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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. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

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