57 N.E.3d 839
Ind. Ct. App.2016Background
- Darrell and Sandra Birge own farmland in Montgomery County; after a 2012 municipal/storm-drain construction that followed the route of an existing county "Hose Drain," their property flooded and about 13 acres became unfarmable.
- The Birges sued multiple defendants, including the Town of Linden and county drainage authorities, alleging nuisance, civil conspiracy, and inverse condemnation; they alleged the Drainage Board and Town conspired to repurpose the agricultural drain for a municipal storm sewer that blocked subsurface drainage.
- The amended complaint alleged prior warnings to county officials about the design, post-construction flooding and septic failure, and assessed benefit charges of $9,000 to the Birges for the project.
- The Birges sought injunctive abatement and, alternatively, damages via inverse condemnation for the taking/impairment of property use and value.
- The Town moved to dismiss under Indiana Trial Rule 12(B)(6), asserting governmental (discretionary function) immunity under the Indiana Tort Claims Act and arguing the complaint failed to plead civil conspiracy. The trial court granted dismissal.
- The Court of Appeals reversed and remanded, holding dismissal was improper at the pleadings stage because discretionary-function immunity and the civil-conspiracy defect were not clearly established on the face of the complaint; it also noted ITCA immunity does not bar inverse condemnation claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Town is entitled to ITCA discretionary-function immunity | Birge: the complaint alleges facts showing operational decisions and wrongful implementation causing nuisance; factual development is required, so immunity is not clear on the face of the complaint | Town: application for and construction of the storm drain were discretionary governmental functions shielding the Town from tort liability | Court: Reversed trial court — immunity not clearly shown on the face of the complaint; question requires further factual development |
| Whether the complaint adequately pleads civil conspiracy | Birge: alleged concerted action between Town and Drainage Board that caused nuisance and damage — conspiracy properly pleaded as concerted action to commit a tort | Town: alleged actions were not unlawful; conspiracy requires an unlawful purpose or means and was not pleaded | Court: Rejected Town's argument — civil conspiracy may be pleaded as concerted action to commit the underlying tort (nuisance); dismissal was improper |
| Whether ITCA immunity bars inverse condemnation claim | Birge: inverse condemnation available if government effectively took or impaired property and did not use eminent domain; ITCA tort immunity should not bar constitutionally required just compensation | Town: argued generally that immunity applied to bar claims | Court: ITCA does not apply to inverse condemnation actions; constitutional just compensation claims remain viable |
| Whether dismissal under T.R.12(B)(6) was appropriate overall | Birge: facts alleged entitle them to relief unless clear defendant immune or complaint legally insufficient | Town: dismissal appropriate because immunity and failure to plead conspiracy warranted dismissal | Court: Dismissal improper; complaint survives Rule 12(B)(6) challenge and case remanded for further proceedings |
Key Cases Cited
- Peavler v. Bd. of Comm’rs of Monroe Cnty., 528 N.E.2d 40 (Ind. 1988) (articulates planning/operational test for discretionary-function immunity)
- City of Beech Grove v. Beloat, 50 N.E.3d 135 (Ind. 2016) (discusses evidentiary showing needed to establish discretionary-function immunity)
- Murray v. City of Lawrenceburg, 925 N.E.2d 728 (Ind. 2010) (ITCA does not bar inverse condemnation; constitutional just compensation required)
- Kitchell v. Franklin, 997 N.E.2d 1020 (Ind. 2013) (standard of review for Trial Rule 12(B)(6) motions)
- Charter One Mortgage Corp. v. Condra, 865 N.E.2d 602 (Ind. 2007) (complaint not dismissible under 12(B)(6) unless relief plainly unavailable)