City of Hammond v. Marina Entertainment Complex, Inc.
| Decision Date | 13 June 1997 |
| Docket Number | No. 45A03-9511-CV-389,45A03-9511-CV-389 |
| Court | Indiana Appellate Court |
| Parties | CITY OF HAMMOND, Indiana, a Municipal Corporation, Appellant-Plaintiff, v. MARINA ENTERTAINMENT COMPLEX, INC.; AXG Corp; Great Lakes Inland Marina, Inc.; Auditor of Lake County, Indiana; and Treasurer of Lake County, Indiana, Appellees-Cross-Appellants-Appellees. |
Appellant-plaintiff-cross-appellee City of Hammond, Indiana ("City"), a Municipal Corporation, appeals an award of attorney's fees and expenses in favor of appellees-defendants-cross-appellants Great Lakes Inland Marina, Inc. ("Great Lakes"), Marina Entertainment Complex, Inc. ("M.E.C."), a lessee of Great Lakes, and AXG Corp. (AXG) (collectively Great Lakes, M.E.C., and AXG will be referred to as "Landowners") in an eminent domain proceeding. The facts relevant to this appeal are presented below.
The City of Hammond qualified as a site for a gaming license. As part of the project, the City sought to construct an overpass and roadway to gain access to its new marina, its lake shore, and the anticipated gaming development. The project required the City to take from the Landowners, by way of eminent domain, a right-of-way for a public road and overpass and to effect a railroad relocation. On September 20, 1993, the City entered into a letter of intent with Lake Michigan Charters, Ltd. (Charters), a river boat casino gaming company, whereby the City agreed to exclusively endorse Charters for the gaming license. In turn Charters agreed to pay for construction of the public roadway and other costs arising therefrom. In relevant part, the letter of intent provided:
The City, to the extent permitted by law, and [Charters] specifically agree to cooperate to expedite the acquisition of necessary property for the railroad overpass and the design and construction of the overpass, and the City shall, to the extent permitted by law, use its powers of eminent domain to acquire right-of-way for the railroad overpass.
Thereafter, Charters hired American Consulting Engineers, Inc. (ACE) to design the overpass project (the Project) and to designate the property necessary for relocation of railroad tracks and construction of the Project. The property was to be purchased by Charters or, in the alternative, acquired by exercise of the City's power of eminent domain.
Following the service of unacceptable offers to purchase required by IND. CODE § 32-11-1-2.1 (1993 Ed.), the City filed a complaint for condemnation against the Landowners. On June 17, 1994, the City filed a second complaint against the Landowners to acquire additional land for the same project. The two cases were later consolidated. Landowners filed numerous objections arguing that the taking was not for a public purpose, and the City's offers to purchase were not made in good faith. On September 20, 1994, after a hearing, the trial court entered an order pursuant to IND. CODE § 32-11-1-5 (1993 Ed.), overruling the Landowners' objections to the condemnation proceedings and appointing appraisers to ascertain just compensation to the Landowners for their property interests. Subsequently, M.E.C. and AXG filed an interlocutory appeal.
On November 17, 1994, while the Landowners' appeal was still pending before this Court, the City advised both the trial court and the Landowners that Amtrack would not consent to the relocation of certain railroad tracks. Consequently, the Project had to be redesigned. The new drawings required less of Great Lakes and M.E.C.'s property and none of AXG's property be taken by the City.
M.E.C and AXG filed a motion for relief from the September 20, 1994 order, pursuant to Ind. Trial Rule 60(B), which was subsequently granted by the trial court. Thereafter, M.E.C. and AXG applied to this Court requesting a nunc pro tunc order requesting leave to file their T.R. 60(B) motion. On January 11, 1995, this Court conditionally granted the motion, ordered the pending motions stricken, and relinquished jurisdiction to the trial court for 60 days for the court to rule on any new T.R. 60(B) motions. The Landowners' new motions for relief from the trial court's September 20, 1994 order were granted.
On February 13, 1995, Great Lakes filed a motion for summary judgment arguing that the City no longer wanted the Landowners' property for the intended use described in its complaint. Great Lakes' motion was not ruled upon. Instead, the City filed an amended complaint pursuant to Ind. Trial Rule 15, which was ultimately denied. The City also filed a motion to dismiss without prejudice pursuant to Trial Rule 41(A)(2). On February 23, 1995, the trial court dismissed the case without prejudice. Thereafter, the trial court entered an order dismissing its February 23, 1995 order finding that it was without jurisdiction to enter a dismissal and referred the matter to this Court.
On March 20, 1995, this Court issued an order relinquishing appellate jurisdiction which in effect returned jurisdiction to the trial court for an additional 60 days so that the trial court could rule on all motions or petitions then pending or filed after the trial court resumed jurisdiction. The City then filed another motion to dismiss without prejudice pursuant to Ind. Trial Rule 41(A)(2). The City's motion to dismiss was granted. The trial court further retained jurisdiction to adjudicate Landowners' petition for fees and costs.
On April 7, 1995, the City refiled an eminent domain action against Great Lakes and M.E.C. A second cause of action was not filed against AXG. Thereafter, Landowners filed their petitions for damages pursuant to the previous order of the trial court. The trial court's jurisdiction was extended for an additional 120 days, during which time a hearing was held on Landowners' petitions for damages. On August 3, 1995, the trial court entered an order awarding Great Lakes $300,000 in fees and expenses and M.E.C. and AXG $350,000. The City now appeals and the Landowners cross-appeal.
The City raises two issues for review:
(1) whether the trial court erred in awarding attorney's fees to the Landowners; and
(2) whether the award of $650,000 in attorney's fees was excessive.
On cross-appeal the Landowners raise three additional issues:
(3) whether the trial court abused its discretion in allowing the City to dismiss its action prior to ruling on Great Lakes' summary judgment motion;
(4) whether the trial court erred in failing to award M.E.C. and AXG certain rental, appraisal and engineering expenses; and
(5) whether M.E.C. and AXG are entitled to appellate attorney's fees.
In the present case, neither the City nor the Landowners requested specific findings of fact or conclusions of law; hence, the judgment of the trial court will be affirmed upon any legal theory consistent with the evidence. Matter of Adoption of Johnson, 612 N.E.2d 569, 573 (Ind.Ct.App.1993). When reviewing a general judgment, this Court does not reweigh the evidence or assess the credibility of the witnesses. Instead, we consider only the evidence most favorable to the judgment, along with all reasonable inferences to be drawn therefrom. Olsson v. Moore, 590 N.E.2d 160, 161-162 (Ind.Ct.App.1992). Moreover, when reviewing a general judgment, we presume that the trial court followed the law. Johnson, 612 N.E.2d at 573.
The City argues that the trial court erred in awarding the Landowners attorney's fees. Specifically, the City contends that it has not abandoned the condemnation proceedings as set forth in the Indiana Relocation Assistance Act, IND. CODE § 8-23-17 et seq. (1993 Ed.) (Indiana Relocation Act).
Generally, attorney's fees are not recoverable from the opposing party as costs, damages or otherwise, in the absence of an agreement between the parties, statutory authority, or rule to the contrary. Johnson v. Sprague, 614 N.E.2d 585, 589 (Ind.Ct.App.1993), trans. denied; Cox v. Ubik, 424 N.E.2d 127, 129 (Ind.Ct.App.1981). Considering this rule, the Landowners direct us to a provision of the Indiana Relocation Act which states in pertinent part:
(a) The court having jurisdiction of a proceeding instituted by an agency to acquire real property by eminent domain shall award the owner of a right, or title to, or interest in, the real property the sum that will in the opinion of the court reimburse the owner for reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of the condemnation proceedings, if:
(1) The final judgment is that the agency cannot acquire the real property by eminent domain; or
(2) The proceeding is abandoned by the agency.
IND. CODE § 8-23-17-27 (Emphasis added.).
Recently, this Court had the opportunity to interpret IND. CODE § 8-23-17-27 for the first time. See Bd. of Com'rs of County of Knox v. Wyant, 672 N.E.2d 77 (Ind.Ct.App.1996), trans. pending. Like its federal counterpart, Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4654, the Indiana Relocation Act was designed to provide relocation assistance to property owners who have been displaced by governmental programs and forced to relocate their homes, businesses or farms. Id. at 80 (citing, City of Mishawaka v. Fred W. Bubb, etc., 396 N.E.2d 943, 944 (Ind.Ct.App.1979)); see also 42 U.S.C. § 4621(b). The legislative intent was to create only a narrow exception to the general rule of non-recovery of litigation expenses in condemnation proceedings. See United...
To continue reading
Request your trial
-
Wedel v. American Elec. Power Service Corp.
... ... and Ohio Valley Coal Co., Inc., Appellees-Defendants ... No ... City of Fort Wayne, 622 N.E.2d 548, 549 ... ...
-
State v. Koorsen
...exception to the general rule of non-recovery of litigation expenses in condemnation proceedings." City of Hammond v. Marina Ent. Complex, Inc. , 681 N.E.2d 1139, 1142 (Ind. Ct. App. 1997) (citing United States v. 410.69 Acres of Land , 608 F.2d 1073, 1076 (5th Cir. 1979) ); compare 42 U.S.......
-
G & N Aircraft, Inc. v. Boehm
...as damages in the absence of a statute, rule or a contract stipulating the recovery of such fees. City of Hammond v. Marina Entertainment Complex, Inc., 681 N.E.2d 1139, 1142 (Ind.Ct.App.1997), trans. denied. While a shareholder has the right to recover attorneys' fees from the corporation ......
-
Castlewood Property Owners Ass'n, Inc. v. Trepton, 45A03-9808-CV-368.
...the absence of an agreement between the parties, statutory authority, or a rule to the contrary. City of Hammond v. Marina Entertainment Complex, Inc., 681 N.E.2d 1139, 1142 (Ind.Ct.App.1997), trans. denied, 690 N.E.2d 1187. In this case the Act provides in relevant Unless limited by articl......