Elder v. State ex rel. Dept. of Natural Resources, 2-883A304

• Decision Date: 03 October 1985
• Docket Number: No. 2-883A304,2-883A304
• Citation: 482 N.E.2d 1383
• Parties: Chester D. ELDER and Carol A. Elder, Appellants (Defendants Below), v. STATE of Indiana ex rel. the DEPARTMENT OF NATURAL RESOURCES, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1383

482 N.E.2d 1383

Chester D. ELDER and Carol A. Elder, Appellants (Defendants Below), v. STATE of Indiana ex rel. the DEPARTMENT OF NATURAL RESOURCES, Appellee (Plaintiff Below).

No. 2-883A304.

Court of Appeals of Indiana,

Second District.

Oct. 3, 1985.

Mark C. Guenin, Johnston, Lehman & Guenin, Wabash, for appellants.

Linley E. Pearson, Atty. Gen., Michael Schaefer, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

Chester and Carol Elder (Elders) appeal the trial court's entry of summary judgment in favor of the Department of Natural Resources (DNR) on the Elders' claim for inverse condemnation of their lakefront property. The trial court specifically found the Elders' had released all claims to damages by an earlier consent decree between the parties.

We affirm.

FACTS

The Elders are realtors and developers who owned approximately 78 acres of undeveloped property on the shoreline of Lake Wawasee, a public freshwater lake. In approximately October of 1975 the Elders began developing their real estate by depositing fill material along the shoreline. On June 25, 1976, the DNR sought an injunction against the Elders' activities, alleging the Elders had failed to obtain or apply for a permit ¹ to change or affect the lake level or shoreline of Lake Wawasee. The suit for an injunction culminated in a "consent decree" entered into between the parties upon which judgment was entered on March 21, 1979.

The consent decree incorporated a map which divided the Elders' acreage into 5 separate parcels numbered 5 through 9. The provisions of the consent decree released two parcels, totalling approximately 55 acres, for development without compliance with any permit requirement, although it subjected a portion of this property to certain development restrictions and required partial removal of the allegedly illegal fill. Approximately 23 acres of land were conveyed to the DNR together with an access easement. Specifically, Parcel 5 was released for development "without the necessity of applying for or obtaining any permits" from the DNR. Record at 55. Parcels 6 and 7, consisting of approximately 23 acres, were to be conveyed by warranty deed to the DNR. Parcel 8, consisting of approximately 2.6 acres, was retained by the Elders subject to a restriction of development only for a one family estate. Parcel 9, consisting of approximately .7 acres, was subject to a conservation easement. The Elders agreed to remove a portion of the fill material deposited on the shoreline of Parcel 9 within 18 months. The Elders also agreed to convey an access easement in favor of the DNR over Parcels 5, 8 and 9. The consent decree in turn required the DNR to survey parcels 6, 7, 8 and 9 "within six (6) months of entry of this order for the purpose of making a precise legal description." Record at 56.

On October 29, 1980, the DNR petitioned for an order to show cause why the Elders should not be found in contempt for their failure to convey Parcels 6 and 7 and to remove the fill from Parcel 9.

On February 27, 1981, in response to the rule to show cause, the Elders, pro se, filed a pleading denominated as an "Answer Cross-Claim, Petition to Show Why Should Not be Found in Contempt." On March 17, 1981 the DNR filed a Motion to Dismiss the Elders' "counterclaim". The court held a hearing on "all pending matters" on April 20, 1981. On June 15, 1981, before the court entered any ruling, the Elders, now with counsel, filed a pleading denominated "Defendants Motion to Set Aside Consent Decree." At this point, it is important to note the contents of the motion to set aside were broader than the motion's title. ² In addition to seeking to have the consent decree vacated on the basis of DNR's alleged breach of the consent decree and lack of consideration, the motion alternatively sought a determination the consent decree, if enforced, constituted a "taking of property" and prayed for a "hearing to establish the fair market value of property taken." Record at 86.

The DNR filed its response to the motion on September 1, 1981, the same date the motion was heard and taken under advisement. On November 19, 1981 the part of the "motion" seeking the vacation of the consent decree was denied. Then, in a December 29, 1981 entry [December entry], the court held the March 5, 1979 Consent On April 1, 1982 the DNR filed the legal descriptions ordered by the trial court. On July 13, the Elders executed the deeds and other documents necessary to comply with the original consent decree.

                Decree constituted a "taking by the [DNR] of interests in the lands of the [Elders] for a public use for which [the Elders] are entitled to receive just compensation."   Record at 125.  The court ordered the DNR to file exact legal descriptions for the relevant parcels, allowed the Elders ten (10) days to file written objections to the descriptions, and appointed appraisers.  The trial court, sua sponte, certified its judgment for appeal. 3  On January 12, 1982 the DNR filed a praecipe but did not perfect an appeal
                

On November 12, 1982 the appraisers submitted their assessment of damages in the amount of $633,058.00. The DNR filed its exceptions to the appraiser's report and a demand for a jury trial.

On March 23, 1983 the DNR filed a motion for summary judgment claiming the Elders' claim was barred by the effect of the consent decree. The DNR specifically called attention to the concluding paragraph of the consent decree which contained a "release" of all claims or counterclaims between the parties and a statement of the trial court's continuing jurisdiction to "resolve and enforce" the rights of the parties.

The Elders filed a motion to strike the DNR's motion for summary judgment as repetitive of the DNR's earlier Motion to Dismiss filed on March 17, 1981. After argument, the trial court granted the DNR's motion for summary judgment concluding that the consent decree was supported by valid consideration and was a final judgment barring the Elders' claim for damages due to any taking. Record at 254.

The Elders filed a motion to correct errors and perfected this appeal. Specifically, the Elders raise the following issues for review:

I. Whether the trial court erred in considering the DNR's motion for summary judgment after the DNR had failed to appeal the trial court's certified December entry and after the trial court had denied the DNR's earlier motion to dismiss which raised the same issue as the motion for summary judgment?

II. If the trial court properly considered the DNR's motion for summary judgment, did it err in granting the motion for summary judgment, did it err in granting the motion by concluding the consent decree was a valid final judgment which barred the Elder's claim for compensation?

DISCUSSION

I.

The Elders claim the trial court's May 6, 1983 judgment is erroneous because the DNR's motion for summary judgment was precluded by the trial court's earlier order which found a taking had occurred and which appointed appraisers.

This claim is first based upon their argument that when DNR failed to appeal the December entry it became the law of the case. The Elders argue the trial court's December entry, concluding the consent decree effected a taking without compensation, constituted a final judgment because it included Ind.Rules of Procedure, Trial Rule 54(B) certification language. ⁴ Hence, they argue the trial court was divested of its power to reconsider or modify the judgment because, as an unappealed final judgment, it became the law of the case. We disagree. The December entry was not an appealable final judgment because the trial court abused its discretion in "finalizing" the entry.

T.R. 54(B) follows the federal rule and, in addition, codifies the federal case law concerning the circumstances under which a judgment upon less than all the issues is appealable. Geyer v. City of Logansport, 317 N.E.2d 893 (Ind.App.1974). Accordingly, federal decisions construing and applying Fed.R.Civ.P. 54(b) are proper subjects for our consideration.

In Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297 (1956) the Supreme Court held that a trial court's certification remains subject to review for abuse of discretion and, further, the appellate court is not bound by the trial court's determination as to whether there were multiple claims presented in the cause. Also, in Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976) the Supreme Court recognized the appellate court's right to raise, sua sponte, the issue of the propriety of the trial court's certification inasmuch as it involves the question of the "jurisdiction" of the appellate court to entertain the appeal. We find these doctrines persuasive and adopt them.

T.R. 54(B) requires the existence of multiple claims or multiple parties as a predicate for relief. It does not apply to a single claim action. ⁵ Mackey, 351 U.S. 427, 76 S.Ct. 895.

Their inverse condemnation claim advanced a single legal theory which was applied to one set of facts. The DNR, via the consent decree, "took" their property without compensation. ⁶ Thus, they presented but a single claim which can not be certified under T.R. 54(B). Consequently, the trial court abused its discretion in sua sponte "certifying" an interlocutory order for review. ⁷ Because the December entry was an interlocutory order, uncertifiable under T.R. 54(B), the trial court retained the power to reconsider its December entry even after the DNR filed its first praecipe. ⁸

The Elders alternatively argue the DNR's motion for summary judgment was repetitive ⁹ of the DNR's earlier Motion to Dismiss, denied by the trial court, because both motions raised the release ¹⁰ in the consent decree as a bar to the Elder's claim for a taking. It is well-settled, however, that a trial court has inherent power to reconsider, vacate or modify any of its previous rulings as long as the...