City of Gary By and Through Dept. of Redevelopment v. Ruberto

• Decision Date: 22 September 1976
• Docket Number: No. 3--1274A214,3--1274A214
• Citation: 354 N.E.2d 786,171 Ind.App. 1
• Parties: CITY OF GARY By and Through its DEPARTMENT OF REDEVELOPMENT, and the City of Gary, Appellants (Defendants below), v. Vita RUBERTO, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 786

354 N.E.2d 786

171 Ind.App. 1

CITY OF GARY By and Through its DEPARTMENT OF REDEVELOPMENT, and the City of Gary, Appellants (Defendants below), v. Vita RUBERTO, Appellee (Plaintiff below).

No. 3--1274A214.

Court of Appeals of Indiana, Third District.

Sept. 22, 1976.

Nick Katich, Addison, Stiles & Greenwald, Charles A. Ruckman, Gary, for appellants.

Lowell E. Enslen, Herbert E. Boase, McHie, Enslen & Moran, Hammond, George Vann, Barce, Barce & Vann, Kentland, for appellee.

STATON, Presiding Judge.

Vita Ruberto owned a five-unit cold-water apartment building at 1726 Jefferson Street in midtown Gary, Indiana. On December 23, 1969, she brought this action against the City of Gary by and on behalf of its Redevelopment Department ¹ for (1) damages arising from the taking of her property under an urban renewal plan without compensation (inverse condemnation), and (2) punitive damages and damages for lost rental income arising from the conspiratory efforts of various municipal departments to encourage tenants to stop paying rent and to vacate the premises. After an evidentiary hearing on September 8, 1970, the trial court found that a taking had occurred on September 1, 1969. The court appointed appraisers to value the property as of that date. Later, a jury returned a verdict for plaintiff Ruberto for $19,000.00 on her inverse condemnation claim and for $8,000.00 on the conspiracy claim.

The City contends that there was insufficient evidence to support the trial court's finding that a taking occurred and insufficient evidence to sustain the jury's verdict on the damages claim. Since we agree, and we must reverse on these grounds, we need not consider the other contentions of error raised by this appeal.

I Waiver

Initially, we must dispose of Ruberto's contentions that the City has waived its right to challenge the sufficiency of the evidence. Ruberto argues that the City's statement of the facts is 'incomplete, biased and does not impartially state the evidence presented . . ..' This Court has held that:

'The failure to set forth fully the evidence in narrative form as is necessary to present a full understanding of the questions presented will be deemed a waiver of any questions depending upon the evidence. Flanagan, Wiltrout and Hamilton, Indiana Trial, and Appellate Practice, § 2677, Comment 8.' Tice v. Thompson (1965), 137 Ind.App. 338, 345, 208 N.E.2d 203, 206.

We have reviewed the entire record. We conclude that the narrative is sufficiently impartial and complete 'to present a full understanding of the questions presented.' See Indiana Rule of Procedure, Appellate Rule 8.3(A) (5). We find no waiver on this ground.

Ruberto also suggests that the transcript of the evidentiary hearing held on September 8, 1970, has not been properly certified and made a part of the record on appeal. The judge's certification followed two transcript of evidence prepared by the court reporter on the same day and presented to the judge at the same time. One transcript was of the evidence at the bench trial on September 8, 1970, on the issue of taking, and the other transcript was of the evidence at the jury trial on March 19, 1974 on the issues of damages and conspiracy. The judge's certification states that 'this transcript of the proceedings at the trial correctly sets forth and contains all of the evidence given at the trial of this cause . . . in the Newton Circuit Court.' Ruberto's argument presumes that the phrase 'transcript of the proceedings at the trial' includes only the proceedings at the jury trial and does not include the proceedings at the bench trial on the taking issue. We disagree. The trial of this case included both the hearing on the taking issue and the jury trial on the damages issue. See Levee Auth. Dist. v. Towne Motel, Inc., (1966) 247 Ind. 161, 213 N.E.2d 705. Clearly, the judge's certificate is sufficiently worded to apply to the transcripts of the two phases of the case.

II Sufficiency of the Evidence

When the sufficiency of the evidence is challenged on appeal, this Court may not weigh the evidence or judge the credibility of the witnesses. In Estate of Anderson v. Smith (1974), Ind.App., 316 N.E.2d 592, 593, the Court stated:

'Our task is to determine whether there is substantial evidence of probative value in support of each necessary element of plaintiff's case. This means there must be competent, relevant, material evidence, which would naturally lead, or involuntarily tend to lead, a rational, impartial mind to a conclusion for which there is a substantial reason, rather than one based upon mere guess, conjecture, surmise, possibility or speculation.'

Of course, appellee is entitled to all reasonable inferences from the evidence in the record, and we must look to the evidence most favorable to the findings of the trier of fact. State Farm Life Ins. Co. v. Spidel (1964), 246 Ind. 458, 202 N.E.2d 886; Hinds v. McNair (1955), 235 Ind. 34, 129 N.E.2d 553.

A. Taking--Inverse Condemnation

At the evidentiary hearing on September 8, 1970, the burden was on plaintiff Ruberto to establish that a taking of her property had occurred. The test for a taking of property has been stated as follows:

'It therefore follows that either some physical part of the real estate must be taken from the owner or lessor, or some substantial right attached to the use of the real estate taken before any basis for compensable damage may be obtained by an owner of real estate in an eminent domain proceeding. It must be special and peculiar to the real estate and not some general inconvenience suffered alike by the public.' State v. Jordan (1966), 247 Ind. 361, 368, 215 N.E.2d 32, 35. See also Schuh v. State (1968), 251 Ind. 403, 241 N.E.2d 362; State v. Stenfaniak (1968), 250 Ind. 631, 238 N.E.2d 451.

We conclude that the evidence presented at the evidentiary hearing on September 8, 1970, was insufficient to establish a taking under this test.

The evidence viewed in the light most favorable to Ruberto shows that in 1969 Roberto's property was forty-five years old and 'like all the properties of that area had what the City calls violations that are greater than minimum.' Between March 17, 1966, and January 1969, Ruberto's property was inspected by the City Building Department a number of times, and Ruberto received notices to make repairs because of building code violations. Ruberto did not make the required repairs because they were economically unfeasible. For example, an estimate for only the minor electrical repairs was equivalent to one year of rental income from the five apartments.

After repeated visits to Ruberto's apartment building by Building Department inspectors in January 1969, the inspectors posted signs on the apartment saying 'Condemned by the City of Gary. Unfit for human habitation.' After that, the tenants refused to pay rent and, finally, moved out of the building in September or October of 1969. The vacant building, although secured and boarded up, attracted vandals, who stripped the structure to a mere shell.

Ruberto's property was included in a 1964 study which designated the 'Midtown West' area of Gary as scheduled for redevelopment and urban renewal. The study suggested dividing the area into five phases, to be redeveloped over a period of ten years. Apparently, the ten-year plan was approved by HUD. The results of the study were widely publicized in the Gary area. Since the plan involved major rebuilding, with only a small portion of the existing structures left intact, there were great feelings of insecurity and uncertainty on the part of all the tenants and landlords in the Midtown West area. Repairs to properties in the renewal area were kept to a minimum because to one knew when the City might move through the unscheduled phases and begin to condemn the property.

At the time of the 1970 evidentiary hearing, the appropriate City departments had acted only on Phase One of the five phase project. Ruberto's property was located in Phase Four.

After the hearing, the trial court found specially that the City of Gary by and through its Redevelopment Department passed and adopted certain ordinances and resolutions whereby the 'Midtown West' area was scheduled for demolition and redevelopment; that plaintiff's land was within those areas; that the City condemned plaintiff's property by attempting to require plaintiff to modify, convert, and rebuild her property, and, without lawful process, posted on plaintiff's building a condemned sign, and encouraged and advised plaintiff's tenants to quit paying rent; that the City's actions resulted in the complete vacation of plaintiff's buildings; and that at no time was compensation tendered to plaintiff. These special findings are not supported by the evidence presented at the hearing. The trial court's judgment that there was a taking on September 1, 1969, which is taken as a general finding in favor of plaintiff, is also not supported by the evidence.

The legislature may, without infringing constitutional prohibitions against the taking of property without compensation, require adherence to regulations enacted in the exercise of the general police power for purposes of public health, safety, or welfare. Mugler v. Kansas (1887), 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; State v. Richcreek (1906), 167 Ind. 217, 77 N.E. 1085. The question of where regulation ends and taking begins must depend upon the particular facts and necessities of each case. In the present case, the evidence presented at the September 8 hearing does not show that the City's actions stepped beyond the bounds of regulation into the area of taking without compensation.

Attempts by the Building Department to enforce building and safety codes do not amount to a taking:

'Cities and towns have power to establish reasonable regulations for the protection of the lives, health, and property of their citizens, and to enforce compliance with such regulations by...