Cheathem v. City of Evansville

• Decision Date: 18 February 1972
• Docket Number: No. 271A24,271A24
• Citation: 278 N.E.2d 602,151 Ind.App. 181
• Parties: Abram CHEATHEM, Jr., and Hazel Cheathem, Appellants (Plaintiffs below), v. The CITY OF EVANSVILLE, Indiana, Acting By the Evansville, Indiana Redevelopment Commission, the United States of America, Acting By the Department of Housing and Urban Development, Appellees (Defendants below).
• Court: Indiana Appellate Court

Page 602

278 N.E.2d 602

151 Ind.App. 181

Abram CHEATHEM, Jr., and Hazel Cheathem, Appellants (Plaintiffs below), v. The CITY OF EVANSVILLE, Indiana, Acting By the Evansville Indiana Redevelopment Commission, the United States of America, Acting By the Department of Housing and Urban Development, Appellees (Defendants below).

No. 271A24.

Court of Appeals of Indiana, Third District.

Feb. 18, 1972.

Rehearing Denied March 22, 1972.

John D. Clouse, Evansville, for appellants.

F. Wesley Bowers, Evansville, Charles H. Scruggs, Asst. U.S. Atty., Indianapolis, for appellees.

STATON, Judge.

This is an appeal from a 'Motion to Dismiss.' Appellants, Abram Cheathem, Jr. and Hazel Cheathem, whose real property was located at 2417 Haag Avenue in an Evansville rendevelopment project, filed an 'Amended Complaint' for relocation and moving expenses equal to that received by other residents. Appellee, City of Evansville, filed its 'Motion to Dismiss' which was granted by the Vanderburgh Circuit Court.

The appellants hereafter will be referred to as 'Cheathem' and the appellees will hereafter be referred to as the 'City.'

Cheathem suggests in his brief that rhetorical paragraphs '3' and '7' present the '* * * facts most pertinent to this appeal, * * *.' We have taken the liberty of setting forth rhetorical paragraphs '5' and '6' of the Cheathem 'Amended Complaint' which we hope will add to the continuity of the claim:

'3. That the plaintiffs are citizens of the United States of America, the State of Indiana, and the City of Evansville, Indiana, and are taxpayers of each of said governmental units, but because of their lack of education, their environment, having lived in a slum area, their race, which is of the Negro or black race, and their lack of legal advice and counsel early in the proceedings mentioned hereinbelow, are disadvantaged persons.

5. That sometime prior to the filing of this action, the exact date being unknown to plaintiffs, but known to defendant City, the defendant City started a redevelopment project in real estate which included that owned by plaintiffs, that said area was known as 'Villa Sites', a slum area, during the course of which defendant City acquired real estate in said area either by purchase or condemnation, with the intention to raze the structures in said area and to resell the same.

6. That the defendant City, in the course of said operation, acquired plaintiffs' real estate.

7. That said defendant City, by the use of some formula, or regulations the exact nature which are also unknown to plaintiffs, paid to residents in said redevelopment area relocation and moving expenses, but did not pay said relocation and moving expenses to plaintiffs. That plaintiffs have, therefore, suffered discrimination from said defendant City and pray for an amount which their neighbors in comparable situations have received, the exact amount being unknown to plaintiffs. That if said regulations, or formula, referred to hereinabove, do not provide that plaintiffs receive relocation and moving expenses, then the same are unconstitutional as a denial of equal protection of laws guaranteed to these plaintiffs by the 14th Amendment to the Constitution of the United States.'

The reasons given by the court for granting the City's Motion to Dismiss the 'Amended Complaint' of Cheathem are, omitting the formal parts, as follows:

'The defendant, City of Evansville, Indiana, filed a Motion to Dismiss which was based on the following grounds:

(a) The Court lacked jurisdiction of the subject matter.

(b) The Court lacked jurisdiction of the person of the City of Evansville, Indiana.

(c) The amended complaint failed to state a claim upon which relief can be granted.

'In the view of the Vanderburgh Circuit Court plaintiffs' claim, if any, could exist only under applicable United States Statutes. Recovery by the plaintiffs is prohibited by the express terms of 42 U.S.C. 1465, sub-section (e), which specifically prohibits review by any Court of a determination made by the federal agency as to the right to receive any relocation assistance. This was the holding in Merge v. Troussi (3 Cir. 1968), 394 F.2d 79.

'However, even if it were held that the prohibition of review by any court was not binding upon state courts, then the plaintiffs are precluded by failure to state any claim resting upon state statutes or constitutional grounds. The plaintiffs' amended complaint fails to state any cause under Indiana law which would form the basis for a recovery.

'First, there was no taking of any property. The plaintiffs assert in their amended complaint that they failed to receive relocation payments as other persons did. But they do not allege or assert in their amended complaint the taking of any of their property by the exercise of the power of eminent domain. Rhetorical paragraph six of the amended complaint merely says 'That the defendant, City, in the course of said operation, acquired plaintiffs' real estate.' However, even if the real estate of the plaintiffs had been taken by eminent domain there is no requirement by state law to pay relocation expenses. It was not until 1971 that the Indiana General Assembly adopted a statute which required the payment of relocation expenses to persons affected by condemnation other than by condemnation actions instituted by the Indiana State Highway Commission.

'The plaintiffs' amended complaint also does not show any valid claim of racial discrimination. The amended complaint does not even alleged racial discrimination. It alleges that other persons were paid but does not say that such payment was a discrimination based upon racial origins. Apart from the allegations that they are disadvantaged persons and that others were paid relocation and moving expenses, while they were not, there is nothing to show any right to receive relocation or moving expenses. At the best the amended complaint shows that they owned land in the redevelopment area (but make no allegations that they resided therein) and does not show that they suffered or were required to make or incur any relocation or moving expenses.'

The trial court granted the City's 'Motion to Dismiss.' Cheathem refused to plead further. Judgment was entered and Cheathem filed his 'Motion to Correct Errors.'

Rule TR. 12(B)(6) is the Indiana Rule of Procedure for Granting a Motion to Dismiss. It is identical to the Federal Rule. A Motion to Dismiss must be viewed by the trial court '* * * in the light most favorable to the plaintiff, and with every intendment regarded in his favor, * * *' to ascertain whether '* * * the complaint is sufficient to constitute any valid claim.' Theis v. Heuer (1971), Ind.App., 270 N.E.2d 764, 26 Ind.Dec. 3; Volume 1A, Federal Practice and Procedure Barron and Holtzoff (Wright Ed.), § 356. Under our rule as well as the Federal Rule, Cheathem's failure to be definite and his lack of clarity in expressing his claim will not usually warrant the granting of a motion to dismiss. When we say that no question of fact will be determined upon a motion to dismiss and that the complaint needs only state enough to enable the defendant to form a responsive pleading, we do not mean that the elements necessary to give the defendants notice of the recovery theory can be excluded. The detailed pleading of facts under the old code pleading has been dispensed with but not the disclosure by the claimant of the theory upon which his claim is based. Cheathem has the burden to state all of the necessary elements of his theory of recovery. It is not the trial court's duty to search for all possible legal theories which may or may not apply to the statements advanced by the plaintiff in his claim when a motion to dismiss has been made. In the present case, Cheathem has refused to plead further and he is bound by what he has chosen to include in his claim.

The court must enter judgment if it appears that the moving party is entitled to judgment as a matter of law. ¹ Judgment is never entered because the court may believe that the plaintiff will ultimately be unable to prove the allegations of his complaint. The complaint should not be dismissed so long as there is any possibility that the plaintiff will ultimately prevail. Examining Cheathem's 'Amended Complaint,' the test is whether in the light most favorable to Cheathem with every intendment regarded in his favor, his 'Amended Complaint' is not sufficient to constitute any valid claim.

The 'Amended Complaint' poses two propositions of law:

(1) Cheathem is entitled to relocation assistance as a constitutional guarantee against taking of property without just compensation; and, (2) the state agency's rules and regulations are unconstitutional as violative of the Fourteenth Amendment of the Constitution of the United States and the Indiana Constitution. The trial court gave two reasons for granting the 'Motion to Dismiss.' The first reason goes to Federal legislation and jurisdiction. The second reason goes to the failure to state any cause under Indiana law which would form the basis for recovery.

Addressing itself to the first reason, the trial court stated: 'Recovery by the plaintiffs is prohibited by the express terms of 42 U.S.C. 1465, sub-section (e), which specifically prohibits review by any court of a determination made by the Federal agency as to the right to receive any relocation assistance.' Merge v. Troussi, 394 F.2d 79 (1968) was cited as authority.

42 U.S.C. Sec. 1465, Sub-section (e):

'The Secretary is authorized to establish such rules and regulations as he may deem appropriate in carrying out the provisions of this section and may provide in any contract with a local public agency or in regulations promulgated by the Secretary, that determinations of any duly designated officer or agency as to eligibility for and the amount of relocation assistance authorized by this section shall be find and conclusive for any purposes and not the subject to...