MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Oct 26 2016, 8:36 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Michael C. Harris Ethan S. Lowe
Connor H. Nolan Blachly, Tabor, Bozik & Hartman,
Harris Welsh & Lukmann LLC
Chesterton, Indiana Valparaiso, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Richard A. Brown and Janet October 26, 2016
Brown, Court of Appeals Case No.
Appellants-Plaintiffs, 64A03-1601-PL-138
Appeal from the Porter Superior
v. Court
The Honorable William E. Alexa,
City of Valparaiso, Indiana, Judge
Appellee-Defendant. Trial Court Cause No.
64D02-1501-PL-267
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 64A03-1601-PL-138 | October 26, 2016 Page 1 of 19
[1] Richard A. and Janet Brown (collectively, “the Browns”) appeal the trial
court’s grant of the motion to dismiss filed by the City of Valparaiso, Indiana
(“City”) pursuant to Indiana Trial Rule 12(B)(8). We reverse and remand.
Facts and Procedural History
[2] The Browns own a home (“Brown Property”) immediately adjacent to the
Hotter Detention Facility, a stormwater detention/retention facility in
Valparaiso, Indiana. On November 21, 2009, the Browns filed a complaint
against the City under Cause Number 64D01-0911-PL-11902 (“First
Complaint”), alleging inverse condemnation and deprivation of the Browns’
civil rights under 42 U.S.C. § 1983 1 based on alleged damages the Browns
suffered when their property flooded. Specifically, the Browns alleged:
10. On or about September 13, 2008, the City of Valparaiso
experienced [a] significant amount of rain which caused the
retention pond to fill to its capacity with water. Before the water
rose to a level to spill over the dam, it flowed back onto Plaintiffs’
property.
11. The improved and furnished and lower level of Plaintiffs’
home situated on the property were covered in approximately 2
to 2.5 feet of water from the City’s retention pond.
1
The trial court granted summary judgment in favor of the City on the civil rights claim, and it is not at issue
in this appeal.
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12. To date, Plaintiffs have incurred $91,679.12 in out-of-pocket
damages as a result of the flooding of their property with water
from Defendant’s retention pond.
13. Because of the significant amount of water that entered
Plaintiffs’ home on or about September 13, 2008, there has been
a significant loss to the fair market value of their home. Plaintiffs
are required to disclose the property’s potential to flood to any
prospective purchasers.
14. Plaintiffs will continue to incur costs in order to correct the
damages which were caused by the invasion of water onto
Plaintiffs’ property. Specifically, Plaintiffs are still battling
recurrent mold as a result of the water which entered their home.
*****
21. As a proximate result of the design, construction, operation,
and maintenance of the retention pond, Plaintiffs’ property was
damaged by the flood waters described in this complaint.
Plaintiffs are therefore entitled to recover damages from the City
under the Indiana Constitution.
22. Defendants’ [sic] actions have resulted in the taking of
Plaintiffs’ private property for public use pursuant to Defendant’s
power of eminent domain.
23. Since the date of the entry of water onto Plaintiffs’ land and
continuing to the date of the filing of this action, Defendants
have not paid Plaintiffs any compensation for the taking of their
property, nor have Defendants made any offers of compensation
for said property.
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24. Further, to date, Defendant has failed to institute eminent
domain proceedings relating to the taking of Plaintiffs’ property,
so that damage to Plaintiffs’ property could be assessed.
25. Moreover, Plaintiff has incurred, and will continue to incur
appraisal, attorney, and other fees, costs, disbursements, and
expenses not yet known or ascertained, in an amount that cannot
be presently calculated and that are recoverable under I.C. 32-24-
1-14 and 32-24-1-16.
(Appellee’s App. at 13-15.) The Browns sought damages in the amount of “just
compensation for the taking of and damage to Plaintiffs’ property” and
“Plaintiffs’ costs of suit, including litigation costs and attorney’s fees[.]” (Id. at
17.)
[3] On March 1, 2010, the Browns amended the First Complaint to add a
negligence claim against the City, alleging:
36. The City of Valparaiso negligently designed, constructed,
operated and/or maintained said retention pond and spillway
such that the level of the spillway of said retention pond is
approximately two to three feet higher in elevation than the
Plaintiffs’ adjacent property, so that the water flowing into the
retention pond will flood on to the Plaintiffs’ property before it
crests and flows over the dam.
37. The City had actual or constructive knowledge of the
conditions described above by reason of land surveys that were
conducted by or on behalf of the City of Valparaiso.
38. As a direct and proximate result of the Defendant, City of
Valparaiso’s, negligent design, construction, operation, and/or
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maintenance of said retention pond and dam spillway, on or
about September 13, 2008, said retention pond filled to its
capacity with water and before the water rose to a level to spill
over the dam, it flowed back onto Plaintiffs’ property.
39. As a further result of the Defendant, City of Valparaiso’s,
negligence, Plaintiffs’ [sic] sustained damage to their property
and incurred expenses for removal, salvage, and repair of their
damaged property.
(Id. at 25-26.) 2
[4] On December 13, 2012, the trial court held a bench trial regarding the Browns’
inverse condemnation claim alleged in the First Complaint. At trial, the
Browns introduced evidence the Brown Property flooded a total of three times –
once in September 2008, and twice before that date. 3 On February 17, 2013,
the trial court issued an order rejecting the Browns’ claim of inverse
condemnation in the First Complaint. Regarding the issue of whether the
City’s actions constituted a taking, the trial court found and concluded:
Most of the facts related to this issue are not in dispute. The
Hotter Water Detention Facility was completed in 1987 and it
was built to the required standard of withstanding a one hundred
2
Both parties reference a nuisance claim as part of the First Complaint, but the second amendment to the
First Complaint including those particular allegations is not included in the record.
3
The dates of the two previous alleged floodings are not in the record before us. During trial the Browns
“identified two other ponding events before the 2008 flooding, but could not say they came from the facility.”
(Appellants’ App. at 80.)
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year rain. 4 Plaintiffs’ property flooded one time in September
2008 when the City of Valparaiso received a two hundred to five
hundred year rain storm. Plaintiffs’ witness, David McCormick,
speculated that the Plaintiffs’ property would flood with a ten
year rain. That has not been the experience. The Hotter Facility
was completed twenty-five years ago. The property has flooded
one time, that being when the City of Valparaiso received a two
hundred to five hundred year rain storm, a storm the size of
which the facility was never intended to handle.
*****
Defendants [sic] also allege that the City’s failure to comply with
the Indiana Department of Natural Resources (IDNR) regulation
makes what happened here a taking of Plaintiffs’ property. If the
City violated any IDNR regulations, that would be evidence of
negligence but has no relevance on the issue of taking.
While neither Indiana nor federal law require permanent
flooding for a taking to have occurred, they both require more
than one instance of flooding or inevitably recurring flooding.
One flooding in twenty-five years does not rise to that level.
4
The Browns explain, citing Brown v. City of Valparaiso, 64A03-1308-PL-332 (Ind. Ct. App. April 10, 2014),
trans. denied:
A storm rated “X number” -year, such as a 100-year storm or 500-year storm, is
calculated based on the chances of that type of storm occurring in a given year. A 100-
year storm has a one-percent (1%) chance of occurring each year; a 500-year storm has a
two-tenths of one-percent (0.2%) chance of occurring. It does not necessarily mean that a
500-year storm only occurs once every 500 years.
(Br. of Appellants at 11 n.2) (citations omitted).
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The Court concludes that there has been not [sic] taking of the
Plaintiffs’ property by the City and denies Plaintiffs’ claim for
inverse condemnation.
(Appellant’s App. at 53-4) (footnote added). The trial court certified its order
for interlocutory appeal so the Browns could file an appeal. On appeal, our
Court affirmed the trial court’s decision denying the Browns’ claim for inverse
condemnation, and our Indiana Supreme Court denied transfer of the issue.
Brown v. City of Valparaiso, 64A03-1308-PL-332 (Ind. Ct. App. April 10, 2014),
trans. denied.
[5] On December 17, 2014, the Browns’ attorney contacted the City’s counsel and
indicated:
This letter is to inform you and the City of Valparaiso that
Richard and Janet Brown have experienced two additional
floodings on their property by reason of the backup of the Hotter
Detention Facility. The first occurrence was in July or August
2013, and is verified by the photograph attached to this letter
with the arrow pointing to the water accumulation around the
barn-type shed in the Brown’s [sic] backyard. The second
occurrence was in August of this year when Valparaiso
experienced a short duration rain, flooding also is demonstrated
by the photograph within the garden next to the shed. Both of
these photographs depict floodings in the area that Dick Brown
experienced flooding on his property after the Facility was
constructed but before the September 2008 flooding which was
the subject matter of our recent litigation on the issue of taking.
This makes a total of 5 floodings on the Brown property from
and after the time the Facility was constructed in 1987. We
believe that this is more than sufficient frequency to designate
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that the Brown property has been “taken” by the City of
Valparaiso. We will renew our efforts to impose this taking
status unless we promptly hear that you agree that the property
has been taken by the City.
(Appellees’ App. at 38.) At the time that letter was sent, the public nuisance
and negligence actions from the First Complaint were still pending before the
trial court.
[6] On January 15, 2015, the Browns filed a complaint against the City for inverse
condemnation under Ind. Code § 32-24-1-16 (“Second Complaint”) under
Cause Number 64D02-1501-PL-267. The Second Complaint alleged:
17. On two or more occasions after the Facility was completed,
but before September of 2008, the Browns observed “ponding” of
water on their property in the vicinity of their storage barn/shed.
Trees along the common property line of the Brown Property
with the City’s Facility blocked Browns [sic] view to the east and
north into the City’s property, so that the Browns could not
determine whether the ponding on their property was caused by a
backup of water from the City’s Facility. The Browns had no
knowledge at that time that the City’s Facility was constructed at
such a high level as to cause stored storm water from the
Detention Facility to back up onto their property.
18. The Browns first became aware that their property was
subject to flooding from backed up storm water from the
Detention Facility in the middle of September, 2008 when in
excess of 6 inches of rainwater over a weekend was dumped into
the Koselke watershed and blocked by the U-shaped dam of the
City’s Facility. As a result, approximately 18 inches of water
entered the lower living area of their home, ruining drywall, trim,
doors, flooring, insulation, electrical outlets, water heater,
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furnace, household furniture and other personal property
contained in the Brown family room, bar/recreation room,
office, storage area and bathroom; all to the Plaintiffs [sic]
damage and out-of-pocket expenses in excess of $70,000.00.
19. The Plaintiffs brought an unsuccessful inverse condemnation
action against the City alleging a taking of the Plaintiffs’
property. Plaintiffs were permitted to bring a tort claims action
against the City for Plaintiffs’ damage caused by the City’s
negligence. The rationale of the Court of not finding a taking
was that one flooding in 25 years was not a sufficient flooding
frequency to justify a declaration of a taking of the [P]laintiffs’
property by the City.
20. The Plaintiffs appealed the non-taking decision of the Trial
Court Judge to the Indiana Court of Appeals, who affirmed the
trial court judge on a basis that he had the discretion under the
facts to make that finding. Plaintiffs [sic] petition to transfer to
the Indiana Supreme [Court] was also unavailing since that
Court refused to accept transfer.
21. Following the trial court’s determination in December 2012
that one flooding in 25 years was not sufficient to justify a taking,
the Brown Property experienced two additional flooding
episodes. The first occurring about September 18, 2013, and the
second occurring August 22, 2014. In both instances, City storm
water invaded the Brown property in the vicinity of the Plaintiffs’
storage barn/shed and in each instance the Plaintiffs were able to
verify that this flooding was the result of back up from the City’s
Detention Facility.
22. Significantly, these two most recent floodings extended into
the Brown Property from the same area as occurred on the two or
more occasions observed between 1988 and 2008 as reported by
the Plaintiffs. The Plaintiffs now believe that those original
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floodings occurred as a result of back up from the City’s
Detention Facility, making a total of at least 5 floodings
experiences by the Plaintiffs since 1988 - or about one flooding
every 5.2 years, with three occurring in the last 6 years, or one
every two years. In each instance of flooding, the City imposed
its gathered storm water on the Brown Property for storage for
the public purpose of preventing flooding of downstream
property south and east of the Detention Facility.
23. Once the City flooded the Brown Property, as occurred in
September of 2008, the City refused to purchase the Brown
Property or any portion of it. Further, the City failed to prevent
the Brown Property from recurrent flooding when the upper
portions of the Detention Facility were used to store storm water.
The City is now repeatedly using the Brown Property to store the
City’s gathered storm water without payment of just
compensation to the Browns. The effect of the City’s conduct is
a taking of a portion of the Brown Property, including their
residence, in the form of an imposed flood easement.
24. The Plaintiffs have informed the City of these five floodings,
requesting a takings declaration, but the City has failed to
acknowledge a taking. The City’s response is to continue to treat
these floodings as tort only.
(Id. at 45-8.) The Browns requested the trial court
declare that the Brown Property, or portions thereof, have been
taken for public use and that the Plaintiffs’ damages be assessed
under the eminent domain laws of Indiana, and that a judgment
in favor of the Plaintiffs[’] and against the City be entered for
those damages, plus costs including expert witness fees and
attorney fees as provided under Indiana law[.]
(Id. at 48.)
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[7] On April 10, 2015, the City filed a motion to dismiss the Browns’ Second
Complaint pursuant to Indiana Trial Rule 12(B)(8), which allows a trial court to
dismiss an action if the “same action [is] pending in another state court of this
state.” On June 23, the trial court held a hearing on the City’s motion to
dismiss. On August 28, the trial court granted the City’s motion to dismiss.
The trial court found and concluded:
In this case, the complaints currently pending between the
Plaintiffs and Defendants are the negligence 5 case in Cause
Number 64D01-0911-PL-1902 [First Complaint] and the inverse
condemnation claim in Cause Number 64D02-1501-PL-267
[Second Complaint]. The identities in both cases are the Browns
and City of Valparaiso, Indiana. The subject matter in [First
Complaint] is that the City of Valparaiso acted negligently with
regard to their water detention facility built [sic] which caused
the water to overflow into the Browns’ yard rendering it
condemned. In [Second Complaint] the subject matter is that the
City inadvertently took part of the Browns’ land when the facility
the City built to hold storm water over flowed causing the
Browns’ land to be partially condemned.
To prove negligence in the [First Complaint], the Plaintiffs need
to prove negligence, [sic] out of pocket expenses and causation.
To prove inverse condemnation in the [Second Complaint] the
Plaintiffs need to prove the frequency of flooding, fair market
value of property before and after the alleged taking and
causation. Both cases require proof of causation. If either court
5
The status of the Browns’ nuisance claim at this point in the proceedings is unclear from the record before
us.
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determined the outcome of causation, the other cause number
would be affected by this determination.
The remedies to both causes are also very similar. If the
Plaintiffs were to win their negligence suit, they would be
awarded monetary damages. If the Plaintiffs were to win their
inverse condemnation suit, they would also be award [sic] a
monetary amount for just compensation for the land the City
inadvertently took. While the Plaintiffs state in their Response
that they are seeking to impose liability on the City with their
inverse condemnation claim, this would result in a monetary
reward and could affect the outcome of the negligence suit. The
Plaintiffs stand to be compensated twice, which is prohibited by
Indiana law.
Finally, the Plaintiffs do state a valid explanation as to why they
did not seek the relief which the Defendant’s [sic] suggest. Under
Appellate Rule 8, a trial court loses jurisdiction to alter or affect
its final judgment when the County Clerk certified the
completion of the Record to the Indian[a] Court of Appeals.
Layne v. State, 361 N.E.2d 170, 172 (App. 1st Dist., 1977). In
August 2013, the trial court’s judgment in [First Complaint] was
final. Furthermore, the Plaintiffs could have sought relief under
Trial Rule 60(B)(2) alleging newly discovered evidence but this
motion would have had to be made within a year of the final
judgment, which time has passed.
The identities of the parties and the subject matter are
substantially similar enough to where the outcome of one case
would affect the outcome of the other. The Plaintiffs do have
new flooding dates which would create a new cause of action to
which the Plaintiffs should not be denied access to the courts.
However, the Court finds that this is not the proper time to bring
such an action as one determination would affect the other.
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(Appellants’ App. at 11-13) (footnote added).
[8] On September 29, 2015, the Browns filed a motion to correct errors. They
alleged:
1. The Court erred in determining that the damages sought in
the negligence case would overlap and compensate the plaintiffs
twice for the same damages the plaintiffs seek in the
condemnation case. The subject matter, remedies, and damages
sought or available in each case are distinctly different. There are
simply no overlapping or duplicative damages.
2. It is error for the Court to determine that there is a common
issue of causation between the negligence case and the
condemnation case justifying a T.R. 12(B)(8) dismissal. The
causation in each case is different.
3. It is error to deny the Browns access to the court of the State
of Indiana under Article 1, Section 12 of the Indiana Constitution
where a cause of action exists and the Browns seek a remedy.
(Id. at 77.) The trial court held hearings on the matter on December 10 and 16,
2015. On December 21, 2015, the trial court denied the Browns’ motion to
correct error. This appeal ensued.
Discussion and Decision
[9] Indiana Trial Rule 12(B)(8) provides for dismissal of an action when “[t]he
same action [is] pending in another state court of this state.” As a general rule,
when an action is pending in an Indiana court, all other Indiana courts must
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defer to that court’s jurisdiction over the case. Beatty v. Liberty Mut. Ins. Group,
893 N.E.2d 1079, 1084 (Ind. Ct. App. 2008). We review de novo a trial court’s
dismissal of an action pursuant to T.R. 12(B)(8). 6 Id.
[10] In our review, we determine whether the parties, subject matter, and remedies
are precisely or substantially the same. Id. We consider “not whether parts of
one lawsuit are the same or similar to parts of the other, rather, each lawsuit as
a whole should be examined.” In re Stephen L. Chapman Irrevocable Trust
Agreement, 953 N.E.2d 573, 578 (Ind. Ct. App. 2011), trans. denied. Whether
two actions are the same “depends on whether the outcome of one action will
affect the adjudication of the other.” Kentner v. Ind. Pub. Employers’ Plan, Inc.,
852 N.E.2d 565, 570 (Ind. Ct. App. 2006), reh’g denied, trans. denied.
I. Parties
[11] The Browns argue the parties named in the First Complaint and Second
Complaint are not the same for the purposes of T.R. 12(B)(8) “merely because
the caption contained the same names.” (Br. of Appellants at 30.) Instead, the
Browns claim, the parties are different in the two actions because the parties
“have a different status in each case.” (Id.)
6
The Browns do not argue the trial court erred when it denied their motion to correct error, and our standard
of review for appeal of a motion to correct error directs us to consider the underlying order, here the order
granting the City’s motion to dismiss pursuant to T.R. 12(B)(8). See In re Paternity of H.H., 879 N.E.2d 1175,
1177 (Ind.Ct.App.2008) (review of motion to correct error includes review of underlying order).
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[12] In Kentner, 852 N.E.2d at 571, like in this case, there were two lawsuits
involving the same parties filed contemporaneously in two separate courts. In
his federal litigation, Kentner sued the Indiana Public Employers’ Plan
(“IPEP”) as a former employee; but in the state litigation, Kentner pursued his
rights as an Indiana citizen under the Access to Public Records Act (“APRA”).
We held considering only the names in the captions of the cases was “an overly
simplistic analysis of the situation.” Id. We noted in his federal litigation
Kentner’s claim was related to his employment but in his state claim he was
“enforcing the same right available to any citizen seeking public records.” Id.
Thus, while the parties were the same in name, they were not the same for the
purposes of a T.R. 12(B)(8) motion to dismiss because Kentner’s “status” was
different in each lawsuit. Id.
[13] The Browns argue they, like Kentner, have a different status in the legal actions
at issue in this case. They assert:
In the tort action [First Complaint] the Browns are suing as
victims of tort, and the City is an alleged tortfeasor who has
injured the Browns through some wrongful act or omission. In
the inverse condemnation action [Second Complaint], the
Browns are owners of private property who allege that the City
has taken an interest in their property for public use without
paying just compensation. The City is a governmental entity
who has allegedly exercised its right of eminent domain without
complying with the constitutional mandate to pay for the
property.
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(Appellants’ Br. at 31.) However, the Browns’ reliance on Kentner is misplaced.
Our court in Kentner based its decision upon the types of rights asserted by
Kentner - in his federal litigation, he argued for rights available to him as an
employee; but in his state litigation, he asserted rights available to all citizens.
Here, both of the Browns’ claims are based on their rights as property owners.
The legal claims used by the Browns in asserting these rights does not change
their status as a party relative to T.R. 12(B)(8) as described in Kentner.
II. Subject Matter of Litigation
[14] The Browns contend the trial court erred when it determined the subject
matters of the two actions were the same based on their shared element of
causation. The Browns claim “[a]ny overlap between the two cases is on minor
issues, not substantive questions.” (Br. of Appellants at 23.) Again, they rely
on Kentner for this argument.
[15] In Kentner, our court reversed the trial court’s dismissal of Kentner’s state claim
based on T.R. 12(B)(8), holding, in part, the subject matter of Kentner’s federal
and state claims were not the same. In his federal claim, Kentner alleged “he
was fired by [his former employer] after providing advice to [his former
employer] and [IPEP] that [IPEP’s] conduct violated Indiana law.” Kentner,
852 N.E.2d at 569. As part of his federal litigation, Kentner requested certain
documents from IPEP pursuant to the APRA. IPEP refused to produce the
documents, and Kentner filed a claim in state court requesting the court to
compel IPEP to produce the documents pursuant to APRA. We held the
federal and state claims did not have the same subject matter because “[i]t is
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readily apparent that section 1983 and APRA are two separate and independent
laws, and provide two separate and independent causes of action. Thus, it
necessarily follows that the subject matter of the two lawsuits is not the same.”
Id. at 572. As in Kentner, the subject matter of the Browns’ two actions arise
from some of the same facts, but the subject matter is different.
[16] The Browns’ First Complaint and Second Complaint have a common
underlying fact - the flooding of the Brown Property in September 2008.
However, the First Complaint focuses on the September 2008 flooding event
exclusively and requests compensation for damage to the house caused by the
flooding. The Second Complaint asserts the September 2008 flooding, in
addition to the two subsequent floodings in 2013 and 2014, as evidence a taking
of the Brown Property has occurred. See Arkansas Game & Fish Comm’n v. United
States, 133 S.Ct. 511, 522-3 (2012) (“[W]hile a single act may not be enough, a
continuance of them in sufficient number and for a sufficient time may prove [a
taking]. Every successive trespass adds to the force of the evidence.”) (quoting
Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 329-30 (1922)).
Further, the remedies for the two claims are not the same. 7
7
Additionally, the determination of the Browns’ negligence claim involving the September 2008 flooding has
no bearing on the court’s decision of the inverse condemnation claim in the Second Complaint because it is
only the subsequent floodings which may be used to establish the taking, since the trial court decided in its
order regarding the inverse condemnation claim in the First Complaint that the September 2008 flooding was
not a taking.
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III. Remedies
[17] A T.R. 12(B)(8) dismissal is not warranted if the remedies sought by the two
claims “are not substantially the same.” Kentner, 852 N.E.2d at 573. The
requested remedy in the Browns’ negligence claim in the First Complaint only
involved those damages, specifically expenses incurred for “removal, salvage,
and repair of their damaged property.” (Appellee’s App. at 26.) In contrast, in
an inverse condemnation proceeding,
all damages, present or prospective, that are the natural or
reasonable incident of the improvement to be made or work to be
constructed . . . must be assessed. Damages are assessed once
and for all, and the measure should be the entire loss sustained by
the owner, including in one assessment all injuries resulting from
the appropriation.
Chicago & Ind. Coal Railway Co. v. Hunter, 128 Ind. 213, 220, 27 N.E. 477, 479
(1891). Damages in an inverse condemnation action “must be assessed at the
time of the taking.” City of Elkhart v. No-Bi Corp., 428 N.E.2d 43, 48 (Ind. Ct.
App. 1981). Thus, as the court has already determined the September 2008
flooding event did not constitute a taking, the damages in the Second
Complaint only address the damages incurred when a taking occurred, either in
2013 or 2014, if the trial court finds such a taking occurred for the purposes of
inverse condemnation. The remedies are not the same, nor do they doubly
compensate the Browns.
Although the parties are the same, the subject matter and remedies are not the
same. Therefore, the trial court erred when it granted the City’s motion to
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dismiss pursuant to T.R. 12(B)(8). 8 See Sheets v. Shoemaker, 670 N.E.2d 945,
947-9 (Ind. Ct. App. 1996) (reversing T.R. 12(B)(8) dismissal when parties were
the same but subject matter and remedies were different), trans. denied.
Conclusion
[18] The trial court erred when it granted the City’s motion to dismiss pursuant to
T.R. 12(B)(8) because the subject matter and remedies requested under the First
Complaint and Second Complaint were different. Accordingly, we reverse and
remand.
[19] Reversed and remanded.
Baker, J., and Brown, J., concur.
8
The Browns also assert the trial court denied their Constitutional right to open access to courts by granting
the City’s motion to dismiss. As we reverse the trial court’s decision, we need not address this issue.
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