Thrasher v. Van Buren Tp. of Monroe County, 1-179A7

Citation394 N.E.2d 215,182 Ind.App. 121
Decision Date18 September 1979
Docket NumberNo. 1-179A7,1-179A7
PartiesRobert E. THRASHER and Winifred M. Thrasher, Plaintiffs-Appellants, v. VAN BUREN TOWNSHIP OF MONROE COUNTY, Farrell Duckworth, Trustee of Van Buren Township, and Farrell N. Duckworth, Individually, Defendants-Appellees.
CourtCourt of Appeals of Indiana
Patricia A. Burchfield, Bloomington, for plaintiffs-appellants

Michael J. Spencer and Kenneth G. Todd, Spencer & Spencer, Bloomington, for defendants-appellees.

LOWDERMILK, Presiding Judge.


Plaintiffs Robert E. and Winifred M. Thrasher brought an action for damages against the defendants Van Buren Township of Monroe County, Farrell Duckworth as Trustee of Van Buren Township, and Farrell N. Duckworth in his individual capacity. The complaint was dismissed and the plaintiffs appeal.

We reverse and remand.


In August 1973, the Thrashers requested the assistance of David Hayes, who was at that time Trustee of Van Buren Township of Monroe County, in repairing or building Subsequently, the Thrashers filed suit in Monroe Superior Court against Van Buren Township and against Duckworth both as Trustee and in his individual capacity, demanding damages for loss of use of part of their farm, loss of profits and wages, and mental anguish resulting from Duckworth's failure to comply with this statutory duty and with the mandate. The Thrashers sought compensatory damages in the amount of $100,000 and punitive damages in the amount of $50,000. Upon the Thrashers' motion for change of venue, the suit was transferred to Lawrence Circuit Court.

a partition fence along the boundary between the Thrashers' land and that of an adjoining property owner. [182 Ind.App. 123] The Thrashers had been unsuccessful in their attempt to persuade the adjoining landowner to repair or build half of the fence. Ind.Code 32-10-9-2 and 32-10-9-3 provide that in such a situation the township trustees shall build, rebuild, or repair the fence. The trustee failed to comply with his statutory duty in this regard, and the Thrashers brought an action for mandate in the Monroe Circuit Court. On March 24, 1976, the court issued a mandate, ordering Farrell N. Duckworth, the successor to Hayes as township trustee, to make the necessary repairs to the partition fence. Duckworth failed to comply with the mandate, and the Thrashers filed a motion for a rule to show cause why he should not be held in contempt of court. The Monroe Circuit Court determined that Duckworth was not in contempt, and entered certain accompanying orders, and we affirmed the judgment of the trial court. State ex rel. Thrasher v. Hayes, (1978) Ind.App., 378 N.E.2d 924. The Thrashers' petition for transfer of the appeal to the Supreme Court is pending.

The defendants moved to dismiss the complaint, and the Lawrence Circuit Court sustained the motion. In its amended judgment of September 19, 1978, the court gave the following reasons for its decision: "(T)he same action involve (sic) the same parties and the same issue is pending in another state court of this state and . . . this court does not have jurisdiction over the subject matter of the grant herein." The Thrashers' motion to correct errors was overruled, and they bring this appeal.


This appeal presents us with the following issues:

1. Whether or not damages may be recovered for failure to comply with a a mandate.

2. Whether or not the pending appeal from the Monroe Circuit Court's finding that Duckworth was not in contempt of court and from the orders accompanying that finding constitutes the "same action" as the damage suit in the Lawrence Circuit Court.

3. Whether or not the mandate action and the subsequent contempt hearing are res judicata with respect to the damage suit.

4. Whether or not the Lawrence Circuit Court had jurisdiction over the subject matter of the Thrashers' damage suit.

Issue One

We must determine at the outset whether or not any relief is available to the Thrashers where the alleged injury is the result of a failure to comply with a mandate. If not, then the dismissal of the complaint would be justified on the ground that it failed to state a claim upon which relief can be granted. Ind.Rules of Procedure, Trial Rule 12(B)(6). 1

The awarding of damages in mandate actions has been expressly authorized by statute, Ind.Code 34-1-58-4, which provides as follows:

"Sec. 4. Said action for mandate shall stand for issue and trial, and issues of law and fact may be joined, and amendments, continuances and appeals granted therein, as in other civil actions; and in rendering final judgments in said actions, if the finding and judgments be for the plaintiff, the court shall grant and adjudge to the plaintiff such relief, and such only, as he may be entitled to under the law and facts in such action, Together with damages as in actions for false returns, and costs shall be awarded as the court may direct. . . . " (Our emphasis)

The Supreme Court construed the language in that code section pertaining to damages in Indiana Alcoholic Beverage Commission v. State ex rel. Harmon, (1978) Ind., 379 N.E.2d 140, (hereinafter cited as Harmon ). Justice DeBruler, writing for the court, delineated the scope of the statutory authorization of damages at page 144 of 379 N.E.2d:

" . . . (T)he Legislature intended to permit the successful plaintiff to recover damages if he is required to make proof on issues of fact in order to obtain a judgment compelling a defendant officer or body to comply with the law. We do not believe that the Legislature intended, by abolishing writs of mandate, to increase or decrease damages recoverable in mandate actions. So conceived, it is the subjection of the plaintiff to the rigors, vexation, and expense of trial on issues of fact, upon which the right to an order compelling performance depends, which is the injury for which damages have been and should remain recoverable. Accordingly, successful plaintiffs under our statute are entitled to recover damages for all injuries flowing as a natural and probable consequence of the subjection to such trials. Finally, we do agree with the result reached in Perry County Council v. State ex rel. Baertich, ((1973) 157 Ind.App. 586, 301 N.E.2d 219) . . ., that attorney fees are not part of these recoverable damages." (Our insertions)

We see from Justice DeBruler's opinion that the damages recoverable under IC 34-1-58-4 are limited to those attributable to "the subjection of the plaintiff to the rigors, vexation, and expense of trial on issues of fact." 379 N.E.2d at 144. Damages for loss of use of real estate, loss of profits and wages, mental anguish, etc., are not expressly authorized by IC 34-1-58-4.

However, our reading of IC 34-1-58-4 and of the Harmon opinion has led us to conclude that IC 34-1-58-4 does not purport to govern the damages sought by the Thrashers in the case at bar. It is apparent that the damages contemplated by that code section are to be awarded, if at all, within the same proceeding in which the mandate is issued. The injury of which the Thrashers complain allegedly occurred as a result of Duckworth's failure to comply with the mandate. 2 Thus, these damages could not have been recovered contemporaneously with the issuance of the mandate.

We can find no valid reason for denying a relator in a mandate action an opportunity to recover damages for the defendant's failure to obey the mandate, as long as such damages are sufficiently proven and are otherwise recoverable under Indiana law. A township or its trustee may be held liable in tort for losses resulting from negligence in the performance of or in the failure to perform a ministerial duty or a discretionary duty in which a private duty is owed to the plaintiff. See Seymour National Bank v. State, (1979) Ind.App., 384 N.E.2d 1177; Board of Commissioners of Delaware County v. Briggs, (1975) Ind.App., 337 N.E.2d 852; Ind.Code 34-4-16.5-1, 34- Although we have found that the damages sought in this case could not have been recovered at the same time the mandate was issued, we would suggest, nonetheless, that the Thrashers could have alleged those damages within the same cause in which they sought the mandate. Instead of moving for a rule to show cause why the trustee should not be held in contempt of court, the Thrashers could have moved to supplement their complaint and to amend the judgment to include a paragraph dealing with damages for injuries and losses incurred as a result of the trustee's noncompliance with the mandate. See Ind.Rules of Procedure, Trial Rule 15(D), Trial Rule 59(A)(7), (E)(3), and (E) (7), and Trial Rule 60(B)(2) and (B)(8); Cf. Nationwide Corporation v. Northwestern National Life Insurance Company, (1958) 251 Minn. 255, 87 N.W.2d 671 (amendment of judgment issuing writ of mandamus permitted in order to add omitted paragraph concerning damages for injury which mandamus was issued to redress). However, because the Thrashers did not so move, we must now consider whether or not their subsequent, separate action is maintainable.

4-16.5-2, and 34-4-16.5-3(6). The theory underlying the awarding "of damages in civil actions is that the injured party is entitled to compensation or indemnity for the injury or loss sustained." Pixley v. Catey, (1936) 102 Ind.App. 213, 214, 1 N.E.2d 658, 659. The strong public policy of allowing a party whose rights have been infringed to recover compensation from the offending party would be thwarted if damages could not be recovered for losses resulting from the failure of a township trustee to obey a mandate.

Issue Two

One of the grounds stated by the Lawrence Circuit Court for dismissing the Thrashers' complaint was that the same action was pending in another state court of Indiana. The court was apparently referring to the pending petition for transfer in State ex rel. Thrasher, the mandate and contempt case. The court...

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