IN THE
Court of Appeals of Indiana FILED Shirley E. Melton, et al., Jul 29 2026, 9:13 am
CLERK Appellants-Plaintiffs Indiana Supreme Court Court of Appeals and Tax Court
v.
Vanderburgh County Commissioners, et al., Appellees-Defendants
July 29, 2026 Court of Appeals Case No. 25A-MI-2310 Appeal from the Posey Superior Court The Honorable Travis L. Clowers, Judge Trial Court Cause No. 65D01-2412-MI-609
Opinion by Judge Altice Judges Brown and DeBoer concur.
Court of Appeals of Indiana | Opinion 25A-MI-2310 | July 29, 2026 Page 1 of 20 Altice, Judge.
Case Summary [1] Shirley E. Melton, Michael Melton, and Jason Melton (collectively, the
Meltons) filed suit against Vanderburgh County and the Vanderburgh County
Commissioners (collectively, the County) based on the County’s placement of a
barrier – a guardrail – at the dead end of Bayshore Drive in the Blue Heron
Estates Subdivision (the Subdivision). The Meltons alleged that this barrier
prevented them from accessing their farmland (the Farmland) and that the plat
map of the Subdivision (the Plat) establishes that they have an easement onto
Bayshore Drive and throughout the Subdivision. The Meltons filed claims
against the County for declaratory judgment, unlawful trespass, and judicial
review.
[2] On the County’s motion and after hearings on the matter, the trial court
dismissed the action concluding that the claims were barred by the statute of
limitations and that certain claims were nonjusticiable and the court lacked
subject matter jurisdiction. The Meltons appeal arguing that the trial court
improperly dismissed each of their claims against the County.
[3] We affirm in part, reverse in part, and remand.
Facts & Procedural History [4] In May 2004, Shirley sold a portion of her Vanderburgh County farmland to
Blue Heron Development, LLC for the purpose of creating the Subdivision.
Court of Appeals of Indiana | Opinion 25A-MI-2310 | July 29, 2026 Page 2 of 20 The Plat was recorded in Vanderburgh County on August 11, 2006, with
Shirley signing as grantor. The Plat expressly indicates that Shirley retained
ownership of certain land within the Subdivision, designated as Lots 1, 2, and
81. Regarding access, the Plat provides: “Lots 1 and 2 shall have direct access
to Millersburg Road. Lot 81 shall have access to Green River Road. All other
lots shall access interior streets only.” Appellants’ Appendix Vol. II at 18; Exhibits
Vol. 3 at 4. Though not depicted or designated on the Plat, after the sale, Shirley
also continued to own the Farmland directly to the east of the Subdivision.
[5] The Plat contains certain streets that were to be developed within the
Subdivision and dedicated for public use. Below is a portion of the Plat relevant
to our review which shows interior streets and their relation to Lots 1, 2, and
81, which are highlighted:
Court of Appeals of Indiana | Opinion 25A-MI-2310 | July 29, 2026 Page 3 of 20 Appellants’ Appendix at 18 (edited). This image is oriented horizontally from
south to north. Millersburg Road runs along the left (south) edge and it
intersects with Pelican Pointe Drive at the entrance to the Subdivision. As
Pelican Pointe Drive moves north through the Subdivision, it eventually turns
into Bayshore Drive, which heads east and then dead ends at the eastern border
of the Subdivision with Lots 46 and 47 on either side.
[6] In June 2011, the County accepted the dedication of the Subdivision’s interior
streets for purposes of maintenance. Notably, the end of Bayshore Drive
stopped twenty-four feet short of the Subdivision’s property line. Then in 2015,
the County installed a traffic barrier/guardrail at the end of Bayshore Drive, as
pictured below:
Exhibits Vol. 3 at 3. Though aware of the installation of this barrier, according to
the Meltons, “Shirley opted not to do anything” because “the Meltons at that
time had an alternative route available via Millersburg Road to service their
crops.” Appellants’ Appendix Vol. II at 76.
Court of Appeals of Indiana | Opinion 25A-MI-2310 | July 29, 2026 Page 4 of 20 [7] In 2019, Shirley deeded the Farmland to her sons, Michael and Jason, as joint
tenants with rights of survivorship and retained a life estate for herself. The
Meltons continue to own and maintain the Farmland. At some point, however,
the route from the Farmland to Millersburg Road became unavailable to the
Meltons “due to certain properties being deeded off to individuals” based on the
Meltons belief that they could access the Farmland through Bayshore Drive. Id.
[8] On October 7, 2024, the Meltons petitioned the County to remove the barrier at
Bayshore Drive so they could utilize their purported easement. On November
12, 2024, the County denied this request, which denial the Meltons claim has
“effectively landlocked the [Farmland] from access.” Id. at 94.
[9] On December 9, 2024, the Meltons filed this action against the County,
claiming the Plat shows that Shirley “retained an easement right throughout the
Subdivision providing access to her remaining farmland immediately to the east
via the abutting Bayshore Drive.” Id. at 13. In the complaint, the Meltons
asserted three claims against the County: 1) declaratory judgment regarding
existence of an easement; 2) unlawful trespass; and 3) judicial review of the
County’s executive decision to deny the Meltons’ request to remove the barrier.
With respect to the trespass claim, in addition to damages, the Meltons asked
the trial court to order the County to remove the barrier and to “pave the
twenty-four (24) feet at the end of Bayshore Drive” that abuts the Farmland. Id.
at 15. The Meltons attached the Plat to the complaint.
Court of Appeals of Indiana | Opinion 25A-MI-2310 | July 29, 2026 Page 5 of 20 [10] The Meltons filed the complaint in Vanderburgh County Superior Court but
then simultaneously filed a motion for change of venue from county and judge
pursuant to Ind. Trial Rule 76. The trial court granted the motion the next day
and transferred the case to Posey County without following the procedures then
outlined in T.R. 76(D). 1 After several extensions granted by the (new) trial
court, on March 10, 2025, the County filed an objection to the change of venue
and requested that the matter be returned to Vanderburgh County, noting that
Ind. Code § 36-2-2-27(a) provides for appeals of decisions by the county
executive to be made “to the circuit court, superior court, or probate court for
the county.” The trial court denied the County’s venue motion after a hearing. 2
[11] On March 10, the County also filed a motion to dismiss pursuant to Ind. Trial
Rule 12, asserting the following grounds:
(1) Plaintiffs failed to satisfy a condition precedent of serving a Notice of Tort Claim prior to filing the Complaint and within the statutory time frame;
(2) Plaintiffs’ Complaint and claims are barred by the applicable statute of limitations;
1 T.R. 76 has since been amended and the revised procedures are now set out in subsection (A)(2) of the rule. 2 The County does not challenge this venue ruling on appeal, maybe because the Meltons were entitled as a matter of law to transfer of venue out of Vanderburgh County because the County is a party. See City of Lawrenceburg, Indiana v. Franklin Cnty., Ind., 59 N.E.3d 296, 297 (Ind. Ct. App. 2016) (“Regardless of whether Franklin County is a preferred venue, its status as such is trumped by Trial Rule 76(A), which states explicitly that a motion requesting a change of venue ‘shall be granted only upon a showing that the county where suit is pending is a party.’”).
Court of Appeals of Indiana | Opinion 25A-MI-2310 | July 29, 2026 Page 6 of 20 (3) Plaintiffs failed to state a claim upon which relief can be granted;
(4) This Court lacks jurisdiction over the subject matter; and
(5) Plaintiffs failed to join indispensable parties and real parties of interest.
Appellants’ Appendix Vol. II at 42. The County filed a brief in support of its
motion to dismiss.
[12] On May 23, 2025, the Meltons filed a motion for leave to amend their
complaint. While the substance of the complaint was unchanged, the Meltons
noted in the motion that they had served the County with a notice of tort claim
on February 13, 2025, and thus “the 90 day requirement has been met.” 3
Appellants’ Appendix Vol. II at 65. On May 23, the Meltons also filed a brief in
opposition to the County’s motion to dismiss.
[13] In June 2025, following a hearing, the trial court denied the motion to amend
the complaint. The court then set the matter for a hearing on the motion to
dismiss, which was held on July 16. The trial court took the matter under
advisement after the hearing and two days later issued an order summarily
granting the motion to dismiss without prejudice.
3 This appears to be a reference to the requirement in the Indiana Tort Claims Act (the ITCA) that a claimant not initiate a suit against a governmental entity unless the person’s claim has been denied in whole or in part, with the governmental entity having ninety days to make such a determination before denial is presumed. See Ind. Code § 34-13-3-11, -13.
Court of Appeals of Indiana | Opinion 25A-MI-2310 | July 29, 2026 Page 7 of 20 [14] Thereafter, on July 28, 2025, the Meltons filed an amended complaint, again
virtually identical to the original complaint. The Meltons, on August 12, filed a
motion for clarification and a motion to correct error. In this filing, they
explained that the amended complaint was filed as a matter of right pursuant to
T.R. 12(b), which permits an amendment within ten days of dismissal for
failure to state a claim. As the dismissal was general, the Meltons filed the
motion to correct error to address any other bases for dismissal, though they did
so only in general terms.
[15] After a response from the County and a hearing, on August 25, 2025, the trial
court issued an amended order, clarifying the bases of the dismissal: “The
Plaintiffs’ claims are barred by the statute of limitations. In addition, certain
counts of Plaintiffs’ claims are nonjusticiable and the court lacks subject-matter
jurisdiction.” Appellants’ Appendix Vol. II at 114. Accordingly, the court
dismissed each of the counts, denied the motion to correct error, and dismissed
the amended complaint.
[16] The Meltons now appeal the dismissal of their amended complaint. Additional
information will be provided below as needed.
Standard of Review [17] Under T.R. 12(B)(6), a civil action may be dismissed for “failure to state a claim
upon which relief can be granted.” A T.R. 12(B)(6) motion “tests the legal
sufficiency of the plaintiff’s claim, not the facts supporting it.” Residences at Ivy
Quad Unit Owners Ass’n v. Ivy Quad Dev., LLC, 179 N.E.3d 977, 981 (Ind. 2022)
Court of Appeals of Indiana | Opinion 25A-MI-2310 | July 29, 2026 Page 8 of 20 (quotation omitted). To overcome such a motion, the complaint must allege
facts that show the “possibility of relief.” Id. at 980. We review a T.R. 12(B)(6)
motion de novo, taking the facts alleged in the complaint as true, considering all
allegations in the light most favorable to the nonmoving party, and drawing
every reasonable inference in that party’s favor. Id. at 981; see also City of Fishers
v. Netflix, Inc., 264 N.E.3d 69, 77 (Ind. Ct. App. 2025) (“An order to dismiss is
affirmed when it is apparent that the facts alleged in the challenged pleading are
incapable of supporting relief under any set of circumstances.”), trans. denied.
Further, in the context of T.R. 12 motions, materials of which a court may take
judicial notice do not constitute matters outside the pleadings and thus may be
considered. See Davidson v. State, 211 N.E.3d 914, 925 (Ind. 2023).
[18] With respect to T.R. 12(B)(1), which addresses dismissal for lack of subject
matter jurisdiction, “the relevant question is whether the type of claim
presented falls within the general scope of the authority conferred upon the
court by constitution or statute.” Marion Cnty. Cir. Ct. v. King, 150 N.E.3d 666,
671 (Ind. Ct. App. 2020), trans. denied. A motion to dismiss on this ground
presents a threshold question regarding the court’s power to act. Id. Where
jurisdictional facts are not in dispute or are confined to a paper record, our
review is de novo. See id.; IncreMedical, LLC v. Kennedy, 212 N.E.3d 220, 224-25
(Ind. Ct. App. 2023), trans. denied.
[19] Further, it is well established that we may affirm a dismissal if the decision is
sustainable on any basis in the record. Stone v. Wright, 133 N.E.3d 210, 215
Court of Appeals of Indiana | Opinion 25A-MI-2310 | July 29, 2026 Page 9 of 20 (Ind. Ct. App. 2019). That is, we are not confined to the bases upon which the
trial court dismissed the claims.
Discussion & Decision The Tort Claim
[20] We turn first to the tort claim asserted by the Meltons against the County. In
their amended complaint, they alleged that the County is “an unlawful
trespasser upon the ingress/egress rights owned by the Meltons, specifically that
unimproved portion of what exists at the end of the dedicated Bayshore Drive
and the eastern property line of [the Subdivision].” Appellants’ Appendix Vol. II at
70. The Meltons further alleged that “the barrier and concrete pad that [the
County] decided to put on that twenty-four (24) foot area … constitute an
illegal trespass upon the Meltons’ private rights of which [the County] has no
right to claim.” Id.
[21] Aside from exceptions not applicable here, the ITCA bars tort claims against a
political subdivision of the State unless a plaintiff has filed notice of the claim
with the entity’s governing body within 180 days after a loss occurs. 4 I.C. § 34-
13-3-8(a). A loss occurs “when the plaintiff knew or, in the exercise of ordinary
4 Pursuant to I.C. § 34-13-3-10: “The notice … must describe in a short and plain statement the facts on which the claim is based. The statement must include the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, the amount of the damages sought, and the residence of the person making the claim at the time of the loss and at the time of filing the notice.” The notice must also be in writing. I.C. § 34-13-3-12.
Court of Appeals of Indiana | Opinion 25A-MI-2310 | July 29, 2026 Page 10 of 20 diligence, could have discovered that an injury had been sustained as a result of
the tortious act of another.” Stone, 133 N.E.3d at 217.
[22] Compliance with the notice provisions of the ITCA is a procedural precedent
that the plaintiff must prove, and the trial court must determine this prior to
trial. Id. That is, if a governmental defendant raises noncompliance with the
notice provisions as a defense, the plaintiff bears the burden of proving
compliance. Id. The determination of compliance is a question of law, and the
political subdivision is entitled to dismissal if the plaintiff failed to provide
notice as required by the ITCA. See Town of Cicero v. Sethi, 189 N.E.3d 194, 204
(Ind. Ct. App. 2022), trans. denied; Stone, 133 N.E.3d at 217.
[23] Here, the Meltons failed to show compliance with the ITCA. It was undisputed
below that the County placed the barrier – thus allegedly becoming a trespasser
interfering with the easement – in 2015 and that the Meltons did not file a
notice of tort claim with the County until many years later. They petitioned the
County for removal of the barrier in October 2024 and filed their notice of tort
claim in February 2025. The Meltons claim that they were entitled to a fresh
180 days to provide notice once the County denied their request to remove the
barrier on November 12, 2024, because before that time they “had not
discovered the trespass was permanent.” Appellants’ Reply Brief at 5. The
Meltons provide no authority for the proposition that the notice requirement
begins to run only upon discovery that the trespass is permanent.
Court of Appeals of Indiana | Opinion 25A-MI-2310 | July 29, 2026 Page 11 of 20 [24] The injury-causing act upon which the tort claim is based is the County’s
placement of the barrier in the Meltons’ alleged easement in 2015, not the
refusal to remove it nine years later. Moreover, permanency of the barrier’s
placement in the alleged easement was, or should have been, apparent in 2015
by its very nature. Shirley simply opted to do nothing about it until 2024.
Dismissal of the tort claim was appropriate given the Meltons’ clear failure to
file their notice of tort claim with the County within 180 days of discovery of
the barrier that purportedly blocked access through their easement.
[25] For similar reasons, the tort claim would also fail on statute of limitations
grounds. The limitations period applicable to civil trespass claims is six years.
See Stickdorn v. Zook, 957 N.E.2d 1014, 1022 (Ind. Ct. App. 2011) (citing Ind.
Code § 34-11-2-7(3)). “Under Indiana’s discovery rule, a cause of action
accrues, and the limitation period begins to run, when a claimant knows or in
the exercise of ordinary diligence should have known of the injury.” Cooper
Indus., LLC v. City of S. Bend, 899 N.E.2d 1274, 1280 (Ind. 2009). The discovery
rule does not require a smoking gun for the limitations period to begin; the
circumstances must simply be such that a person of common knowledge and
experience would be put on notice that some right of theirs has been invaded or
that some claim against another party might exist. See Kenworth of Indianapolis,
Inc. v. Seventy-Seven Ltd., 134 N.E.3d 370, 381 (Ind. 2019).
[26] The Meltons acknowledged below that Shirley knew of the barrier’s placement
in 2015, more than six years before this action was filed. On appeal, though,
they briefly assert two alternative arguments: (1) the barrier constituted “an
Court of Appeals of Indiana | Opinion 25A-MI-2310 | July 29, 2026 Page 12 of 20 ongoing tort without a statute of limitations” or (2) “the triggering date should
be the date the County refused to move the guardrail.” Appellants’ Brief at 18. In
their lead appellate brief, the Meltons cite no authority for these propositions
and provide no cogent argument. The arguments are thus waived. 5 See Davidson,
211 N.E.3d at 926 (“A litigant who fails to support his arguments with
appropriate citations to legal authority and record evidence waives those
arguments for our review.”); see also Ind. Appellate Rule 46(A)(8) (providing
that appellant’s brief must support each contention with cogent reasoning and
citations to authorities, statutes, and the record).
The Declaratory Judgment Claim
[27] The Meltons also filed a claim against the County seeking a declaratory
judgment that they have an easement to access the public streets in the
Subdivision at the point where Bayshore Drive abuts the Farmland. They allege
that the Plat expressly establishes such an easement. In the alternative, they
argue that an easement should be implied based on “the understanding of the
5 The Meltons belatedly cite Stickdorn in their reply brief to argue that the County’s refusal to remove the barrier after being requested to do so constituted a “new act, which restart[ed] the statute of limitations.” Appellants’ Reply Brief at 7. While we need not consider arguments raised for the first time in a reply brief, we observe that Stickdorn is easily distinguishable from the case at hand. It dealt with an intermittent, non-abated nuisance and trespass caused by the defendant farmer’s recurring and improper disposal of animal waste. Stickdorn, 957 N.E.2d at 1023, 1024 (“Each time the odors and polluted streams affected the Stickdorns’ property, the statute of limitations began anew” as “it was the intermitted, recurring, and continuing spreading of the manure that caused the damages.”). In the case at hand, the barrier was installed once and was a permanent condition, not an intermitted or reoccurring trespass.
Court of Appeals of Indiana | Opinion 25A-MI-2310 | July 29, 2026 Page 13 of 20 parties at the time of the sale of the property and the acceptance of the plat” and
based on necessity. Appellants’ Appendix at 69.
[28] The County argues that the complaint failed to state a claim upon which relief
can be granted because the Plat establishes as a matter of law that the Meltons
do not have an express or implied easement. We address each type of easement
in turn.
[29] Express easements are specifically granted in a deed or written contract.
Morehouse v. Dux North LLC, 226 N.E.3d 758, 763 (Ind. 2024). “[I]n an
instrument creating an express easement, the dominant and servient tenement
should be described with reasonable certainty.” Larry Mayes Sales, Inc. v. HSI,
LLC, 744 N.E.2d 970, 973 (Ind. Ct. App. 2001) (observing that while the
document need not use the terms “dominant estate” and “servient estate,” it
must adequately describe those estates with reasonable certainty); see also
Lennertz v. Yohn, 79 N.E.2d 414, 417 (Ind. Ct. App. 1948) (“A reservation of an
easement is not operative in favor of land not described in the conveyance.”).
[30] The Meltons’ claim of an express easement is based solely upon the Plat, but
the Plat clearly and unambiguously does not create an express easement in their
favor. 6 It makes no reference to the Farmland, to the creation of an easement
6 We note that four easements are expressly set out in the Plat: a drainage easement; a public utility easement; a drainage and underground public utility easement; and a lake maintenance and storm drainage easement. Each of these identify the easement’s beneficiary, purpose, the location(s), and restrictions. None of the express easements mention Shirley or the Meltons as holding a dominant tenement.
Court of Appeals of Indiana | Opinion 25A-MI-2310 | July 29, 2026 Page 14 of 20 for the benefit of the Farmland, or to the dominant and servient tenements. As
a matter of law, the Meltons cannot claim an express easement based on the
Plat.
[31] The Meltons also generally claim that an easement may be shown by
considering the understanding of the parties at the time of the sale. For
example, they note that they intend to call as witnesses the engineers and
surveyors who designed and drew the Plat and that these witnesses would
testify that the easement in question was “intended … from the get-go[.]”
Transcript Vol. 2 at 33. The Meltons do not cite authority for their proposition
that such evidence can be used to refute an unambiguous document. Cf. Oakes,
631 N.E.2d at 952 (“We refuse Big Ten’s invitation to look beyond the deeds
because the terms are plain and unambiguous; no dominant tenements are
identified.”).
[32] Of course, an easement may be implied by necessity, a basis upon which the
Meltons allege in their amended complaint. 7
To establish an easement of necessity, the owner of the dominant estate must prove that (1) the servient and dominant properties had a common owner (unity of ownership); (2) the unity of ownership was severed when the common owner conveyed one of the parcels (severance); (3) this severance made an easement
7 Easements may also be established by prior use, but there is no allegation by the Meltons that they used the purported easement prior to the sale. See id. at 765 (setting out the requirements for an implied easement based on prior use, including among other things that the easement was “permanent and obvious” and continued to be used after severance). To be sure, Bayshore Drive did not even come into existence until the subdivision was developed pursuant to the Plat.
Court of Appeals of Indiana | Opinion 25A-MI-2310 | July 29, 2026 Page 15 of 20 necessary for the owner of the dominant estate to access a public road (necessity at severance); and (4) the easement’s necessity remained after severance (continuing necessity).
Morehouse, 226 N.E.3d at 766 (emphasis added).
[33] The rub here for the Meltons is that they can only establish an easement by
necessity if at the time of severance – when Shirley sold the subdivided land to
the developer – the Farmland was “legally landlocked with no public road
abutting contiguous property.” Id. at 768. In practical effect, this would require
that the Meltons, at that time, could not access the Farmland from Millersburg
Road through Lot 2 (or Lots 1 and 2). The Plat plainly shows otherwise, and it
is of no moment that subsequent transfers of property by the Meltons have
caused the Farmland to become landlocked. The law is clear that necessity can
never be shown when a public road abuts the property directly or through
contiguous parcels at the time of severance. See id. at 767-70. The Meltons’
access to the Farmland through Lot 2, as reflected in the Plat, prevented the
establishment of an easement by necessity as a matter of law. Accordingly, we
affirm the dismissal of the declaratory judgment claim, as the Meltons failed to
state a claim on which relief could be granted.
The Judicial Review Claim
[34] The Meltons’ final claim asked the trial court to review the November 2024
decision by the Vanderburgh County Commissioners (the Commissioners)
denying their request to remove the barrier. They allege that they were
aggrieved by this decision and that the decision was arbitrary and capricious.
Court of Appeals of Indiana | Opinion 25A-MI-2310 | July 29, 2026 Page 16 of 20 [35] I.C. § 36-2-2-27(a) provides: “A party to a proceeding before the executive who
is aggrieved by a decision of the executive may appeal that decision to the
circuit court, superior court, or probate court for the county.” It has long been
recognized that only judicial or quasi-judicial decisions, and not legislative,
administrative, or ministerial ones, are subject to judicial review under this
statute. Fayette Cnty. Bd. of Comm’rs v. Price, 9 N.E.3d 640, 641 (Ind. 2014).
[36] Our Supreme Court has adopted a four-factor test in determining whether an
action is judicial in nature:
While it is difficult, if not impossible, to define quasi-judicial power and to discriminate between judicial and administrative acts in a way which will be applicable to every case, we find that it is the nature, quality, and purpose of the act performed, rather than the name or character of the officer or board which performs it, which determines its character as judicial. Generally, the judicial function consists of: (1) the presence of the parties upon notice; (2) the ascertainment of facts; (3) the determination of the issues; and (4) the rendition of a judgment or final order regarding the parties’ rights, duties, or liabilities.
Id. at 641-42 (quoting Lincoln v. Bd. of Comm’rs of Tippecanoe Cnty., 510 N.E.2d
716 (Ind. Ct. App. 1987), abrogated in part on other grounds by McDillon v. N. Ind.
Pub. Serv. Co., 841 N.E.2d 1148 (Ind. 2006)).
[37] “As a general proposition, the party challenging subject matter jurisdiction
carries the burden of establishing that jurisdiction does not exist.” GKN Co. v.
Magness, 744 N.E.2d 397, 404 (Ind. 2001). The party is relieved of this burden
“only if a lack of jurisdiction was apparent upon the face of the complaint.”
Court of Appeals of Indiana | Opinion 25A-MI-2310 | July 29, 2026 Page 17 of 20 Methodist Hosp. of Ind., Inc. v. Ray, 551 N.E.2d 463, 467 (Ind. Ct. App. 1990),
adopted by 558 N.E.2d 829 (Ind. 1990).
[38] Here, we cannot say that lack of jurisdiction is apparent on the face of the
amended complaint. The amended complaint refers generally to a petition
made by the Meltons to the Commissioners to remove the barrier and a denial
about a month later. As the County notes, the amended complaint did not
include any records, minutes, or other documents related to the decision by the
Commissioners. And the County did not fill these gaps in the record for the trial
court or this court to make an informed judgment regarding jurisdiction based
on the four factors listed above. We do not know the process the
Commissioners used in determining whether to grant or deny the Meltons’
request (for example, was notice given, were there opposing parties, and was
evidence presented) or the reasons for the ultimate denial.
[39] On a T.R. 12(B)(1) motion, where the pleadings are construed in favor of the
Meltons and the record is otherwise silent regarding the Commissioners’
decision making process, we hold that dismissal for lack of subject matter
jurisdiction is not proper. On further development of the record, however, the
County may be able to establish that dismissal of the judicial review claim is
appropriate. Cf. Great Lakes Transfer, LLC v. Porter Cnty. Highway Dep’t, 952
N.E.2d 235, 243 (Ind. Ct. App. 2011) (affirming grant of summary judgment
based on lack of subject matter jurisdiction where undisputed facts and
developed record allowed consideration of the four factors).
Court of Appeals of Indiana | Opinion 25A-MI-2310 | July 29, 2026 Page 18 of 20 [40] Additionally, the amended complaint appears to assert a constitutional,
nonstatutory basis for judicial review – the alleged arbitrary and capricious
nature of the decision by the Commissioners.
We note that Indiana has recognized a constitutional right to judicial review of administrative actions. Petitioners correctly point out that they are entitled to review of governmental action which was arbitrary, capricious, and/or violative of their constitutional rights. Such action presents a “judicial question” regardless of the nature of the Board’s action.
Vranicar v. Bd. of Comm’rs of Brown Cnty., 730 N.E.2d 752, 756 (Ind. Ct. App.
2000) (citations omitted); see also A.B. v. State, 949 N.E.2d 1204, 1217 (Ind.
2011) (“[A]n arbitrary or capricious decision by an administrative body would
call for judicial action, even if there is no statute authorizing an appeal.”).
Again, on the bare record here, dismissal of the judicial review claim would be
premature.
Conclusion
[41] We affirm the dismissal of the tort claim and the declaratory judgment claim.
The former is barred due to the Meltons’ failure to comply with the notice
requirements of the ITCA, and the latter fails to state a claim upon which relief
can be granted because the unambiguous Plat does not establish an express
easement and it shows that there was no easement by necessity at the time of
severance. The claim for judicial review, however, does survive at this stage due
to the County’s failure to supplement the record and establish a lack of
Court of Appeals of Indiana | Opinion 25A-MI-2310 | July 29, 2026 Page 19 of 20 jurisdiction. The cause is remanded for further proceedings on the judicial
review claim only. 8
[42] Judgment affirmed in part, reversed in part, and remanded.
Brown, J. and DeBoer, J., concur.
ATTORNEYS FOR APPELLANTS Yvette M. LaPlante Evansville, Indiana
Terry A. White Evansville, Indiana
ATTORNEYS FOR APPELLEES Jeffrey W. Ahlers Craig R. Emig Evansville, Indiana
8 In their reply brief, the Meltons suggest that on remand they should have a right to amend their complaint. But they already amended their complaint as a matter of right after the initial dismissal order. See T.R. 12(B) (providing for one amendment as of right within ten days when a motion to dismiss is sustained for failure to state a claim under (B)(6)). Moreover, after the dismissal of the amended complaint, the Meltons chose to appeal rather than to seek another amendment, thus making the dismissal a final judgment on the merits. See DeCola v. Steinhilber, 207 N.E.3d 440, 447 (Ind. Ct. App. 2023) (observing that upon a 12(B)(6) dismissal, “a plaintiff has two options: (1) determine that the claims only currently lack merit because of the way in which they are pleaded … and correct the pleadings; or (2) reject the trial court’s ruling and its implication and challenge the ruling on appeal”). .
Court of Appeals of Indiana | Opinion 25A-MI-2310 | July 29, 2026 Page 20 of 20