not only the cleanup but also redevelopment and
economic renewal.
Id. at 1284.
[8] In seeking summary judgment on the City’s ELA, the Foundry argued that
such an action is subject to the six-year limitation period established by Indiana
Code section 34-11-2-7(3) for “[a]ctions for injuries to property other than
personal property,” that this six-year period began to run when the City learned
of the contamination in 2007, and that the period therefore expired in 2013,
making the City’s 2016 action untimely. The trial court rejected that argument,
concluding instead that a different provision, Indiana Code section 34-11-2-
11.5, is the statute of limitation for an ELA and that the City’s ELA was timely
under this statute. We agree.
[9] A bit of history is in order. Our Supreme Court addressed a claim that an ELA
was time-barred in Cooper Industries, which was decided in 2009, before Section
34-11-2-11.5 took effect. The parties did not agree on the applicable limitation
period. Cooper Industries argued, as the Foundry does here, that it was the six-
year period under Section 34-11-2-7(3). The City of South Bend asserted that it
was the general “catch-all” limitation period of ten years established by Indiana
Code section 34-11-1-2. The Court said it would “adopt six years as the
applicable time period” for purposes of its discussion but made clear that there
was no need to resolve the issue definitively “[b]ecause we find South Bend’s
ELA claim would survive under either proposed time period[.]” Id. at 1286,
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1286 n.9. As such, the statute of limitation applicable to an ELA remained an
open question.
[10] Two years after Cooper Industries, the legislature created Indiana Code section
34-11-2-11.5. See P.L. 154-2011, § 4. Subsection (b) of the statute provides that
the plaintiff in an ELA brought on or after May 10, 2011, may seek to recover
“(1) The costs incurred not more than ten (10) years before the date the action is
brought, even if the person or any other person also incurred costs more than
ten (10) years before the date the action is brought” and “(2) The costs incurred
on or after the date the action is brought.” Ind. Code § 34-11-2-11.5(b). In this
case, the trial court ruled that this is a statute of limitation that gives a person
ten years from the incurrence of cleanup costs to file an ELA. In other words,
the court concluded that Section 34-11-2-11.5 was the legislature’s answer to the
question left open by our Supreme Court in Cooper Industries.
[11] In its appeal, the Foundry does not dispute that Section 34-11-2-11.5 applies to
the City’s ELA, given that the City filed suit after the statute went into effect.
Rather, the Foundry asserts that the statute is merely a limit on the damages
recoverable in an ELA, not a statute of limitation, and that the applicable
limitation period is six years pursuant to Section 34-11-2-7(3), the general
statute of limitation for injury to real property. The Foundry relies heavily on
this Court’s 2016 decision in Schuchman/Samberg Investments, Inc. v. Hoosier Penn
Oil Co., 58 N.E.3d 241 (Ind. Ct. App. 2016), trans. denied. There, the panel held
that a plaintiff’s ELA “seeking recovery of costs incurred to remediate its own
property . . . is subject to the six-year statute of limitation set forth in I.C. § 34-
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11-2-7.” Id. at 250. On its way to that holding, the panel noted its belief that
Section 34-11-2-11.5 is not a statute of limitation. Specifically, the panel
suggested that the statute “says nothing of the time frame within which an ELA
claim must be brought or the events that trigger the running of that period.
Instead, it imposes a limitation on the types of damages recoverable in an ELA
claim in the form of a ten-year look-back period.” Id. at 246 n.5.
[12] The problem with the Foundry’s reliance on the footnote in Schuchman/Samberg
Investments is that, as the panel in that case acknowledged, Section 34-11-2-11.5
was “inapplicable” to the ELA at issue because the lawsuit was filed in 2009,
two years before the enactment of the statute. Id. As such, the footnote was
dicta and therefore nonprecedential. See Henley v. State, 881 N.E.2d 639, 648
(Ind. 2008). But even if the panel’s analysis constitutes “persuasive authority,”
as the Foundry contends, our analysis of the statute differs.
[13] By stating that an ELA plaintiff can recover only “costs incurred not more than
ten (10) years before the date the action is brought,” I.C. § 34-11-2-11.5(b), the
statute plainly says something about “the time frame within which an ELA
claim must be brought” and “the events that trigger the running of that period,”
see Schuchman/Samberg Invs., 58 N.E.3d at 246 n.5. Specifically, the statute
means that if a person wants to recover a particular cleanup cost, they must
bring an ELA within ten years of incurring the cost. Stated differently, as soon
as a person incurs a cleanup cost, the ten-year period starts to run with respect
to that cost. Therefore, while it is true that Section 34-11-2-11.5 does not
include typical “statute of limitation” language stating when an action “must be
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brought” (see, e.g., Ind. Code § 34-11-2-1) or “must be commenced” (see, e.g.,
Ind. Code § 34-11-2-5), it has the same effect.
[14] If the language of Section 34-11-2-11.5 left any doubt about whether the
legislature intended to create a statute of limitation for ELAs, it was resolved by
the legislature’s decision to house the provision in Chapter 2 of Article 34-11 of
the Indiana Code. When the legislature created Article 34-11 in 1998, it gave it
the heading “Limitation of Actions.” See P.L. 1-1998, § 6. In turn, it gave
Chapter 34-11-2 the heading “Specific Statutes of Limitation,” and it filled the
chapter with statutes of limitation. Id. We are aware that these headings “are
not part of the law and may be altered by the lawful compilers,” Ind. Code § 1-
1-1-5(f), but we are also aware that the legislature often omits headings
altogether, so its inclusion of headings here is worth noting. In any event, even
if we disregard the headings the legislature gave to Article 34-11 and Chapter
34-11-2, the fact that Section 34-11-2-11.5 was placed in Chapter 34-11-2,
alongside numerous statutes of limitation, tells us that the legislature intended
Section 34-11-2-11.5 to be read as a statute of limitation.
[15] The Foundry argues that if Section 34-11-2-11.5 is treated as a statute of
limitation, “[a] plaintiff could get a new ten-year limitations period, stretching
indefinitely into time, just by spending another dollar on alleged response
costs.” Appellant’s Reply Br. p. 20. This is true, but it is also consistent with
the language of the statute. Specifically, subsection (b)(1) contemplates not
only the incurrence of cleanup costs during the ten years immediately preceding
the filing of the ELA but also the possibility that the plaintiff “incurred costs
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more than ten (10) years before the date the action is brought.” Ind. Code § 34-
11-2-11.5(b)(1). In other words, the legislature did not intend for the ten-year
limitation period to start running, once and for all, when the plaintiff incurs its
“first” cleanup cost. Rather, a new ten-year period starts to run with the
incurrence of each additional cleanup cost. Of course, if the plaintiff waits
more than ten years from the incurrence of certain cleanup costs to file its ELA,
those costs will not be recoverable. By creating this ten-year cutoff, the
legislature gave plaintiffs a significant incentive to (1) expedite cleanups and (2)
file suit within ten years of the incurrence of the first cost. This scheme is also
consistent with the purpose of allowing ELAs in the first place: to encourage
cleanup (which leads to redevelopment and economic renewal) by shifting the
financial burden to the parties responsible for creating contamination. Cooper
Indus., 899 N.E.2d at 1284. The longer a contaminated site sits vacant, the
more important it becomes to allow a suit for the recovery of cleanup costs.
[16] As for the Foundry’s contention that Section 34-11-2-11.5 is better read as a
damages cap and that ELA plaintiffs should be required, pursuant to Section
34-11-2-7(3), to file suit within six years of learning about contamination, we
make two observations. First, an ELA is an action for the recovery of cleanup
costs, not an action for damage to real property. See Ind. Code § 13-30-9-2. As
such, it would be counterintuitive for the limitation period to start running
when the plaintiff merely learns of the contamination, as opposed to when the
plaintiff actually incurs a cleanup cost. For those plaintiffs who do not incur
any cleanup costs until more than six years after learning of contamination
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(since transfers of contaminated land can take many years), an ELA would not
be an option at all. In short, a cause of action for the recovery of cleanup costs
does not accrue until a cleanup cost has been incurred. Second, if we were to
agree with the Foundry, a plaintiff would recover ten years’ worth of cleanup
costs (as contemplated by Section 34-11-2-11.5) only in certain limited
circumstances. The Foundry offers the hypothetical of a plaintiff who learns of
contamination and begins incurring cleanup costs but does not learn until four
or more years later that a particular defendant contributed to the
contamination. The Foundry does not give us any reason to believe that the
legislature had this scenario in mind when it enacted Section 34-11-2-11.5.
[17] For these reasons, we conclude that the trial court correctly concluded that
Section 34-11-2-11.5 is the ELA statute of limitation and correctly denied the
Foundry’s motion for summary judgment as to the City’s ELA.
II. Mini-CERCLA
[18] The City cross-appeals the trial court’s grant of summary judgment to the
Foundry on the City’s mini-CERCLA claims. Congress enacted CERCLA, 42
U.S.C. §§ 9601-9675, in 1980 “in response to the serious environmental and
health risks posed by industrial pollution.” Burlington N. and Santa Fe Ry. Co. v.
United States, 556 U.S. 599, 602 (2009). “The Act was designed to promote the
timely cleanup of hazardous waste sites and to ensure that the costs of such
cleanup efforts were borne by those responsible for the contamination.” Id.
(citations omitted). Following the enactment of CERCLA, many states passed
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“mini-CERCLA” statutes of their own. William W. Buzbee, Brownfields,
Environmental Federalism, and Institutional Determinism, 21 Wm. & Mary Envtl.
L. & Pol’y Rev. 1, 10 (1997). “State mini-CERCLA statutes usually share with
the federal CERCLA law a broad liability scheme, empowering state officials to
ensure that contaminated sites are remediated.” Id.
[19] Indiana’s mini-CERCLA, found at Indiana Code chapter 13-25-4, authorizes a
variety of actions by the Indiana Department of Environmental Management
(IDEM) and its representatives, including its commissioner, but not by other
entities or individuals. The two sections relied upon by the City—Indiana Code
sections 13-25-4-10(a) and 13-25-4-9(a)(1)—are no exceptions. Section 13-25-4-
10(a) provides that “[t]he commissioner may proceed in the appropriate court
to recover costs and damages for which a responsible person is liable to the state
under [various CERCLA and mini-CERCLA provisions].” Likewise, Section
13-25-4-9(a)(1) provides that “[t]he commissioner may proceed in court, by
appropriate action, to . . . compel a responsible person to undertake a removal
or remedial action with respect to a release or threatened release of a hazardous
substance from a facility or site in Indiana[.]”
[20] The City acknowledges that these two statutes, like the rest of Indiana’s mini-
CERCLA, contemplate action by IDEM, but it asserts that Indiana Code
section 13-30-1-1 (the “private-attorney-general statute”) permits it to “stand[]
in the shoes of IDEM.” Appellee/Cross-Appellant’s Br. p. 23. The private-
attorney-general statute provides:
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Under this chapter:
(1) the attorney general;
(2) a state, city, town, county, or local agency or officer vested
with the authority to seek judicial relief;
(3) a citizen of Indiana; or
(4) a corporation, a limited liability company, a partnership, or
an association maintaining an office in Indiana;
may bring an action for declaratory and equitable relief in the
name of the state of Indiana against an individual, a partnership,
a copartnership, a firm, a company, a corporation, a limited
liability company, an association, a joint stock company, a trust,
an estate, a state agency or an officer of the state, a city, a town, a
county, a local governmental unit, an agency, or an official of a
city, a town, a county, a local governmental unit, or an agency,
or any other legal entity or their legal representative, agent, or
assigns for the protection of the environment of Indiana from
significant pollution, impairment, or destruction.
Ind. Code § 13-30-1-1. As far as we can tell, no Indiana court has ever been
asked to decide whether a plaintiff can use the private-attorney-general statute
to bring a claim under any part of mini-CERCLA. We do not reach that broad
issue either—we hold only that the specific claims brought by the City in this
case cannot proceed.
[21] Regarding the claim under Section 13-25-4-10(a), there are two problems. First,
a suit “to recover costs and damages,” which is what Section 13-25-4-10(a)
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permits, certainly does not sound like “an action for declaratory and equitable
relief,” which is all that the private-attorney-general statute allows. The City
contends that such a conclusion “ignores what declaratory or injunctive relief
means and looks like in the environmental context” and that “declaratory
judgment actions in the environmental context commonly seek a declaration as
to who is liable for cleanup costs and in what amount.” Appellee/Cross-
Appellant’s Br. pp. 25-26. Even if we were to accept that premise, there is a
second problem: Section 13-25-4-10(a) authorizes only an action for the
recovery of “costs and damages for which a responsible person is liable to the
state[.]” (Emphasis added). Furthermore, any “[c]osts, damages, and punitive
damages awarded” under this section are to be deposited in the State’s
hazardous-substances-response trust fund. Ind. Code § 13-25-4-10(d). In this
case, the City seeks recovery of cleanup costs that it has incurred; it does not
claim that the Foundry is somehow “liable to the state.” And the City has
made clear that if it were to win a judgment under this statute, it would not
deposit its award into the State trust fund. See Appellee/Cross-Appellant’s Br.
pp. 24-25. As such, the City cannot bring a claim under Section 13-25-4-10(a).1
[22] As for Section 13-25-4-9(a)(1)—the statute that allows a suit to “compel a
responsible person to undertake a removal or remedial action with respect to a
1
Our holding in this regard should be of little consequence to the City, since we have already held that it can
proceed with its ELA against the Foundry. In fact, it seems to us that a holding that plaintiffs can use the
private-attorney-general statute to sue for the recovery of cleanup costs under mini-CERCLA would render
the ELA statute largely superfluous. We do our best to avoid holdings that would leave statutory language
meaningless. Pabey v. Pastrick, 816 N.E.2d 1138, 1148 (Ind. 2004), reh’g denied.
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release or threatened release of a hazardous substance from a facility or site in
Indiana”—we need not decide whether a suit under this provision could ever be
brought by a “private attorney general.” Even if we assume that such a claim
would, as a general matter, be permissible, the City’s claim in this case must
fail.
[23] Before a “public officer or agency” can bring an action under the private-
attorney-general statute, it “must give notice in writing” to the Department of
Natural Resources, IDEM, and the Attorney General of Indiana, Ind. Code §
13-30-1-2, and give them and any other interested agencies the first opportunity
to take action on the matter at issue, Ind. Code § 13-30-1-3. In other words, the
private-attorney-general statute allows a plaintiff to step into the shoes of the
State when the State, for whatever reason, does not act. Here, the City sent a
notice pursuant to Indiana Code section 13-30-1-2. However, the notice did not
state that the City planned to bring an action to compel a cleanup or that any
sort of cleanup was even necessary. Rather, the notice stated that the City had
“completed” the necessary remediation activities, “at considerable cost.”
Appellant’s App. Vol. IV p. 60. IDEM’s Deputy Chief of Staff and General
Counsel apparently responded to the notice but, according to an affidavit
provided by one of the City’s attorneys, stated only that “IDEM had no
objection to the Commission’s pursuit of a cost recovery action.” Id. at 58
(emphasis added). The City does not direct us to anything in the record
indicating that it notified the State that it intended to bring suit to compel a
further cleanup. As such, the State has not been given the statutorily mandated
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opportunity to take the action the City proposes to take. Because the notice
requirement has not been satisfied with regard to an action to compel cleanup,
the City cannot maintain it. This is true even if the action would otherwise be
permissible under the private-attorney-general statute, an issue we need not
decide.
III. Nuisance
[24] Finally, we address the City’s nuisance claim. The legislature has defined
“nuisance” as “[w]hatever is: (1) injurious to health; (2) indecent; (3) offensive
to the senses; or (4) an obstruction to the free use of property; so as essentially
to interfere with the comfortable enjoyment of life or property[.]” Ind. Code §
32-30-6-6. Under Indiana Code section 32-30-6-7, any person whose property is
injuriously affected or whose personal enjoyment is lessened by a nuisance can
bring “[a]n action to abate or enjoin [the] nuisance[.]”
[25] The Foundry contends that it is entitled to summary judgment on this claim for
three reasons. First, the Foundry argues that the claim is barred by the six-year
limitation period applicable to “[a]ctions for injuries to property other than
personal property,” Ind. Code § 34-11-2-7(3), because the City did not bring the
claim until almost nine years after learning of the contamination. Second, the
Foundry asserts that our decision in KB Home Indiana Inc. v. Rockville TBD Corp.,
928 N.E.2d 297 (Ind. Ct. App. 2010), precludes the City’s claim. There, we
held that, because Indiana’s nuisance statutes contemplate “[a]n action to abate
or enjoin a nuisance,” Ind. Code § 32-30-6-7, the existence of contamination
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cannot be the basis for a nuisance action where the activity that caused the
contamination is no longer occurring, since there is no nuisance “that could be
abated or enjoined.” KB Home, 928 N.E.2d at 307. Third, the Foundry relies
on the holding in Lilly Industries, Inc. v. Health-Chem Corp. that “a buyer of
property may not sue a prior owner for nuisance based on activities undertaken
on the same property and alleged to have harmed the same property.” 974 F.
Supp. 702, 708 (S.D. Ind. 1997).
[26] We need not address the KB Home rationale or the Lilly Industries rationale.
Even if those cases were wrongly decided (as the City contends) or are
distinguishable from this case, we agree with the Foundry that the City’s
nuisance claim was untimely under Indiana Code section 34-11-2-7(3).
[27] The City does not dispute that its claim is subject to the six-year limitation
period established by Section 34-11-2-7(3). Nor does it dispute that it filed suit
twelve years after the Foundry’s alleged contamination-causing activities ended
and nearly nine years after it learned of the contamination. Instead, the City
contends that the persisting contamination at the site constitutes a “continuing
nuisance.” Appellee/Cross-Appellant’s Br. p. 27. The City argues that,
“[b]ecause this nuisance was of a continuing nature, the statute of limitations
began anew each day that the nuisance went unabated.” Id. at 29.
[28] The City asserts that its argument is supported by our decision in Stickdorn v.
Zook, 957 N.E.2d 1014 (Ind. Ct. App. 2011). We disagree. The defendants in
Stickdorn operated a dairy from October 2003 until April 2005 (when they sold
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the dairy). In November 2009, six years and one month after operations began,
the defendants’ neighbors filed a nuisance lawsuit against them, focusing on the
defendants’ manure-management practices. The defendants argued that the
claim was barred by the statute of limitation, but we held it was not. We began
by describing a “continuing nuisance” as follows:
The distinction between an injury caused by a nuisance that is
“permanent” or “original,” and one that is considered temporary,
transient, continuing, or recurring, is critical to determining when
the statute of limitations period for a nuisance action begins to
run. An intermittent, non-abated nuisance is a new and separate
injury that gives rise to a new cause of action. Successive actions
may be maintained so long as the nuisance is permitted to
continue, in which damages may be recovered for all injury
occasioned prior to the commencement of the action and within
the statute of limitations, not extending back of a former
recovery. When the nuisance is a continuing abatable one, an
action that is prosecuted to a finality will not bar another action
to recover for harm sustained in succeeding years, when it is
made to appear that the nuisance has not been abated and its
continuance has resulted in further injury.
Id. at 1022. In allowing the plaintiffs’ nuisance claim to proceed, we explained:
[T]he nuisance odors and contaminated streams from the
[defendants’] repeated manure spills, improper spreading of the
waste on their fields, and the refusal to put a cover on their
manure pit amount to an intermittent, abatable nuisance. Each
time that the odors and polluted streams affected the [plaintiffs’]
property, the statute of limitations began anew. In short, we can
glean from the designated evidence that the [plaintiffs’] damages
were recurring and continuing and thus, the manure pit became a
temporary, continuing nuisance through its use, and not a
permanent one from its mere existence.
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Id. at 1023. Put simply, because the complained-of activity by the defendants—
“repeated manure spills, improper spreading of the waste on their fields, and
the refusal to put a cover on their manure pit”—continued past October 2003
and into April 2005, the nuisance lawsuit filed in November 2009 was not
barred by the six-year limitation period.
[29] Stickdorn does not support the City’s “continuing nuisance” argument. Our
holding in that case was not based on a finding that the odors and
contamination caused by the defendants persisted after they stopped operating
the dairy. In fact, there is no indication in the opinion that the defendants’
activity caused long-lasting odors and contamination. Instead, we based our
holding on the fact that the activity itself was ongoing less than six years before
the plaintiffs filed suit. Id. at 1022 (“The [plaintiffs] assert that their injuries
were the result of the [defendants’] repeated, wrongful conduct through April
2005.”). Here, on the other hand, it is undisputed that the activity that
allegedly caused the contamination ceased more than six years before the City
filed suit. Therefore, the mere persistence of contamination at the site does not
amount to a “continuing nuisance” under Stickdorn, and the trial court did not
err by granting summary judgment in favor of the Foundry on the City’s
nuisance claim.
[30] Affirmed.
Pyle, J., and Barnes, Sr. J., concur.
Court of Appeals of Indiana | Opinion 20A03-1709-CT-2136 | October 3, 2018 Page 18 of 18