932 N.E.2d 739 (Ind.App. 2010), 53A01-0909-CV-454, Sagarin v. City of Bloomington

Docket Nº:53A01-0909-CV-454.
Citation:932 N.E.2d 739
Opinion Judge:BAILEY, Judge.
Party Name:Jeff SAGARIN and Shirley Jablonski, Appellants-Plaintiffs, v. CITY OF BLOOMINGTON, Appellee-Defendant.
Attorney:Joby D. Jerrells, Bloomington, IN, Attorney for Appellants. Marjorie K. Rice, Bloomington, IN, Attorney for Appellee.
Judge Panel:MAY, J., concurs. BARNES, J., concurs in result in part and dissents in part with opinion. BARNES, Judge, concurring in result in part and dissenting in part.
Case Date:August 20, 2010
Court:Court of Appeals of Indiana

Page 739

932 N.E.2d 739 (Ind.App. 2010)

Jeff SAGARIN and Shirley Jablonski, Appellants-Plaintiffs,


CITY OF BLOOMINGTON, Appellee-Defendant.

No. 53A01-0909-CV-454.

Court of Appeals of Indiana.

August 20, 2010

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Joby D. Jerrells, Bloomington, IN, Attorney for Appellants.

Marjorie K. Rice, Bloomington, IN, Attorney for Appellee.


BAILEY, Judge.

Case Summary

Appellants-Plaintiffs Jeff Sagarin and Shirley Jablonski appeal the trial court's order regarding their claims for inverse condemnation and taking without just compensation against Appellee-Defendant the City of Bloomington (" the City" ). We affirm in part, reverse in part, and remand.


On appeal, the parties raise numerous issues. We consolidate and revise the issues raised by the Appellants to the following:

I. Whether the trial court erred by finding in favor of the City as to Sagarin's claims;

II. Whether the trial court abused its discretion by denying equitable relief; and

III. Whether the trial court erred in denying the award of attorney's fees.

On cross-appeal, the City raises the following issues:

IV. Whether the trial court erred in concluding that the statute of limitations had been tolled by reason of the City's fraudulent concealment; and

V. Whether the trial court erred in concluding that the inverse condemnation claim was not extinguished by the alternative creation of the easement by prescription or common law dedication.

Facts and Procedural History

In 1969, a more genteel time in Southern Indiana, where the family lawyer was not expected to be on retainer, Shirley and Robert Jablonski purchased a lot on Southdowns Drive, Bloomington, and built a home. The Jablonskis also obtained a variance from the City's sidewalk requirement because the rest of the neighborhood did not have sidewalks. Shirley Jablonski, a widow, still lives in the house.

There were two fatal accidents on a nearby road, High Street, both involving young girls being hit by a car. One occurred in 1964 and the other in 1972. In response to the accidents, the City installed a stop sign at High Street and Southdowns Drive. There was also a campaign by some of the neighborhood property owners to install either sidewalks or a walking path in the neighborhood to provide children walking to the nearby elementary school a safe place to walk. Suzanne Ziemer, a local resident and member of the local PTA, became actively involved in the campaign. Ziemer spoke with both the Jablonskis and their neighbor, Deborah Campbell, about installing a path running along their shared lot line for children to use to walk to and from school.

In 1972, a City employee visited the Jablonskis and Campbell to discuss the installation of a pathway. Neither homeowner signed a document granting the City an easement or providing permission to build the pathway on either property. When Campbell refused to agree to the installation of the pathway, the City employee indicated that her permission was

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not necessary because the City had the right to install the path. Similar statements were made to the Jablonskis. In late 1972, the City installed a small asphalt footpath that ran between the Campbell and Jablonski properties and then made a dog-leg to connect to the end of Greenwood Avenue.

In 1993, Sagarin purchased Campbell's former home. When viewing the home before purchasing it, Sagarin noticed the asphalt pathway and his realtor said that the City had an easement for it. When purchasing the home, Sagarin had a title search completed, which noted a utility easement but not one for the pathway.

In 2007, the City Engineer, Justin Wykoff, spoke with Sagarin to inform him that the City was going to widen the pathway to eight feet so that two wheel chairs or two bicycles could pass one another on the pathway. Sagarin went to the county clerk and City Hall to obtain copies of his deed and any easements related to his or Jablonski's property. There was no documentation as to the existence of an easement held by the City on the properties. On July 6, 2007, Sagarin and Jablonski filed a complaint against the City for claims of Ejectment and Quiet Title, Inverse Condemnation, and Taking Without Just Compensation. After unsuccessful attempts at mediation and summary judgment motions, a bench trial was held. On August 24, 2009, the trial court issued its order, entering judgment in favor of Jablonski on her inverse condemnation and taking without compensation claims but in favor of the City with regards to Sagarin's claims. Without mentioning attorney's fees, the court ordered appraisers to be appointed to value the easement and to assess damages. Additional facts will be provided as necessary. This appeal ensued.

Discussion and Decision

Pursuant to Indiana Trial Rule 52(A), the trial court entered findings of facts and conclusions of law at the conclusion of the bench trial. We review such findings and conclusions with a two-tiered standard of review: whether the evidence supports the findings and whether the findings support the judgment. City of South Bend v. Dollahan, 918 N.E.2d 343, 349 (Ind.Ct.App.2009), trans. denied. Findings will only be set aside if they are clearly erroneous, i.e., when the record contains no facts or inferences supporting them. Id. A trial court's judgment is clearly erroneous if it is unsupported by the findings and the conclusions that rely upon the findings. Rennaker v. Gleason, 913 N.E.2d 723, 728 (Ind.Ct.App.2009).

In conducting our review, we cannot reweigh the evidence or judge the credibility of any witness, and must affirm the trial court's decision if the record contains any supporting evidence or inferences. Id. at 729. However, while we defer substantially to findings of fact, we do not do so to conclusions of law. Id. We evaluate questions of law, such as interpretation of contractual provisions, de novo and owe no deference to a trial court's determination of such questions. Id.

I. Sagarin's Inverse Condemnation Claim

First, Sagarin appeals the trial court's judgment in favor of the City as to his inverse...

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