Monday, July 25, 2016
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 2 NFP memorandum decision(s))
For publication opinions today (1):
In Darrell Birge and Sandra Birge v. Town of Linden, Indiana , a 13-page opinion, Judge Robb writes:
Darrell and Sandra Birge own farmland in Montgomery County, Indiana. In 2014, the Birges filed a complaint against various governmental entities and independent contractors after modifications to an existing drainage system caused flooding on their property. The complaint named the Town of Linden (“Town”) as a defendant. The Town filed a motion to dismiss for failure to state a claim, which the trial court granted. The Birges now appeal the dismissal of their claims against the Town. Concluding the trial court erred in dismissing the Birges’ complaint for failure to state a claim, we reverse and remand. * * *NFP civil decisions today (0):
The complaint asserts claims for nuisance, civil conspiracy, and inverse condemnation. In granting the Town’s motion to dismiss for failure to state a claim, the trial court concluded it was clear on the face of the complaint that discretionary function immunity applies in this case and the Birges failed to allege facts supporting a claim for civil conspiracy. We conclude otherwise.
[A. Discretionary Function Immunity] * * * We express no opinion as to the ultimate resolution of the immunity issue, but to the extent the trial court concluded immunity under the ITCA would bar the Birges’ claim for inverse condemnation, the trial court erred. * * * If the Town is entitled to discretionary function immunity in this case, immunity will extend only to tort claims brought under the ITCA.
[B. Civil Conspiracy] * * * In its order granting the Town’s motion to dismiss, the trial court recognized the pleaded facts may support an underlying claim for nuisance1 but concluded the tort of nuisance does not constitute an “unlawful” purpose or means. See App. at 61 (noting the Birges “label the planning and construction [of the storm drain] as ‘wrong’ because of the alleged result of nuisance, not because of an unlawful purpose or means”). This conclusion was error. An allegation of civil conspiracy is merely an assertion of concerted action in the commission of a tort causing damage to the Birges. Accordingly, the trial court erred in concluding the Birges failed to allege facts supporting a claim for civil conspiracy.
NFP criminal decisions today (2):
Posted by Marcia Oddi on July 25, 2016 11:08 AM
Posted to Ind. App.Ct. Decisions