                                                                  Jun 24 2015, 6:01 am




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
Keith W. Vonderahe                                         Guy A. Relford
Robert L. Burkart                                          Craig A. Relford
Ziemer Stayman Weitzel                                     The Law Offices of Guy A. Relford
& Shoulders, LLP                                           Carmel, Indiana
Evansville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

City of Evansville and The                                 June 24, 2015
Evansville Department of Parks                             Court of Appeals Case No.
and Recreation,                                            82A01-1409-PL-398
                                                           Appeal from the Vanderburgh Circuit
Appellants-Defendants,
                                                           Court.
                                                           The Honorable Carl A. Heldt, Senior
        v.                                                 Judge.
                                                           Cause No. 82C01-1109-PL-476
Benjamin A. Magenheimer,
Appellee-Plaintiff




Baker, Judge.




Court of Appeals of Indiana | Opinion 82A01-1409-PL-398 | June 24, 2015                  Page 1 of 14
[1]   The City of Evansville (Evansville) appeals the trial court’s denial of its motion

      for judgment on the pleadings. Benjamin Magenheimer filed a complaint

      alleging that Evansville violated Indiana Code chapter 35-47-11.1, which

      generally bars political subdivisions from regulating firearms, when it enforced

      a provision of its municipal code that prohibited the carrying of firearms in

      public parks against Magenheimer. Magenheimer brought suit pursuant to

      Indiana Code section 35-47-11.1-5, which creates a private right of action for

      individuals to enforce the statute’s provisions. Evansville maintains that

      Magenheimer is effectively bringing a tort claim and that, therefore, his claim is

      barred for failure to comply with the Indiana Tort Claims Act 1 (ITCA).

      Finding that the ITCA does not govern Magenheimer’s claim, we affirm the

      trial court’s denial of Evansville’s motion for judgment on the pleadings.


                                                        Facts      2




[2]   On September 10, 2011, Magenheimer visited the Mesker Park Zoo and

      Botanical Garden, a city park, with his wife and son. While at the park,

      Magenheimer was openly carrying a firearm. Magenheimer was licensed to

      carry this firearm and had a copy of the license in his possession. At the time,

      the Evansville municipal code contained a provision prohibiting firearms in city




      1
          Ind. Code § 34-13-3-1 et seq.
      2
       We held oral argument in this case on May 6, 2015, at the Tropicana Evansville. We thank everyone at the
      Tropicana Evansville for their wonderful hospitality as well as the parties for their exceptional oral advocacy.
      We also thank the Evansville Bar Association for organizing the event.

      Court of Appeals of Indiana | Opinion 82A01-1409-PL-398 | June 24, 2015                            Page 2 of 14
      parks.3 An employee of the park spotted Magenheimer carrying the firearm and

      called the police. The police arrived and ordered Magenheimer to leave the

      park.


[3]   Magenheimer filed an initial complaint on September 16, 2011, and an

      amended complaint a few days later. Magenheimer’s complaint alleged that

      Evansville had violated Indiana Code chapter 35-47-11.1, which generally bars

      political subdivisions from regulating firearms. Magenheimer filed his

      complaint pursuant to a provision that gives individuals a private right of action

      to enforce the statute. Magenheimer’s request for relief tracked the language of

      the statute, which allows successful plaintiffs to recover either actual and

      consequential damages or liquidated damages of treble attorney fees.


[4]   Evansville filed a response and, shortly thereafter, filed a motion for summary

      judgment. The trial court denied this motion pending the outcome of a similar

      case in this Court—Dykstra v. City of Hammond, 985 N.E.2d 1105 (Ind. Ct. App.

      2013), trans. denied. Following the decision in that case, both parties filed

      motions for summary judgment, which the trial court denied. On May 20,

      2014, Evansville moved for judgment on the pleadings, alleging that

      Magenheimer had failed to serve proper notice pursuant to the ITCA. The trial

      court denied that motion as well. However, pursuant to Indiana Appellate Rule




      3
          Municipal Code § 2.45.070(C)(18); Appellant’s App. p. 15.


      Court of Appeals of Indiana | Opinion 82A01-1409-PL-398 | June 24, 2015   Page 3 of 14
      14(B), the trial court granted a motion for discretionary interlocutory appeal to

      this Court on September 2, 2014. This appeal followed.


                                    Discussion and Decision
[5]   Evansville appeals the trial court’s denial of its motion for judgment on the

      pleadings. We review de novo a trial court’s ruling on a motion for judgment

      on the pleadings. Consol. Ins. Co. v. Nat’l Water Servs., LLC, 994 N.E.2d 1192,

      1196 (Ind. Ct. App. 2013), trans. denied. We accept as true the well-pleaded

      material facts in the complaint and base our ruling solely on the pleadings. Id.

      A motion for judgment on the pleadings is to be granted only where it is clear

      from the face of the complaint that no relief could be granted under any

      circumstances. Id.


                          I. Indiana Code Chapter 35-47-11.1
[6]   It is the general policy of this state that local governments shall be granted all

      powers “necessary or desirable in the conduct of [their] affairs.” Ind. Code §

      36-1-3-4. However, local governments only retain a power “to the extent that

      the power is not expressly denied by the Indiana Constitution or by statute.”

      I.C. § 36-1-3-5. In 2011, our legislature determined that the public interest

      would be best served by denying local governments the power to regulate

      firearms. Indiana Code chapter 35-47-11.1 was passed to effectuate this new

      policy. It provides that, subject to certain exceptions:

              [A] political subdivision may not regulate:
                       (1)      firearms, ammunition, and firearm accessories;

      Court of Appeals of Indiana | Opinion 82A01-1409-PL-398 | June 24, 2015    Page 4 of 14
                       (2)      the ownership, possession, carrying, transportation,
                                registration, transfer, and storage of firearms,
                                ammunition, and firearm accessories; and
                       (3)      commerce in and taxation of firearms, firearm
                                ammunition, and firearm accessories.

      I.C. § 35-47-11.1-2.


[7]   The statute also grants individuals a private right of action to enforce its

      provisions, providing that:

              A person adversely affected by an ordinance, a measure, an
              enactment, a rule, or a policy adopted or enforced by a political
              subdivision that violates this chapter may file an action in a court with
              competent jurisdiction against the political subdivision for
                       (1)      declarative and injunctive relief; and
                       (2)      actual and consequential damages attributable to the
                                violation.

      I.C. § 35-47-11.1-5. Prevailing plaintiffs may elect to recover:

                       (1)      The greater of the following:
                                (A)      Actual damages, including consequential
                                         damages.
                                (B)      Liquidated damages of three (3) times the
                                         plaintiff’s attorney’s fees.
                       (2)      Court costs (including fees).
                       (3)      Reasonable attorney’s fees.

      I.C. § 35-47-11.1-7.


[8]   To be “adversely affected” for purposes of the statute, individuals must first be

      legal residents of the United States who may legally possess firearms in Indiana.

      Court of Appeals of Indiana | Opinion 82A01-1409-PL-398 | June 24, 2015          Page 5 of 14
       I.C. § 35-47-11.1-6. Individuals then only need to show that they were “subject

       to the ordinance, measure, enactment, rule, or policy of the political

       subdivision.” Id. The statute provides that:

               An individual is or was subject to the ordinance, measure, enactment,
               rule, or policy of the political subdivision if the individual is or was
               physically present within the boundaries of the political subdivision for
               any reason.

       Id. Thus, were a political subdivision to violate Indiana Code chapter 35-47-

       11.1, many individuals would be authorized to bring suit.


[9]    However, this seemingly broad authorization was limited by this Court’s recent

       holding in Dykstra. 985 N.E.2d 1105. In Dykstra, this Court held that Indiana

       Code chapter 35-47-11.1 did not authorize suits merely because a political

       subdivision had left an ordinance or measure on its books after the statute went

       into effect. Id. at 1108. This Court concluded that “the statute was meant to

       prevent the adoption of future ordinances that may conflict with state law and to

       prevent the enforcement of statutes that were in place at the time Indiana Code

       section 35-47-11.1-2 was adopted.” Id. (emphases added). However, the

       instant case is distinguishable from Dykstra in that, here, Evansville actually

       enforced its ordinance against Magenheimer.


              II. Application of ITCA to Magenheimer’s Claim
[10]   Evansville contends that by enforcing the ordinance in violation of Indiana

       Code chapter 35-47-11.1 it committed a tort. Therefore, Evansville argues that

       Magenheimer’s claim is subject to the ITCA. The ITCA, in relevant part,

       Court of Appeals of Indiana | Opinion 82A01-1409-PL-398 | June 24, 2015         Page 6 of 14
       provides that “a claim against a political subdivision is barred unless notice is

       filed with . . . (1) the governing body of that political subdivision; and (2) the

       Indiana political subdivision risk management commission . . . within one

       hundred eighty (180) days after the loss occurs.” I.C. § 34-13-3-8. As

       Magenheimer did not serve notice in accordance with this provision, Evansville

       argues that his claim is barred.


[11]   When interpreting a statute, our goal is to give effect to the intent of the

       legislature. State v. Int’l Bus. Machs. Corp., 964 N.E.2d 206, 209 (Ind. 2012). In

       determining the intent of the legislature, we consider the objects and purposes

       of the statute as well as the effects and repercussions of our interpretation. Id.

       Consequently, we will analyze Evansville’s argument in light of the purposes of

       both the ITCA and Indiana Code chapter 35-47-11.1.


                                                  A. Waiver
[12]   Initially, we observe that when a plaintiff fails to give the required notice under

       the ITCA, “the defendant has an affirmative defense which must be raised in a

       responsive pleading to the plaintiff’s complaint.” Davidson v. Perron, 716 N.E.2d

       29, 34 (Ind. Ct. App. 1999) (emphasis added). Consequently, Evansville has

       waived the issue of Magenheimer’s non-compliance with the ITCA by failing to

       raise it as an affirmative defense in its answer. Appellant’s App. p. 25.


[13]   We also note that Magenheimer filed his initial complaint a mere six days after

       the incident occurred. The ITCA requires plaintiffs to give notice of a claim

       within one hundred and eighty days of the loss. I.C. § 34-13-3-8. Had

       Court of Appeals of Indiana | Opinion 82A01-1409-PL-398 | June 24, 2015     Page 7 of 14
       Evansville properly alerted Magenheimer that it believed he was in violation of

       the ITCA in its responsive pleading, Magenheimer would have had ample time

       to comply with the ITCA’s notice requirement. However, notwithstanding

       these issues, we will address the merits of Evansville’s argument.


                     B. Meaning of “Tort” in Context of ITCA
[14]   The ITCA applies to a claim or suit in tort. I.C. § 34-13-3-1. Although the

       ITCA does not define “tort,” this Court has recently cited the following

       definition approvingly:

               A tort is defined as ‘a civil wrong, other than a breach of contract, for
               which a remedy may be obtained, usually in the form of damages; a
               breach of duty that the law imposes on persons who stand in a
               particular relation to one another.’

       Hoagland v. Franklin Twp. Cmty. Sch. Corp., 10 N.E.3d 1034, 1039 (Ind. Ct. App.

       2014), affirmed in part, vacated in part on other grounds by Hoagland v. Franklin Twp.

       Cmty. Sch. Corp., 27 N.E.3d 737 (Ind. 2015) (quoting Black’s Law Dictionary

       1526 (8th ed. 2004)).


[15]   It is also clear from the terms of the ITCA that it only applies to actions in

       which the plaintiff claims a “loss.” See I.C. § 34-13-3-8 (must file notice within

       one hundred eighty days after the loss occurs). The ITCA defines “loss” as

       “injury to or death of a person or damage to property.” I.C. § 34-6-2-75. The

       ITCA’s coverage also extends to claims alleging damage to property rights.

       Holtz v. Bd. of Comm’rs of Elkhart Cnty., 560 N.E.2d 645, 647-48 (Ind. 1990)

       (claim for retaliatory discharge subject to the ITCA); see also City of Indianapolis

       Court of Appeals of Indiana | Opinion 82A01-1409-PL-398 | June 24, 2015             Page 8 of 14
       v. Cox, 20 N.E.3d 201, 207-08 (Ind. Ct. App. 2014) (ITCA applied to plaintiff’s

       claim that she was owed a refund by the city, crux of claim was that plaintiff’s

       “personal property, money, was unfairly retained by the City”), trans. denied.

       Evansville would have us take this concept even further, contending that the

       ITCA should govern all claims in which a plaintiff alleges that state authorities

       have deprived him of any right at all.


[16]   However, we know from this Court’s recent decision in Hoagland that this

       cannot be the case. 10 N.E.3d at 1039. In Hoagland, a parent sued her child’s

       school corporation alleging that it violated the Education Clause of Article 8,

       Section 1, of the Indiana Constitution by failing to provide students with free

       transportation to and from school. Id. at 1037. The school corporation

       maintained that Hoagland’s claim should be barred for failure to give notice

       pursuant to the ITCA. Id. at 1038. Finding that the ITCA did not apply to

       Hoagland’s claim, this Court noted:

               Hoagland’s claim sounds in Indiana’s Education Clause, not tort law,
               and . . . she may not seek monetary damages. Moreover, this case
               does not involve the type of loss contemplated by the ITCA . . . .

       Id. at 1039. Thus, the ITCA only applies to claims in which a plaintiff seeks

       monetary damages from the State to compensate for a loss. In other words, the

       ITCA does not apply to all claims in which a plaintiff alleges that the State has

       infringed his rights.




       Court of Appeals of Indiana | Opinion 82A01-1409-PL-398 | June 24, 2015        Page 9 of 14
               C. Purpose of Indiana Code Chapter 35-47-11.1
[17]   It is evident that Indiana Code chapter 35-47-11.1 does not authorize

       individuals like Magenheimer to bring suit primarily so that they may seek

       compensation for a loss. We draw this conclusion from the fact that the statute

       authorizes suit in situations where no loss has occurred. For instance, had

       Evansville simply enacted an ordinance regulating firearms at some point

       subsequent to the passage of the statute, Magenheimer would have a claim if he

       was physically present in Evansville at any point when such ordinance was in

       effect. See Dykstra, 985 N.E.2d at 1108. Such a claim would not seek

       compensation for a “loss,” as defined by the ITCA. I.C. § 34-6-2-75.


[18]   Rather, the private right of action in Indiana Code chapter 35-47-11.1 serves a

       different purpose. Indiana has several statutes with similar provisions,

       authorizing private citizens to bring suit to “redress wrongs that involve the

       public interest, and to recover attorney fees if they prevail.” 4 Town of St. John,

       751 N.E.2d at 661. These provisions are meant to “encourage[e] the private

       prosecution of certain favored actions, by requiring defendants who have

       violated plaintiffs’ rights to compensate plaintiffs for the costs they incurred to

       enforce those rights.” Florin v. Nationsbank of Georgia, N.A., 34 F.3d 560, 562-63

       (7th Cir. 1994). In recent years, our legislature has seen fit to create, and to




       4
        For instance, Indiana’s housing discrimination statute, like Indiana Code chapter 35-47-11.1, allows a
       prevailing party to recover “[a]ctual and punitive damages” and “reasonable attorney’s fees.” Ind. Code §
       22-9.5-7-2.

       Court of Appeals of Indiana | Opinion 82A01-1409-PL-398 | June 24, 2015                        Page 10 of 14
       encourage the private prosecution of, several such favored actions relating to

       firearms.


[19]   Indiana Code chapter 35-47-11.1 is one of several statutes dealing with firearms

       passed in recent years that create a private right of action and allow individuals

       to recover certain damages and attorney fees. See Ind. Code ch. 34-28-7

       (providing that, subject to certain exceptions, an employer may not prohibit an

       employee from keeping a firearm in a locked vehicle while on employer’s

       property); I.C. ch. 34-28-8 (providing that an employer “may not require an

       applicant for employment or an employee to disclose information about

       whether the applicant or employee owns, possesses, uses, or transports a

       firearm”). Like these other statutes, Indiana Code chapter 35-47-11.1

       incentivizes individuals to bring suit by allowing “prevailing plaintiffs” to

       recover liquidated damages as well as attorney fees. I.C. § 35-47-11.1-7.

       Although Indiana Code section 35-47-11.1-7 allows plaintiffs to recover actual

       damages as well, this appears incidental to the provision’s primary purpose of

       incentivizing private individuals to assist in the statute’s enforcement.


               D. Must a Claim be Filed Pursuant to the ITCA
                            Whenever Possible?
[20]   Finally, Evansville argues that, regardless of the statute’s purpose, some

       violations of Indiana Code chapter 35-47-11.1 could also be torts, which would

       nevertheless be subject to the ITCA. Evansville argues that such is the case

       here. It contends that, while Magenheimer ostensibly brings his claim pursuant

       to Indiana Code chapter 35-47-11.1, at its core, the claim is predicated upon an
       Court of Appeals of Indiana | Opinion 82A01-1409-PL-398 | June 24, 2015     Page 11 of 14
       unlawful infringement of his rights by police officers. Evansville maintains that

       because the underlying facts of Magenheimer’s claim could form the basis of a

       tort claim—such as a claim of false arrest5—Magenheimer should not be

       allowed to “plead around the ITCA” by styling his claim as one brought

       pursuant to Indiana Code chapter 35-47-11.1. Reply Br. p. 5.


[21]   In support of its contention that Magenheimer brings a tort claim in disguise,

       Evansville points to Holtz, in which our Supreme Court held that an ex-

       employee plaintiff’s claim for retaliatory discharge sounded in tort, and was

       therefore subject to the ITCA despite the plaintiff’s attempt to frame it as a

       contract claim. 560 N.E.2d at 646. However, in Holtz, Holtz did not have a

       contract claim because, as an at-will employee, he did not have a contract.

       Holtz, 560 N.E.2d at 647. Therefore, to the extent that Holtz had any claim at

       all, it must have been a claim for retaliatory discharge sounding in tort. Id.

       Such is not the case here, as Magenheimer has a valid, non-tort claim arising

       under Indiana Code chapter 35-47-11.1.




       5
         On this point, we observe that Evansville has failed to name the tort that underlies Magenheimer’s claim.
       As previously discussed, Evansville’s apparent assertion that any deprivation of rights by state authorities
       constitutes a tort for ITCA purposes is mistaken in light of this Court’s holding in Hoagland. 10 N.E.3d at
       1039. For the sake of argument, we presume that Evansville argues that Magenheimer should have brought a
       claim for false arrest, a tort to which the ITCA applies. See Livingston v. Consol. City of Indianapolis, 398
       N.E.2d 1302, 1303-04 (Ind. Ct. App. 1979).




       Court of Appeals of Indiana | Opinion 82A01-1409-PL-398 | June 24, 2015                        Page 12 of 14
[22]   Furthermore, even if it were possible for Magenheimer to bring his claim in

       tort, we cannot agree with Evansville’s contention that he should be required to

       do so. As we have long observed, “[i]t is only necessary for a plaintiff to prove

       so many of the facts alleged by him as amount to or constitute a cause of

       action.” Long v. Doxey, 50 Ind. 385, 389 (1875). To adopt Evansville’s position

       would be to require Magenheimer to prove more than he is alleging.6


[23]   Here, Magenheimer made clear in his complaint that he was bringing his action

       solely pursuant to Indiana Code chapter 35-47-11.1:

               Plaintiff does not assert any cause of action based on any theory of
               tort, however named, on behalf of himself or any other person.
               Plaintiff’s sole cause of action is based on City’s [] violation of Ind.
               Code § 35-47-11.1-2 et seq.

       Appellant’s App. p. 20. While Magenheimer may have a cause of action in tort

       arising out of these same facts, he is required to allege no more than that which,

       if taken as true, would establish a cause of action under Indiana Code chapter

       35-47-11.1.


[24]   We agree with the proposition that, when determining whether a claim is

       governed by the ITCA, we are to look to the claim’s underlying substance. See

       Cox, 20 N.E.3d at 207-08. However, Magenheimer’s claim is a tort claim




       6
         For instance, to succeed on a claim brought under Indiana Code chapter 35-47-11.1, Magenheimer could
       show that he was adversely affected by Evansville’s ordinance when Evansville enforced the ordinance
       against him. See Dykstra, 985 N.E.2d at 1108. While Evansville could enforce the ordinance without going
       so far as to arrest Magenheimer, requiring Magenheimer to bring his claim as one of false arrest would
       require him to prove additional facts which Indiana Code chapter 35-47-11.1 does not require him to allege.

       Court of Appeals of Indiana | Opinion 82A01-1409-PL-398 | June 24, 2015                        Page 13 of 14
       neither in form nor substance. It is a cause of action brought pursuant to

       Indiana Code chapter 35-47-11.1 and, as such, it is not governed by the ITCA.

       Consequently, the trial court did not err by denying Evansville’s motion for

       judgment on the pleadings.


[25]   The judgment of the trial court is affirmed and the cause is remanded for further

       proceedings pursuant to Indiana Code chapter 35-47-11.1.


       May, J., and Barteau, S.J., concur.




       Court of Appeals of Indiana | Opinion 82A01-1409-PL-398 | June 24, 2015   Page 14 of 14
