Coutar Remainder I, LLC v. State
| Decision Date | 28 December 2017 |
| Docket Number | Court of Appeals Case No. 53A01–1704–PL–798 |
| Citation | 91 N.E.3d 610 |
| Parties | COUTAR REMAINDER I, LLC, Kooshtard Property I, LLC, Mac's Convenience Stores, LLC, f/k/a Bigfoot Food Stores, LLC, and Union Fidelity Life Insurance Company, Appellants–Defendants, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Attorneys for Appellants : David A. Given, Brian J. Paul, Matthew C. Olsen, Faegre Baker Daniels LLP, Indianapolis, Indiana
Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Andrea E. Rahman, Deputy Attorney General, Indianapolis, Indiana
[1] Kooshtard Property I, LLC is the owner of the fee simple title to certain land in Monroe County that abuts Indiana State Road 37 between Bloomington and Martinsville (the "Kooshtard Property"). Coutar Remainder I, LLC holds a remainder interest in the Kooshtard Property, and Mac's Convenience Stores, LLC, d/b/a Circle K, holds a leasehold interest.1 In 2014, the State initiated condemnation proceedings to take a parcel from the Kooshtard Property in connection with the State's development of Interstate 69 over and along State Road 37. During those proceedings, the property owners (hereinafter collectively referred to as "Kooshtard") asserted that the State's development of Interstate 69 would eliminate access to the Kooshtard Property. The trial court disagreed and entered summary judgment for the State.
[2] We hold that Kooshtard is entitled to a trial on damages from the State's elimination of the Kooshtard Property's access to State Road 37. In particular, Kooshtard's chain of title includes a deed from a previous owner to the State, which is binding upon both Kooshtard and the State. The deed contains an access control line restriction as a covenant running with the land, and the restriction includes an exception or opening in the access control line, which provides the Kooshtard Property with a right of access to State Road 37. The State's elimination of that opening constitutes the taking of a property right subject to compensation. As such, we reverse and remand for further proceedings.
[3] In 1971, Jane Ellis deeded to the State a portion of certain real property she owned for the State's construction of State Road 37 ("the first taking"). The Ellis deed provided that "all rights and easements of ingress and egress to, from, and across" State Road 37 "to and from the owner's abutting lands" were permanently extinguished. Appellants' App. Vol. II at 184. However, the deed also reserved to Ellis and her successors in title an opening of 77.59 feet in the State's access control line to State Road 37. Id. at 185. The deed states that the access control line restriction, which includes an exception or opening, "shall be a covenant running with the land." Id.
[4] The deed "further" reserved to Ellis and her successors "access to a local service road" located within the State Road 37 right of way between the Ellis property line and the opening in the access control line. Id. From there, one could enter onto, or exit from, State Road 37. In 2001, Kooshtard became the successor in title, in relevant part, to the Ellis property as described in the 1971 Ellis deed.
[5] The western boundary of the Kooshtard Property is contiguous to the eastern boundary of the State Road 37 right of way. At the southwest corner of the Kooshtard Property, the property line turns and runs eastward for 57.88 feet and then abruptly turns southward for 60.39 feet. See Appellants' App. Vol. IV at 221, 244. These courses are described in the affidavit of Kooshtard's expert Rory O'Bryan as the "common north boundary line" and the "common east boundary line," respectively. Id. at 244. There is no access control along these common boundary lines.
[6] Sometime after the Ellis deed, the State conveyed control over the "local service road" mentioned in the deed to Monroe County, which the County now maintains as "Wayport Road." Wayport Road abuts the Kooshtard property along the common north boundary line and the common east boundary line. At that location, Wayport Road lies adjacent and contiguous to the Kooshtard Property and entirely within the State Road 37 right of way.
[7] Currently, whenever traffic travels east from State Road 37 to the Kooshtard Property or west from the Kooshtard property to State Road 37, the traffic utilizes both the State Road 37 right of way and the opening in the access control line and passes over Wayport Road where it meets the common north boundary line and the common east boundary line. Kooshtard's right to utilize the right of way is based upon its common law status as an abutting property owner, and its right to utilize the opening in the access control line is based upon the covenant that runs with the land in the Ellis deed.
[8] Between Bloomington and Martinsville, the State is converting State Road 37 into Interstate 69. The State plans to close the opening in the access control line at the Kooshtard Property created by the Ellis deed. In order to provide another route of access to and from the Kooshtard Property, the State plans to extend Wayport Road from its current location, where it abuts the common north boundary line and the common east boundary line, around the southern border of the Kooshtard Property and then to the north and east, where Wayport Road will connect with Sample Road. Sample Road will then have direct access to Interstate 69. The State's new traffic plan will require drivers to travel an additional one-half mile between the Kooshtard Property and Interstate 69 when entering or leaving the entrance to the Kooshtard Property along the common north boundary line and the common east boundary line.
[9] On February 11, 2014, the State filed a complaint to condemn a parcel to be taken from the Kooshtard Property in order to proceed with the project ("the second taking"). The State attached to its complaint a "right-of-way parcel plat" that indicates both the fee simple parcel to be taken and the opening in the access control line created by the Ellis deed "to be closed." Appellants' App. Vol. II at 38. Kooshtard answered that, in addition to the fee simple parcel, the closure of the access control line was a compensable taking. According to Kooshtard, the closure of the access control line would, in itself, result in more than $1.3 million in damages and the closure of a gas station and convenience store located on the property. The report of three court-appointed appraisers valued the total damages caused to the Kooshtard Property from taking the fee simple parcel at $420,000, but the report did not consider closure of the opening.
Tr. at 36. The trial court agreed with the State that the closure of the access control line merely created a different route of travel to and from the Kooshtard property and, as such, did not constitute a taking. The court entered summary judgment and declared that its judgment was a final judgment. This appeal ensued in due course.
[11] Kooshtard appeals the trial court's entry of summary judgment for the State. We review the trial court's grant or denial of summary judgment de novo . Doe v. Ind. Dep't of Child Servs. , 81 N.E.3d 199, 201 (Ind. 2017). We will affirm the entry of summary judgment only when the designated evidence reveals no genuine issue of material fact and entitles the moving party—here, the State—to judgment as a matter of law. Id. We also note that the trial court entered detailed findings of fact and conclusions thereon in its summary judgment order. While such findings and conclusions are not required in a summary judgment and do not alter our standard of review, they are helpful on appeal for us to understand the reasoning of the trial court. See Knighten v. E. Chicago Hous. Auth. , 45 N.E.3d 788, 791 (Ind. 2015).
[12] As our Supreme Court has stated, " ‘[a]lthough takings cases may be extremely fact sensitive, the ultimate application of constitutional provisions to an established set of facts involves a pure question of law.’ " Biddle v. BAA Indianapolis, LLC , 860 N.E.2d 570, 575 (Ind. 2007) (quoting Taylor–Chalmers, Inc. v. Bd. of Comm'rs of LaPorte Cty. , 474 N.E.2d 531, 536 (Ind. Ct. App. 1985) (Hoffman, J., concurring)). Indeed, as this Court has explained:
As we have observed in the past, condemnation proceedings are comprised of two stages: (1) an initial or summary phase, and (2) the phase during which the fact finder determines damages. City of Hammond v. Marina Entm't Complex, Inc. , 733 N.E.2d 958, 966 (Ind. Ct. App. 2000), trans. denied . "During the initial or summary phase of the proceedings, the action consists solely of legal issues which are decided by the trial court." Id. "During the second stage of the condemnation proceedings the fact finder must determine the amount of damages sustained by the landowner." Id.
State v. Dunn , 888 N.E.2d 858, 861 (Ind. Ct. App. 2008), trans. denied . The initial phase is when the trial court must determine, as a matter of law, whether a taking occurred.3 See id. "Whether a taking has occurred is a question of law, and we review questions of law de novo ." Id. (citing Biddle , 860 N.E.2d at 575 ; Bradley v. City of New Castle , 764 N.E.2d 212, 216 (Ind. 2002) ).
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