Indiana Land Trust 3082 v. Hammond Redevelopment Commission

FILED

Jan 31 2025, 8:57 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

IN THE

Court of Appeals of Indiana

Indiana Land Trust #3082; Trustee of Indiana Land Trust

#3082, Omar Abuzir, and Haitham Abuzir,

Appellants

v.

Hammond Redevelopment Commission, Thomas McDermott,

Jr, Tony Hauprich, Greg Myricks, Dawn Tomich, Wally

Kasprzycki, Miriam Soto Pressley, Anna Mamala, and The City

of Hammond, Indiana, a municipal corporation,

Appellees

January 31, 2025

Court of Appeals Case No.

24A-PL-1284

Appeal from the Lake Superior Court

The Honorable Bruce D. Parent, Judge

Trial Court Cause No.

45D11-2401-PL-1

Court of Appeals of Indiana | Opinion 24A-PL-1284 | January 31, 2025 Page 1 of 26

Opinion by Judge Brown

Judges May and Kenworthy concur.

Brown, Judge.

[1] Indiana Land Trust #3082, Trustee of Indiana Land Trust #3082, Omar

Abuzir, and Haitham Abuzir (“Landowners”) appeal the trial court’s order

dismissing their complaint against the Hammond Redevelopment Commission

(“HRC”), the City of Hammond, Thomas McDermott, Jr., Tony Hauprich,

Greg Myricks, Dawn Tomich, Wally Kasprzycki, Miriam Soto Pressley, and

Anna Mamala (collectively, “Defendants”). 1 We reverse.2

Facts and Procedural History

[2] In a letter dated January 9, 2018, and addressed to Indiana Land Trust #3082,

the HRC offered $394,500 for property commonly known as 1318-20

Indianapolis Boulevard, Hammond, Indiana (the “Property”). On June 6,

2019, the HRC filed a complaint against Indiana Land Trust #3082 in the Lake

Circuit Court in cause number 45C01-1906-PL-346 (“Cause No. 346”) alleging

that it was engaged in “a project to develop a public street/alley to improve

1

In their January 2, 2024 complaint, Landowners asserted that McDermott was the Mayor of the City,

Hauprich was the President of the HRC, Myricks was the Vice President of the HRC, Tomich was the

Secretary of the HRC, Kasprzycki was the Commissioner of the HRC, Pressley was the Commissioner of the

HRC, and Mamala was a non-voting Member of the HRC.

2

On November 20, 2024, we held oral argument. We thank counsel for traveling to Indianapolis and for

their well-prepared advocacy.

Court of Appeals of Indiana | Opinion 24A-PL-1284 | January 31, 2025 Page 2 of 26

public access in and around” the Property and it was necessary for it to acquire

the Property. Appellants’ Appendix Volume II at 98. It requested that the

court “order the appropriation of the real estate interest” and appoint three

“disinterested freeholders of Lake County, Indiana, to appraise the value of the

interest to be appropriated.” Id. at 99.

[3] On June 2, 2021, Landowners filed a thirty-six page Counterclaim and Third-

Party Complaint in Cause No. 346 which alleged “Count I - § 1983 Against

Individual Defendants”; “Count II – City of Hammond, Mayor McDermott,

and [HRC] Failure to Train”; “Count III - § 1983 Monell Claim”; and “Count

IV – Indiana State Abuse of Process in Violation of Ind. Code Title 32, Article

24 against All Defendants.” That same day, Landowners filed a “Motion for

Leave to File Claims Instanter and to Intervene” in Cause No. 346. Specifically,

Landowners sought “leave to file their Counterclaim and Third-Party

Complaint and attendant summonses” and requested that the court “grant them

leave to intervene as Plaintiffs.” On June 17, 2021, the HRC filed a Brief in

Opposition to Landowners’ Motion for Leave to File Claims Instanter and to

Intervene and argued that Indiana’s Eminent Domain Act does not permit any

pleadings in eminent domain actions outside of the complaint, objections, and

written exceptions.

[4] On July 8, 2019, Judge John M. Sedia of the Lake Superior Court entered an

order accepting transfer of the case in Cause No. 346. On September 29, 2021,

Judge Sedia entered an “Order Denying Motion for Leave to File Claims to

Intervene.” The court held that Ind. Code § 32-24-1-8(c) “prohibits the filing of

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the proposed Counterclaim and intervention by the Trustee,” 3 observed that

“3082 and the Intervenors currently have a case pending in federal court

addressing the same issues brought forth in their Counterclaim,” and found that

“[t]hey will not be prejudiced by not being permitted to pursue their

Counterclaim and Intervention in this court.” 4

[5] On December 6, 2023, the United States District Court for the Northern

District of Indiana entered an order observing that Indiana Land Trust #3082 5

filed a complaint on June 2, 2021, in state court and it was removed to the

District Court on June 24, 2021. Indiana Land Tr. #3082 v. Hammond

Redevelopment Comm’n, No. 2:21-CV-201-JEM, 2023 WL 8469935, at *1 (N.D.

Ind. Dec. 6, 2023), aff’d, 107 F.4th 693 (7th Cir. 2024). The District Court

observed that the third amended complaint set forth four counts including

Count IV, which asserted a state claim for abuse of process against “all

Defendants.” 6 Id. It dismissed with prejudice Counts I, II, and III. Id. at *7.

3

The trial court’s order quoted Ind. Code § 32-24-1-8(c), which provides: “The court may not allow

pleadings in the cause other than the complaint, any objections, and the written exceptions provided for in

section 11 of this chapter. However, the court may permit amendments to the pleadings.” The order later

states that “I.C. 32-24-1-9(c) prohibits the filing of the proposed Counterclaim and intervention by the

Trustee.” September 29, 2021 Order at 1. It appears that the court’s citation to Ind. Code 32-24-1-9, which is

titled “Appraisers,” was a scrivener’s error.

4

Indiana’s Odyssey Case Management System indicates that Judge Sedia entered an order on September 25,

2024, scheduling a status hearing on April 7, 2025.

5

The District Court listed “Indiana Land Trust #3082, et al., Plaintiffs” in the caption and then began

referring to “Plaintiffs” without identifying all of the Plaintiffs. Indiana Land Tr. #3082 v. Hammond

Redevelopment Comm’n, No. 2:21-CV-201-JEM, 2023 WL 8469935, at *1 (N.D. Ind. Dec. 6, 2023), aff’d, 107

F.4th 693 (7th Cir. 2024).

6

The District Court indicated that the defendants included the City of Hammond, Thomas McDermott, Jr.,

the HRC, and HRC members. Indiana Land Tr. #3082, 2023 WL 8469935 at *1.

Court of Appeals of Indiana | Opinion 24A-PL-1284 | January 31, 2025 Page 4 of 26

With respect to Count IV, the court declined to exercise supplemental

jurisdiction “over Plaintiffs’ state-law claim.” Id. It found that “dismissal

under 28 U.S.C. § 1367(d) is the proper vehicle for disposing of the remaining

count of the Third Amended Complaint so that they [sic] can be refiled in state

court, should Plaintiffs so choose.” Id. The court dismissed Count IV without

prejudice. Id. On July 10, 2024, the United States Court of Appeals for the

Seventh Circuit entered an opinion observing that “[t]he eminent domain

action is playing out in Indiana state court” and affirming the district court’s

dismissal of the third amended complaint. 107 F.4th at 696.

[6] Meanwhile, on January 2, 2024, Landowners filed a Complaint and Jury

Demand against Defendants in Lake Superior Court in cause number 45D02-

2401-PL-1 (“Cause No. 1”). 7 Landowners alleged “Indiana Abuse of Process

Against All Defendants.” Appellants’ Appendix Volume II at 39 (capitalization

and underlining omitted). They alleged that the individual Defendants reached

an understanding to take the Property for a private purpose; the taking was for

“discriminatory private purposes, for private gain, motivated by spite and/or

that it is against public purposes,” id. at 23; the taking was being pursued “by

the HRC and its members for the private benefit of the Mayor, his campaigns,

and to benefit the private interests of other persons, including developers in the

7

The Appellants’ Appendix contains a chronological case summary for cause number 45D11-2401-PL-1,

which indicates that the complaint was filed on January 2, 2024, that the “Current Case Assignment”

involved case number 45D11-2401-PL-1, and that the “Previous Case Assignments” involved case number

45D02-2401-PL-1. Appellants’ Appendix Volume II at 2. We use “Cause No. 1” to refer to cause numbers

45D11-2401-PL-1 and 45D02-2401-PL-1.

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area,” id.; “each Defendant knew that there is no proper public purpose for the

taking and/or that the [Property] was targeted to personally benefit the Mayor,”

id. at 29; Landowners own a fireworks business on the Property and “the

Mayor and his campaigns want to eliminate competitors to” a fireworks

business owned by the Mayor’s friend and political contributor, id. at 30; the

Property is being targeted because Landowners do not contribute to the Mayor

or advertise on the podcast owned in part by the Mayor; Defendants were not

taking the land on the adjoining properties because their owners were

connected to a mayoral contributor; and all HRC members knew there was

never any plan to build “the pretextual road/alley” and were aware that “the

condemnation of the [property] was being pursued solely for political reasons

alone and in a discriminatory fashion, and the HRC members’ acts and

omissions occurred at the Mayor’s behest as part of the Mayor’s well-known

pay-to-play schemes.” Id. at 38-39.

[7] Landowners alleged that each of the following constituted an abuse of process:

“[p]ursuing a taking for access that is admittedly against the public interest”;

[p]ursuing a taking based on false rationales, false testimony, and willful and

misleading acts”; “[p]ursuing a taking, on information and belief, to help

Gregory Kaplan,” the owner of several fireworks shops in Hammond and the

Mayor’s friend and political contributor, “the Mayor’s campaigns, and/or his

podcast revenues, and to punish [Landowners] for not doing so”; and

“[p]ursuing a taking, on information and belief, solely to take property for

private development by political contributors.” Id. at 40.

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[8] They argued that Defendants’ litigation in Cause No. 346 “violates Ind. Code

Title 32, Article 24” and that Defendants’ actions were “not due any immunity

under Ind. Code Title 32, Article 24.” Id. They asserted that “all forms of relief

are warranted to remedy Defendants’ acts” and they were entitled to money

damages. Id. at 41 (capitalization and underlining omitted). They requested

compensatory damages, punitive damages, a trial by jury, interest, attorney

fees, and “any and all other relief to which they may be entitled.” Id. at 42.

[9] On February 9, 2024, the City of Hammond and Thomas McDermott, Jr., in

his individual and official capacity as mayor, filed a motion to dismiss and a

brief, which cited Ind. Trial Rule 12(B)(6). They argued that Landowners could

not state a cognizable claim for alleged abuse of process because the pending

eminent domain case was the proper statutory action within which to

adjudicate the taking and Landowners’ alleged objections and defenses. They

also argued that Mayor McDermott was immune from alleged liability for

Landowners’ abuse of process claim pursuant to Ind. Code § 34-13-3-5(a)-(c).

They further argued that Landowners’ claim for punitive damages was barred

by Ind. Code § 34-13-3-4(b). 8 On February 12, 2024, the HRC, Hauprich,

Myricks, Tomich, Kasprzycki, Pressley, and Mamala filed a Request to Join

Co-Defendants’ Motion to Dismiss and Brief in Support of Motion to Dismiss.

On March 11, 2024, Landowners filed a thirty-eight-page response to the

8

Ind. Code § 34-13-3-4(b) provides: “A governmental entity or an employee of a governmental entity acting

within the scope of employment is not liable for punitive damages.”

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motion to dismiss. On March 18, 2024, the City of Hammond and Mayor

McDermott filed a reply.

[10] On April 29, 2024, Judge Bruce D. Parent of the Lake Superior Court held a

hearing in Cause No. 1 at which counsel for the City and the Mayor argued

that the intent of the HRC or the City “is irrelevant so long as it proceeds in a

procedurally correct manner and a substantively proper manner.” Transcript

Volume II at 8. Counsel also cited Ind. Code § 34-13-3-3(a)(6) which is a part

of the Indiana Tort Claims Act (the “ITCA”) and provides that a governmental

entity or an employee acting within the scope of the employee’s employment is

not liable if the loss results from the initiation of a judicial or administrative

procedure. Counsel argued that Landowners “have the opportunity to object

and litigate these issues at the place where the taking occurs in Judge Sedia’s

court.” Id. at 12. Landowners’ counsel argued that opposing counsel “focus

mostly on the procedurally proper aspect of the use of process of a taking’s case,

but they ignore that it must also be substantively proper” and that “when you

have that improper substantive use of the [Eminent] Domain Statute combined

with improper motives an abuse of process claim is stated.” Id. at 14. She also

argued that “it’s not substantively correct because there are about five ways laid

out in our response to the motion to dismiss where you can see that you cannot

take property for private ends under Indiana Eminent Domain Law.” Id. at 21-

22. She referenced Judge Sedia’s order and argued that he “has already found

that such claims are properly pursued elsewhere because the Eminent Domain

Statute only allows objections” and “[i]t doesn’t allow counterclaims.” Id. at

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23. With respect to the ITCA, Landowners’ counsel argued: “It’s not initiation

that is at issue here, your Honor. It is the continuing litigation despite the

discovery of facts that demonstrate that the basis for the taking is false.” Id. at

27. Counsel for the City and the Mayor argued: “[T]he simple fact of that

matter is, the [Landowners] are conceding that we did have the right to initiate

the lawsuit. That is, we had the right procedurally and substantively to file this

lawsuit.” Id. at 32.

[11] On May 2, 2024, Judge Parent granted Defendants’ motion to dismiss pursuant

to Ind. Trial Rule 12(B)(6), denied “[a]ny and all other motions or requests by

either party, not specifically ruled upon herein,” and stated that the order

“constitutes a final and appealable order of the Court; the Court expressly

found that there is no just reason for delay in appealing pursuant to Trial Rule

54(B). All parties are free to appeal this matter immediately.” Appellants’

Appendix Volume II at 14-17. The court observed that “[a] defendant in a

condemnation action may object to the proceedings . . . because the plaintiff

does not have the right to exercise the power of eminent domain for the use

sought or for any reason disclosed in the complaint, or set up in the objections.”

Id. at 15 (citing Ind. Code § 32-24-1-8(a)(2) and (3)). 9 It found that “[t]here is

no liability where the defendant has done nothing more than carry out the

process to its authorized conclusion, even though with bad intentions.” Id.

9

Ind. Code § 32-24-1-8(a) provides: “A defendant may object to the proceedings: . . . (2) because the plaintiff

does not have the right to exercise the power of eminent domain for the use sought; or (3) for any other

reason disclosed in the complaint or set up in the objections.”

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(citing Groen v. Elkins, 551 N.E.2d 876, 878-879 (Ind. Ct. App. 1990), trans.

denied). It stated that “[w]here a question of fraud or bad faith is raised as

where an attempt is made to show that the property taken will not be used for

public purpose, or the proceedings is a subterfuge to convey the property to a

private use, courts may inquire into the administrative determination of

necessity.” Id. at 16. The court’s order states:

12. The condemnation action underlying this lawsuit is presently

pending in the Lake Superior Court, Civil Room One before

Judge John M. Sedia: Hammond Redevelopment Commission v.

Indiana Land Trust #3082, under cause # 45D01-1906-PL-

00346.[ 10]

13. With the present lawsuit, the [Landowners] claimed an

abuse of process by the DEFENDANTS related to the

condemnation action presently pending before Judge Sedia.

14. Importantly, the DEFENDANTS here chose the correct

form of action – a condemnation action – in the lawsuit before

Judge Sedia and [Landowners] there claimed defenses

(“objections”) that included abuse of process as to each claim in

the present lawsuit.

15. Consequently, the merits of the DEFENDANTS’ claims and

the merits of [Landowners’] objections will be heard and resolved

by Judge Sedia in the action pending before him.

10

While the order cited “45D01-1906-PL-00346,” it appears that the use of “D” in the order was a scrivener’s

error and the trial court intended to refer to cause number 45C01-1906-PL-346 or Cause No. 346.

Appellants’ Appendix Volume II at 16.

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16. An eminent domain action is the correct mechanism, both

procedurally and substantively, for the condemnation

proceedings.

17. This Court therefore found that [Landowners’] complaint

failed to state a claim upon which relief can be granted by this

Court.

18. The issues claimed in this lawsuit are issues to be properly

heard and determined by Judge Sedia within the confines of the

lawsuit pending before him.

19. For this Court to maintain the present lawsuit, it would run

the risk of subjecting the parties to different orders on the same

issues from two different Superior Courts.

Id. at 16-17.

Discussion

[12] Landowners argue that “[t]here is no ‘eminent domain’ exception to the tort of

abuse of process, yet that is what the trial court created.” Appellants’ Brief at

27. They contend that the trial court “effectively [held] that the tort of abuse of

process can never arise from a takings case.” Id. at 28. They argue that the trial

court erroneously dismissed their case “even though the abuse of process tort

will not be decided in the takings case because the eminent domain statute bars

counterclaims in takings cases – as Judge Sedia already decided in the takings

case (in 2021).” Id. They suggest that “Judge Sedia’s Order determining that

the abuse of process claim should be pursued outside of his takings case should

have been collateral estoppel, preventing the trial court below from finding that

a risk of inconsistent evidentiary rulings somehow warranted dismissal.” Id. at

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34. They assert that they properly pled the allegation of Defendants’

substantive misuse of proceedings. Specifically, they argue that the taking was

substantively improper because it was for “private, false ends,” it involved “an

entire parcel of land well in excess of what is needed for a narrow ‘alley,’” and

“taking upon a false basis is also not allowed under Indiana eminent domain

law and is also substantively improper.” Id. at 36.

[13] Defendants argue that collateral estoppel does not apply because the September

29, 2021 order “is not a final judgment at all, a required element for the

application of collateral estoppel.” Appellees’ Brief at 25. They contend that

the September 29, 2021 order “was not a ruling on the merits of any of the

Landowners’ allegations . . . .” Id. at 26. They assert: “Nor are the Trial

Court’s May 2, 2024 dismissal order and the Eminent Domain Court’s

September 29, 2021 order in conflict.” Id. They argue that the trial court

“correctly found that the Landowners’ Objections to the taking in the Eminent

Domain Action based upon Hammond’s alleged ‘bad motives’ and other

improprieties are defenses which will be specifically decided in the Eminent

Domain Action . . . .” Id. at 27. They maintain that Indiana courts have

repeatedly held that allegations of ill motives will not salvage a claim for abuse

of process if the form of action chosen is correct. They also argue that the

ITCA bars Landowners’ abuse of process and punitive damages claims. They

further argue that “[w]hat the Landowners have actually done instead is

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conflate (or confuse) a claim of abuse of process with a claim of malicious

prosecution.” 11 Id. at 28.

[14] We review a trial court’s decision on a Trial Rule 12(B)(6) motion de novo. 12

WEOC, Inc. v. Niebauer, 226 N.E.3d 771, 774 (Ind. 2024). When ruling on a

motion to dismiss, the court must view the pleadings in the light most favorable

to the nonmoving party with every reasonable inference construed in the non-

movant’s favor. Thornton v. State, 43 N.E.3d 585, 587 (Ind. 2015). “[A] motion

to dismiss under Rule 12(B)(6) ‘tests the legal sufficiency of the plaintiff’s claim,

not the facts supporting it.’” Residences at Ivy Quad Unit Owners Ass’n, Inc. v. Ivy

Quad Dev., LLC, 179 N.E.3d 977, 981 (Ind. 2022) (quoting Bellwether Props., LLC

v. Duke Energy Ind., Inc., 87 N.E.3d 462, 466 (Ind. 2017) (cleaned up) (quoting

Thornton, 43 N.E.3d at 587)). “Dismissal under Rule 12(B)(6) is ‘rarely

appropriate.’” WEOC, Inc., 226 N.E.3d at 774 (quoting State v. Am. Fam. Voices,

Inc., 898 N.E.2d 293, 296 (Ind. 2008) (quotations omitted), reh’g denied).

11

The elements of a malicious prosecution claim include: (1) the defendant instituted or caused to be

instituted an action against the plaintiff; (2) the defendant acted with malice in doing so; (3) the defendant

had no probable cause to institute the action; and (4) the original action was terminated in the plaintiff’s

favor. City of New Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind. 2001). “In contrast to malicious prosecution,

an action for abuse of process ‘does not require proof that the action was brought without probable cause or

that the action would have terminated in favor of the party asserting abuse of process.’” Id. (quoting Central

National Bank of Greencastle v. Shoup, 501 N.E.2d 1090, 1095 (Ind. Ct. App. 1986) (citing Cassidy v. Cain, 145

Ind. App. 581, 590, 251 N.E.2d 852, 857 (1969), trans. denied), reh’g denied).

12

In their motion to dismiss, the City and McDermott cited Cause No. 346 and Exhibit E, which was

attached to Landowners’ Complaint and was the Complaint filed by the HRC in Cause No. 346. In their

brief in support of their motion to dismiss, they cited Exhibit E (the Complaint in Cause No. 346). Neither

party suggests that the motion to dismiss should have been treated as one for summary judgment, and we

treat the motion as one under Ind. Trial Rule 12(B)(6). See Moss v. Horizon Bank, N.A., 120 N.E.3d 560, 563-

564 (Ind. Ct. App. 2019) (holding that the trial court was not required to convert a motion to dismiss into a

summary judgment motion as materials of which a trial court may take judicial notice are not considered

matters outside the pleadings).

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“Indeed, dismissal is appropriate only when ‘it appears to a certainty on the

face of the complaint that the complaining party is not entitled to any relief.’”

Id. (quoting Am. Fam. Voices, Inc., 898 N.E.2d at 296). We will not affirm such

a dismissal unless it is apparent that the facts alleged in the challenged pleading

are incapable of supporting relief under any set of circumstances. 13 Thornton, 43

N.E.3d at 587.

A. Abuse of Process Claim May be Pursued Separately from Eminent Domain Action

[15] We begin by observing that the trial court’s dismissal was premised, in large

part, upon the conclusion that the abuse of process claim may not be pursued

separately from the eminent domain action. Condemnation is an exercise of

the State’s power of eminent domain. Util. Ctr., Inc. v. City of Fort Wayne, 985

N.E.2d 731, 735 (Ind. 2013). “And because statutes of eminent domain are ‘in

derogation of the common law rights to property [they] must be strictly

construed, both as to the extent of the power and as to the manner of its

exercise.’” Id. (quoting Cemetery Co. v. Warren Sch. Twp., 236 Ind. 171, 139

N.E.2d 538, 544 (1957) (citing Kinney v. Citizens’ Water & Light Co. of Greenwood,

13

To the extent Landowners argue that Judge Sedia’s September 29, 2021 order “should have been collateral

estoppel, preventing the trial court below from finding that a risk of inconsistent evidentiary rulings somehow

warranted dismissal,” Appellants’ Brief at 34, we disagree as we cannot say that order constituted a final

judgment on the merits. See Miller v. Patel, 212 N.E.3d 639, 646 (Ind. 2023) (“Three conditions lay the

foundation for collateral estoppel: (1) a final judgment on the merits in a court of competent jurisdiction; (2)

identity of the issues; and (3) the party to be estopped was a party or the privity of a party in the prior

action.”) (quotation and citation omitted); see also 17 Ind. Law Encyc. Judgment § 320 (“Under res judicata

principles, issue preclusion by collateral estoppel attaches only to final judgments or decrees and not to

interlocutory judgments, decrees, or orders, which remain under the control of the court.”) (footnotes

omitted).

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173 Ind. 252, 90 N.E. 129, 131 (1909); Westport Stone Co. v. Thomas, 170 Ind. 91,

83 N.E. 617, 617 (1908))). “[T]he power of eminent domain—the right to

appropriate for public use the private property of the citizen against his will—

has been characterized as a ‘very high and dangerous one,’ and [the State]

cannot exercise that power . . . unless it is able to show clear legislative

authority for so doing.” State v. Collom, 720 N.E.2d 737, 741 (Ind. Ct. App.

1999) (quoting Shedd v. Northern Indiana Public Service Co., 206 Ind. 35, 41-42,

188 N.E. 322, 324 (1934)).

[16] The Indiana Supreme Court has held that “[b]oth the United States

Constitution and the Indiana Constitution prohibit the government from taking

private land ‘without just compensation.’” State v. Franciscan All., Inc., 245

N.E.3d 144, 148 (Ind. 2024) (quoting U.S. Const. amend. V; Ind. Const. art. 1,

§ 21). “In an eminent domain action . . . , statute provides the process for

assessing such compensation and other damages owed.” Id. (citing Ind. Code §

32-24-1-9). “That assessment includes the ‘fair market value’ of the property to

be acquired, as well as damages ‘to the residue of the property’ that the owner

retains.” Id. (quoting Ind. Code § 32-24-1-9(c)(1)-(3)). 14 “But there is no

14

Ind. Code § 32-24-1-9(c) provides:

The appraisers shall determine and report all of the following:

(1) The fair market value of each parcel of property sought to be acquired and the value of

each separate estate or interest in the property.

(2) The fair market value of all improvements pertaining to the property, if any, on the

portion of the property to be acquired.

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constitutional or statutory right to compensation for damages that do not result

from a taking.” Id.

[17] Landowners suggest that the eminent domain action fails to encompass the

damages available to them for the alleged abuse of process. At oral argument,

Defendants’ counsel acknowledged that a landowner could receive attorney fees

up to $25,000 in an eminent domain action. Oral Argument at 35:30-35:54. He

also acknowledged that attorney fees sought in an abuse of process claim would

not be limited to $25,000. Id. at 35:55-36:03. Thus, the compensation allowed

under an eminent domain action clearly does not include all damages available

from a tort claim for abuse of process. Accordingly, we conclude that an

eminent domain action is inadequate to address the abuse of process claim.

[18] We also note that, in the eminent domain action pending in Cause No. 346,

Judge Sedia entered the September 29, 2021 order which stated that Ind. Code §

32-24-1-8(c) “prohibits the filing of the proposed Counterclaim and intervention

by the Trustee.” Judge Sedia also acknowledged the federal case, which

involved a state claim for abuse of process, and he stated that Landowners

would not be prejudiced by not being permitted to pursue their counterclaim

and intervention in Cause No. 346. Thus, Judge Sedia envisioned that the

(3) The damages, if any, to the residue of the property of the owner or owners caused by

taking out the part sought to be acquired.

(4) The other damages, if any, that will result to any persons from the construction of the

improvements in the manner proposed by the plaintiff.

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abuse of process claim and the damages related to that claim would be

addressed in another forum.

B. Landowners’ Abuse of Process Claim Survives 12(B)(6) Review

[19] Generally, “[i]n order to prevail upon a claim of abuse of process, a party must

prove the following elements: 1) An ulterior purpose; and 2) a willful act in the

use of process not proper in the regular conduct of the proceeding.” Reichhart v.

City of New Haven, 674 N.E.2d 27, 30 (Ind. Ct. App. 1996). Otherwise stated,

abuse of process requires a finding of misuse or misapplication of process, for

an end other than that which it was designed to accomplish. Id.

[20] To the extent Defendants argue that Indiana courts have held that allegations of

ill motives will not salvage a claim for abuse of process if the form of action

chosen is proper, Defendants cite Reichhart. In that case, on November 26,

1991, a special New Haven Common Council meeting was held to consider

annexing territory that included a landfill operated by Chemical Waste

Management of Indiana, Inc. (“CWMI”) in order to gain regulatory control of

the property, and an ordinance was introduced to that effect. Id. at 29. On

December 10, 1991, Penny Reichhart, an employee of CWMI and a property

owner in New Haven, filed a lawsuit alleging that New Haven had violated the

Open Door Law in introducing the annexation ordinance and sought a

declaration that the annexation was unlawful and prohibiting the City from

proceeding with the annexation. Id. On December 17, 1991, the City withdrew

its annexation ordinance. Id. On February 6, 1992, CWMI filed a petition with

Court of Appeals of Indiana | Opinion 24A-PL-1284 | January 31, 2025 Page 17 of 26

the Common Council of the City of Fort Wayne for the voluntary annexation

of its real estate by the City of Fort Wayne. Id. On February 24, 1992, the City

filed its Counter-Claim and Third-Party Complaint alleging that Reichhart’s

lawsuit, financed by CWMI, constituted an abuse of process. Id. at 29-30.

Reichhart and CWMI filed a motion for summary judgment on the City’s abuse

of process claim, which the trial court denied. Id.

[21] On interlocutory appeal, this Court addressed whether the trial court erred in

determining that genuine issues of material fact existed with regard to an abuse

of process claim filed by the City of New Haven. Id. at 28-29. We addressed

“the question of whether the existence of ulterior motive alone will sustain an

action for abuse of process.” Id. at 30.

[22] The Court held:

This court has determined that a party may not be liable for

abuse of process where legal process has been used to accomplish

an outcome which the process was designed to accomplish. “A

party’s intent is irrelevant where his acts are procedurally and

substantively proper under the circumstances.” Comfax Corp. v.

North American Van Lines, Inc., 638 N.E.2d 476, 485 (Ind. Ct.

App. 1994). Put another way, “there is no liability where the

defendant has done nothing more than carry out the process to its

authorized conclusion, even though with bad intentions.” Groen

v. Elkins, 551 N.E.2d 876, 878-79 (Ind. Ct. App. 1990), trans.

denied. . . . Namely, an abuse of process claim contains two

distinct elements, and a party must first establish that the

defendant employed improper “process” before the court

proceeds to an examination of the defendant’s motivation.

Comfax Corp., 638 N.E.2d 476; Groen, 551 N.E.2d 876; see also

Watters v. Dinn, 633 N.E.2d 280, 289 (Ind. Ct. App. 1994), trans.

Court of Appeals of Indiana | Opinion 24A-PL-1284 | January 31, 2025 Page 18 of 26

denied (“[w]ithout considering [the defendant’s] intent or motive,

we conclude that the . . . claim fails on the second element of the

tort of abuse of process”).

Id. at 31.

[23] Specifically, the Court held:

In Groen, 551 N.E.2d at 878 n.3, the court discussed the meaning

of “process” in this context:

“Process” should not be “limited to the strict sense of

the term, but [should be] broadly interpreted to

encompass the entire range of ‘procedures’ incident

to litigation . . . . This broad reach of the ‘abuse of

process’ tort can be explained historically, since the

tort evolved as a ‘catch-all’ category to cover

improper uses of the judicial machinery . . . .”

Barquis v. Merchants Collection Ass’n of Oakland (1972),

7 Cal.3d 94, 104, n.4, 101 Cal. Rptr. 745, 752, 496

P.2d 817, 824.

The Groen court further described “process” as use of the

“judicial machinery”, id., and refined the relevant inquiry as

being whether the complained-of acts were “procedurally and

substantively proper under the circumstances”. 551 N.E.2d at

879. Consistent with the language employed in Groen, “process”

in this context is given an expansive definition and includes

actions undertaken by a litigant in pursuing a legal claim.

According to Groen, the relevant inquiry as to whether the

improper process element was satisfied is: were these acts

procedurally and substantively proper under the circumstances?

In Broadhurst [v. Moenning], the court alternately described the

inquiry as whether the use of process “was a legitimate use of the

judicial system.” 633 N.E.2d [326, 333 (Ind. Ct. App. 1994)].

Court of Appeals of Indiana | Opinion 24A-PL-1284 | January 31, 2025 Page 19 of 26

Id. at 31-32.

[24] In their complaint, Landowners asserted that Defendants pursued Cause No.

346 “based on untrue reasons,” “[t]he lack of justification for the taking

evidences that Defendants pursuing the Underlying Litigation for private

purposes and upon ulterior motives,” and Defendants’ “claim that the entire

Trust Property was selected as a shorter and cheaper route is intentional

misrepresentation arising from ulterior, private motives.” Appellants’

Appendix Volume II at 39-40. They asserted that the individual Defendants

reached an understanding to take the Property for a private purpose; the taking

was for “discriminatory private purposes, for private gain, motivated by spite

and/or that it is against public purposes,” id. at 23; the taking is being pursued

“by the HRC and its members for the private benefit of the Mayor, his

campaigns, and to benefit the private interests of other persons, including

developers in the area,” id.; and “each Defendant knew that there is no proper

public purpose for the taking and/or that the [Property] was targeted to

personally benefit the Mayor.” Id. at 29. They also alleged that each of the

following constituted an abuse of process: “[p]ursuing a taking for access that is

admittedly against the public interest”; [p]ursuing a taking based on false

rationales, false testimony, and willful and misleading acts”; “[p]ursuing a

taking, on information and belief, to help Kaplan,” the owner of several

fireworks shops in Hammond and the Mayor’s friend and political contributor,

“the Mayor’s campaigns, and/or his podcast revenues, and to punish

[Landowners] for not doing so”; and “[p]ursuing a taking, on information and

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belief, solely to take property for private development by political contributors.”

Id. at 40.

[25] We also note that, in addressing an eminent domain claim, the Indiana

Supreme Court has stated: “At some place in the proceedings, and by some

method the landowner is entitled to contest the legality of the condemnation

proceedings, and question the authority under which the attempt is being made

to take his property including the issue of whether or not it is a private or public

purpose.” Cemetery Co., 236 Ind. at 178, 139 N.E.2d at 541. Further, the Court

held that a question of fraud or bad faith may be raised and considered. Id. at

188, 139 N.E.2d at 546. Specifically, the Court stated: “We do not think the

court has the power to inquire into the wisdom or propriety of such judgment

unless a question of fraud or bad faith is raised as where an attempt is made to show

that the property taken will not be used for a public purpose, or the proceeding

is a subterfuge to convey the property to a private use.” Id. (emphasis added).

See also Hass v. State, Dep’t of Transp., 843 N.E.2d 994, 999 (Ind. Ct. App. 2006)

(“It is well-established in Indiana that the question of the necessity or

expediency of a taking in eminent domain lies within the discretion of the

Legislature and is not a proper subject for judicial review. However, where a

question of fraud or bad faith is raised as where an attempt is made to show that

the property taken will not be used for a public purpose, or the proceeding is a

subterfuge to convey the property to a private use, courts may inquire into the

administrative determination of necessity.”) (citations and quotation marks

omitted), reh’g denied, trans. denied.

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[26] Based upon their complaint, Landowners essentially alleged that the eminent

domain action was substantively improper, they raised questions of fraud and

bad faith, and they alleged that the proceeding was a subterfuge to convey the

Property for a private use. Given the procedural posture of this case and the

expansive definition of process that includes both procedural and substantive

elements and mindful that we view the pleadings in the light most favorable to

Landowners and construe every reasonable inference in their favor, we

conclude that Landowners raised a question that is a proper subject for judicial

review and sufficiently alleged a claim for abuse of process. The trial court

erred in granting Defendants’ motion to dismiss.

C. ITCA

[27] As for Defendants’ claim that the ITCA bars Landowners’ abuse of process and

punitive damages claims, Defendants cite Ind. Code § 34-13-3-3(a)(6), which

provides that “[a] governmental entity or an employee acting within the scope

of the employee’s employment is not liable if a loss results from the following . .

. (6) The initiation of a judicial or an administrative proceeding.” They also

assert that “a municipal board or employee cannot be sued for acts undertaken

within the scope of their duties, and punitive damages cannot be recovered

from a municipality.” Appellees’ Brief at 40 (citing Ind. Code § 34-13-3-5(b)

and (c)).

[28] Ind. Code § 34-13-3-5 provides in part:

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(a) Civil actions relating to acts taken by a board, a committee, a

commission, an authority, or another instrumentality of a

governmental entity may be brought only against the board, the

committee, the commission, the authority, or the other

instrumentality of a governmental entity. A member of a board,

a committee, a commission, an authority, or another

instrumentality of a governmental entity may not be named as a

party in a civil suit that concerns the acts taken by a board, a

committee, a commission, an authority, or another

instrumentality of a governmental entity where the member was

acting within the scope of the member’s employment. For the

purposes of this subsection, a member of a board, a committee, a

commission, an authority, or another instrumentality of a

governmental entity is acting within the scope of the member’s

employment when the member acts as a member of the board,

committee, commission, authority, or other instrumentality.

(b) A judgment rendered with respect to or a settlement made by

a governmental entity bars an action by the claimant against an

employee, including a member of a board, a committee, a

commission, an authority, or another instrumentality of a

governmental entity, whose conduct gave rise to the claim

resulting in that judgment or settlement. A lawsuit alleging that

an employee acted within the scope of the employee’s

employment bars an action by the claimant against the employee

personally. However, if the governmental entity answers that the

employee acted outside the scope of the employee’s employment,

the plaintiff may amend the complaint and sue the employee

personally. An amendment to the complaint by the plaintiff

under this subsection must be filed not later than one hundred

eighty (180) days from the date the answer was filed and may be

filed notwithstanding the fact that the statute of limitations has

run.

(c) A lawsuit filed against an employee personally must allege

that an act or omission of the employee that causes a loss is:

(1) criminal;

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(2) clearly outside the scope of the employee’s

employment;

(3) malicious;

(4) willful and wanton; or

(5) calculated to benefit the employee personally.

The complaint must contain a reasonable factual basis supporting

the allegations.

[29] The ITCA “governs lawsuits against political subdivisions and their

employees.” Burton v. Benner, 140 N.E.3d 848, 852 (Ind. 2020) (quoting

Bushong v. Williamson, 790 N.E.2d 467, 472 (Ind. 2003); and citing Ind. Code §

34-13-3-1 et seq.). “The statute sets forth certain parameters to determine

liability for negligent acts or omissions on the part of government employees

and ‘provides substantial immunity for conduct within the scope of the

employee’s employment.’” Id. (quoting Bushong, 790 N.E.2d at 472). “The

purpose of immunity is to ensure that public employees can exercise their

independent judgment necessary to carry out their duties without threat of

harassment by litigation or threats of litigation over decisions made within the

scope of their employment.” Id. (quoting Celebration Fireworks, Inc. v. Smith, 727

N.E.2d 450, 452 (Ind. 2000) (citation omitted)). “Generally speaking, ‘whether

an employee’s actions were within the scope of employment is a question of

fact to be determined by the factfinder.’” Id. (quoting Knighten v. East Chicago

Housing Authority, 45 N.E.3d 788, 794 (Ind. 2015) (citation omitted)). “When

the facts are undisputed and ‘would not allow a jury to find that the tortious

acts were within the scope of employment,’ however, a court may conclude as a

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matter of law that the acts were not in the scope of employment.” Id. (quoting

Cox v. Evansville, 107 N.E.3d 453, 460 (Ind. 2018)).

[30] In their complaint, while Landowners alleged “[f]or all facts pleaded herein,

each Defendant’s acts and omissions were undertaken under color of law and,

for the individual Defendants, within the scope of their employment with HRC

and/or City,” they also alleged, “[a]lternatively, each Defendant’s acts and

omissions were undertaken under color of law and all individual Defendants

acted outside the scope of their employment with HRC and/or the City.” 15

Appellants’ Appendix Volume II at 19. In addition to the assertions in the

complaint discussed above, Landowners also alleged that Defendants’ acts and

omissions were committed “intentionally, unlawfully, maliciously, wantonly,

recklessly, negligently, and/or with bad faith.” Id. at 41. Given the procedural

posture, we cannot say that the facts are undisputed, and we decline at this

stage of the proceedings to conclude as a matter of law whether Defendants

were immune under the ITCA.

15

Ind. Trial Rule 8(E)(2) provides:

A pleading may set forth two [2] or more statements of a claim or defense alternatively or

hypothetically, either in one [1] count or defense or in separate counts or defenses. When

two [2] or more statements are made in the alternative and one [1] of them if made

independently would be sufficient, the pleading is not made insufficient by the insufficiency

of one or more of the alternative statements. A pleading may also state as many separate

claims or defenses as the pleader has regardless of consistency and whether based on legal

or equitable grounds. All statements shall be made subject to the obligations set forth in

Rule 11.

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[31] For the foregoing reasons, we reverse the trial court’s order granting

Defendants’ motion to dismiss.

[32] Reversed.

May, J., and Kenworthy, J., concur.

ATTORNEYS FOR APPELLANTS

Karol A. Schwartz

Greg A. Bouwer

Jeffrey R. Carroll

Koransky, Bouwer, & Poracky, P.C.

Dyer, Indiana

ATTORNEYS FOR APPELLEES CITY OF HAMMOND AND

THOMAS MCDERMOTT, JR.

David C. Jensen

Robert J. Feldt

Eichhorn & Eichhorn, LLP

Hammond, Indiana

ATTORNEY FOR APPELLEES HAMMOND REDEVELOPMENT COMMISSION,

TONY HAUPRICH, GREG MYRICKS, DAWN TOMICH, WALLY KASPRZYCKI,

MIRIAM SOTO PRESSLEY, AND ANNA MAMALA

David Westland

Westland & Bennett, P.C.

Hammond, Indiana

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