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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. As one of the many consumers affected by this breach, I found my bank data had been lifted and used to buy over $200 of various merchandise in New York. I did a pretty good job of tracing the purchases to stores around a college campus just from the info on my bank statement. Hm. Mr. Hill, I would like my $200 back! It doesn't belong to the state, in my opinion. Give it back to the consumers affected. I had to freeze my credit and take out data protection, order a new debit card and wait until it arrived. I deserve something for my trouble!

  2. Don't we have bigger issues to concern ourselves with?

  3. Anyone who takes the time to study disciplinary and bar admission cases in Indiana ... much of which is, as a matter of course and by intent, off the record, would have a very difficult time drawing lines that did not take into account things which are not supposed to matter, such as affiliations, associations, associates and the like. Justice Hoosier style is a far departure than what issues in most other parts of North America. (More like Central America, in fact.) See, e.g., http://www.theindianalawyer.com/indiana-attorney-illegally-practicing-in-florida-suspended-for-18-months/PARAMS/article/42200 When while the Indiana court system end the cruel practice of killing prophets of due process and those advocating for blind justice?

  4. Wouldn't this call for an investigation of Government corruption? Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is NOT permissible at the appellate level. **But yet, they look the other way while an innocent child was taken by a loving mother who did nothing wrong"

  5. Different rules for different folks....

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