Baldwin v. Inter City Contractors Service, Inc.

• Decision Date: 27 June 1973
• Docket Number: No. 3--672A27,3--672A27
• Citation: 37 Ind.Dec. 143,156 Ind.App. 497,297 N.E.2d 831
• Parties: Duane BALDWIN et al., Appellants (Plaintiffs Below), v. INTER CITY CONTRACTORS SERVICE, INC., et al., Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 831

297 N.E.2d 831

156 Ind.App. 497

Duane BALDWIN et al., Appellants (Plaintiffs Below), v. INTER CITY CONTRACTORS SERVICE, INC., et al., Appellees (Defendants Below).

No. 3--672A27.

Court of Appeals of Indiana, Third District.

June 27, 1973.

Rehearing Denied Aug. 16, 1973.

Wendell W. Goad, James R. Bielefeld, Merrillville, for appellants

Julian B. Allen, Gary, for defendants Inter City Contractors Service Inc., and Dyer Construction.

Charles A. Ruckman, Gary, for defendants City of Gary, Lake County, Indiana, and Members of the Gary City Plan Commission.

Nick Katich, Addison, Stiles, Greenwald and Kinney, Gary, for defendants Gary Housing Authority and Edward L. Bosak, General Director.

STATON, Judge.

I. STATEMENT ON THE APPEAL

Eighty low-rent housing units were scheduled to be built in the neighborhood of Duane Baldwin and others. Fearing a decline in property values as well as environmental deterioration, they filed a class action for an injunction and declaratory relief. A temporary injunction was granted. Inter City Contractors Service, Inc. filed a motion in limine to exclude certain evidence as irrelevant. This motion was sustained by the trial court. Trial was by court and not by jury. The temporary injunction was dissolved and the permanent injunction, which had been requested in the original action, was denied. Baldwin and the others filed their motion to correct errors which raises for the purposes of this opinion, these issues:

ISSUE ONE: Was the granting of the 'motion in limine' error?

ISSUE TWO: Are the Housing Authority Acts an unconstitutional delegation of legislative power to an administrative agency?

ISSUE THREE: Is the exemption of the Housing Authority from the Public Bidding Statutes contrary to public policy?

Our opinion which follows holds that a 'motion in limine' has no place in a court trial. Its use is limited to jury trials. The purpose of a 'motion in limine' is to exclude prejudicial matter and not to exclude irrelevant evidence as was done in the present case. The remaining two issues are questions of law and their reoccurrence at the retrial of this cause makes it necessary to discuss them in this opinion. Upon Issue Two and Issue Three, we hold that the Housing Authority Acts are constitutional and that the exemption of the Housing Authority from the Public Bidding Statutes is not contrary to public policy. Our opinion reverses the judgment of the trial court.

II. STATEMENT OF THE FACTS

On August 14, 1971, Inter City Contractors Service, Inc. (Inter City) and the Gary Housing Authority (G.H.A.) entered into a contract which provided that Inter City would construct an eighty unit lowrent housing project on a nineteen acre tract at 49th Avenue and Tennessee Street in Gary, Indiana. G.H.A. would purchase the eighty units when completed for $2,141,325.00. The Department of Housing and Urban Development (HUD) approved the project and agreed to loan G.H.A. the money to purchase the project under the Turnkey program. The loan was to be repaid by a federal guaranteed G.H.A. bond issue and the bonds were to be paid off with the income from rental of the housing units in the project.

Baldwin and others in the surrounding neighborhood filed a class action for an injunction and declaratory relief. They alleged inter alia that the project constituted a private nuisance. A temporary injunction was issued. The Gary City Council specifically approved the project. The plans and specifications were revised to overcome earlier objections of indefiniteness and non-compliance with the Building Code. No provision was made for competitive bidding.

Prior to the hearing on the permanent injunction, Edward L. Bosak, Executive Director of G.H.A., was served with a subpoena duces tecum requiring him to produce all records concerning the project. Bosak filed a motion to quash the subpoena and alleged that its terms were unreasonable and oppressive. His motion to quash was sustained. Before the trial on the permanent injunction, Inter City filed a 'motion in limine' which reads as follows:

'Comes now defendants and move the Court in limine to instruct the plaintiffs, and all their counsel, as set forth below on the following grounds:

1. Since it is immaterial whether or not:

a. Public housing has an adverse effect on the area on which it is located;

b. It is in the best interests of a neighborhood to place low income public housing in it;

c. It is in the best interests of the low income people to be permitted to live in a public housing project,

the plaintiffs be precluded from introducing any testimony or evidence tending to prove or disprove such contentions.'

The trial court granted the 'motion in limine.' The remaining portions of Baldwin's complaint were tried before the court, and the court rendered a negative judgment. Baldwin filed his motion to correct errors which was overruled on July 28, 1972.

III.

STATEMENT OF THE ISSUES

We decide three issues in our opinion which are as follows:

ISSUE ONE: Was the granting of the 'motion in limine' error?

ISSUE TWO: Are the Housing Authority Acts an unconstitutional delegation of legislative power to an administrative agency?

ISSUE THREE: Is the exemption of the Housing Authority from the Public Bidding Statutes contrary to public policy?

IV.

STATEMENT OF THE LAW

ISSUE ONE: Inter City complained that paragraph one of Baldwin's claim for relief did not constitute a claim under Indiana law. However, the error assigned in this court resulted from the granting of a motion in limine; not the granting of a motion to dismiss under Rule TR. 12(B)(6), IC 1971, 34--5--1--1, of the Indiana Rules of Civil Procedure. The 'motion in limine' excluded the admission of expert testimony as irrelevant to the claim of a private nuisance. This ruling upon the 'motion in limine' by the trial court presupposes that the claim is valid but that the evidence is irrelevant to that cause of action. ¹

This cause was being tried by a trial court. The trial court's ruling upon the 'motion in limine' excluded expert testimony Inter City's use of the 'motion in limine' is not only improper, but the prayer for relief goes far beyond the purpose of a 'motion in limine.' In their motion, Inter City prays for the following relief:

as irrelevant. A 'motion in limine' has no place or use in this setting. Its use is limited to the jury trial. Secondly, this court has held that the 'motion in limine' has a very restricted use which flows from the trial court's inherent power. This restricted use is to exclude prejudicial matters. The exclusion by the trial court may encompass both prejudicial and irrelevant matter, but the primary purpose for granting the motion must be that the matter excluded would be prejudicial to the moving party. Burrus v. Silhavy (1973), Ind.App., 293 N.E.2d 794.

'. . . the plaintiffs be precluded from introducing any testimony or evidence tending to prove or disprove such contentions.'

The trial court's granting of the 'motion in limine' precluded, in advance of trial, any attempts by Baldwin to offer expert evidence during the trial. As stated by Davis, Motions in Limine, 15 Clev.-Mar.L.Rev. 255, the proper form of the prayer should be:

'Wherefore, plaintiff respectfully requests the Court to instruct the defendant and all its counsel not to mention, refer to, interrogate concerning, or attempt to convey to the jury in any manner, either directly or indirectly, any of the above mentioned facts, without first obtaining permission of the Court outside the presence and hearing of the jury, and further instruct the defendant and all its counsel not to make any reference to the fact that this motion has been filed and granted and to warn and caution each and every one of their witnesses to strictly follow these same instructions.'

The misuse of a 'motion in limine' and the trial court's subsequent ruling thereon is error and must be reversed.

We are extending this opinion after finding error since Issue Two and Issue Three constitute questions which will undoubtedly come before the trial court on the re-trial of this cause. They are proper questions which have been presented by this appeal. Both issue Two and Issue Three are predicated upon questions of law. We dispose of them now.

ISSUE TWO:

Are the Housing Authority Acts an unconstitutional delegation of legislative power to an administrative agency?

On pages 72--84 of Baldwin's brief, an attempt is made to attack the Housing Authority Acts by declaring that they are an unconstitutional delegation of legislative power to an administrative agency. He states on page 79 of his brief:

'The plaintiffs contend that in this case there are absolutely no standards laid down to guide housing authorities.'

Almost every conceivable approach has been taken in most of the country's jurisdictions to have such legislation struck down as an invalid delegation of legislative authority. All attempts have failed, including attempts made in Indiana. Edwards v. Housing Authority (1939), 215 Ind. 330, 19 N.E.2d 741; Humphrey v. City of Phoenix (1940), 55 Ariz. 374, 102 P.2d 82; Housing Authority of Los Angeles County v. Dockweiler (1939), 14 Cal.2d 437, 94 P.2d 794; Williamson v. Housing Authority (1938), 186 Ga. 673, 199 S.E. 43; Krause v. Peoria Housing Authority (1939), 370 Ill. 356, 19 N.E.2d 193; Spahn v. Stewart (1937), 268 Ky. 97, 103 S.W.2d 651; State ex rel. Porterie v. Housing Authority (1938), 190 La. 710, 182 So. 725; Stockus v. Housing Authority (1939), 304 Mass. 507, 24 N.E.2d 333; Re Brewster Street Housing Site (1939), 291 Mich. 313, 289 N.W. 493; Rutherford v. City of Great Falls (1939), 107 Mont. 512, 86 P.2d 656; Lennox v. Housing Authority (1940), 137 Neb. 582, 290 N.W. 451; Ryan v. Housing Authority (1940), 125 N.J.L. 336, In Edwards v. Housing Authority, supra, 215 Ind. at 339--340, 19 N.E.2d at 746, our Supreme Court stated:

15 A.2d 647; Wells v. Housing Authority (1938), 213 N.C. 744...