Stillwater of Crown Point Homeowner's Ass'n, Inc. v. Kovich

Citation865 F.Supp.2d 922
Decision Date11 October 2011
Docket NumberCause No. 2:09–CV–157–PRC.
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.
CourtU.S. District Court — Northern District of Indiana

865 F.Supp.2d 922

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.


[865 F.Supp.2d 925]


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

Beverly J. Mack, Jerry E. Huelat, Huelat & Mack, Michigan City, IN, Deborah A. Kapitan, Kopka Pinkus Dolin & Eads P.C., George C. Patrick, George C. Patrick & Associates P.C., David H. Nicholls, Nicholls & Nicholls, Crown Point, IN, Aimee Rivera Cole, Donna H. Fisher, Smith Fisher Maas & Howard P.C., 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 Plaintiffs' Motion for Partial Summary Judgment Against Defendant City of Crown Point, Indiana [DE 97], 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 (collectively “Plaintiffs”) on March 4, 2011. A response was filed by the City of Crown Point, Indiana (the “City”) on April 19, 2011. Plaintiffs filed a reply on May 17, 2011, and, with leave of Court, Plaintiffs filed an amended reply on May 18, 2011.

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

[865 F.Supp.2d 926]

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.

In the instant motion, Plaintiffs seek summary judgment against the City only on their claim of negligence per se for alleged violations of the Indiana Flood Control Act and Crown Point Flood Control Ordinance, arguing that the City violated its duties under both laws by allowing the unpermitted construction of the three crossings, which led to flooding damages to homeowners' property.

PROCEDURAL BACKGROUND

On June 4, 2009, Plaintiffs filed a Complaint against Jack Kovich, Innovative Enterprises, Ltd., Robert Stiglich, Stillwater Properties, LLC, Hawk Development Corp., and the City of Crown Point, Indiana, seeking injunctive relief and damages.

Count IV of the Complaint alleges that the City was negligent per se because it violated the Indiana Flood Control Act and Crown Point Ordinance by permitting the construction of three crossings of Smith Ditch in the Stillwater of Crown Point and Pine Hill subdivisions, despite the fact that the developers had not obtained floodway construction permit for the crossings from the Indiana Department of Natural Resources. Count V of the Complaint alleges that the City breached its duty owed to Plaintiffs to exercise reasonable care in undertaking, approving, and upgrading the development of streets and drainage infrastructure in the two developments. Count VI alleges that the three crossings constitute public and private nuisances and that Plaintiffs have been harmed by the nuisance conditions created by the City.

Hawk Development Corporation filed an Answer on August 6, 2009. Innovative Enterprises, Ltd. and Jack 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, 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.”

[865 F.Supp.2d 927]

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 nonmoving party's case.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548. When the nonmoving party would have the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Celotex, 477 U.S. at 323, 325, 106 S.Ct. 2548;Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir.1994); Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir.1990). However, the moving party, if it chooses, may support its motion for summary judgment with affidavits or other materials, and, if the moving party has “produced sufficient evidence to support a conclusion that there are no genuine issues for trial,” then the burden shifts to the nonmoving party to show that an issue of material fact exists. Becker v. Tenenbaum–Hill Assoc., 914 F.2d 107, 110–111 (7th Cir.1990) (citations omitted); see also Hong v. Children's Mem'l Hosp., 993 F.2d 1257, 1261 (7th Cir.1993).

Once a properly supported motion for summary judgment is made, the non-moving party cannot resist the motion and withstand summary judgment by merely resting on its pleadings. SeeFed.R.Civ.P. 56(e)(2); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir.1994). Rule 56(e) provides that “[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it ....” Fed.R.Civ.P. 56(e)(2), (3); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, to demonstrate a genuine issue of fact, the nonmoving party must “do more than simply show that there is some metaphysical doubt as to the material facts,” but must “come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)).

In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505;Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir.2009); NLFC, Inc. v. Devcom Mid–Am., Inc., 45 F.3d 231, 234 (7th Cir.1995). A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of

[865 F.Supp.2d 928]

triable fact. See Anderson, 477...

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