Chustak v. Northern Indiana Public Service Co., 1270S314

• Citation: 288 N.E.2d 149,259 Ind. 390
• Decision Date: 18 October 1972
• Docket Number: No. 1270S314,1270S314
• Parties: William CHUSTAK et al., Appellants, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee.
• Court: Supreme Court of Indiana

Page 149

288 N.E.2d 149

259 Ind. 390

William CHUSTAK et al., Appellants, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee.

No. 1270S314.

Supreme Court of Indiana.

Oct. 18, 1972.

Blachly, Tabor & Bozik, of Duane W. Hartman and Glenn J. Tabor, Valparaiso, for appellants.

George W. Douglas, of Douglas, Douglas & Douglas, Valparaiso, Richard W. Johnson and William H. Eichhorn, of Schroer, Eichhorn & Morrow, Hammond, for appellee.

PRENTICE, Justice.

This is an appeal from the order of the trial court permitting the plaintiff (appellee) to appropriate a right-of-way 150 feet in width for electrical transmission and distribution lines upon, through and over the lands of the defendants (appellants). Defendants here seek to reverse the order of the trial court, contending that it erred in the following respects:

(1) In failing to order the plaintiff to produce certain documents;

(2) In permitting an appropriation for 'lines,' whereas the evidence disclosed only that one 345 KV line is needed.

The complaint herein was filed on October 7, 1970, and by summons the defendants were notified on October 27, 1970 to appear on November 2, 1970 and show cause, if any, why the property sought to be condemned should not be appropriated. Although not affirmatively disclosed by the record, it appears that the parties and the court agreed to continue the hearing date to November 12, 1970. On November 9, 1970, the defendants mailed to the plaintiff a request to produce, as follows:

'November 9, 1970

Mr. William Eichhorn

Attorneys at Law

5243 Hohman Avenue

Hammond, Indiana

Re: Northern Indiana Public Service Company

Vs. William Chustak et al

Cause #70--PSC--1704

Dear Mr. Eichhorn:

I herewith request the opportunity to examine and make copies of writings; drawings; written documents, including memoranda; and contracts in connection with the captioned case as the same pertains to the following:

(1) All specifications for electrical transmission towers to be constructed and located upon the defendant's real estate.

(2) Contracts, letters, memoranda, notes, and any written material relating to the construction of the aforementioned electrical transmission towers.

(3) Any and all written documents pertaining to the determination of the width of the right of way sought to be appropriated as the same may be needed for either construction purposes or maintenance purposes.

(4) All specifications relating to the electrical transmission line, including conductors, that may be found to exist upon the real estate sought to be condemned.

If I may have this information prior to 11:00 o'clock A.M. on Thursday, November 12, 1970, in Valparaiso, Indiana, I would anticipate no need to continue the hearing on the appropriations.

Further I would request the identity of the contractors who will construct the line, if that is known; and if that is not known, the name of the contractor who is likely to construct the line. Further I would like to know the identity of the consultants, if any, who designed the line or assisted in the design of the line.

If all or any part of this request is met with a negative response I will appreciate being notified of this fact by telephone call so that the proper pleadings may be prepared for filing late Tuesday or early Thursday morning.

Unfortunately the courthouse will be closed on Wednesday.

Yours truly,

BLACHLY, TABOR & BOZIK

Attorneys at Law

By: Glenn J. Tabor

GJT:sh

cc: Mr. Herbert Douglas

Honorable Judge Willis

John Ruge, Clerk of the Court' On November 12, 1970 the defendants appeared and filed their objections to the appropriation and a motion to produce, said objections and motion being as follows:

'OBJECTION

Now comes the defendant by counsel, Blachly, Tabor & Bozik by Glenn J. Tabor, and with his appearance files objection to plaintiff's right of eminent domain in the following particulars, to-wit: namely that the real estate sought to be condemned by the plaintiff exceeds its needs for its contemplated use as set forth in the complaint; and as a consequence, the plaintiff's conduct is arbitrary, capricious, and unlawful.'

'MOTION TO PRODUCE

Now comes the defendant by counsel, Blachly, Tabor & Bozik by Glenn J. Tabor, and shows the Court that a request was made upon the plaintiff for production of documents, which request was denied and that those same documents are needed to enable the defendant to prepare a defense to the request for appropriations of a right-of-way through defendant's land, and that the hearing on defendant's objections be continued until such time as the following documents are produced the defendant's attorney has had the opportunity to examine the same, said documents being described as follows, to-wit:

(see attached letter).'

The parties proceeded to an evidentiary hearing upon the objections, without having obtained a ruling upon the motion to produce, at the conclusion of which the court ordered the appropriation and appointed appraisers.

(1) There is nothing in the record to show whether the defendants' aforesaid written motion to produce was overruled or withdrawn. No ruling appears. We cannot assume that the court overruled the written motion; and by proceeding without protest and without a ruling, Defendants waived any error that might otherwise have been averted. Barnes v. State (1971), Ind., 266 N.E.2d 617; Wilhoite v. State (1971), Ind., 266 N.E.2d 23; Brown v. State (1970), Ind., 262 N.E.2d 515.

The defendants contend by their reply brief that the court reserved its ruling upon the motion for pre-trial discovery and refers us to transcript Page 90, which does reflect that the court reserved its ruling upon a motion of the defendants. We do not interpret such reservation as having been addressed to the pre-trial discovery motion, however, but rather to the defendants' in-trial motion made moments earlier and reflected at transcript Page 84. This motion was to require the plaintiff to produce certain books, which were later obtained and are hereinafter mentioned. Referring to such motion, we are somewhat confused by counsel's colloquy, 'At this point I will renew my motion to produce documents listed in the motion * * *.' Notwithstanding the use of the word 'renew', we view it as an in-trial motion to produce and not as a refiling of the pre-trial motion, which was the only motion previously filed. The pre-trial motion being for the purpose of trial preparation, we are unable to perceive how it could be entertained during the course of a trial. Nor are we able to conclude from such colloquy whether the pre-trial motion had been previously ruled upon, withdrawn or waived. The record in these particulars leaves much to the imagination, and we must acknowledge that our conclusions here stated may be inaccurate. If so, however, we remind the defendants that they have the burden of presenting a correct and clear record of the proceedings and that we are required to resolve ambiguities in favor of the judgment of the trial court.

There is an additional reason for ruling against the defendants upon this proposition, however. The true spirit of the new discovery rules may be described as two fold: 1) to provide for a minimum of court involvement in the discovery process and, 2) to allow for a more liberal discovery procedure. In the instant case the defendants were seeking discovery of the plaintiff's computations as to the width of the required right-of-way. These computations were not made in preparation for litigation, but rather in the ordinary course of the utility's business. The discovery of such items is controlled by Trial Rule 34, IC 1971, 34--5--1--1. Under Trial Rule 34(A)(1) the computations were discoverable. Trial Rule 34(A)(1) provides:

'(A) Scope. Any party may serve on any other party a request

(1) to produce and permit the party making the request, or someone acting on his behalf, to inspect and copy, and designated documents (including, without limitation, writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which intelligence can be perceived, with or without the use of detection devices) or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(B) and which are in the possession, custody or control of the party upon whom the request is served;'

Trial Rule 34(B) provides the procedure to be followed:

'(B) Procedure. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. Service is dispensed with if the whereabouts of the parties is unknown.

The party upon whom the request is served shall serve a written response within a period designated in the request, not less than thirty (30) days after the service thereof or within such shorter or longer time as the court may allow. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless it is objected to, in which event the reasons for objection shall be stated. If objection is made to...