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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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