Stillwater of Crown Point Homeowner's Ass'n, Inc. v. Kovich, Cause No. 2:09–CV–157–PRC.

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Writing for the CourtPAUL R. CHERRY
PartiesSTILLWATER OF CROWN POINT HOMEOWNER'S ASSOCIATION, INC., individually and on behalf of its members; Roger P. Mahoney; Kent Kolodziej; and Kevin J. and Margaret McKenna, Plaintiffs, v. Jack KOVICH, Innovative Enterprises, Ltd., Robert Stiglich, Hawk Development Corp., and City of Crown Point, Indiana, Defendants.
Docket NumberCause No. 2:09–CV–157–PRC.
Decision Date11 October 2011

820 F.Supp.2d 859

STILLWATER OF CROWN POINT HOMEOWNER'S ASSOCIATION, INC., individually and on behalf of its members; Roger P. Mahoney; Kent Kolodziej; and Kevin J. and Margaret McKenna, Plaintiffs,
v.
Jack KOVICH, Innovative Enterprises, Ltd., Robert Stiglich, Hawk Development Corp., and City of Crown Point, Indiana, Defendants.

Cause No. 2:09–CV–157–PRC.

United States District Court,N.D. Indiana,Hammond Division.

Oct. 11, 2011.


[820 F.Supp.2d 862]

Donna C. Marron, J. Michael Bowman, Daniel Philip Cory, Plews Shadley Racher & Braun, Indianapolis, IN, for Plaintiffs.

Beverly J. Mack, Jerry E. Huelat, Huelat & Mack, Michigan City, IN, Deborah A. Kapitan, Kopka Pinkus Dolin & Eads PC, George C. Patrick, George C. Patrick & Associates PC, David H. Nicholls, Nicholls & Nicholls, Crown Point, IN, Aimee Rivera Cole, Donna H. Fisher, Smith Fisher Maas & Howard PC, Indianapolis, IN, for Defendants.

Robert Stiglich, Crown Point, IN, pro se.
OPINION AND ORDER
PAUL R. CHERRY, United States Magistrate Judge.

This matter is before the Court on (1) Defendant Hawk Development Corporation's Motion for Summary Judgment [DE 90], filed on March 1, 2011; (2) a Motion of Defendants Jack Kovich and Innovative Enterprises, Ltd. for Summary Judgment on Plaintiffs' Complaint pursuant to Fed.R.Civ.P. 56(a) [DE 93], filed on March 4,

[820 F.Supp.2d 863]

2011; (3) Plaintiffs' Motion for Partial Summary Judgment Against Defendants Jack Kovich, Innovative Enterprises, Ltd., Robert Stiglich, Stillwater Properties, LLC, and Hawk Development Corp. [DE 100], 1 filed by Plaintiffs Stillwater of Crown Point Homeowner's Association, Inc., individually and on behalf of its members; Roger P. Mahoney; Kent Kolodziej; Kevin J. McKenna; and Margaret McKenna on March 4, 2011; (4) Plaintiffs' Request for Oral Argument [DE 103], filed on March 4, 2011; (5) Defendants Innovative Enterprises, Ltd. and Jack Kovich's Request for Oral Argument [DE 125], filed on April 19, 2011; (6) a Motion to Strike Portions of the Affidavits of Eric P. Ellingson and Martin S. Mann [DE 135], filed by Plaintiffs on April 28, 2011; and (7) Defendant Hawk Development Corp.'s Motion to Strike Paragraph 5(d) and 6 of the Affidavit of Jonathan Jones [DE 139], filed on May 17, 2011. All the motions are fully briefed and ripe for ruling.2

This is the story of two subdivisions and three road crossings in Crown Point, Indiana. The Stillwater of Crown Point Subdivision (“Stillwater Subdivision”) was developed by Stillwater Properties, LLC, Innovative Enterprises, Ltd., Robert Stiglich, and Jack Kovich. The Pine Hill Subdivision (“Pine Hill”) was developed by Hawk Development Corp. Located near the border of the Stillwater Subdivision and Pine Hill is Smith Ditch. Three road crossings—Greenview Place, Stillwater Parkway, and Crooked Creek Trail—span Smith Ditch. The crossings at Greenview Place and Stillwater Parkway are contained within the Stillwater Subdivision. The crossing at Crooked Creek Trail connects the Stillwater Subdivision and Pine Hill, with Hawk constructing a “stub section” of the crossing up to the property line, and Stillwater Properties, LLC constructing the remainder of the crossing, including that portion that spans the channel of Smith Ditch. Each crossing was constructed by placing fill material in Smith Ditch and the adjacent wetlands along with two thirty-six inch culverts to convey the flow of water in Smith Ditch under the crossings. In September 2008, flooding occurred in the subdivisions as water backed up behind the crossings, adversely affecting homes in the subdivisions, including those of Kent Kolodziej in Pine Hill and Roger P. Mahoney and Kevin J. and Margaret McKenna in Stillwater Subdivision.

PROCEDURAL BACKGROUND

On June 4, 2009, Plaintiffs filed a Complaint against Jack Kovich, Innovative Enterprises, Ltd. (“Innovative Enterprises”), Robert Stiglich, Stillwater Properties, LLC, Hawk Development Corp. (“Hawk”), and the City of Crown Point, Indiana (“City”), seeking injunctive relief and damages. Plaintiffs allege that, in 2008, the Stillwater Subdivision and at least one home in Pine Hill were affected by flooding and allege that the construction of the three crossings of the Smith Ditch created the flooding condition that caused the damages.

In Count I, Plaintiffs bring a Clean Water Act (“CWA”) citizen suit pursuant to 33 U.S.C. § 1365(a), alleging that Kovich, Innovative Enterprises, Stiglich, Stillwater Properties, LLC, and Hawk's discharges of fill material to construct the crossings of Smith Ditch at Greenview Place and Stillwater Parkway violate the general and

[820 F.Supp.2d 864]

specific conditions set forth in the CWA § 401 water quality certification issued by the Indiana Department of Environmental Management (“IDEM”) and the CWA § 404 permit issued by the U.S. Army Corps of Engineers and, therefore, violate an effluent standard or limitation under the CWA. Count I further alleges that Kovich, Innovative Enterprises, Stiglich, and Stillwater Properties, LLC's discharge of fill material to construct the crossing of Smith Ditch at Crooked Creek Trail without a CWA § 401 water quality certification and CWA § 404 permit violates an effluent standard or limitation under the CWA. Finally, Count I alleges that Hawk's discharge of fill material to construct the stub portion of the crossing of Smith Ditch at Crooked Creek Trail within Pine Hill violates the conditions set forth in the CWA § 404 permit issued by the Corps and therefore violates an effluent standard or limitation under the CWA.

In Count II, Plaintiffs allege a breach of the Wetlands Restriction and Covenants by Kovich, Innovative Enterprises, Stiglich, and Stillwater Properties, LLC by their development of undersized culverts at the three crossings.

In Count III, Plaintiffs allege a breach of the implied warranty of habitability by Kovich, Innovative Enterprises, Stiglich, Stillwater Properties, LLC, and Hawk because these Defendants knew or should have known that there were latent defects in the Stillwater Subdivision and Pine Hill, including but not limited to, the inability of the culverts placed in the three crossings to prevent Smith Ditch, a natural watercourse, from flooding homes and common areas in the Stillwater Subdivision and Pine Hill during or following a heavy rain.

Count IV alleges negligence per se against Kovich, Innovative Enterprises, Stiglich, Stillwater Properties, LLC, and Hawk for violating their duties under the Indiana Flood Control Act and the City of Crown Point Flood Control Ordinance to obtain a floodway construction permit pursuant to Indiana Code § 14–28–1–22(c) before developing the three crossings.

In Count V, Plaintiffs' negligence claim alleges that Kovich, Innovative Enterprises, Stiglich, Stillwater Properties, LLC, and Hawk breached the duty owed to Plaintiffs to exercise reasonable care in undertaking, approving, and upgrading the development of streets and drainage infrastructure in the Stillwater Subdivision and Pine Hill.

Finally, in Count VI, Plaintiffs allege that the three crossings constitute public and private nuisances, and that Kovich, Innovative Enterprises, Stiglich, Stillwater Properties, LLC, and Hawk's development and authorization of the three crossings are unlawful pursuant to the City of Crown Point Flood Control Ordinance and are an unreasonable use of the land.

Hawk filed an Answer on August 6, 2009. Innovative Enterprises and Kovich filed an Answer on August 14, 2009. The City of Crown Point filed an Answer on September 1, 2009. Robert Stiglich filed an Answer on November 30, 2009.

On October 9, 2009, a Clerk's Entry of Default was entered against Stillwater Properties, LLC. On November 16, 2009, Defendant Stillwater Properties, LLC was severed as a party defendant for purposes of 28 U.S.C. § 636(c), and the case against Stillwater Properties, LLC only remains pending before Chief Judge Philip P. Simon.

As the remainder of the parties filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case, this case was reassigned to the undersigned Magistrate Judge. Therefore,

[820 F.Supp.2d 865]

this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).

SUMMARY JUDGMENT STANDARD

The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Rule 56(c) further requires the entry of summary judgment, after adequate time for discovery, against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[S]ummary judgment is appropriate—in fact, is mandated—where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir.1994) (citations omitted).

A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Fed.R.Civ.P. 56(c). The moving party may discharge its initial responsibility by simply “ ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the...

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18 practice notes
  • Black Warrior River-Keeper, Inc. v. Drummond Co., Case No. 2:16-cv-01443-AKK
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • May 7, 2019
    ...find that § 2462 "ha[d] not yet begun to run" on the CWA § 404 claim); Stillwater of Crown Point Homeowner's Ass'n, Inc. v. Kovich , 820 F. Supp. 2d 859, 896 (N.D. Ind. 2011) (finding that CWA § 404 violation was continuing under Gwaltney and tolled § 2462 ). Thus, the court disagrees with ......
  • Stillwater of Crown Point Homeowner's Ass'n, Inc. v. Stiglich, Cause No. 2:09–CV–157–PRC.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • February 26, 2014
    ...jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c). On October 11, 2011, the Court issued two Opinions, 865 F.Supp.2d 922, 820 F.Supp.2d 859, with the following rulings: (1) granting Plaintiffs' Motion for Partial Summary Judgment Against Defendant City of Crown Point, Indiana ......
  • Dwyer Instruments, Inc. v. Sensocon, Inc., Cause No. 3:09–CV–10–TLS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • June 5, 2012
    ...common law fraud actions, but in other statutory and common law causes”); Stillwater of Crown Point Homeowner's Ass'n, Inc. v. Kovich, 820 F.Supp.2d 859, 893 (N.D.Ind.2011) (holding that, under the principle recognized in County Line Park, the defendant could not, simply because he was a co......
  • Black Warrior River-Keeper, Inc. v. Drummond Co., 2:16-cv-01443-AKK
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • May 7, 2019
    ...to find that § 2462 “ha[d] not yet begun to run” on the CWA § 404 claim); Stillwater of Crownpoint Homeowner's Ass'n, Inc. v. Kovich, 820 F.Supp.2d 859, 896 (N.D. Ind. 2011) (finding that CWA § 404 violation was continuing under Gwaltney and tolled § 2462). Thus, the court disagrees with Dr......
  • Request a trial to view additional results
16 cases
  • Black Warrior River-Keeper, Inc. v. Drummond Co., Case No. 2:16-cv-01443-AKK
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • May 7, 2019
    ...find that § 2462 "ha[d] not yet begun to run" on the CWA § 404 claim); Stillwater of Crown Point Homeowner's Ass'n, Inc. v. Kovich , 820 F. Supp. 2d 859, 896 (N.D. Ind. 2011) (finding that CWA § 404 violation was continuing under Gwaltney and tolled § 2462 ). Thus, the court disagrees with ......
  • Stillwater of Crown Point Homeowner's Ass'n, Inc. v. Stiglich, Cause No. 2:09–CV–157–PRC.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • February 26, 2014
    ...jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c). On October 11, 2011, the Court issued two Opinions, 865 F.Supp.2d 922, 820 F.Supp.2d 859, with the following rulings: (1) granting Plaintiffs' Motion for Partial Summary Judgment Against Defendant City of Crown Point, Indiana ......
  • Dwyer Instruments, Inc. v. Sensocon, Inc., Cause No. 3:09–CV–10–TLS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • June 5, 2012
    ...common law fraud actions, but in other statutory and common law causes”); Stillwater of Crown Point Homeowner's Ass'n, Inc. v. Kovich, 820 F.Supp.2d 859, 893 (N.D.Ind.2011) (holding that, under the principle recognized in County Line Park, the defendant could not, simply because he was a co......
  • Black Warrior River-Keeper, Inc. v. Drummond Co., 2:16-cv-01443-AKK
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • May 7, 2019
    ...to find that § 2462 “ha[d] not yet begun to run” on the CWA § 404 claim); Stillwater of Crownpoint Homeowner's Ass'n, Inc. v. Kovich, 820 F.Supp.2d 859, 896 (N.D. Ind. 2011) (finding that CWA § 404 violation was continuing under Gwaltney and tolled § 2462). Thus, the court disagrees with Dr......
  • Request a trial to view additional results
2 books & journal articles
  • Enforcement
    • United States
    • Wetlands deskbook. 4th edition -
    • April 11, 2015
    ...§1362(5), ELR Stat. FWPCA §502(5). 9. Id. §1319(c)(6), §309(c)(6). 10. Stillwater of Crown Point Homeowner’s Ass’n, Inc. v. Kovich, 820 F. Supp. 2d 859, 890–893 (N.D. Ind. 2011). 11. See 40 C.F.R. §232.2 (2008). 12. Obviously, the government must have adequate proof of the illegal activity.......
  • PROTECTING RENTERS FROM FLOOD LOSS.
    • United States
    • University of Pennsylvania Law Review Vol. 170 Nbr. 3, February 2022
    • February 1, 2022
    ...61-64 and accompanying text. (100) Weintraub, 458 A.2d at 47. (101) See, e.g., Stillwater of Crown Point Homeowner's Ass'n v. Kovich, 820 F. Supp. 2d 859, 879 (N.D. Ind. 2011). (102) See, e.g., Gottesman v. Graham Apartments, Inc., 47 Misc. 3d 1213(A), at "82-84 (N.Y. Civ. Ct. 2015). (103) ......

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