City of Indianapolis v. Nickel

• Decision Date: 31 July 1975
• Docket Number: No. 2--473A94,2--473A94
• Citation: 165 Ind.App. 250,331 N.E.2d 760
• Parties: CITY OF INDIANAPOLIS, Appellant, v. Carl NICKEL et al., Appellees.
• Court: Indiana Appellate Court

Page 760

331 N.E.2d 760

165 Ind.App. 250

CITY OF INDIANAPOLIS, Appellant, v. Carl NICKEL et al., Appellees.

No. 2--473A94.

Court of Appeals of Indiana, Second District.

July 31, 1975.

Rehearing Denied Sept. 4, 1975.

Gary R. Landau, William L. Soards, Bowen, Myers, Northam & Soards, Indianapolis, for appellant.

George L. Diven, Indianapolis, for appellees.

WHITE, Judge.

The Board of Sanitary Commissioners of the City of Indianapolis constructed a local sanitary sewer in a residential area served only by septic tanks. Prior to the hearing on the final assessment roll (which would assess the total cost to the properties served on a square foot pro rata basis) the owners of ten lots filed with the Board a written remonstrance contending assessments were in excess of the actual benefits accruing to their lots. At the conclusion of the hearing the Board rejected the remonstrance and approved the assessment roll. The remonstrators (appellees here) filed their complaint for appeal in the Superior Court of Marion County, Room No. 3. Trial resulted in a decree substantially reducing the assessment on each of the ten lots. In its motion to correct errors and on appeal the City asserts as error: 1) that the court erred in not sustaining its 'motion for directed verdict' at the close of plaintiffs' case, and, 2) that the decision is contrary to law in that the trial court was without jurisdiction to substitute its judgment for that of the Board with respect to the benefits accruing to the remonstrators' property. The remonstrators inject a third issue by contending that City waived its right to appeal from the Superior provided by Ind.Ann.Stat. § 48--4506 petition for rehearing in the trial court within fifteen days after its decision as provided by Ind.Ann.Stat. § 48--4506 (Burns 1963 Repl.), IC 1971, 18--5--17--6.

For uncorrected error of the Superior Court in substituting its judgment for that of the Board with respect to the assessment of benefits, we reverse.

I.

We were previously confronted with the third issue when appellees filed their motion to dismiss the appeal. We rejected their contention and overruled their motion by order without handing down an opinion stating our reason. We now state it.

Trial Rule 59(G) Indiana Rules of Procedure, makes a motion to correct errors a condition of appeal in all cases except 'appeals from interlocutory orders, orders appointing or refusing to appoint a receiver, and from orders in proceedings supplemental to execution.' We do not believe it was the intent of the General Assembly in enacting TR. 59, nor of the Supreme Court in adopting it, to require a losing party in a case of the kind before us to file both a § 48--4506 petition for rehearing and a TR. 59 motion to correct errors before he can appeal, even though the General Assembly failed to repeal § 48--4506. To hold that both a petition for rehearing and a motion to correct errors are required would run counter to the spirit of the new rules as expressed in Trial Rule 53.3 which looks unfavorably on repetitive motions. ¹ We believe § 48--4506 is in conflict with TR. 59 and that paragraph 4 of the Supreme Court's order of July 29, 1969, adopting the new rules, has superseded it. ²

This same question arose in City of Mishawaka v. Stewart (1973), Ind.App., 291 N.E.2d 900, 906, under a different, but almost identical statute, Ind.Acts 1971, P.L. 252, § 1, being also IC 1971, 8--1--11--3 and Ind.Ann.Stat. § 48--6105 (Burns 1974 Supp.). Judge Sharp, speaking for the Third District of this court, discussed the question at length and reached the following conclusion:

'As was pointed out earlier (291 N.E.2d at 905), the petition for rehearing was originally intended to be in lieu of an appeal from the decision of the trial court. Since an appeal is now permitted and, further, since the procedure for such an appeal is governed by the Indiana Rules of Procedure, the Petition for Rehearing serves no useful purpose and should not be considered a condition precedent to the perfection of an appeal. We hold that the Indiana Rules of Procedure requiring the filing of a motion to correct errors has superceded the requirement of § 48--6105 for the filing of a petition for rehearing.'

That reasoning and that holding are equally applicable to the like requirement of § 48--4506, supra, and we so hold.

II.

By thereafter presenting evidence, the City has waived its right to claim that the trial court committed error when it overruled the City's oral motion to dismiss ³ made at the conclusion of the remonstrators' case, but not ruled on until after the City had offered evidence. Hoosier Insurance Company v. Ogle (1971), 150 Ind.App. 590, 592, 276 N.E.2d 876, 877.

III.

Although the record and the briefs are silent on the subject, we assume that the proceedings before the Board were conducted pursuant to Ind.Acts 1931, Ch. 117, as amended, which is 'An act concerning the construction of sewers and drains by cities of the first class'. IC 1971, 19--2--16--1 et seq.; Ind.Ann.Stat. § 48--4001 et seq. (Burns 1963 Repl.).

§ 48--4006 provides that the lots and parcels of land abutting local sewers shall be assessed the 'special benefits' accruing thereto and that the preliminary assessments of the cost of the sewer shall be estimated 'and apportioned according to the total number of square feet of the lots . . . in the proportion that their areas in square feet, respectively, bear to the total assessed area'.

§ 48--4009 provides that when construction of the sewer is completed an assessment roll shall be made out and notice given to property owners when the board will 'receive, file and hear written remonstrances . . . upon the amounts assessed as benefits . . . and will determine the question as to whether such lots . . . have been or will be benefited, by said improvement in the amounts named on said roll' or in any sum.

§ 48--4010 provides for the final 'public hearing of all persons interested, appearing and remonstrating' and the final determination by the board of the amounts to be assessed against each parcel of real estate served.

'Any difference between the aggregate amount so assessed and the aforesaid total cost of the improvement shall be assessed against and paid by said city, if such assessments are less than such cost; and such difference shall belong to the general fund of said city, if such assessments are greater than such cost; or such board, at its option, may return any such surplus pro rata to those whose property has been assessed. The board shall render its final decision as to all assessments, by reason of any changes and corrections as aforesaid, to conform to its findings in any respects as aforesaid, and shall complete said roll showing the total amount of special benefits opposite each name and description of each piece of property on said roll. When so completed, said assessment roll shall be delivered forthwith to the department of finance.'

§ 48--4011 provides that owners who have remonstrated may 'appeal' to the circuit or superior court and 'that such appeals shall be confined solely to a review by the court of the issue made by such assessment and the remonstrance thereto as to whether or not the amount of the assessment objected to is excessive and more than the actual benefits accruing to said property by reason of the said improvement.' It also provides that '(t)he procedure thereon shall be as provided by the statute . . . relating to general appeals from the final decisions of boards of public works.'

The latter statute is Ind.Acts 1933, ch. 245, being IC 1971, 18--5--17--1 et seq., and Ind.Ann.Stat. § 48--4501 et seq. (Burns 1963 Repl.) Section 4 of that act, being Burns § 48--4504, provides:

'The decisions of the board . . . appealed from shall be prima facie correct and the burden of proof in all such appeals shall be on the party appealing. All such appeals shall be tried by the court without the intervention of a jury. Such court shall try and hear de novo the issues upon the action or decision of such board . . . presented by written remonstrance thereto, . . . and thereby raised by such appeals, and the manner, method or means of arriving at any such . . . decision by said board, or common council, in making any award of damages or assessments of benefits, . . .. Such court according as the particular statute allowing any such appeal permits or prescribes the matters that may be considered thereon, may set aside, affirm, lower or increase any award or damages or assessment of benefits as it may deem just and duly crder under the law and evidence; and may affirm, reverse, or modify the action or decision of such board or common council appealed from, in whole or in part.'

The so-called 'appeal' was commenced, as provided by § 48--4501, by the filing of a complaint which alleged, inter alia:

'5. The action and decision of said Board of Sanitary Commissioners in making said assessments was arbitrary and capricious, in that they were determined on allocation of total cost of construction and without regard to the actual benefits accruing to the property assessed.

'6. The assessments made by said Board are excessive, unreasonable and contrary to law in that they were made without determination of actual benefits to the property so assessed, and are excessive and more than the actual benefits accruing to said property as a result of said improvement. The actual benefits are not more than the amounts shown on Exhibit A. (A list of remonstrators and their assessments.)'

The City filed an answer denying those two allegations (and admitting all others).

At the trial it was stipulated that the assessments against remonstrators' lots were 'arrived at . . . on a square foot prorata basis of the total cost of the construction of the sewer . . . by statutory method of applying the final cost of construction to the square foot area of platted lots and to the square foot area of unplatted...