City of Elkhart v. Curtis Realty Co., 669S142

• Decision Date: 18 March 1970
• Docket Number: No. 669S142,669S142
• Citation: 256 N.E.2d 384,20 Ind.Dec. 503,253 Ind. 619
• Parties: CITY OF ELKHART, Appellant, v. CURTIS REALTY COMPANY, Appellee.
• Court: Indiana Supreme Court

Page 384

256 N.E.2d 384

253 Ind. 619

CITY OF ELKHART, Appellant, v. CURTIS REALTY COMPANY, Appellee.

No. 669S142.

Supreme Court of Indiana.

March 18, 1970.

Paul L. Myers, F. Le Roy Wiltrout, Elkhart, for appellant.

Philip E. Byron, Jr., Byron & Daniels, Elkhart, for appellee.

DeBRULER, Judge.

This appeal presents serious questions of the scope and proper application of the Acts of 1967, ch. 357, being Burns Ind.Stat.Ann. §§ 3--3301 through 3--3308, commonly called the Public Lawsuit Statute. This is an appeal from an interlocutory order in which the trial court denied a petition of the appellant which alleged that the appellee's suit was a public lawsuit and requesting a hearing and order against the plaintiff to post bond pursuant to Burns Ind.Stat.Ann. § 3--3305. The court in denying this petition, in effect determined that the suit by appellee seeking judicial review of a declaratory resolution of a board of public works made pursuant to Acts 1955, ch. 190, being Burns Ind.Stat.Ann. §§ 48--8470 through 48--8482, commonly called the Off-Street Parking Statute, was not a 'public lawsuit' as defined in the Public Lawsuit Statute. We affirm this order of the trial court.

On May 13, 1969, appellee, Curtis Realty Company, filed its complaint in the Elkhart Superior Court No. II, entitled 'Complaint on Appeal', against the appellant, City of Elkhart, A Municipal Corporation, praying:

'Wherefore the plaintiff respectfully prays the court that the proceedings of the said Board of Public Works and Safety of the defendant be rescinded and cancelled and declared to be null and void and of not effect whatsoever together with any and all other just and proper relief in the premises.'

The complaint alleged that:

(1) On March 11, 1969, the Board of Public Works adopted a resolution recommending to the common council establishment of an off-street parking facility.

(2) On March 17, 1969, the Common Council adopted a resolution approving the recommendation of the Board of Public Works and authorizing the Board to proceed with acquisition of land and development of the off-street parking facility.

(3) On March 18, 1969, the Board of Public Works adopted a declaratory resolution describing the planned off-street parking facility in detail, including legal descriptions of land to be acquired for the facility, and setting a date for a public hearing thereon for April 10, 1969.

(4) On April 9, 1969, the appellee, Curtis Realty Company, filed written objections and remonstrance to the proceedings before the Board of Public Works.

(5) On April 10, 1969, the Board of Public Works heard the appellee's remonstrance and continued the hearing to April 17, 1969.

(6) On April 17, 1969, the Board of Public Works adopted a resolution modifying and finally confirming the declaratory resolution, which resolution contained a description of the land of the appellee upon which the proposed facility would be constructed and contained the following statement:

'And that said real estate should be acquired by purchase or by the appropriation of the property described therein and as modified, or by eminent domain, and should be acquired, improved and developed as a tri-level off street parking facility.'

(7) On May 13, 1969, the appellee filed its complaint seeking judicial review of the proceedings to establish the off- street parking facility, pursuant to Burns § 48--8474, and following the procedure outlined in Acts 1933, ch. 245, being Burns Ind.Stat.Ann. §§ 48--4501 through 48--4509.

(8) The complaint contained allegations that the proceedings to establish the off-street parking facility were illegal, arbitrary and capricious, that the exercise by the Board of its eminent domain powers is unreasonable and abuse of discretion, and finally that the proceedings of the Board were invalid as a denial of due process of law.

On May 20, 1969, the appellant, City of Elkhart, filed a petition alleging that this case was a public lawsuit and asking for a hearing on the petition and requesting an order requiring the appellee, Curtis Realty Company, to file a bond or suffer dismissal of the case. The trial court set hearing on this petition for May 29, 1969. On May 29, 1969, the parties appeared in court and the petition was submitted to the court and argument of counsel heard. The court thereafter entered the following order denying the petition:

'IT IS THEREFORE considered, ordered and adjudged by the Court that the defendant's petition be and is hereby denied.'

The appellant had filed its petition pursuant to § 5 of the Public Lawsuit Statute, Burns § 3--3305, which reads as follows:

'At any time prior to the final hearing in a public lawsuit, the defendant may petition for an order of the court that the cause be dismissed unless the plaintiff shall post a bond with surety to be approved by the court payable to defendant for the payment of all damages and costs which may accrue by reason of the filing of the lawsuit in the event the defendant prevails. A hearing shall be had on such petition in the same manner as the hearing on temporary injunctions under Acts 1881 (Spec.Sess.), c. 38. If at the hearing the court determines that the plaintiff can not establish facts which would entitle him to a temporary injunction, the court shall set the amount of bond to be filed by the plaintiff in an amount found by the judge to cover all damage and costs which may accrue to the defendants by reason of the pendency of the public lawsuit in the event the defendant prevails. In the event such bond is not filed by the plaintiff with sureties approved by the court within ten (10) days after such order is entered the suit shall be dismissed. Either plaintiff or defendant may appeal such order to the Indiana Supreme Court within such ten (10) day period by notice of appeal and a statement of error in the same manner as is provided in a petition for mandate or prohibition. The Supreme Court may stay the lower court order pending its own decision, may set a bond to be filed by the plaintiff in connection therewith, may modify the order of the lower court, or may enter its order as a final order in a case. In the event no bond is filed as provided in this section the public lawsuit shall be dismissed and no court shall have further jurisdiction of the public lawsuit or any other public lawsuit involving any issue which was or could have been raised therein.'

Public lawsuit is defined by § 1 of the Act, Burns § 3--3301, which reads as follows:

'(b) 'Public lawsuit' shall mean any action whereby the validity, location, wisdom, feasibility, extent or character of construction, financing or leasing of any public improvement by any municipal corporation is questioned directly or indirectly, including but not limited to suits for declaratory judgments or injunctions to declare invalid or to enjoin such construction, financing or leasing, and shall mean any action to declare invalid or enjoin the creation, organization or formation of any municipal corporation. This definition, as used in this act, shall not be construed to broaden any right of action as is now validly limited by applicable law.'

In appellant's brief it cites State ex rel. Haberkorn v. DeKalb Circuit Court (1968), Ind., 241 N.E.2d 62. The Haberkorn case does not control this case because there are important dissimilarities between these two cases. The plaintiffs there were dissatisfied with the site selected by the school board for the construction of a new school building. They filed a suit for an injunction wherein neither party challenged the fact that that suit fell in the category of public law suits. Interpreting the Haberkorn case in Johnson v. Tipton Community Schools (1970), Ind., 255 N.E.2d 92, we held that the purpose of the Public Lawsuit Statute was to '(eliminate) merely harassing suits or completely nonmeritorious litigation.' The appellee in this case is exercising its statutory right to appeal the decision of the board of public works adopting a...