20 N.E.3d 201
Ind. Ct. App.2014Background
- The City of Indianapolis replaced Barrett Law installment assessments for sewer projects with the STEP program in 2005, forgiving future Barrett Law installment obligations and imposing a $2,500 one‑time connection fee plus countywide sewer fee increases.
- Evelyn and Owen Cox had paid their Barrett Law assessment in full in 2001 after electing a ten‑year installment plan; Cox sought a pro rata refund for payments made on or after November 1, 2005, after the City forgave others’ installment debts.
- Cox filed administrative refund requests (Auditor/DPW) and then sued in 2007; the trial court certified a class and granted summary judgment to Cox on state statutory and constitutional theories, awarding class damages and prejudgment interest.
- The case went to federal court on an Equal Protection claim; the Supreme Court’s decision in Armour v. City of Indianapolis led the district court to vacate its prior grant to Cox and remand the state claims to state court.
- On remand Cox added (in a late reply brief) state constitutional claims; the state trial court again granted summary judgment to Cox on the statutory and constitutional claims and awarded damages — this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Are Cox’s statutory and state‑constitutional claims barred by the Indiana Tort Claims Act (ITCA)? | Cox argued her claims were not torts or that she substantially complied with refund notice requirements. | City argued claims sound in tort, Cox failed to file timely ITCA notice, and thus claims are barred. | Held: Claims sound in tort; Cox’s refund notice was untimely and did not substantially comply — ITCA bars the claims. |
| 2. Were Cox’s Indiana constitutional claims forfeited by untimely assertion? | Cox contended constitutional claims may be raised at any stage and were timely after Armour. | City argued Cox raised state constitutional claims years into litigation, never amended complaint, denying fair opportunity to respond. | Held: Forfeited — five‑year delay and failure to amend/seek leave was unreasonable; claims waived. |
| 3. Did the City violate Ind. Code § 36‑9‑39‑17 by not issuing pro rata refunds? | Cox read §36‑9‑39‑17 to require pro rata refunds when the City forgave some assessments. | City argued §17 addresses assessment adjustments for particular property circumstances and does not mandate refunds when a municipality forgives debts. | Held: Statute does not require pro rata refunds; §17’s language/context does not support Cox’s reading. |
| 4. Do provisions of the Indiana Constitution (Art. 10 §1 or Art. 1 §23) entitle Cox to relief/damages? | Cox argued the forgiveness scheme created unequal treatment violating state constitutional provisions. | City argued Art. 10 §1 applies to taxation (not debt forgiveness), Art. 1 §23 classifications were reasonable, and there is no private right to damages under the state constitution. | Held: Art. 10 §1 inapplicable; Art. 1 §23 not a basis for damages here; no recognized private damages remedy under the state constitution — claims fail. |
Key Cases Cited
- Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012) (U.S. Supreme Court rejection of an Equal Protection challenge to the City’s refusal to issue pro rata refunds)
- Cantrell v. Morris, 849 N.E.2d 488 (Ind. 2006) (recognition that statutory or constitutional violations may sometimes give rise to tort remedies under traditional tort doctrines)
- Irwin Mortgage Corp. v. Marion County Treasurer, 816 N.E.2d 439 (Ind. Ct. App. 2004) (refund claims characterized as torts subject to ITCA notice requirements)
- Boehm v. Town of St. John, 675 N.E.2d 318 (Ind. 1996) (principles for interpreting the Indiana Constitution)
- Paul Stieler Enterprises, Inc. v. City of Evansville, 2 N.E.3d 1269 (Ind. 2014) (standard for evaluating classifications under Art. 1 §23)