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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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