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City of Indianapolis v. Towne & Terrace Corp.

Court of Appeals of Indiana

July 3, 2018

City of Indianapolis, Appellant-Plaintiff/Counterclaim Defendant,
v.
Towne & Terrace Corporation, et al., Appellees-Defendants/Counterclaim Plaintiffs.

          Appeal from the Marion Superior Court The Honorable Cynthia J. Ayers, Judge Trial Court Cause No. 49D04-1311-OV-42187

          ATTORNEYS FOR APPELLANT Donald E. Morgan Thomas J. O. Moore Deborah L. Law Office of Corporation Counsel Indianapolis, Indiana James J. Ammeen Indianapolis, Indiana

          ATTORNEYS FOR APPELLEES Clifford R. Courtney Frederic C. Sipe Indianapolis, Indiana Robert A. Smith Smith Wade, LLC Noblesville, Indiana

          Riley, Judge.

          STATEMENT OF THE CASE

         [¶1] Appellants-Plaintiff/Counterclaim Defendant, City of Indianapolis (City), appeals the trial court's summary judgment in favor of Appellees-Defendants/Counterclaim Plaintiffs), Towne & Terrace Corporation, et al., (Towne & Terrace).

         [¶2] We affirm.

         ISSUES

         [¶3] The City presents four issues on appeal, three of which we find dispositive and which we restate as follows:

(1) Whether no genuine issue of material fact exists to conclude that Indiana Code section 32-31-1-22 barred the City's claims against Towne & Terrace;
(2) Whether no genuine issue of material fact exists to conclude that the City's public nuisance action under Indiana Code section 32-30-6-7 against Towne & Terrace is not succesful; and
(3) Whether there is no genuine issue of material fact to conclude that the City owed Towne & Terrace maintenance assessments on the units it acquired ownership to.

         FACTS AND PROCEDURAL HISTORY

         [¶4] Towne & Terrace is a residential complex near the intersection of East 42ndStreet and Post Road in Indianapolis, Indiana. Incorporated in 1964 for the purpose of owning and maintaining the common areas of the condominium development, Towne & Terrace is a private, nonprofit Indiana corporation with volunteer directors. Unlike more recent condominium developments, Towne & Terrace homeowners are members of Towne & Terrace and do not own any interest in its common areas. The individual lots are transferred by deed. To keep Towne & Terrace apprised of ownership changes in the individual condominiums, the corporation's Amended Articles of Incorporation require the issuance of a certificate of membership to each member, and it is each member's responsibility to inform Towne & Terrace when his or her lot is transferred to a new owner. The previous member must then request a new certificate of membership to be issued to the new member. As of 2017, the City owned at least 49 units in Towne & Terrace. Thirteen of the units were acquired as part of a settlement in an unrelated nuisance action. The remainder of the units became the City's possession after they were not purchased at tax sales. Since being acquired, each of the City's homes in Towne & Terrace has been left vacant and boarded up.

         [¶5] Over the years, the East side of Marion County has suffered a major crime wave. In 2015, the Federal Bureau of Investigation, the United States Attorney's Office, the Indiana State Police, the Marion County Sheriff, and Indianapolis Metropolitan Police Department conducted raids throughout Indianapolis, leading to the arrest of thirty-five criminals-the vast majority on the East side.

         [¶6] On December 16, 2014, the City filed an Amended Complaint against Towne & Terrace and four members of its board in their representative capacities, alleging that Towne & Terrace "failed to provide, maintain, and ensure that all common areas of the [] residential complex are safe from hazardous conditions, including but not limited to general lawlessness and the threat of reasonably foreseeable criminal intrusions." (Appellant's App. Vol. II, p. 40). Specifically, the City noted that "[s]ince January 1, 2008, there have been at least excessive police runs and numerous reports filed by the Indianapolis Metropolitan Police Department at the [] residential complex involving crimes such as homicide, rape, fraud, arson, domestic battery, public intoxication, child abduction, child abuse, larceny, burglary, armed robbery, aggravated assault, vandalism, intimidation, invasion of privacy, and trespass." (Appellant's App. Vol. II, p. 42). As such, the City requested the trial court, among other things, to

[a]ward the City compensatory damages against [Towne & Terrace], jointly and severally, to compensate the City for all damages caused by [Towne & Terrace's] operation, management and maintenance of the [Towne & Terrace] residential complex and individual units, including but not limited to:
i. All resources expended by the City, including but not limited to the Department of Public Safety, IMPD, DCE, and MCHD, in response to the unreasonable volume of investigations, reports, and citations caused by [Towne & Terrace's] neglect of the [] residential complex and individual units, and
ii. Any and all other public resource expenditures resulting from [Towne & Terrace's] neglect of the [] ...

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