Indiana Land Trust 3082 v. Hammond Redevelopment Commission

IN THE

Indiana Supreme Court

Supreme Court Case No. 25S-PL-141

FILED

Indiana Land Trust #3082 and Omar and Haitham Feb 24 2026, 11:04 am

Abuzir as Trustees CLERK

Indiana Supreme Court

Court of Appeals

Appellants (plaintiffs below) and Tax Court

–v–

Hammond Redevelopment Commission et al.

Appellees (defendants below)

Argued: September 4, 2025 | Decided: February 24, 2026

Appeal from the Lake Superior Court,

No. 45D11-2401-PL-1

The Honorable Bruce D. Parent, Judge

On Petition to Transfer from the Indiana Court of Appeals,

No. 24A-PL-1284

Opinion by Justice Goff

Chief Justice Rush and Justices Massa, Slaughter, and Molter concur.

Goff, Justice.

The Indiana Tort Claims Act, or ITCA, governs lawsuits against

political subdivisions and their employees. Relevant here are two

provisions of the ITCA: code subsection 34-13-3-3(a)(6), which immunizes

government entities and their employees if an alleged “loss results from”

the “initiation of a judicial . . . proceeding”; and code section 34-13-3-5,

which generally bars an action against an employee unless the alleged

tortious conduct falls “clearly outside the scope of the employee’s

employment.” Because the plaintiffs’ abuse-of-process claim directly

“result[ed] from” the defendants’ “initiation of” a condemnation action,

and because the defendants’ conduct in approving the condemnation

action clearly fell within the scope of their employment, we hold as a

matter of law that immunity applies. Accordingly, we affirm the trial

court’s ruling on the defendants’ 12(B)(6) motion to dismiss.

Facts and Procedural History

Omar and Haitham Abuzir are beneficiaries of Indiana Land Trust

#3082 (collectively, the Landowners). The trust owns property at 1318–

1320 Indianapolis Boulevard (the Property) in the City of Hammond on

which Omar and Haitham operate a fireworks and tobacco retail business.

In January 2018, the Hammond Redevelopment Commission (or HRC)

offered to buy the Property for $394,500, purportedly to develop a public

street connecting residents of a local neighborhood to an adjacent road.

Landowners declined the offer, so the HRC, in June 2019, filed a complaint

in the Lake Circuit Court seeking to condemn the Property (the

Condemnation Action). Landowners responded by alleging that the

HRC’s attempted taking was arbitrary and capricious, made in bad faith,

and based on “subterfuge” and “improper motives”; and pursued not for

a public purpose but, rather, for the “private benefit of the Mayor, his

campaigns,” and the Landowner’s business competitors. App. Vol. 2, p.

23. The Condemnation Action remains pending.

Indiana Supreme Court | Case No. 25S-PL-141 | February 24, 2026 Page 2 of 11

Two years later, Landowners filed a counterclaim and complaint

against the HRC and its individual members,1 the City of Hammond, and

Mayor Thomas McDermott, Jr. (collectively, the Defendants) in a separate

case, raising similar arguments and alleging abuse of process and various

constitutional-rights violations. The Defendants removed that case to

federal court.

Then, in the Condemnation Action, Landowners sought permission to

“intervene as Plaintiffs” and to file a counterclaim for abuse of process.

App. Vol. 3, p. 4; Motion for Leave at 1, 3. The trial court denied that

request, ruling that code subsection 32-24-1-8(c) prohibits counterclaims in

condemnation proceedings. Citing the “case pending in federal court

addressing the same issues,” the court explained that the Landowners

would “not be prejudiced” by its ruling. App. Vol. 3, p. 7. Ultimately,

though, the federal court dismissed the Landowners’ constitutional

claims, and it declined to exercise supplemental jurisdiction over their

abuse-of-process claim, which the court dismissed without prejudice so

Landowners could refile that claim in state court.

Landowners then filed another complaint in the Lake Superior Court

(the Underlying Cause), alleging, among other things, abuse of process by

the Defendants, arguing that Defendants lacked immunity, and seeking

damages (compensatory and punitive) and attorneys’ fees. Defendants

moved to dismiss under Trial Rule 12(B)(6), arguing (1) that the abuse-of-

process claim was an impermissible collateral attack on the pending

Condemnation Action; (2) that Landowners’ claims were objections and

defenses that must be addressed in the Condemnation Action; (3) that the

HRC used the proper statutory vehicle for bringing its Condemnation

Action, so Landowners’ claim necessarily fails; and (4) that all Defendants

enjoyed immunity under the ITCA. App. Vol. 2, pp. 162–63, 165, 167, 178,

182; App. Vol. 3, p. 42.

1The complaint named the following individual members: Tony Hauprich, Greg Myricks,

Dawn Tomich, Wally Kasprzycki, Miriam Soto-Pressley, and Anna Mamala.

Indiana Supreme Court | Case No. 25S-PL-141 | February 24, 2026 Page 3 of 11

The trial court granted Defendants’ motion. While acknowledging that

a defendant in a condemnation action may assert fraud or bad faith “to

show that the property taken will not be used for public purpose” or that

the proceedings are a “subterfuge to convey the property to a private

use,” the trial court concluded that the merits of Landowner’s abuse-of-

process claim would “be properly heard” in the pending Condemnation

Action. App. Vol. 3, pp. 61–62. To maintain the Underlying Cause, the

court reasoned, “would run the risk of subjecting the parties to different

orders on the same issues from two different [trial courts].” Id. at 62.

In a unanimous precedential opinion, the Court of Appeals reversed,

holding (1) that a landowner subject to a condemnation action can raise a

parallel abuse-of-process claim because the former proceeding limits the

full scope of damages otherwise available in the abuse-of-process tort

action; (2) that 12(B)(6) dismissal was improper because Landowners

raised a question and sufficiently alleged a claim “that is a proper subject

for judicial review”; and (3) that, given Landowner’s allegations that the

Defendants acted “outside the scope of their employment,” it’s disputable

whether the ITCA immunizes them and, thus, 12(B)(6) dismissal was

improper. Ind. Land Tr. #3082 v. Hammond Redevelopment Comm’n, 252

N.E.3d 931, 940–41, 944, 945 (Ind. Ct. App. 2025).

We granted the Defendants’ petition for transfer, thus vacating the

Court of Appeals’ decision. See Ind. Appellate Rule 58(A).

Standard of Review

On appeal from a trial court’s ruling on a 12(B)(6) motion, this Court

applies a de novo standard of review and examines the pleadings in a

light “most favorable to the nonmoving party, with every reasonable

inference construed in the nonmovant’s favor.” Charter One Mortg. Corp. v.

Condra, 865 N.E.2d 602, 604 (Ind. 2007). “A complaint may not be

dismissed for failure to state a claim upon which relief can be granted

unless it is clear on the face of the complaint that the complaining party is

not entitled to relief” under any circumstances. Id. at 605. Whether a

government unit or its employee is entitled to immunity under the ITCA

Indiana Supreme Court | Case No. 25S-PL-141 | February 24, 2026 Page 4 of 11

is a question of law likewise subject to de novo review. Mangold v. Ind.

Dep’t of Nat. Res., 756 N.E.2d 970, 975 (Ind. 2001).

Discussion and Decision

The dispute here centers on two principal issues: (1) whether a

landowner subject to a condemnation action can raise a parallel abuse-of-

process claim against the government for wrongfully bringing the

condemnation action; and (2) whether, as a matter of law, Defendants are

immune for their actions under the ITCA. Because we find the latter issue

dispositive, we decline to address the former.

****

Defendants and aligned amici argue that immunity applies under two

provisions of the ITCA: code section 34-13-3-5 and code subsection 34-13-

3-3(a)(6). We address each of these provisions in turn.

A. Immunity Under Code Section 34-13-3-5

The ITCA establishes “certain parameters to determine liability for

negligent acts or omissions on the part of government employees” and

grants “substantial immunity” for conduct that falls “within the scope of

the employee’s employment.” Burton v. Benner, 140 N.E.3d 848, 852 (Ind.

2020) (quoting Bushong v. Williamson, 790 N.E.2d 467, 472 (Ind. 2003)). To

sue a government employee personally, the plaintiff must allege that the

employee’s acts or omissions causing the loss are “(1) criminal; (2) clearly

outside the scope of the employee’s employment; (3) malicious; (4) willful

and wanton; or (5) calculated to benefit the employee personally.” Ind.

Code § 34-13-3-5(c).2

2For purposes of code chapter 34-13-3, the terms “employee” and “public employee” refer to

“a person presently or formerly acting on behalf of a governmental entity,” which includes

“members of boards, committees, commissions, authorities, and other instrumentalities,” as

well as “elected public officials.” Ind. Code § 34-6-2.1-54(a).

Indiana Supreme Court | Case No. 25S-PL-141 | February 24, 2026 Page 5 of 11

Landowners argue that the “inapplicability of [ITCA] immunity” to the

mayor and the individual HRC members “is plainly evident,” given the

“allegations of acts beyond the scope of employment.” Resp. to Pet. to

Trans. at 15. To conclude otherwise, Landowners insist, would “grossly

expand [ITCA] immunity to include any acts proclaimed by municipal

employees themselves to be within the scope of their own employment.”

Id. at 14.

We disagree.

An allegation that an individual defendant acted outside the scope of

employment necessarily fails when that conduct is “of the same general

nature as that authorized, or incidental to the conduct authorized.”

Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 453 (Ind. 2000) (internal

citation and quotation marks omitted). “Even tortious acts may fall within

the scope of employment,” so long as the purpose of the employee’s

conduct “was, to an appreciable extent, to further his employer’s

business.” Id. (internal citation and quotation marks omitted).

In Celebration Fireworks, for example, this Court held that critical

comments made by a city fire chief about the plaintiff’s bill-paying history

while inspecting the business premises of the plaintiff’s prospective

landlord amounted to acts falling within the scope of his employment,

thus immunizing him from a defamation claim. Id. at 451, 454. The fire

chief, we reasoned, was “on public time” when he made the comments,

“performing a function that was central to the position he held.” Id. at 453.

In another case, Ball v. Jones, the Court of Appeals held that a detective’s

alleged falsification of a probable-cause affidavit was, “to an appreciable

extent to further his employer’s business.” 52 N.E.3d 813, 820–21 (Ind. Ct.

App. 2016) (internal citation and quotation marks omitted). Thus, absent

evidence that he “acted on his own initiative or with no intention to

perform the service for which he was employed,” the detective’s actions

fell within the scope of his employment. Id. at 820. Cf. VanValkenburg v.

Warner, 602 N.E.2d 1046, 1048, 1050 (Ind. Ct. App. 1992) (holding that the

ITCA did not bar a student’s suit against a professor for negligent

maintenance of his home because such maintenance fell beyond the scope

of his employment with the public university).

Indiana Supreme Court | Case No. 25S-PL-141 | February 24, 2026 Page 6 of 11

Here, Landowners alleged that the mayor and individual HRC

members (1) either voted for or failed to stop the adoption of the

resolution approving the condemnation action, (2) failed to “conduct due

diligence” to ensure the condemnation action had a proper factual and

legal basis, (3) failed to ensure the condemnation action was for a public

purpose before voting for it, and/or (4) knew about the political/improper

purpose for the condemnation action. App. Vol. 2, pp. 37–39. Although

the scope-of-employment question is ordinarily reserved for the

factfinder, a court may resolve the issue as a matter of law when the

undisputed facts “would not allow a jury to find that the tortious acts

were within the scope of employment.” Burton, 140 N.E.3d at 852 (internal

citation and quotation marks omitted). And here, the conduct of the

mayor and HRC members, as alleged by the Landowners, clearly reflects

“the same general nature as that authorized, or incidental to the conduct

authorized” by statute. See I.C. §§ 32-24-1-1 through -17 (setting forth

general procedures for the exercise of eminent domain); I.C. § 36-7-14-20

(specifying a local redevelopment commission’s eminent-domain powers);

I.C. § 36-7-14-16(b) (requiring approval of the commission’s resolution and

plan by the county executive). And the conduct of these individuals,

regardless of their intentions, “was, to an appreciable extent,” in

furtherance of their “employer’s business.” See Celebration Fireworks, 727

N.E.2d at 453 (internal citation and quotation marks omitted).3

For these reasons, we hold that, as a matter of law, the mayor and the

individual HRC members are immune from liability under code section

34-13-3-5. To hold otherwise would undermine the purpose of

immunity—that is, “to ensure that public employees can exercise their

independent judgment necessary to carry out their duties without threat

3To be sure, there may be cases when an employee loses immunity by acting “so far out of the

scope of his or her employment as to amount to fraud or criminal conduct.” Celebration

Fireworks, Inc. v. Smith, 727 N.E.2d 450, 452 (Ind. 2000) (internal citation and quotation marks

omitted). But the Landowners’ complaint alleged neither fraud nor criminal conduct, and we

decline to characterize the mayor’s or HRC members’ conduct as so “outrageous as to be

incompatible with the performance of the duty undertaken.” See id. at 452–53 (internal citation

and quotation marks omitted).

Indiana Supreme Court | Case No. 25S-PL-141 | February 24, 2026 Page 7 of 11

of harassment by litigation or threats of litigation over decisions made

within the scope of their employment.” Celebration Fireworks, 727 N.E.2d at

452 (internal citation and quotation marks omitted).

B. Immunity Under Code Subsection 34-13-3-3(a)(6)

In their complaint, Landowners pled in the alternative that the

Defendants—collectively—acted “under color of law” and that the mayor

and the HRC members—individually—acted “within the scope of their

employment.” App. Vol. 2, p. 19 (emphasis added).

As for the mayor and individual HRC members, we first observe that a

“plaintiff cannot sue a governmental employee personally” when, like

here, “the complaint, on its face, alleges that the employee’s acts leading to

the claim occurred within the scope of his employment.” City of Gary v.

Conat, 810 N.E.2d 1112, 1118 (Ind. Ct. App. 2004) (citing Bushong, 790

N.E.2d at 471). Even if Landowners didn’t plead themselves out of court

by raising these alternative allegations,4 immunity still applies to the

mayor and individual HRC members—indeed to all Defendants—under

code subsection 34-13-3-3(a)(6) (or just subsection (6)).

The ITCA immunizes a government entity, “or an employee acting

within the scope” of his or her employment, “if a loss results from” the

“initiation of a judicial … proceeding,” I.C. § 34-13-3-3(a)(6), i.e., the

initiation of “any proceeding for the purpose of obtaining such remedy as

the law allows,” Livingston v. Consol. City of Indianapolis, 398 N.E.2d 1302,

1304 (Ind. Ct. App. 1979) (internal citation and quotation marks omitted).

Immunity under subsection (6) is “most commonly associated with suits

for malicious prosecution or abuse of process.” F.D. v. Ind. Dep’t. of Child

Servs., 1 N.E.3d 131, 137 (Ind. 2013).

4Our trial rules permit a litigant to set forth in a pleading “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.” Ind. Trial Rule 8(E)(2). If one of these statements would suffice

on its own, “the pleading is not made insufficient by the insufficiency of one or more of the

alternative statements.” Id.

Indiana Supreme Court | Case No. 25S-PL-141 | February 24, 2026 Page 8 of 11

In F.D., the plaintiff-parents informed DCS that their son had been

molested by their nephew, prompting DCS to investigate and refer the

matter to police, which in turn led the nephew to admit having molested

the parents’ daughter as well. Id. at 134. Police then referred the matter to

the juvenile court for possible delinquency proceedings, but neither police

nor DCS informed the parents of the nephew’s admissions. Id. After

independently learning of those admissions, the parents sued DCS,

alleging that the agency was negligent by failing to fulfill its statutory

duty to notify them. Id. DCS sought immunity under subsection (6),

arguing that its investigation and referral was “the catalyst for the judicial

proceeding against” the nephew. Id. at 137. This Court rejected that

argument (1) because the parents’ claim related not to an allegation that

resulted in the nephew’s delinquency adjudication but, rather, to DCS’s

failure to notify them of the molestation; and (2) because, rather than

asserting that any harm resulted from the initiation of judicial proceedings

against the nephew, the parents’ failure-to-notify claims against DCS

would have been the same had the prosecutor never initiated those

proceedings. Id. at 137–38.

Unlike in F.D., the Landowners’ abuse-of-process claim directly

“result[ed] from” the Defendants’ “initiation of a judicial proceeding.”

Indeed, in their complaint, the Landowners alleged that the Defendants

committed abuse of process by “[p]ursuing a taking” based on “false

rationales” and “misleading acts” for a private purpose rather than for

public interests. App. Vol. 2, p. 40. And the Defendants, whatever their

motive, initiated this judicial proceeding “for the purpose of obtaining

such remedy as the law allows,” see Livingston, 398 N.E.2d at 1304 (internal

citation and quotation marks omitted), i.e., for the purpose of

condemnation, see I.C. § 32-24-1-4.

Landowners offer no compelling argument for rejecting application of

subsection (6) immunity. Subsection (6), they insist, immunizes only the

“initiation” of judicial proceedings, “not their continuation after discovery

reveals their false bases.” Resp. to Pet. to Trans. at 17–18 (emphasis

added); see also Appellant’s Reply Br. at 9–10, 18 (raising the same

argument). But the simple act of filing a complaint (whether to condemn

property or pursue other claims) results in no “loss” to the defendant; it’s

Indiana Supreme Court | Case No. 25S-PL-141 | February 24, 2026 Page 9 of 11

the initiation and prosecution of the government’s claim to its final

resolution that does. Accepting Landowners’ argument would effectively

dismantle subsection (6) immunity. What’s more, neither case on which

Landowners rely support their interpretation of subsection (6). See Ind.

Dep't of Fin. Insts. v. Worthington Bancshares, Inc., 728 N.E.2d 899, 902 (Ind.

Ct. App. 2000) (stressing that the provision ensures government actors are

“free from fear of liability for the initiation of [judicial] proceedings” but

otherwise making no distinction between the initiation of an action and

the continuation of an action), trans. denied; Clifford v. Marion Cnty.

Prosecuting Att'y, 654 N.E.2d 805, 808 (Ind. Ct. App. 1995) (same).

For these reasons, we hold that, as a matter of law, all Defendants—the

HRC, the City, the mayor, and the individual HRC members—are

immune from liability under code subsection 34-13-3-3(a)(6).

Conclusion

For the reasons above, we affirm the trial court’s ruling on Defendants’

12(B)(6) motion to dismiss.

Rush, C.J., and Massa, Slaughter, and Molter, J.J., concur.

ATTORNEYS FOR APPELLANTS

Greg A. Bouwer

Jeffrey R. Carroll

Karol A. Schwartz

Koransky, Bouwer & Poracky, P.C.

Dyer, Indiana

ATTORNEYS FOR APPELLEES CITY OF HAMMOND AND THOMAS

MCDERMOTT, JR.

Robert J. Feldt

Erika N. Helding

David C. Jensen

Indiana Supreme Court | Case No. 25S-PL-141 | February 24, 2026 Page 10 of 11

Eichhorn & Eichhorn, LLP

Hammond, Indiana

Kevin C. Smith

Munster, Indiana

ATTORNEYS FOR APPELLEES HAMMOND REDEVELOPMENT

COMMISSION, TONY HAUPRICH, GREG MYRICKS, DAWN

TOMICH, WALLY KA SPRZYCKI, MIRIAM SOTO-PRESSLEY, AND

ANNA MAMALA

David W. Westland

Westland & Bennett, P.C.

Hammond, Indiana

ATTORNEYS FOR AMICUS CURIAE ATTORNEY GENERAL OF

INDIANA

Theodore E. Rokita

Attorney General of Indiana

Benjamin M. Jones

Deputy Attorney General

Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE DEFENSE TRIAL COUNSEL OF

INDIANA

Lucy R. Dollens

Michalynn M. Miller

Quarles & Brady LLP

Indianapolis, Indiana

Indiana Supreme Court | Case No. 25S-PL-141 | February 24, 2026 Page 11 of 11