The Board of Commissioners of Union County, Indiana v. Brandye Hendrickson, in her official capacity as Commissioner of the Ind. Dept. of Transportation, and the State of Indiana

FILED
Dec 16 2016, 8:19 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
James R. Williams Gregory F. Zoeller
Matthew L. Kelsey Attorney General of Indiana
DeFUR • Voran, LLP
Muncie, Indiana Andrea E. Rahman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
The Board of Commissioners of December 16, 2016
Union County, Indiana, Court of Appeals Case No.
Appellant-Plaintiff, 81A01-1603-PL-696
Appeal from the Union Circuit
v. Court
The Honorable Brian D. Hill,
Brandye Hendrickson, in her Special Judge
official capacity as Trial Court Cause No.
Commissioner of the Indiana 81C01-1507-PL-118
Department of Transportation,
and the State of Indiana,
Appellees-Defendants.
Barnes, Judge.
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Case Summary1
[1] The Board of Commissioners of Union County (“the County”) appeals the
dismissal of its complaint against Brandye Hendrickson, in her official capacity
as Commissioner of the Indiana Department of Transportation (“INDOT”),
and INDOT itself (collectively “INDOT”). We reverse and remand.
Issues
[2] The restated issues before us are:
I. whether this court is reviewing the dismissal of a
complaint under Indiana Trial Rule 12(B)(6) or the
granting of summary judgment under Indiana Trial Rule
56;
II. whether the trial court properly concluded that the County
lacked standing to seek a declaratory judgment against
INDOT; and
III. whether the trial court properly concluded that the County
lacked standing to seek an injunction against INDOT.
Facts
[3] The facts as alleged by the County are that, in 2010 or 2011, INDOT performed
construction and repair work on State Highway 27 in the County. The County
1
We heard oral argument in this case on November 3, 2016, at the University of Notre Dame School of
Law. We thank counsel for their helpful arguments and for making the trip to South Bend. We also thank
the administration, faculty, and students of the School of Law, as well as members of the St. Joseph County
bar and judiciary, for their hospitality.
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had no involvement in this roadwork project. During the project, INDOT
allegedly damaged septic systems on the properties of three private landowners
in the County as a result of improper or negligent work. This damage “may
impact other properties and may implicate a broader public health and safety
concern for Union County . . . .” App. p. 25. The County asked INDOT to
investigate and remedy these problems, but INDOT failed to do so.
[4] On July 31, 2015, the County filed a declaratory judgment and injunctive relief
action against Hendrickson and INDOT. The County sought an order
“declaring state highway 27 and any associated storm drain the responsibility of
INDOT and not Union County . . . .” Id. Additionally, it sought an order
“compelling INDOT to immediately remedy any and all negligent and/or
improper construction and repair work that resulted in septic and/or public
health issues . . . .” Id. at 26.
[5] INDOT filed a motion to dismiss, asserting that the County lacked standing to
sue. As part of its response to the motion to dismiss, the County filed an
affidavit from its Sanitarian, Ron Parker. Parker stated in the affidavit, “Upon
information and belief, The Highway Repair has resulted in raw sewage
flowing outside appropriate septic and drainage systems. This poses a public
health and safety risk for Union County, Indiana and proximately caused
violations of the local health code.” Id. at 47.
[6] Two weeks after the County filed its response and Parker’s affidavit, INDOT
filed a motion for an extension of time to file a reply in support of its motion to
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dismiss. However, on the same day INDOT filed that motion, the trial court
granted INDOT’s motion to dismiss, agreeing that the County lacked standing
to bring suit. The trial court did not indicate whether it considered Parker’s
affidavit, nor was a hearing held on the motion to dismiss. The County filed a
motion to correct error. In response, INDOT requested that Parker’s affidavit
be stricken in addition to the motion to correct error being denied. The trial
court denied the motion to correct error, without expressly ruling on the motion
to strike Parker’s affidavit. The County now appeals.
Analysis
I. Motion to Dismiss versus Motion for Summary Judgment
[7] The first issue we address is whether we are reviewing the dismissal of a
complaint under Indiana Trial Rule 12(B)(6) or whether INDOT’s motion to
dismiss was converted to a Trial Rule 56 motion for summary judgment when
the County included Parker’s affidavit with its response to INDOT’s motion.
Trial Rule 12(B) states in part:
If, on a motion, asserting the defense number (6), to dismiss for
failure of the pleading to state a claim upon which relief can be
granted, matters outside the pleading are presented to and not
excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56. In
such case, all parties shall be given reasonable opportunity to
present all material made pertinent to such a motion by Rule 56.
[8] This case is somewhat similar to Carrell v. Ellingwood, 423 N.E.2d 630 (Ind. Ct.
App. 1981). In that case, there was a 12(B)(6) motion to dismiss a will contest
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as untimely. The plaintiffs filed a response to the motion that included an
affidavit. On the same day the response was filed and without notice to the
movant, the trial court entered an order expressly “dismissing” the will contest
as untimely and noting that the plaintiffs had filed an affidavit in their response
to the motion to dismiss. On appeal, this court held that it was error for the
trial court to apparently consider the affidavit in ruling on the motion to dismiss
without providing the other party a reasonable time to present additional
materials to the court for its consideration. Carrell, 423 N.E.2d at 634.
However, this court went on to address, on the merits, whether summary
judgment in favor of the will contest defendant was properly granted; after
considering the affidavit, the court held that it was not and reversed. Id. at 636;
see also Lanni v. National Collegiate Athletic Ass’n, 989 N.E.2d 791, 797 (Ind. Ct.
App. 2013) (holding trial court abused its discretion in converting 12(B)(6)
motion to dismiss into motion for summary judgment). A trial court’s failure to
give explicit notice of its intended conversion of a motion to dismiss to one for
summary judgment is reversible error if a party is not afforded a reasonable
opportunity to respond to the introduction of evidence and that party is thereby
prejudiced. Azhar v. Town of Fishers, 744 N.E.2d 947, 950-51 (Ind. Ct. App.
2001).
[9] Here, the trial court never stated whether it was considering Parker’s affidavit
when ruling on the motion to dismiss; on the other hand, it never expressly
excluded the affidavit from consideration, even after INDOT asked the trial
court to strike it from the record as part of its response to the County’s motion
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to correct error. Additionally, the trial court’s ultimate ruling was that it was
dismissing the complaint. It did not state that it was granting summary
judgment to INDOT, and it gave no indication that it considered Parker’s
affidavit when making its ruling.
[10] At oral argument, counsel for the County conceded that INDOT was not given
an adequate opportunity to respond to Parker’s affidavit. We conclude that it
was erroneous for the trial court to proceed to rule on the motion to dismiss
without clarifying whether it was considering the affidavit, and if so to provide
INDOT an opportunity to respond in accordance with the summary judgment
rules. However, unlike in Carrell, we believe that in the present case it would be
inappropriate to proceed to review this case as a grant of summary judgment,
particularly given the fact that the trial court stated that it was dismissing the
complaint, not granting summary judgment, and because it did not expressly
state that it was considering Parker’s affidavit. Instead, we will review this case
purely as a 12(B)(6) dismissal and assume that the trial court “excluded”
Parker’s affidavit from consideration. As such, we will not consider Parker’s
affidavit in our review. On remand, either party may file for summary
judgment if they so choose.
[11] A motion to dismiss for a plaintiff’s alleged lack of standing may be brought
under Indiana Trial Rule 12(B)(6) for failure to state a claim upon which relief
can be granted. Thomas v. Blackford County Area Bd. Of Zoning Appeals, 907
N.E.2d 988, 990 (Ind. 2009). When ruling upon a 12(B)(6) motion, the
allegations of the complaint must be taken as true. Id. A successful motion to
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dismiss for lack of standing must establish that the lack of standing is apparent
on the face of the complaint. Id. The standard of review for a ruling on a
12(B)(6) motion to dismiss is de novo, and this court owes no deference to the
trial court’s decision. Bellows v. Board of Comm’rs of County of Elkhart, 926
N.E.2d 96, 110 (Ind. Ct. App. 2010).
II. Declaratory Judgment
[12] The County sought two different forms of relief, and different principles apply
to each of them. First, the County sought an order “declaring state highway 27
and any associated storm drain the responsibility of INDOT and not Union
County, Indiana.” App. p. 25. INDOT contends that, by this language, the
County is seeking a preemptive determination that it cannot be held liable to
any private landowners for damage to their property caused by the highway
repair project. We disagree and conclude the County was entitled to seek
declaratory relief on this matter.
[13] The Declaratory Judgment Act states that trial courts may “declare rights,
status, and other legal relations whether or not further relief is or could be
claimed.” Ind. Code § 34-14-1-1. The Act further provides:
Any person interested under a deed, will, written contract, or
other writings constituting a contract, or whose rights, status, or
other legal relations are affected by a statute, municipal
ordinance, contract, or franchise, may have determined any
question of construction or validity arising under the instrument,
statute, ordinance, contract, or franchise and obtain a declaration
of rights, status, or other legal relations thereunder.
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I.C. § 34-14-1-2.2 Additionally, the enumeration of certain types of relief in
parts of the Act, such as section 2, “does not limit or restrict the exercise of the
general powers conferred in section 1 of this chapter in any proceeding where
declaratory relief is sought, in which a judgment or decree will terminate the
controversy or remove an uncertainty.” I.C. § 34-14-1-5.
[14] INDOT suggests in part that the County merely is seeking to shift liability to
INDOT for any potential lawsuits related to the release of sewage along the
highway and that is not a proper use of a declaratory judgment action. It is true
that a party cannot seek a declaratory order determining their liability to third
parties. See Union Fed. Sav. Bank v. Chantilly Farms, Inc., 556 N.E.2d 9, 11 (Ind.
Ct. App. 1990). The proper venue for determining such liability is in any suit
brought by the third party. Id.[15] Here, however, the County was not seeking any express declaration of its
liability to any third parties, unlike in Chantilly Farms. The ultimate effect of
any declaration regarding responsibility for State Highway 27 is beyond the
scope of the present action. Rather, the County’s request for declaratory
judgment may be viewed as akin to a dispute regarding ownership of or title to
real property, which is an appropriate matter for resolution by declaratory
judgment. See Baxter v. Baxter, 138 Ind. App. 24, 27, 195 N.E.2d 877, 879
2
A “person” is defined as “any person, partnership, limited liability company, joint stock company,
unincorporated association, or society, or municipal or other corporation of any character whatsoever.” I.C.
§ 34-14-1-13. INDOT makes no argument that the County is not a “person” under this definition.
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(1964). Additionally, aside from the matter of possible liability to any
particular third-party private property owners for septic field leakage, a
declaration of responsibility for State Highway 27 and its drainage would clarify
which governmental unit must arrange and pay for any necessary repairs to the
road and drainage system. See Chanley v. State, 596 N.E.2d 933, 934 (Ind. Ct.
App. 1992) (“The State and all counties have a common law duty to exercise
reasonable care in the design, construction, maintenance, and repair of
highways and roads within their control”), trans. denied.
[16] The State also contended at oral argument that the County failed to state an
adequate declaratory judgment claim because it did not precisely specify what
“writing” its claim was based upon with respect to responsibility for State
Highway 27. First, we would note that to the extent there would be a lack of
clarity as to a writing that governed State Highway 27, that would be a matter
for resolution later in the proceedings, if indeed no such writing could be
located, and not a reason for dismissal of the complaint. Second, the
Declaratory Judgment Act clearly states that trial courts may grant declaratory
relief, even if a matter does not strictly fall within one of the stated statutory
parameters for such relief. See I.C. § 34-14-1-5.
[17] Finally and perhaps most importantly, it appears to us that there should be a
relatively simple way of determining responsibility for State Highway 27. We
note that under Indiana Code Section 8-23-4-2(a), INDOT shall designate
which roads constitute the state highway system. INDOT has responsibility for
those streets and roads that make up the state highway system. I.C. § 8-23-1-40.
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Additionally, the INDOT commissioner “shall at all times maintain maps of
Indiana, which must show all the highways that constitute the state highway
system, the arterial and local highway systems of each county, and the arterial
and local street systems of each municipality.” I.C. § 8-23-4-6. According to
these and other highway-related statutes, it should be possible to determine and
issue a declaration as to who bears responsibility for State Highway 27 and its
drainage system. We reverse the dismissal of the County’s request for a
declaratory judgment to that effect.
III. Injunctive Relief
[18] Next, we address the separate issue of whether the County had standing to
pursue injunctive relief against INDOT compelling it “to immediately remedy
any and all negligent and/or improper construction and repair work that
resulted in septic and/or public health issues . . . .” App. at 26. There does not
appear to be any prior reported case in which a locality has attempted to sue a
State entity for negligently causing some kind of physical harm within the
locality. The standing requirement is intended to assure that litigation will be
actively and vigorously contested. State ex rel. Cittadine v. Indiana Dep’t of
Transp., 790 N.E.2d 978, 979 (Ind. 2003). “It focuses on whether the
complaining party is the proper person to invoke the court’s power.” Id. Under
the general standing rule, “only those persons who have a personal stake in the
outcome of the litigation and who show that they have suffered or were in
immediate danger of suffering a direct injury as a result of the complained-of
conduct will be found to have standing.” Id. “It is generally insufficient that a
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plaintiff merely has a general interest common to all members of the public.”
Id.[19] We further note that the standard for obtaining injunctive relief is different than
the standard for obtaining a declaratory order. A party may seek equitable
injunctive relief if monetary damages are too speculative to quantify. City of
Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, 1246-47 (Ind. 2003).
If a party suffers purely economic injury and there is an adequate remedy at
law, injunctive relief should not be ordered. Indiana Family & Soc. Servs. Admin.
v. Walgreen Co., 769 N.E.2d 158, 162 (Ind. 2002). A party seeking an injunction
generally bears the burden of proving an injury that is certain and irreparable if
the injunction is denied. Ferrell v. Dunescape Beach Club Condominiums Phase I,
Inc., 751 N.E.2d 702, 713 (Ind. Ct. App. 2001). The County here additionally
was seeking a mandatory injunction, which is an injunction “‘that orders an
affirmative act or mandates a specified course of conduct.’” City of Gary v.
Majestic Star Casino, LLC, 905 N.E.2d 1076, 1082 n.6 (Ind. Ct. App. 2009)
(quoting BLACK’S LAW DICTIONARY 800 (8th ed. 2004)), trans. denied. The
principles behind mandatory and prohibitory injunctions are similar, although
courts generally are more reluctant to grant mandatory injunctions. Crossman
Communities, Inc. v. Dean, 767 N.E.2d 1035, 1040 (Ind. Ct. App. 2002).
[20] INDOT generally argues, in part, that, unless the County can show some injury
to property that it owns, as opposed to property owned by private parties, it
cannot have standing to make any claims with respect to septic system leaks
allegedly caused by INDOT’s negligence. Without such a showing, INDOT
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asserts that the County has not suffered a “direct injury” as required to establish
standing. See Cittadine, 790 N.E.2d at 979. INDOT asserts that only directly-
affected property owners could sue. It certainly is true that there is no
allegation of any property directly owned by the County having been affected
by INDOT’s purported negligence. We do not believe, however, that this
precludes the County from having standing to seek this injunction.
[21] In its ruling against the County, the trial court relied upon Jacob Weinberg News
Agency, Inc. v. City of Marion, 163 Ind. App. 181, 322 N.E.2d 730 (1975). The
County claims that case in fact supports a finding that it has standing here. In
that case, a wholesale distributor of pornographic magazines sought to enjoin a
local ordinance from going into effect that would have been enforced against
retailers of those magazines but not the wholesaler. The wholesaler argued that
such enforcement would impact its sales and its First Amendment rights. The
trial court dismissed the wholesaler’s complaint for lack of standing because the
ordinance would not be enforced directly against the wholesaler. This court
reversed, holding that the wholesaler, although not subject directly to
enforcement of the ordinance, was entitled to bring the action in order to
vindicate its own First Amendment rights. Weinberg, 163 Ind. App. at 190, 322
N.E.2d at 735. The County relies on this case for the proposition that a party
does not necessarily have to suffer a “direct injury” in order to have standing to
bring a suit. However, it is readily distinguishable because there was an
assertion that the wholesaler’s First Amendment rights were in fact being
directly impacted by the ordinance. Here, the County is not asserting any
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comparable direct impact on a constitutional right, as opposed to a more
general impact on the County’s citizens’ health.
[22] Still, we conclude that assertion is sufficient to grant the County standing to
seek an order compelling INDOT to repair roadwork that allegedly has the
potential to impact public health and sanitation. Under Indiana’s Home Rule
Act, it is intended that counties be granted “all the powers that they need for the
effective operation of government as to local affairs.” I.C. § 36-1-3-2. A county
may exercise any power it has so long as it is not expressly denied by the
Indiana Constitution or a statute and it is not expressly granted to another
entity. I.C. § 36-1-3-5. “Any doubt as to the existence of a power of a unit shall
be resolved in favor of its existence.” I.C. § 36-1-3-3. It is well understood that
counties “may regulate certain conduct . . . for the promotion of public health,
safety, and welfare.” IND. LAW ENCYCLOPEDIA Counties, § 5 p. 202 (2008); see
also I.C. § 16-20-2-2(a) (requiring counties to establish and maintain a local
health department unless they elect to create a multi-county health department
under Indiana Code Chapter 16-20-3). And, counties as units of government
have the power to sue and be sued. I.C. § 36-1-4-3.
[23] It is true that the Home Rule Act does not allow a county to “prevent a state
agency from carrying out statutorily authorized actions.” Indiana Dep’t of
Natural Res. v. Newton County, 802 N.E.2d 430, 433 (Ind. 2004). In Newton
County, however, the specific question was whether a county could adopt
ordinances purporting to trump the State’s authority to acquire land as
permitted by statute, and our supreme court held that it could not. Id. Here,
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the County is not attempting to prevent INDOT from carrying out any activity;
rather, it is alleging negligence in the manner in which INDOT carried out its
road maintenance. This would generally be a proper subject for a lawsuit
against INDOT. See Chanley, 596 N.E.2d at 934.
[24] We also see no reason why the County would not have standing to make such a
claim, although this is a unique lawsuit. One standing doctrine that is
informative here would be the “public standing” doctrine. The public standing
doctrine applies in cases where public rather than private rights are concerned
and the enforcement of a public rather than a private right is involved.
Cittandine, 790 N.E.2d at 983. The public standing doctrine is an exception to
the general rule that a plaintiff must have a special interest in the outcome of
litigation different from that of the general public. Id. at 980. Public standing
principles may be applied to permit actions challenging various governmental
activities. Id. at 982. In determining whether a plaintiff has shown the requisite
degree of interest to enable it to maintain an action, courts rely upon the
plaintiff’s status as a citizen interested in common with other citizens in the
execution of the law. Old Utica Sch. Pres., Inc. v. Utica Twp., 7 N.E.3d 327, 331-
32 (Ind. Ct. App. 2014), trans. denied. Even if public standing requirements are
met, a plaintiff’s suit is still subject to various limitations, such as the Indiana
Public Lawsuit Act or the requirement of exhaustion of administrative
remedies. Cittadine, 790 N.E.2d at 983.
[25] We are not aware of any case where one governmental entity invoked the
public standing doctrine in order to sue another governmental entity. However,
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if the public standing requirements are met, it is unclear why this could not
occur. In fact, a county arguably is more “public” and would have more
incentive to vigorously litigate an issue affecting its citizens than would an
individual private citizen. It has been said that, although a state may act as
parens patriae on behalf of its citizens, “a county has no sovereign powers and
cannot act as parens patriae, asserting the claims of its residents.” Bd. of
Comm’rs of Howard Cty. v. Kokomo City Plan Comm’n, 263 Ind. 282, 295, 330
N.E.2d 92, 101 (1975). However, later cases have found county standing to sue
the State or one of its agencies with respect to interpretation of a statute or the
constitutionality of a statute. See Newton Cty., 802 N.E.2d at 432-33; State ex rel.
State Bd. of Tax Comm’rs v. Marion Superior Court, Civil Div., Room No. 5, 271 Ind.
374, 377, 392 N.E.2d 1161, 1164-65 (1979). It is unclear why a county should
not also have standing in order to file lawsuits attempting to safeguard the
health and welfare of its citizens.
[26] Another standing doctrine that is worth considering is associational standing.
This court has adopted the test for associational standing formulated by the
United States Supreme Court. That test provides that an “association” has
standing to sue on behalf of its members if: “‘(a) its members would otherwise
have standing to sue in their own right; (b) the interests it seeks to protect are
germane to the organization’s purpose; and (c) neither the claim asserted nor
the relief requested requires the participation of individual members in the
lawsuit.’” Save The Valley, Inc. v. Indiana-Kentucky Elec. Corp., 820 N.E.2d 677,
679–80 (Ind. Ct. App. 2005) (quoting Hunt v. Washington State Apple Advertising
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Comm’n, 432 U.S. 333, 344, 97 S. Ct. 2434, 2442 (1977)), aff’d on r’hg, trans.
denied. “‘If in a proper case the association seeks a declaration, injunction, or
some other form of prospective relief, it can reasonably be supposed that the
remedy, if granted, will inure to the benefit of those members of the association
actually injured.’” Id. (quoting Warth v. Seldin, 422 U.S. 490, 515, 95 S. Ct.
2197, 2213 (1975)). This court also noted that associational standing promotes
judicial economy and efficiency by allowing a single lawsuit and plaintiff and to
avoid repetitive and costly independent actions. Id. at 680 (citing Connecticut
Ass’n of Health Care Facilities v. Worrell, 508 A.2d 743, 747 (Conn. 1986)).
[27] Save The Valley concerned a challenge by citizens’ groups to the granting of a
coal ash landfill permit by the State Department of Environmental
Management to a power station. Ultimately, this court held the citizens’ groups
had standing to challenge the granting of the landfill permit. First, the groups’
members resided, worked, and recreated in the area affected by the landfill, and
those members would be negatively affected by it and its impact on
groundwater. Id. at 682. Second, the groups’ aims were to protect the
environment and advance members’ interest in energy and utility issues, and
the landfill challenge was germane to those purposes. Id. Third, the groups
were not seeking monetary damages on behalf of any members, which would
have required individualized proof, but rather were only challenging the landfill
permit’s issuance. Id.
[28] Save the Valley was concerned specifically with judicial review of an
administrative decision, which is not the case here. However, the associational
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standing doctrine as formulated by the Supreme Court did not arise in the
context of an administrative proceeding and does not seem to necessarily be
limited to such proceedings. In the Hunt case relied upon by Save the Valley, a
Washington state agency that represented apple growers challenged the
constitutionality of a North Carolina statute regulating apple marketing that
was negatively impacting the apple growers. The Supreme Court held that the
agency had standing to challenge the statute on behalf of its members, and its
status as a state agency did not affect that standing. Hunt, 432 U.S. at 344, 97
S. Ct. at 2442. The Supreme Court also noted the “indicia of membership in an
organization” the agency possessed, such as that the members elected the
agency’s directors, only members could serve with the agency, and the members
alone financed its activities, including the costs of the lawsuit at issue. Id. at
344-45, 97 S. Ct. at 2442. It also was irrelevant that apple growers were
required to be members of the agency. Id. at 345, 97 S. Ct. at 2442.
[29] The County is not an “association” in the traditional sense, as it is not a private
entity. However, that was deemed irrelevant in Hunt. County residents also
fund the County through taxes and elect County officials. The complaint here
alleges that INDOT’s roadwork is threatening to cause environmental and
health harms to County residents in the form of sewage contamination.
Protecting the health, safety, and welfare of its citizens is a central purpose of
the County’s activities. Also, the County is not seeking monetary damages
from INDOT but only injunctive relief, which would benefit multiple citizens
and does not require individualized proof. Finally, it would promote judicial
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economy and efficiency if the County were allowed to seek remediation of
septic field damage and sewage leakage on behalf of multiple parties in one
single lawsuit.3 It is logical to apply associational standing principles to this
case.
[30] One final case demonstrating that the County has standing here is King, which
addressed the City of Gary’s lawsuit against gun manufacturers and dealers.
The lawsuit sought damages and injunctive relief and made many claims
against the manufacturers and dealers, including public nuisance and
negligence. One argument made by the defendants in that case was that the
City of Gary lacked standing to bring the suit. Our supreme court rejected this
claim, stating the City of Gary met the standing requirement because it alleged
“it was financially injured through the sale and use of negligently distributed
firearms and by alleging a nuisance within its borders caused by the
defendants.” King, 801 N.E.2d at 1248. Here, although the County is not
seeking damages, it is alleging that INDOT’s activities have caused an
environmental or public health risk within its boundaries, which is similar to
the City of Gary’s claims against the gun manufacturers and dealers.
[31] In sum, we hold that the County has alleged sufficient facts to allow it to have
standing to seek injunctive relief against INDOT for negligently-performed
3
To that end, it also would be highly inefficient to follow INDOT’s suggestion that the County should first
sue the private landowners, demanding that they repair the damaged septic fields on their properties, and that
the landowners could then join INDOT in the lawsuit as a third-party defendant and seek damages for the
cost of repair to their septic fields. We reject this proposed approach to this case.
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roadwork that could cause environmental or public health concerns within the
County. Even without considering Parker’s affidavit, it is reasonable to infer
from the County’s complaint that damage to septic fields could negatively
impact public health. Any doubts as to whether the County’s allegations are
sufficiently detailed would be a matter for additional proceedings in this case,
not for resolution by a motion to dismiss. See Trail v. Boys & Girls Clubs of
Northwest Indiana, 845 N.E.2d 130, 135 (Ind. 2006) (stating that complaint must
plead operative facts necessary to set forth an actionable claim but need not set
out in precise detail the facts upon which the claim is based).4
Conclusion
[32] We have reviewed this case as a Trial Rule 12(B)(6) dismissal of a complaint,
not a granting of summary judgment, and accordingly have disregarded
Parker’s affidavit in considering the merits of the trial court’s ruling. We hold
that the trial court erred in dismissing the County’s action for declaratory
judgment and injunctive relief against INDOT and that the County has
standing to pursue those claims. We reverse and remand for further
proceedings consistent with this opinion.
[33] Reversed and remanded.
4
INDOT has not raised any other possible defenses to the County’s lawsuit at this time beyond the question
of standing and the propriety of seeking declaratory judgment, and any speculation as to such possible
defenses is beyond the scope of this opinion.
Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 19 of 20
Crone, J., and Pyle, J., concur.
Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016 Page 20 of 20