Cordill v. City of Indianapolis Through Dept. of Parks and Recreation
| Decision Date | 14 April 1976 |
| Docket Number | No. 2--673A128,2--673A128 |
| Citation | 168 Ind.App. 685,345 N.E.2d 274 |
| Parties | Marion G. CORDILL, Appellant, v. CITY OF INDIANAPOLIS Through the DEPARTMENT OF PARKS AND RECREATION, Appellee. |
| Court | Indiana Appellate Court |
Claude M. Warren, Goodrich & Warren, Claude M. Warren, Jr., Douglas J. Hill, Cadick, Burns, Duck & Neighbours, Indianapolis, for appellant.
Gary R. Landau, Corp. Counsel, Jerry W. Newman, Asst. Corp. Counsel, City-County Legal Div., Indianapolis, for appellee.
The issue in this appeal is whether the trial court committed reversible error in sustaining a motion to strike the landowner-defendant's exceptions to the report of appraisers 1, which exceptions were filed in an eminent domain proceeding, more than ten days after the appraisers' report was filed. The landowner (Cordill) contends that he was entitled to have a trial on his late-filed exceptions because the court clerk had failed to mail notice of the court's order appointing appraisers to his attorney pursuant to Trial Rule 72(D) and Trial Rule 5, Indiana Rules of Procedure. Under the state of the record in this case we find no error and therefore affirm.
The procedure prescribed by the eminent domain statutes (Ind.Acts 1905, Chapter 48, as amended; Ind.Ann.Stat. §§ 32--11--1--1 to 32--11--1--13 (Burns Code Ed. 1973)) under which the proceedings below were conducted consists of two phases which, insofar as pertinent hereto, are briefly summarized as follows:
First, when the complaint is filed a notice is issued and served on the landowner requesting his appearance at a stated time to show cause, if any he have, why the land should not be appropriated. If he believes he has cause he may file 'objections'. If no objections are filed, or if those filed are overruled, an order of appropriation is entered and three appraisers are appointed and ordered to file their report appraising the damage to the landowner resulting from the appropriation.
Second, within ten days of the date the report of appraisal is filed, either or both parties may file 'exceptions' to the appraisal. 2
If timely filed, exceptions raise the issue of the amount of the landowner's damages. That issue is tried de novo by the judge, or by a jury if timely requested. If no exceptions are timely filed the appraisers' award becomes final.
In the case at bar the landowner, appellant Cordill, employed an attorney who contends he filed an appearance card with the court before the date of the appropriation hearing, but did not attend the hearing because his client, Cordill, had no legal reason to object to the appropriation. He relied on the clerk of the court to give him notice of the order entered at the appropriation hearing so that he would be alerted to file exceptions to the appraisers' report if his client deemed the appraisal too low. However, the attorney's appearance, if filed, never got into the record and the appearance card is not in the court's file. Consequently, he did not get the notice his reliance on Trial Rules 72(D) and 5(A) 3 had led him to assume he would. He did not learn of the filing of the appraisers' report until more than ten days after it was filed. His exceptions being filed more than ten days after the report was filed, were stricken on motion of the city.
It has been consistently held that the trial court acquires no jurisdiction to try the issue of damages if exceptions to the appraisers' report are filed later than ten days after the report is filed. 4 Whether the time is extended if a clerk who is required to, fails to give notice of the entry of an appropriation order and/or the filing of the appraisers' report, we need not decide. Under the state of the record in this case the clerk was not required to give notice either to Cordill or to his attorney, since neither had made an appearance in any manner reasonably calculated to put the clerk on notice, as e.g., in the manner required by the last sentence of Trial Rule 72(D): 'It shall be the duty of attorneys when entering their appearance in a cause or when filing pleadings or papers therein, to have noted on the bench docket or on said pleadings or papers so filed, their mailing address, and service by mail at such address shall be deemed sufficient.' Neither is there any record that either ever filed an appearance card with the room clerk as required by Rule 2 of the rules of the trial court on file with the clerk of this court April 21, 1971, pursuant to Trial Rule 81(A). In pertinent part said local court Rule 2 reads as follows:
Since neither he nor his attorney had complied with either of those rules, Cordill was in the category of 'parties in default for failure to appear', within the meaning of that clause as it is used in Trial Rules 5(A) and 72(D), and that is so regardless of the fact that the appropriation order itself recites that Cordill 'appeared' at the time said order was made. Although that record 'imparts absolute verity on appeal' 5 and we must therefore assume that Cordill was present in the courtroom when the appropriation order was made, 6 it is not a record that he made an appearance in conformity with the requirements of the local court Rule 2 or TR. 5(A) or TR. 72(D). In fact the record and certificate of the clerk of the trial court is quite to the contrary. Not only is there no record of the filing of an appearance card but there is a certificate by the clerk that no appearance card can be found 'in the court's files'.
To hold that Cordill was a party 'in default for failure to appear' at the time the appropriation order was made or at the time the appraisers' report was filed is not to say that he was thereby precluded from contesting the valuation placed on his property by the court-appointed appraisers. He could do that by timely filing his exceptions to their report regardless of whether he was report, it would have been the clerk's duty to serve him with the report. Had the clerk failed to do so there could be a question of when the time began to run, i.e., whether his exceptions filed more than ten days after the appraisers' report was filed were nevertheless timely filed. All this opinion holds is that when there is no proper appearance there is no duty on the clerk to serve the appropriation order or the appraisers' report and the time begins to run when the report is filed.
This opinion speaks of the law as it existed at the time these proceedings were had. The law has since been changed by a 1975 amendment incorporated into Ind.Ann.Stat. § 32--11--1--8 (Burns Code Ed., 1975 Supp.). But the only changes that amendment makes which are pertinent to this decision are in these sentences:
Had that amendment been in effect when the appraisers' report was filed it would have been the clerk's duty to mail notice of filing to Cordill but not to his attorney, since he was not an attorney of record. Had Cordill received that notice within twenty days of its mailing by the clerk and had he communicated that fact to his attorney before the twentieth day after mailing, we can assume the attorney would have then done whatever was necessary to obtain a copy of the report in order to learn whether the appraisal was satisfactory. Further, we can assume that if it was not satisfactory he would have filed exceptions. The statute as amended makes no provision for a landowner's failure to receive notices which are duly mailed, but it does appear to extend indefinitely the time limit on filing exceptions if the clerk fails to mail notice. As to the landowner's right or opportunity to be heard even though he has chosen not to contest the right of the condemnor to appropriate the land, the amendment makes no change in the law. A contest of the plaintiff's right or power to appropriate has never been a condition precedent to a trial on the issue of damages. Whether there is a contestable issue of damages always has, and still does, depend on whether the landowner timely files exceptions to the appraisers' report. The new law merely makes it easier for him to know when he must file his exceptions and gives him a longer period in which to do so. In the case at bar, under the old law, landowner Cordill and his attorney could have entitled themselves to the same notice had they made an appearance in conformity with the rules of court. Under the new law (if the clerk and the U.S. Postal Service do their duty) the landowner will get notice without having made an appearance. But there is nothing in the new law which makes it retroactive.
It was not Cordill's failure to contest the appropriation which put him 'in default for failure to appear'; it was his failure to make a proper appearance. Nor was it his failure to...
To continue reading
Request your trial
-
McGill v. Muddy Fork of Silver Creek Watershed Conservancy Dist., 1-976A159
...or contemplated by the words of section (A) or TR. 5. The McGills argue that, based on the holding in Cordill v. City of Indianapolis (1976), Ind.App., 345 N.E.2d 274, since they were not in default for failure to appear, they were entitled to be served with a copy of the report under Trial......
-
Bennett v. State
... ... Gen., Indianapolis, for plaintiff-appellee ... certain evidence as having been obtained through" an illegal arrest. We affirm ... \xC2" ... ...
-
State v. Bishop
...v. State, 693 N.E.2d 580, 581-82 (Ind.Ct.App.1998) (alteration in original) (footnote omitted) (quoting Cordill v. City of Indianapolis, 168 Ind.App. 685, 687, 345 N.E.2d 274, 275 (1976)), trans. denied; accord Daugherty, 699 N.E.2d at In the case at bar, the record reveals that on December......
-
Seleme v. JP Morgan Chase Bank, Nat'l Ass'n
...denied, vacated in part and adopted in relevant part by,621 N.E.2d 1102 (Ind.1993), reh'g denied; Cordill v. City of Indianapolis, 168 Ind.App. 685, 688–689, 345 N.E.2d 274, 276 (1976) (holding that neither appellant nor his attorney had made an appearance in any manner reasonably calculate......