City of Carmel v. LEEPER ELEC. SERVICES, 30A01-0304-CV-158.

• Decision Date: 18 March 2004
• Docket Number: No. 30A01-0304-CV-158.,30A01-0304-CV-158.
• Citation: 805 N.E.2d 389
• Parties: CITY OF CARMEL, Appellant-Defendant, v. LEEPER ELECTRIC SERVICES, INC., Appellee-Plaintiff.
• Court: Indiana Appellate Court

805 N.E.2d 389

CITY OF CARMEL, Appellant-Defendant, v. LEEPER ELECTRIC SERVICES, INC., Appellee-Plaintiff.

No. 30A01-0304-CV-158.

Court of Appeals of Indiana.

March 18, 2004.

Transfer Denied May 27, 2004.

Angela M. Smith, David B. Honig, Hall Render Killian, Heath & Lyman, P.S.C., Indianapolis, IN, Attorneys for Appellant.

David McNamar, McNamar & Associates, Indianapolis, IN, Michael Tosick, Greenfield, IN, Attorneys for Appellee.

OPINION

KIRSCH, Chief Judge.

The City of Carmel appeals the trial court's decision to grant Leeper Electric Services, Inc.'s (Leeper Electric) Motion to Correct Errors and Motion to Correct Judgment Entry. The City of Carmel raises one issue on appeal, which we restate as follows: whether the trial court abused its discretion when it granted Leeper Electric's Motion to Correct Errors pursuant to Indiana Trial Rule 59(J)(5) and awarded $1,120,000 in damages after finding that the jury's award of $675,000 in damages was not within the bounds of the evidence.¹

We affirm.²

FACTS AND PROCEDURAL HISTORY

On November 3, 2000, Leeper Electric filed its Amended Complaint against the City of Carmel and other defendants not parties to this appeal. In pertinent part, Leeper Electric alleged that an approximately four-acre parcel of real estate located on the northeast corner of 131st Street and U.S. 31 in Carmel, Hamilton County, Indiana was rendered valueless as a result of the City of Carmel's implementation of a comprehensive development plan and denial of Leeper Electric's application for rezoning of the property. Leeper Electric further alleged that the City of Carmel's actions effectively deprived it of any legitimate use of the subject real estate and, thus, constituted a "taking" by the City of Carmel without just compensation in violation of the United States and Indiana constitutions.

On May 16, 2001, the trial court determined that the matter effected a "taking" of Leeper Electric's real estate and ordered the matter to proceed as an inverse condemnation and eminent domain action. Thereafter, the trial court appointed three appraisers to evaluate Leeper Electric's real estate in order to determine the fair market value of the property as of November 3, 2000, the date of the taking.

In November of 2002, a jury trial was held. Evidence was introduced that Leeper Electric purchased the real estate in 1996 for $100,000. The property previously had been owned by Earlham College, which had tried to sell the parcel for several years without success. Leeper Electric offered into evidence the testimony of four appraisers and the testimony of Mr. Robert Leeper, the company's owner, concerning their opinions as to the fair market value of the property. The appraisers testified to opinions of value ranging from $1,120,000 to $1,400,000. Leeper testified that in his opinion the property was worth $1,700,000. On November 22, 2002, the jury awarded damages to Leeper Electric in the amount of $675,000.

On December 13, 2002, Leeper Electric filed a Motion to Correct Errors. The trial court granted Leeper Electric's motion in part, finding that the jury award of $675,000 was inadequate and not within the bounds of the evidence. Thereafter, the trial court entered judgment for Leeper Electric in the amount of $1,120,000. On April 21, 2003, in response to Leeper Electric's Motion to Correct Judgment Entry, the trial court amended its judgment in order to allow Leeper Electric to recover prejudgment interest and litigation expenses in addition to the $1,120,000 damages award. The City of Carmel now appeals.

DISCUSSION AND DECISION

I. Standard of Review

The trial court granted Leeper Electric's Motion to Correct Errors and entered final judgment on the evidence for the "amount of proper damages" pursuant to Ind. Trial Rule 59(J)(5). When considering a motion to correct errors and a request for entry of final judgment on the evidence, a trial court is governed by T.R. 59(J)(5), which provides:

The court, if it determines that prejudicial or harmful error has been committed, shall take such action as will cure the error, including without limitation the following with respect to all or some of the parties and all or some of the errors .... (5) In the case of excessive or inadequate damages, enter final judgment on the evidence for the amount of proper damages, grant a new trial, or grant a new trial subject to additur or remittitur.

T.R. 59(J)(5). This remedy is available only where the evidence is insufficient to support the verdict as a matter of law. Precision Screen Mach. v. Hixson, 711 N.E.2d 68, 70 (Ind.Ct.App.1999). Moreover, the trial judge sits as a "thirteenth juror" and must determine whether in the minds of reasonable persons a contrary verdict should have been reached. Neher v. Hobbs, 752 N.E.2d 48, 52 (Ind.Ct.App. 2001) (citing Hixson, 711 N.E.2d at 70). The trial judge, as a "thirteenth juror," hears the case along with the jury, observes the witnesses for their credibility, intelligence, and wisdom, and determines whether the verdict is against the weight of the evidence. Id.

Once the trial court has entered final judgment on the evidence for the amount of proper damages, we will reverse this decision only for an abuse of discretion. Dughaish ex rel. Dughaish v. Cobb, 729 N.E.2d 159, 167 (Ind.Ct.App.2000), trans. denied. An abuse of discretion will be found when the trial court's action is against the logic and effect of the facts and circumstances before it and the inferences which may be drawn therefrom. Neher, 752 N.E.2d at 52. An abuse of discretion also results where a trial court's decision is without reason or is based upon impermissible reasons or considerations. Cobb, 729 N.E.2d at 167.

In determining whether the trial court properly entered final judgment on the evidence, this court employs the same standard of review as the trial court. Russell v. Neumann-Steadman, 759 N.E.2d 234, 237 (Ind.Ct.App.2001); Carbone v. Schwarte, 629 N.E.2d 1259, 1261 (Ind.Ct. App.1994). We must only consider the evidence and reasonable inferences favorable to the non-moving party. Russell, 759 N.E.2d at 237. We may not weigh conflicting evidence or judge the credibility of witnesses because of the constitutional right under Article 1, Section 20 of the Indiana Constitution to have a jury perform the fact-finding functions. Id.; IND. CONST. art. 1, § 20.

Therefore, it is our duty to affirm the trial court's final judgment on the evidence for the amount of proper damages unless it is clearly demonstrated by the City of Carmel that the trial court abused its discretion.

II. Motion to Correct Errors

The City of Carmel argues that the trial court abused its discretion when it granted Leeper Electric's Motion to Correct Errors pursuant to T.R. 59(J) and awarded $1,120,000 in damages to Leeper Electric. Specifically, the City of Carmel contends that the evidence was sufficient to support the jury's verdict of $675,000. Leeper Electric, however, argues that the trial court correctly entered judgment for the amount of proper damages because the jury's award determination was not within the bounds of the evidence.

A jury is to be afforded great latitude in making damage award determinations. Hixson, 711 N.E.2d at 70. A verdict will be upheld if the award falls within the bounds of the evidence. Ritter v. Stanton, 745 N.E.2d 828, 845 (Ind.Ct. App.2001), Carbone, 629 N.E.2d at 1261. The trial court may only reverse a jury verdict "when it is apparent from a review of the evidence that the amount of damages awarded by the jury is so small or so great as to clearly indicate that the jury was motivated by prejudice, passion, partiality, corruption, or that it considered an improper element." Dee v. Becker, 636 N.E.2d 176, 177 (Ind.Ct.App.1994).

Moreover, it is generally held that upon review an appellate court will not disturb an award of damages in an eminent domain proceeding where the award is within the bounds of the probative evidence adduced at trial. State v. Raymond E. Heinold Family Trust, 484 N.E.2d 595, 597 (Ind.Ct.App.1985), City of Elkhart v. No-Bi Corp., 428 N.E.2d 43 (Ind.Ct.App. 1981). In City of Elkhart, the court stated that:

On review of such an award, the appellate court will neither reweigh the evidence nor judge the credibility of the witnesses. The evidence will be looked at in a light most favorable to the judgment.

Id. at 45.

The foregoing rules tend to give great deference to damage awards in eminent domain cases because of the fact-finder's ability to hear the evidence and judge the credibility of witnesses first hand. However, the Indiana Supreme Court imposed limitation upon juries in these cases in Gradison v. State, 260 Ind. 688, 695-96, 300 N.E.2d 67, 74-75 (1973), when it determined that in eminent domain cases, the jury may not base its verdict upon its independent knowledge of values. If the testimony of value and damages is conflicting, the jury may resort to their own general knowledge of the elements which affect the assessment, in order to determine the relative weight of conflicting testimony, but their assessment must be supported by testimony, or it cannot stand. See City of Elkhart, 428 N.E.2d at 45.

In arguing that the jury's award of damages in the amount of $675,000 was within the bounds of the evidence presented at trial, the City of Carmel claims that the appraisers' valuations of the Leeper Electric property were higher than the actual fair market value because the property was undeveloped, unimproved, had no access to southbound U.S. 31, and was surrounded by other unimproved property, a church, and a retirement center. However, Leeper Electric maintains that there is no evidence that the fair market value of the Leeper Electric property, given its highest and best use on the date of the taking, was $675,000. Rather, Leeper Electric claims that the evidence shows that the fair market value of this property was no less than $1,120,000,...