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.
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.