Counterclaim in Hendricks County CAFO fight tossed by trial court

Editor’s note: This article has been updated to reflect that the Himsel and Lannon families filed a cross-motion for summary judgment. 

With a simple “no,” the Hendricks Superior Court uprooted a counterclaim that sprouted from nearly six years of litigation between long-time neighbors over a concentrated animal feeding operation that called into question the constitutionality of Indiana’s Right to Farm Act and asked the U.S. Supreme Court for a review.

Hendricks Superior Judge Mark Smith issued a five-page ruling May 24 in Martin Richard Himsel, et al. v. Samuel T. Himsel, et al., 32D04-1510-PL-000150. He boiled down the central question of the motions for summary judgment to whether either side violated state laws by bringing and continuing to pursue legal action that was “frivolous, unreasonable or groundless.”

He then concluded, “Having considered the designated evidence, as well as the briefs and arguments of counsel, the Court finds the answer to the framed issue is a ‘No.’”

The court denied the motions for summary judgment filed by both sides as part of their counterclaims. Attorneys for the plaintiffs and defendants said they do not intend to appeal Smith’s ruling, ending the case that began in October 2015.

“There’s nothing that we can do for them at this point,” Kim Ferraro, senior staff attorney at the Hoosier Environmental Council, said of her clients, plaintiffs Martin Richard and Janet Himsel and Robert and Susan Lannon. “That’s the unjustness of this whole thing. They didn’t ask for this. They were there first, and then a huge 8,000-hog operation moved next to them and turned their lives upside down.”

The Himsels and Lannons filed the lawsuit against Samuel Himsel, his sons Cory and Clinton Himsel, their company Co-Alliance, and the CAFO 4/9 Livestock LLC, claiming the odor from the operation harmed their health and diminished the value of their homes. Along with their nuisance, negligence and trespass claims, the Himsel and Lannon families argued the state’s RTFA violated the Takings Clause of the U.S. Constitution.

However, they failed to convince the Hendricks Superior Court, the Indiana Court of Appeals and the Indiana Supreme Court. In October 2020, the U.S. Supreme Court denied the plaintiffs’ writ of certiorari.

When the court battle was over, Samuel, Cory and Clinton Himsel along with Co-Alliance filed a counterclaim. They asserted they were owed reimbursement for attorney fees and court costs for having to defend themselves against “frivolous, unreasonable and groundless” litigation.

The Himsels’ attorney, Christopher Braun, managing partner at Plews Shadley Racher & Braun, noted that while the defendants were not able to recoup their expenses, they did defeat the plaintiffs’ lawsuit before multiple courts.

“As a result of their successful defense of this litigation, 4/9 Livestock’s 8,000 hog-raising CAFO will continue to operate without interruption and Co-Alliance will continue with its hog supply and finishing contracts with more than 120 growers,” Braun said in an email following the denial of the counterclaim. “In addition, for the first time since it was enacted into law more than 40 years ago, Indiana’s Right to Farm Act was held to be constitutional by Indiana’s appellate courts. The important protections from nuisance lawsuits provided by Indiana’s Right to Farm Act are of tremendous value to all farmers and the agriculture industry in the State of Indiana.”

Smith wrote in his ruling that the defendants conceded the plaintiffs’ attempt to address through the courts what they alleged was the harm caused by the CAFO was not frivolous, unreasonable or groundless. Also, the Himsels and Co-Alliance conceded they were not seeking attorney fees based upon the plaintiffs’ or their counsel’s bad faith.

Instead, the defendants’ counterclaim was focused on their argument that the Himsels and Co-Alliance should never have been part of the original lawsuit. In part, they asserted the plaintiffs never made any viable claims against them.

After the defendants filed their counterclaim, the Himsel and Lannon families responded with a cross-motion for summary judgment. They argued the defendants were undertaking a frivolous legal action as well as trying to intimidate not only the current plaintiffs but potential future plaintiffs in lawsuits against CAFOs.

Ferraro said the counterclaim filed by the Himsels and Co-Alliance was “gravely serious” because the plaintiffs and HEC could have been forced into bankruptcy if the trial court had ordered them to pay the attorney fees. Still, despite the outcome, the counterclaim will have a lasting impact.

“They brought this knowing full well that their counterclaim was baseless, but a baseless counterclaim is not unthreatening,” Ferraro said. “… Certainly it will make us think twice, and I have no doubt for citizens who are suffering from factory farm impacts, they will think about the situation and may be discouraged from (filing a lawsuit). I think it will have the chilling effect the defendants intended it to have.”

Smith highlighted that in seeking summary judgment, plaintiffs and defendants submitted 184 pages of briefing to the court.

“Much of the briefing was repetitive, contained some hyperbole, and included what could be described as personal mudslinging between counsel,” Smith wrote. “Each side accused the other of violating the Rules of Professional Conduct.”

The judge reasoned that the opposing attorneys believed the court would benefit from knowing about the alleged misconduct. Otherwise, he did not see a “legitimate, good faith reason to accuse a fellow Bar member of violating the rules of Professional Conduct in a written motion filed in a public proceeding.”

Smith finished his point by noting the responsibility the attorneys have as professionals.

“The Court reminds both sides of their mandatory duty pursue to Rule 8.3 to report a violation of the Rules of Professional Conduct when they have knowledge of a violation that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects,” Smith wrote.