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Court: insufficient notice bars tort claim

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The Indiana Court of Appeals today ruled that insufficient notice barred a complaint for damages in a case involving a condominium complex and its various longtime issues.

In F.B. Boushehry v. City of Indianapolis, et al., No. 49A05-1002-PL-55, F.B. Boushehry appealed the trial court’s grant of summary judgment in favor of the city.

Boushehry had contracted in 1992 to purchase a parcel of land in Indianapolis on which he planned to build a condominium complex. The land was adjacent to a shopping center owned by John and Martha Carmody. The center was connected to a private sewer line built by them and that connected to the nearest public sewer line. The Carmodys’ sewer line ran along Stop 10 Road, which included portions of the land that Boushehry planned to buy.

To be habitable, Boushehry’s condominium complex would be required to connect to a sewer line. One option was to construct his own private sewer line that would connect with the nearest public sewer line directly. Another option was to negotiate the right to connect to the Carmodys’ sewer line, which Boushehry chose to do. Despite various issues including disagreements with the Carmodys about the sewer line, Boushehry bought the land.

Boushehry represented to the city that he would rehabilitate the existing private sewer line, which the city required when he applied for sewer construction and connection permits.

In October 2003, the city issued a stop-work order because of an unlicensed electrical contractor working on the complex without a permit. It also issued two other stop-work orders in November 2003 because a sanitary sewer wasn’t constructed according to a city-approved design and because Boushehry failed to submit a certification of completion and compliance for a storm sewer. The city also determined Boushehry had connected at least four condominium units and discharged waste into the private sewer line, which had not been rehabilitated as required. The city red flagged the complex so no additional permits would be granted until all violations were resolved.

On Nov. 7, 2003, Boushehry filed a complaint for preliminary and permanent injunction and for a writ of mandamus to prohibit enforcement of the city’s October 2003 stop-work order. He later amended the complaint to include all of the city’s stop-work orders. In 2004, Boushehry filed a notice of tort claim pursuant to the Indiana Tort Claims Act and attached his amended complaint to the notice; however, the notice referred only to the initial stop-work order as the basis for his claim. After hearings, the trial court ruled the Carmodys owned the private sewer line; the private sewer line could not handle the increased sewer flow from the condominium complex without first undergoing the required rehabilitation; and the city’s stop-work orders and red flag against the condominium complex were proper and lawful. Boushehry did not appeal this judgment.

However, in 2005, Boushehry filed a complaint for damages that alleged the city from 1992 to 2005 “negligently, tortiously, and erroneously determined that [the private sewer line] is owned by [the Carmodys].” This gave rise to the instant case. Instead of filing a new notice under the act with his 2005 complaint, he relied on his 2004 notice. In 2007, Boushehry amended his complaint to include a claim that from 1992 to the present, the city made false and malicious statements to third parties regarding his ownership of the land.

The city filed for summary judgment in 2009, asserting the claims were barred because of Boushehry’s failure to comply with the act’s notice requirements, the statute of limitations, the doctrine of res judicata, and the defense that the city’s actions were justified. The trial court granted summary judgment in favor of the city Jan. 8, 2010. Boushehry appealed, citing Collier v. Prater, 544 N.E.2d 497, 499 (Ind. 1989).

According to the act’s provisions, a claim against a political subdivision is barred unless notice is filed with the political subdivision within 180 days after the loss occurs.

“Here, however, unlike in Collier, Boushehry’s notice did not give the City any notice of the claims that Boushehry subsequently raised against the City because the claims raised by Boushehry were entirely different from the claim that was identified in his notice. See Lukowiak, 810 N.E.2d at 383-84,” wrote Judge Cale Bradford.

The appellate court concluded Boushehry’s notice was insufficient to notify the city it needed to defend itself against claims ultimately raised in his amended complaint and affirmed the trial court.
 

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

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  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

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