MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
                                                                        Jul 03 2018, 9:39 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Michael A. Kennedy                                        Traci Marie Cosby
Indianapolis, Indiana                                     Thomas James O’Grady Moore
                                                          Office of Corporation Counsel
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael A. Kennedy,                                       July 3, 2018
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          18A-MI-431
        v.                                                Appeal from the Marion Superior
                                                          Court
The Honorable Joe Hogsett,                                The Honorable Michael D. Keele,
Mayor of Indianapolis, and the                            Judge
Indianapolis Department of                                The Honorable Ian L. Stewart,
Public Works,                                             Commissioner
Appellees-Defendants.                                     Trial Court Cause No.
                                                          49D07-1710-MI-38021



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-MI-431 | July 3, 2018                      Page 1 of 10
                                            Statement of the Case
[1]   Michael A. Kennedy filed a complaint against The Honorable Joe Hogsett,

      Mayor of Indianapolis, and the Indianapolis Department of Public Works

      (collectively “the City”) seeking a declaratory judgment and a “mandate to

      compel” the City to remove an obstruction on private property that, Kennedy

      alleges, is located in a regulated drain. The City moved to dismiss Kennedy’s

      complaint for failure to state a claim upon which relief can be granted, and the

      trial court granted that motion following a hearing. Kennedy raises a single

      dispositive issue for our review, namely, whether the obstruction on private

      property is located in a regulated drain. We affirm.


                                     Facts and Procedural History
[2]   Kennedy has lived in the Ivy Hills neighborhood in Indianapolis since 1981.

      Kennedy’s home abuts a channel known as the Howland Ditch, which spans

      several miles in the northeast part of Indianapolis from the Castleton area to the

      Glendale area. There are regulated drains located in several sections of the

      Howland Ditch.


[3]   In the late 1970s, one of Kennedy’s neighbors whose property also abuts the

      Howland Ditch constructed a private crossing1 “that impedes the storm water

      conveyance” of the Howland Ditch and causes flooding at Kennedy’s




      1
        The parties refer to the obstruction as a “private crossing,” so, for ease of discussion, we will also refer to it
      as such. We note that the private crossing appears to consist of a bridge with cement or some other type of
      material built up underneath the bridge that obstructs the flow of water.

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-431 | July 3, 2018                             Page 2 of 10
      residence. Appellant’s Br. at 12. After several flooding events over the years,

      Kennedy began contacting the City to request that it remove the private

      crossing. The City informed Kennedy that, because the private crossing was on

      private property and not in a regulated drain, the City was unable to remove the

      obstruction.


[4]   On October 9, 2017, Kennedy filed a complaint against the City seeking a

      declaratory judgment and a mandate to compel the City to remove the private

      crossing.2 The City moved to dismiss Kennedy’s complaint for failure to state a

      claim upon which relief can be granted. In support of the allegations in his

      complaint, Kennedy filed more than twenty exhibits. The City also filed an

      exhibit in support of its motion. Following a hearing, the trial court dismissed

      Kennedy’s complaint. This appeal ensued.


                                       Discussion and Decision
[5]   The City moved to dismiss Kennedy’s complaint under Indiana Trial Rule

      12(B)(6), the parties submitted exhibits to the trial court, and the court granted

      the City’s motion following a hearing. Trial Rule 12(B) provides, in pertinent

      part, that


              [i]f, on a motion, asserting the defense number (6), to dismiss for
              failure of the pleading to state a claim upon which relief can be
              granted, matters outside the pleading are presented to and not




      2
        Kennedy does not state whether he has also filed a lawsuit against the neighbor who erected the private
      crossing.

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-431 | July 3, 2018                      Page 3 of 10
              excluded by the court, the motion shall be treated as one for
              summary judgment and disposed of as provided in Rule 56. In
              such case, all parties shall be given reasonable opportunity to
              present all material made pertinent to such a motion by Rule 56.


      A trial court’s failure to give explicit notice of its intended conversion of a

      motion to dismiss to one for summary judgment is reversible error only if a

      reasonable opportunity to respond is not afforded a party and the party is

      thereby prejudiced. Doe v. Adams, 53 N.E.3d 483, 492 (Ind. Ct. App. 2016),

      trans. denied. Here, as the City points out, both the City and Kennedy submitted

      exhibits3 to the trial court relevant to the motion to dismiss, and the court did

      not exclude any of the exhibits. On appeal, the City maintains that the motion

      to dismiss was automatically converted to a summary judgment motion, and

      Kennedy does not allege that he was denied a reasonable opportunity to

      respond or was otherwise prejudiced. Accordingly, we treat the trial court’s

      order on the City’s motion to dismiss as an order granting summary judgment

      in favor of the City.


[6]   We review an order for summary judgment de novo, which is the same standard

      of review applied by the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.

      2014). The moving party must “affirmatively negate an opponent’s claim” by

      demonstrating that the designated evidence raises no genuine issue of material

      fact and that the moving party is entitled to judgment as a matter of law. Id.



      3
        Kennedy does not dispute the City’s contention that its motion to dismiss was properly converted to a
      summary judgment motion.

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-431 | July 3, 2018                     Page 4 of 10
      (internal quotation marks omitted). The burden then shifts to the nonmoving

      party to demonstrate a genuine issue of material fact. Id. The party appealing

      from a summary judgment decision has the burden of persuading this court that

      the grant or denial of summary judgment was erroneous. Knoebel v. Clark

      County Superior Court No. 1, 901 N.E.2d 529, 531-32 (Ind. Ct. App. 2009).


[7]   In his complaint, Kennedy maintains that “the full length of [the] Howland

      Ditch,” including the area where the private crossing is located, is a regulated

      drain. Therefore, Kennedy continues, the City has the authority and obligation

      to remove the private crossing obstruction pursuant to Indiana Code Sections

      36-9-27-46 and -72.4 Appellant’s App. Vol. II at 9. Accordingly, the dispositive

      issue on appeal is whether the private crossing is in a regulated drain.


[8]   A “regulated drain” is defined by Indiana law as “an open drain, a tiled drain,

      or a combination of the two.” Ind. Code § 36-9-27-2 (2018). An “open drain”

      is “a natural or artificial open channel that: (1) carries surplus water; and (2)

      was established under or made subject to any drainage statute.” Id. A “tiled

      drain” means a tiled channel that: (1) carries surplus water; and (2) was

      established under or made subject to any drainage statute. Id. There is no

      question that the Howland Ditch is not a tiled channel. Rather, the only




      4
        The City asserts that Kennedy sought to have the City declare that the portion of the Howland Ditch where
      the private crossing is located is a regulated drain, but Kennedy expressly denies that he made any such
      request. See Reply Br. at 6. Rather, Kennedy asserts only that the relevant portion of the Howland Ditch is
      already a regulated drain. Accordingly, we need not address the City’s concern.

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-431 | July 3, 2018                    Page 5 of 10
       question on appeal is whether the Howland Ditch is an open channel that “was

       established under or made subject to any drainage statute.” Id.


[9]    The City argued to the trial court that, while portions of the Howland Ditch are

       regulated drains, the areas abutting Kennedy’s house and the location of the

       private crossing are not regulated drains. While Kennedy asserted that the

       private crossing is in a regulated drain, he did not present any evidence to the

       trial court to support his contention. Indeed, Kennedy’s own exhibits show

       unequivocally that the private crossing is not located in a regulated drain. For

       example, Kennedy’s Exhibit 18A is an email from Ben Easley, an employee

       with the Indianapolis Department of Public Works, who states that, while

       “several sections of Howland Ditch” are regulated drains, “the area in

       question—the private crossing just south of 79th Street—is not” in a regulated

       drain.


[10]   We reject Kennedy’s contention that, because the Howland Ditch is one

       continuous channel that contains several regulated drains within it, and because

       the City has performed maintenance throughout the Howland Ditch, including

       dredging, that the regulated drains have become “connected” and are,

       therefore, one regulated drain.5 Appellant’s Br. at 14. In support of that




       5
         To the extent Kennedy contends that the City “assumed a duty” to treat areas of the Howland Ditch that
       are not regulated drains as regulated drains when it considered plans to improve the channel or otherwise
       perform maintenance, he does not support that contention with citation to relevant authority.

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-431 | July 3, 2018                    Page 6 of 10
       contention, Kennedy cites Indiana Code Section 36-9-27-34(b)(3)(E) and (F),

       which provide that


               a regulated drain is in need of construction when . . . topographical or
               other changes have made the drain inadequate to properly drain
               the lands affected without extensive repairs or changes, including
               . . . extending the length of a drain [or] . . . changing the course
               of a drain.


       (Emphasis added). But nothing in those subsections supports Kennedy’s

       contention that repairs to a channel located between two regulated drains

       automatically transforms the entire channel into one continuous regulated

       drain. Rather, Indiana Code Section 36-9-27-34 merely specifies when a

       regulated drain is in need of construction, which is not a concern in this case.


[11]   Kennedy also cites Indiana Code Section 36-9-27-53 to support his contention

       on appeal. That statute provides as follows:


               (a) Whenever:

                        (1) the [drainage] board has initiated, or is
                        considering initiating, a proceeding to reconstruct a
                        regulated drain under this chapter;

                        (2) one (1) or more other regulated drains in the same
                        watershed are in need of reconstruction;

                        (3) the board finds that no substantial injustice would
                        result from treating the drains as a single drain; and

                        (4) the board has given notice and a hearing to the
                        owners of affected land;

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-431 | July 3, 2018    Page 7 of 10
                 the board may issue an order combining the drains.

                 (b) The notice shall be published:

                          (1) at least once; and

                          (2) not less than ten (10) nor more than thirty (30)
                          days before the date of the hearing;

                 in a newspaper of general circulation in the area affected. Notice
                 shall also be given to an attorney of record in the manner
                 provided in section 110 of this chapter.

                 (c) After an order is issued under this section, this chapter applies
                 to the combined drains as if they were a single drain.


       Id.


[12]   Kennedy’s reliance on this statute is misplaced, as he directs us to no evidence

       that the drainage board6 either issued notice of intent to combine regulated

       drains or issued an order causing regulated drains to be combined in the

       Howland Ditch. Accordingly, Kennedy has not shown that two or more

       regulated drains were combined to form a single drain under the statute.


[13]   Finally, we address Kennedy’s suggestion that the designation of the Howland

       Ditch on various maps and, especially, in plans for a 1986 reconstruction




       6
           Per Indiana Code Section 36-9-27-5, the Board of Public Works acts as the drainage board in Indianapolis.


       Court of Appeals of Indiana | Memorandum Decision 18A-MI-431 | July 3, 2018                      Page 8 of 10
       project (“the Simpson project”) proves that the entire channel is a regulated

       drain. In particular, Kennedy states as follows:


               Obviously, someone at The City told Simpson that all of the
               channel is Howland Ditch, and obviously The City believed that
               all of the channel had been made “subject to any drainage
               statute” or else, surely, The City would not spend hundreds of
               thousands of dollars on Simpson’s design and plan for several
               millions more to construct it.


       Reply Br. at 20. But, again, Kennedy has not demonstrated that the City’s

       maintenance of the Howland Ditch caused separate regulated drains within the

       Ditch to be connected or otherwise combined to make the channel a regulated

       drain in its entirety. None of the maps Kennedy submitted to the trial court

       show that the private crossing is in a regulated drain. And Kennedy’s Exhibit

       19G merely depicts Simpson Engineering Company’s plans for “channel

       improvements” to the Howland Ditch.


[14]   In sum, the City’s motion to dismiss was converted to a summary judgment

       motion because both parties submitted exhibits that were not excluded by the

       trial court. The City made a prima facie case that it had no authority to remove

       the private crossing because it is not located in a regulated drain. Kennedy did

       not designate any evidence to refute that fact, and he concedes that whether the

       private crossing is in a regulated drain is the dispositive issue in this appeal. See

       Appellant’s Br. at 18 (“The issue of the legal status of Howland Ditch . . . as a

       regulated drain(s) is the necessary precursor to the goal of The Homeowner,

       namely that flooding be eliminated or reduced[.]”) Kennedy does not direct us

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-431 | July 3, 2018   Page 9 of 10
       to any evidence that the Howland Ditch is an open channel that was established

       under or made subject to any drainage statute, and he has not otherwise

       demonstrated that the private crossing is located in a designated drain.

       Accordingly, there being no genuine issue of material fact, the City is entitled to

       summary judgment as a matter of law, and the trial court did not err when it

       granted the City’s motion.


[15]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-MI-431 | July 3, 2018   Page 10 of 10
