MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                               Oct 26 2016, 8:36 am
this Memorandum Decision shall not be
                                                                          CLERK
regarded as precedent or cited before any                             Indiana Supreme Court
                                                                         Court of Appeals
court except for the purpose of establishing                               and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Michael C. Harris                                        Ethan S. Lowe
Connor H. Nolan                                          Blachly, Tabor, Bozik & Hartman,
Harris Welsh & Lukmann                                   LLC
Chesterton, Indiana                                      Valparaiso, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard A. Brown and Janet                               October 26, 2016
Brown,                                                   Court of Appeals Case No.
Appellants-Plaintiffs,                                   64A03-1601-PL-138
                                                         Appeal from the Porter Superior
        v.                                               Court
                                                         The Honorable William E. Alexa,
City of Valparaiso, Indiana,                             Judge
Appellee-Defendant.                                      Trial Court Cause No.
                                                         64D02-1501-PL-267



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 64A03-1601-PL-138 | October 26, 2016        Page 1 of 19
[1]   Richard A. and Janet Brown (collectively, “the Browns”) appeal the trial

      court’s grant of the motion to dismiss filed by the City of Valparaiso, Indiana

      (“City”) pursuant to Indiana Trial Rule 12(B)(8). We reverse and remand.



                              Facts and Procedural History
[2]   The Browns own a home (“Brown Property”) immediately adjacent to the

      Hotter Detention Facility, a stormwater detention/retention facility in

      Valparaiso, Indiana. On November 21, 2009, the Browns filed a complaint

      against the City under Cause Number 64D01-0911-PL-11902 (“First

      Complaint”), alleging inverse condemnation and deprivation of the Browns’

      civil rights under 42 U.S.C. § 1983 1 based on alleged damages the Browns

      suffered when their property flooded. Specifically, the Browns alleged:

               10. On or about September 13, 2008, the City of Valparaiso
               experienced [a] significant amount of rain which caused the
               retention pond to fill to its capacity with water. Before the water
               rose to a level to spill over the dam, it flowed back onto Plaintiffs’
               property.


               11. The improved and furnished and lower level of Plaintiffs’
               home situated on the property were covered in approximately 2
               to 2.5 feet of water from the City’s retention pond.




      1
        The trial court granted summary judgment in favor of the City on the civil rights claim, and it is not at issue
      in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 64A03-1601-PL-138 | October 26, 2016              Page 2 of 19
        12. To date, Plaintiffs have incurred $91,679.12 in out-of-pocket
        damages as a result of the flooding of their property with water
        from Defendant’s retention pond.


        13. Because of the significant amount of water that entered
        Plaintiffs’ home on or about September 13, 2008, there has been
        a significant loss to the fair market value of their home. Plaintiffs
        are required to disclose the property’s potential to flood to any
        prospective purchasers.


        14. Plaintiffs will continue to incur costs in order to correct the
        damages which were caused by the invasion of water onto
        Plaintiffs’ property. Specifically, Plaintiffs are still battling
        recurrent mold as a result of the water which entered their home.


                                              *****


        21. As a proximate result of the design, construction, operation,
        and maintenance of the retention pond, Plaintiffs’ property was
        damaged by the flood waters described in this complaint.
        Plaintiffs are therefore entitled to recover damages from the City
        under the Indiana Constitution.


        22. Defendants’ [sic] actions have resulted in the taking of
        Plaintiffs’ private property for public use pursuant to Defendant’s
        power of eminent domain.


        23. Since the date of the entry of water onto Plaintiffs’ land and
        continuing to the date of the filing of this action, Defendants
        have not paid Plaintiffs any compensation for the taking of their
        property, nor have Defendants made any offers of compensation
        for said property.




Court of Appeals of Indiana | Memorandum Decision 64A03-1601-PL-138 | October 26, 2016   Page 3 of 19
              24. Further, to date, Defendant has failed to institute eminent
              domain proceedings relating to the taking of Plaintiffs’ property,
              so that damage to Plaintiffs’ property could be assessed.


              25. Moreover, Plaintiff has incurred, and will continue to incur
              appraisal, attorney, and other fees, costs, disbursements, and
              expenses not yet known or ascertained, in an amount that cannot
              be presently calculated and that are recoverable under I.C. 32-24-
              1-14 and 32-24-1-16.


      (Appellee’s App. at 13-15.) The Browns sought damages in the amount of “just

      compensation for the taking of and damage to Plaintiffs’ property” and

      “Plaintiffs’ costs of suit, including litigation costs and attorney’s fees[.]” (Id. at

      17.)


[3]   On March 1, 2010, the Browns amended the First Complaint to add a

      negligence claim against the City, alleging:

              36. The City of Valparaiso negligently designed, constructed,
              operated and/or maintained said retention pond and spillway
              such that the level of the spillway of said retention pond is
              approximately two to three feet higher in elevation than the
              Plaintiffs’ adjacent property, so that the water flowing into the
              retention pond will flood on to the Plaintiffs’ property before it
              crests and flows over the dam.


              37. The City had actual or constructive knowledge of the
              conditions described above by reason of land surveys that were
              conducted by or on behalf of the City of Valparaiso.


              38. As a direct and proximate result of the Defendant, City of
              Valparaiso’s, negligent design, construction, operation, and/or

      Court of Appeals of Indiana | Memorandum Decision 64A03-1601-PL-138 | October 26, 2016   Page 4 of 19
               maintenance of said retention pond and dam spillway, on or
               about September 13, 2008, said retention pond filled to its
               capacity with water and before the water rose to a level to spill
               over the dam, it flowed back onto Plaintiffs’ property.


               39. As a further result of the Defendant, City of Valparaiso’s,
               negligence, Plaintiffs’ [sic] sustained damage to their property
               and incurred expenses for removal, salvage, and repair of their
               damaged property.


      (Id. at 25-26.) 2


[4]   On December 13, 2012, the trial court held a bench trial regarding the Browns’

      inverse condemnation claim alleged in the First Complaint. At trial, the

      Browns introduced evidence the Brown Property flooded a total of three times –

      once in September 2008, and twice before that date. 3 On February 17, 2013,

      the trial court issued an order rejecting the Browns’ claim of inverse

      condemnation in the First Complaint. Regarding the issue of whether the

      City’s actions constituted a taking, the trial court found and concluded:


               Most of the facts related to this issue are not in dispute. The
               Hotter Water Detention Facility was completed in 1987 and it
               was built to the required standard of withstanding a one hundred




      2
       Both parties reference a nuisance claim as part of the First Complaint, but the second amendment to the
      First Complaint including those particular allegations is not included in the record.
      3
       The dates of the two previous alleged floodings are not in the record before us. During trial the Browns
      “identified two other ponding events before the 2008 flooding, but could not say they came from the facility.”
      (Appellants’ App. at 80.)

      Court of Appeals of Indiana | Memorandum Decision 64A03-1601-PL-138 | October 26, 2016           Page 5 of 19
         year rain. 4 Plaintiffs’ property flooded one time in September
         2008 when the City of Valparaiso received a two hundred to five
         hundred year rain storm. Plaintiffs’ witness, David McCormick,
         speculated that the Plaintiffs’ property would flood with a ten
         year rain. That has not been the experience. The Hotter Facility
         was completed twenty-five years ago. The property has flooded
         one time, that being when the City of Valparaiso received a two
         hundred to five hundred year rain storm, a storm the size of
         which the facility was never intended to handle.


                                                     *****


         Defendants [sic] also allege that the City’s failure to comply with
         the Indiana Department of Natural Resources (IDNR) regulation
         makes what happened here a taking of Plaintiffs’ property. If the
         City violated any IDNR regulations, that would be evidence of
         negligence but has no relevance on the issue of taking.


         While neither Indiana nor federal law require permanent
         flooding for a taking to have occurred, they both require more
         than one instance of flooding or inevitably recurring flooding.
         One flooding in twenty-five years does not rise to that level.




4
  The Browns explain, citing Brown v. City of Valparaiso, 64A03-1308-PL-332 (Ind. Ct. App. April 10, 2014),
trans. denied:
         A storm rated “X number” -year, such as a 100-year storm or 500-year storm, is
         calculated based on the chances of that type of storm occurring in a given year. A 100-
         year storm has a one-percent (1%) chance of occurring each year; a 500-year storm has a
         two-tenths of one-percent (0.2%) chance of occurring. It does not necessarily mean that a
         500-year storm only occurs once every 500 years.
(Br. of Appellants at 11 n.2) (citations omitted).

Court of Appeals of Indiana | Memorandum Decision 64A03-1601-PL-138 | October 26, 2016           Page 6 of 19
              The Court concludes that there has been not [sic] taking of the
              Plaintiffs’ property by the City and denies Plaintiffs’ claim for
              inverse condemnation.


      (Appellant’s App. at 53-4) (footnote added). The trial court certified its order

      for interlocutory appeal so the Browns could file an appeal. On appeal, our

      Court affirmed the trial court’s decision denying the Browns’ claim for inverse

      condemnation, and our Indiana Supreme Court denied transfer of the issue.

      Brown v. City of Valparaiso, 64A03-1308-PL-332 (Ind. Ct. App. April 10, 2014),

      trans. denied.


[5]   On December 17, 2014, the Browns’ attorney contacted the City’s counsel and

      indicated:


              This letter is to inform you and the City of Valparaiso that
              Richard and Janet Brown have experienced two additional
              floodings on their property by reason of the backup of the Hotter
              Detention Facility. The first occurrence was in July or August
              2013, and is verified by the photograph attached to this letter
              with the arrow pointing to the water accumulation around the
              barn-type shed in the Brown’s [sic] backyard. The second
              occurrence was in August of this year when Valparaiso
              experienced a short duration rain, flooding also is demonstrated
              by the photograph within the garden next to the shed. Both of
              these photographs depict floodings in the area that Dick Brown
              experienced flooding on his property after the Facility was
              constructed but before the September 2008 flooding which was
              the subject matter of our recent litigation on the issue of taking.


              This makes a total of 5 floodings on the Brown property from
              and after the time the Facility was constructed in 1987. We
              believe that this is more than sufficient frequency to designate

      Court of Appeals of Indiana | Memorandum Decision 64A03-1601-PL-138 | October 26, 2016   Page 7 of 19
              that the Brown property has been “taken” by the City of
              Valparaiso. We will renew our efforts to impose this taking
              status unless we promptly hear that you agree that the property
              has been taken by the City.


      (Appellees’ App. at 38.) At the time that letter was sent, the public nuisance

      and negligence actions from the First Complaint were still pending before the

      trial court.


[6]   On January 15, 2015, the Browns filed a complaint against the City for inverse

      condemnation under Ind. Code § 32-24-1-16 (“Second Complaint”) under

      Cause Number 64D02-1501-PL-267. The Second Complaint alleged:

              17. On two or more occasions after the Facility was completed,
              but before September of 2008, the Browns observed “ponding” of
              water on their property in the vicinity of their storage barn/shed.
              Trees along the common property line of the Brown Property
              with the City’s Facility blocked Browns [sic] view to the east and
              north into the City’s property, so that the Browns could not
              determine whether the ponding on their property was caused by a
              backup of water from the City’s Facility. The Browns had no
              knowledge at that time that the City’s Facility was constructed at
              such a high level as to cause stored storm water from the
              Detention Facility to back up onto their property.


              18. The Browns first became aware that their property was
              subject to flooding from backed up storm water from the
              Detention Facility in the middle of September, 2008 when in
              excess of 6 inches of rainwater over a weekend was dumped into
              the Koselke watershed and blocked by the U-shaped dam of the
              City’s Facility. As a result, approximately 18 inches of water
              entered the lower living area of their home, ruining drywall, trim,
              doors, flooring, insulation, electrical outlets, water heater,

      Court of Appeals of Indiana | Memorandum Decision 64A03-1601-PL-138 | October 26, 2016   Page 8 of 19
        furnace, household furniture and other personal property
        contained in the Brown family room, bar/recreation room,
        office, storage area and bathroom; all to the Plaintiffs [sic]
        damage and out-of-pocket expenses in excess of $70,000.00.


        19. The Plaintiffs brought an unsuccessful inverse condemnation
        action against the City alleging a taking of the Plaintiffs’
        property. Plaintiffs were permitted to bring a tort claims action
        against the City for Plaintiffs’ damage caused by the City’s
        negligence. The rationale of the Court of not finding a taking
        was that one flooding in 25 years was not a sufficient flooding
        frequency to justify a declaration of a taking of the [P]laintiffs’
        property by the City.


        20. The Plaintiffs appealed the non-taking decision of the Trial
        Court Judge to the Indiana Court of Appeals, who affirmed the
        trial court judge on a basis that he had the discretion under the
        facts to make that finding. Plaintiffs [sic] petition to transfer to
        the Indiana Supreme [Court] was also unavailing since that
        Court refused to accept transfer.


        21. Following the trial court’s determination in December 2012
        that one flooding in 25 years was not sufficient to justify a taking,
        the Brown Property experienced two additional flooding
        episodes. The first occurring about September 18, 2013, and the
        second occurring August 22, 2014. In both instances, City storm
        water invaded the Brown property in the vicinity of the Plaintiffs’
        storage barn/shed and in each instance the Plaintiffs were able to
        verify that this flooding was the result of back up from the City’s
        Detention Facility.


        22. Significantly, these two most recent floodings extended into
        the Brown Property from the same area as occurred on the two or
        more occasions observed between 1988 and 2008 as reported by
        the Plaintiffs. The Plaintiffs now believe that those original

Court of Appeals of Indiana | Memorandum Decision 64A03-1601-PL-138 | October 26, 2016   Page 9 of 19
        floodings occurred as a result of back up from the City’s
        Detention Facility, making a total of at least 5 floodings
        experiences by the Plaintiffs since 1988 - or about one flooding
        every 5.2 years, with three occurring in the last 6 years, or one
        every two years. In each instance of flooding, the City imposed
        its gathered storm water on the Brown Property for storage for
        the public purpose of preventing flooding of downstream
        property south and east of the Detention Facility.


        23. Once the City flooded the Brown Property, as occurred in
        September of 2008, the City refused to purchase the Brown
        Property or any portion of it. Further, the City failed to prevent
        the Brown Property from recurrent flooding when the upper
        portions of the Detention Facility were used to store storm water.
        The City is now repeatedly using the Brown Property to store the
        City’s gathered storm water without payment of just
        compensation to the Browns. The effect of the City’s conduct is
        a taking of a portion of the Brown Property, including their
        residence, in the form of an imposed flood easement.


        24. The Plaintiffs have informed the City of these five floodings,
        requesting a takings declaration, but the City has failed to
        acknowledge a taking. The City’s response is to continue to treat
        these floodings as tort only.


(Id. at 45-8.) The Browns requested the trial court


        declare that the Brown Property, or portions thereof, have been
        taken for public use and that the Plaintiffs’ damages be assessed
        under the eminent domain laws of Indiana, and that a judgment
        in favor of the Plaintiffs[’] and against the City be entered for
        those damages, plus costs including expert witness fees and
        attorney fees as provided under Indiana law[.]


(Id. at 48.)

Court of Appeals of Indiana | Memorandum Decision 64A03-1601-PL-138 | October 26, 2016   Page 10 of 19
[7]   On April 10, 2015, the City filed a motion to dismiss the Browns’ Second

      Complaint pursuant to Indiana Trial Rule 12(B)(8), which allows a trial court to

      dismiss an action if the “same action [is] pending in another state court of this

      state.” On June 23, the trial court held a hearing on the City’s motion to

      dismiss. On August 28, the trial court granted the City’s motion to dismiss.

      The trial court found and concluded:


               In this case, the complaints currently pending between the
               Plaintiffs and Defendants are the negligence 5 case in Cause
               Number 64D01-0911-PL-1902 [First Complaint] and the inverse
               condemnation claim in Cause Number 64D02-1501-PL-267
               [Second Complaint]. The identities in both cases are the Browns
               and City of Valparaiso, Indiana. The subject matter in [First
               Complaint] is that the City of Valparaiso acted negligently with
               regard to their water detention facility built [sic] which caused
               the water to overflow into the Browns’ yard rendering it
               condemned. In [Second Complaint] the subject matter is that the
               City inadvertently took part of the Browns’ land when the facility
               the City built to hold storm water over flowed causing the
               Browns’ land to be partially condemned.


               To prove negligence in the [First Complaint], the Plaintiffs need
               to prove negligence, [sic] out of pocket expenses and causation.
               To prove inverse condemnation in the [Second Complaint] the
               Plaintiffs need to prove the frequency of flooding, fair market
               value of property before and after the alleged taking and
               causation. Both cases require proof of causation. If either court




      5
       The status of the Browns’ nuisance claim at this point in the proceedings is unclear from the record before
      us.

      Court of Appeals of Indiana | Memorandum Decision 64A03-1601-PL-138 | October 26, 2016          Page 11 of 19
        determined the outcome of causation, the other cause number
        would be affected by this determination.


        The remedies to both causes are also very similar. If the
        Plaintiffs were to win their negligence suit, they would be
        awarded monetary damages. If the Plaintiffs were to win their
        inverse condemnation suit, they would also be award [sic] a
        monetary amount for just compensation for the land the City
        inadvertently took. While the Plaintiffs state in their Response
        that they are seeking to impose liability on the City with their
        inverse condemnation claim, this would result in a monetary
        reward and could affect the outcome of the negligence suit. The
        Plaintiffs stand to be compensated twice, which is prohibited by
        Indiana law.


        Finally, the Plaintiffs do state a valid explanation as to why they
        did not seek the relief which the Defendant’s [sic] suggest. Under
        Appellate Rule 8, a trial court loses jurisdiction to alter or affect
        its final judgment when the County Clerk certified the
        completion of the Record to the Indian[a] Court of Appeals.
        Layne v. State, 361 N.E.2d 170, 172 (App. 1st Dist., 1977). In
        August 2013, the trial court’s judgment in [First Complaint] was
        final. Furthermore, the Plaintiffs could have sought relief under
        Trial Rule 60(B)(2) alleging newly discovered evidence but this
        motion would have had to be made within a year of the final
        judgment, which time has passed.


        The identities of the parties and the subject matter are
        substantially similar enough to where the outcome of one case
        would affect the outcome of the other. The Plaintiffs do have
        new flooding dates which would create a new cause of action to
        which the Plaintiffs should not be denied access to the courts.
        However, the Court finds that this is not the proper time to bring
        such an action as one determination would affect the other.



Court of Appeals of Indiana | Memorandum Decision 64A03-1601-PL-138 | October 26, 2016   Page 12 of 19
      (Appellants’ App. at 11-13) (footnote added).


[8]   On September 29, 2015, the Browns filed a motion to correct errors. They

      alleged:

              1. The Court erred in determining that the damages sought in
              the negligence case would overlap and compensate the plaintiffs
              twice for the same damages the plaintiffs seek in the
              condemnation case. The subject matter, remedies, and damages
              sought or available in each case are distinctly different. There are
              simply no overlapping or duplicative damages.


              2. It is error for the Court to determine that there is a common
              issue of causation between the negligence case and the
              condemnation case justifying a T.R. 12(B)(8) dismissal. The
              causation in each case is different.


              3. It is error to deny the Browns access to the court of the State
              of Indiana under Article 1, Section 12 of the Indiana Constitution
              where a cause of action exists and the Browns seek a remedy.


      (Id. at 77.) The trial court held hearings on the matter on December 10 and 16,

      2015. On December 21, 2015, the trial court denied the Browns’ motion to

      correct error. This appeal ensued.



                                 Discussion and Decision
[9]   Indiana Trial Rule 12(B)(8) provides for dismissal of an action when “[t]he

      same action [is] pending in another state court of this state.” As a general rule,

      when an action is pending in an Indiana court, all other Indiana courts must


      Court of Appeals of Indiana | Memorandum Decision 64A03-1601-PL-138 | October 26, 2016   Page 13 of 19
       defer to that court’s jurisdiction over the case. Beatty v. Liberty Mut. Ins. Group,

       893 N.E.2d 1079, 1084 (Ind. Ct. App. 2008). We review de novo a trial court’s

       dismissal of an action pursuant to T.R. 12(B)(8). 6 Id.


[10]   In our review, we determine whether the parties, subject matter, and remedies

       are precisely or substantially the same. Id. We consider “not whether parts of

       one lawsuit are the same or similar to parts of the other, rather, each lawsuit as

       a whole should be examined.” In re Stephen L. Chapman Irrevocable Trust

       Agreement, 953 N.E.2d 573, 578 (Ind. Ct. App. 2011), trans. denied. Whether

       two actions are the same “depends on whether the outcome of one action will

       affect the adjudication of the other.” Kentner v. Ind. Pub. Employers’ Plan, Inc.,

       852 N.E.2d 565, 570 (Ind. Ct. App. 2006), reh’g denied, trans. denied.


                                                       I. Parties

[11]   The Browns argue the parties named in the First Complaint and Second

       Complaint are not the same for the purposes of T.R. 12(B)(8) “merely because

       the caption contained the same names.” (Br. of Appellants at 30.) Instead, the

       Browns claim, the parties are different in the two actions because the parties

       “have a different status in each case.” (Id.)




       6
        The Browns do not argue the trial court erred when it denied their motion to correct error, and our standard
       of review for appeal of a motion to correct error directs us to consider the underlying order, here the order
       granting the City’s motion to dismiss pursuant to T.R. 12(B)(8). See In re Paternity of H.H., 879 N.E.2d 1175,
       1177 (Ind.Ct.App.2008) (review of motion to correct error includes review of underlying order).

       Court of Appeals of Indiana | Memorandum Decision 64A03-1601-PL-138 | October 26, 2016          Page 14 of 19
[12]   In Kentner, 852 N.E.2d at 571, like in this case, there were two lawsuits

       involving the same parties filed contemporaneously in two separate courts. In

       his federal litigation, Kentner sued the Indiana Public Employers’ Plan

       (“IPEP”) as a former employee; but in the state litigation, Kentner pursued his

       rights as an Indiana citizen under the Access to Public Records Act (“APRA”).

       We held considering only the names in the captions of the cases was “an overly

       simplistic analysis of the situation.” Id. We noted in his federal litigation

       Kentner’s claim was related to his employment but in his state claim he was

       “enforcing the same right available to any citizen seeking public records.” Id.

       Thus, while the parties were the same in name, they were not the same for the

       purposes of a T.R. 12(B)(8) motion to dismiss because Kentner’s “status” was

       different in each lawsuit. Id.


[13]   The Browns argue they, like Kentner, have a different status in the legal actions

       at issue in this case. They assert:

               In the tort action [First Complaint] the Browns are suing as
               victims of tort, and the City is an alleged tortfeasor who has
               injured the Browns through some wrongful act or omission. In
               the inverse condemnation action [Second Complaint], the
               Browns are owners of private property who allege that the City
               has taken an interest in their property for public use without
               paying just compensation. The City is a governmental entity
               who has allegedly exercised its right of eminent domain without
               complying with the constitutional mandate to pay for the
               property.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1601-PL-138 | October 26, 2016   Page 15 of 19
       (Appellants’ Br. at 31.) However, the Browns’ reliance on Kentner is misplaced.

       Our court in Kentner based its decision upon the types of rights asserted by

       Kentner - in his federal litigation, he argued for rights available to him as an

       employee; but in his state litigation, he asserted rights available to all citizens.

       Here, both of the Browns’ claims are based on their rights as property owners.

       The legal claims used by the Browns in asserting these rights does not change

       their status as a party relative to T.R. 12(B)(8) as described in Kentner.


                                      II. Subject Matter of Litigation

[14]   The Browns contend the trial court erred when it determined the subject

       matters of the two actions were the same based on their shared element of

       causation. The Browns claim “[a]ny overlap between the two cases is on minor

       issues, not substantive questions.” (Br. of Appellants at 23.) Again, they rely

       on Kentner for this argument.


[15]   In Kentner, our court reversed the trial court’s dismissal of Kentner’s state claim

       based on T.R. 12(B)(8), holding, in part, the subject matter of Kentner’s federal

       and state claims were not the same. In his federal claim, Kentner alleged “he

       was fired by [his former employer] after providing advice to [his former

       employer] and [IPEP] that [IPEP’s] conduct violated Indiana law.” Kentner,

       852 N.E.2d at 569. As part of his federal litigation, Kentner requested certain

       documents from IPEP pursuant to the APRA. IPEP refused to produce the

       documents, and Kentner filed a claim in state court requesting the court to

       compel IPEP to produce the documents pursuant to APRA. We held the

       federal and state claims did not have the same subject matter because “[i]t is
       Court of Appeals of Indiana | Memorandum Decision 64A03-1601-PL-138 | October 26, 2016   Page 16 of 19
       readily apparent that section 1983 and APRA are two separate and independent

       laws, and provide two separate and independent causes of action. Thus, it

       necessarily follows that the subject matter of the two lawsuits is not the same.”

       Id. at 572. As in Kentner, the subject matter of the Browns’ two actions arise

       from some of the same facts, but the subject matter is different.


[16]   The Browns’ First Complaint and Second Complaint have a common

       underlying fact - the flooding of the Brown Property in September 2008.

       However, the First Complaint focuses on the September 2008 flooding event

       exclusively and requests compensation for damage to the house caused by the

       flooding. The Second Complaint asserts the September 2008 flooding, in

       addition to the two subsequent floodings in 2013 and 2014, as evidence a taking

       of the Brown Property has occurred. See Arkansas Game & Fish Comm’n v. United

       States, 133 S.Ct. 511, 522-3 (2012) (“[W]hile a single act may not be enough, a

       continuance of them in sufficient number and for a sufficient time may prove [a

       taking]. Every successive trespass adds to the force of the evidence.”) (quoting

       Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 329-30 (1922)).

       Further, the remedies for the two claims are not the same. 7




       7
        Additionally, the determination of the Browns’ negligence claim involving the September 2008 flooding has
       no bearing on the court’s decision of the inverse condemnation claim in the Second Complaint because it is
       only the subsequent floodings which may be used to establish the taking, since the trial court decided in its
       order regarding the inverse condemnation claim in the First Complaint that the September 2008 flooding was
       not a taking.

       Court of Appeals of Indiana | Memorandum Decision 64A03-1601-PL-138 | October 26, 2016         Page 17 of 19
                                                  III. Remedies

[17]   A T.R. 12(B)(8) dismissal is not warranted if the remedies sought by the two

       claims “are not substantially the same.” Kentner, 852 N.E.2d at 573. The

       requested remedy in the Browns’ negligence claim in the First Complaint only

       involved those damages, specifically expenses incurred for “removal, salvage,

       and repair of their damaged property.” (Appellee’s App. at 26.) In contrast, in

       an inverse condemnation proceeding,

               all damages, present or prospective, that are the natural or
               reasonable incident of the improvement to be made or work to be
               constructed . . . must be assessed. Damages are assessed once
               and for all, and the measure should be the entire loss sustained by
               the owner, including in one assessment all injuries resulting from
               the appropriation.


       Chicago & Ind. Coal Railway Co. v. Hunter, 128 Ind. 213, 220, 27 N.E. 477, 479

       (1891). Damages in an inverse condemnation action “must be assessed at the

       time of the taking.” City of Elkhart v. No-Bi Corp., 428 N.E.2d 43, 48 (Ind. Ct.

       App. 1981). Thus, as the court has already determined the September 2008

       flooding event did not constitute a taking, the damages in the Second

       Complaint only address the damages incurred when a taking occurred, either in

       2013 or 2014, if the trial court finds such a taking occurred for the purposes of

       inverse condemnation. The remedies are not the same, nor do they doubly

       compensate the Browns.


       Although the parties are the same, the subject matter and remedies are not the

       same. Therefore, the trial court erred when it granted the City’s motion to

       Court of Appeals of Indiana | Memorandum Decision 64A03-1601-PL-138 | October 26, 2016   Page 18 of 19
       dismiss pursuant to T.R. 12(B)(8). 8 See Sheets v. Shoemaker, 670 N.E.2d 945,

       947-9 (Ind. Ct. App. 1996) (reversing T.R. 12(B)(8) dismissal when parties were

       the same but subject matter and remedies were different), trans. denied.



                                                  Conclusion
[18]   The trial court erred when it granted the City’s motion to dismiss pursuant to

       T.R. 12(B)(8) because the subject matter and remedies requested under the First

       Complaint and Second Complaint were different. Accordingly, we reverse and

       remand.


[19]   Reversed and remanded.


       Baker, J., and Brown, J., concur.




       8
         The Browns also assert the trial court denied their Constitutional right to open access to courts by granting
       the City’s motion to dismiss. As we reverse the trial court’s decision, we need not address this issue.

       Court of Appeals of Indiana | Memorandum Decision 64A03-1601-PL-138 | October 26, 2016            Page 19 of 19
