What does a property owner do if she believes that the government’s eminent domain lawsuit is abusive? Is the remedy limited to the four corners of the eminent action (i.e., a counterclaim, third-party claim, etc.), or may a landowner institute a separate action which includes a tort claim for abuse of process? 

In Indiana Land Trust #3083 v. Hammond Redevelopment Comm’n, No. 24A-PL-1284 (Jan. 31, 2025), the Indiana Court of Appeals held that because the remedies in an eminent domain case and an abuse of process case are different, the owner may press claims that the “taking was for ‘discriminatory private purposes, for private gain, motivated by spite and/or that it is against public purposes[.]'” in a separate abuse of process lawsuit. Slip op. at 5. 

Here’s the order of events:

  • Redevelopment agency instituted an eminent domain case in state court to take owner’s property as part of a redevelopment project.
  • In that case, owner counterclaimed and instituted a third-party complaint which included allegations that the taking was abusive.
  • The redevelopment agency objected to the third-party complaint on the grounds that “Indiana’s Eminent Domain Act does not permit any pleadings in eminent domain actions outside of the complaint, objections, and written exceptions.” Slip op. at 3.
  • At some time in this process, the owner filed a separate state court lawsuit against the condemnor, alleging pretty much the same thing as the counterclaim and third-party complaint. The condemnor removed the case to federal court.
  • The state trial court dismissed the owner’s third-party claim, on the basis that the owner could press these claims in the now-federal lawsuit. 
  • But the federal court dismissed the owner’s complaint, and the Seventh Circuit affirmed holding, “‘[t]he eminent domain action is playing out in Indiana state court[.]'” Slip op. at 5.
  • Next, the owner filed another state-court action for, inter alia, abuse of process.
  • Redevelopment agency sought dismissal on the grounds that the allegations of abuse of process (which included allegations of a private benefit taking and related) could only be raised in the pending eminent domain action, and the trial court agreed.

The court of appeals reversed. It focused on the nature of an eminent domain action, and the tort of abuse of process, zeroing in on the remedies available in each case. 

Based upon their complaint, Landowners essentially alleged that the eminent domain action was substantively improper, they raised questions of fraud and bad faith, and they alleged that the proceeding was a subterfuge to convey the Property for a private use. Given the procedural posture of this case and the expansive definition of process that includes both procedural and substantive elements and mindful that we view the pleadings in the light most favorable to Landowners and construe every reasonable inference in their favor, we conclude that Landowners raised a question that is a proper subject for judicial review and sufficiently alleged a claim for abuse of process. The trial court erred in granting Defendants’ motion to dismiss.

Slip op. at 22.

It looks like a lot turned on “[g]iven the procedural posture of this case,” and the trial court’s earlier rejection of the owner’s attempt to raise similar issues in the condemnation lawsuit. Nonetheless, we think there’s a lot there worth understanding, with the bottom line being, yes, you can (and perhaps should) raise these type of objections in a separate claim or suit. 

Indiana Land Trust #3082 v. Hammond Redevelopment Comm’n, No. 24A-PL-1284 (Ind. Ct. App. Jan. 31,