Green River Motel Mgmt. of Dale, LLC v. State , 74A05–1104–PL–169.

• Citation: 957 N.E.2d 640
• Decision Date: 03 February 2012
• Docket Number: No. 74A05–1104–PL–169.,74A05–1104–PL–169.
• Parties: GREEN RIVER MOTEL MANAGEMENT OF DALE, LLC, et al., Appellants–Defendants, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Court of Appeals of Indiana

957 N.E.2d 640

GREEN RIVER MOTEL MANAGEMENT OF DALE, LLC, et al., Appellants–Defendants,

v.STATE of Indiana, Appellee–Plaintiff.

No. 74A05–1104–PL–169.

Court of Appeals of Indiana.

Nov. 16, 2011.Rehearing Denied Feb. 3, 2012.

Kevin R. Patmore, Patmore Law Office, Santa Claus, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, David L. Steiner, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BRADFORD, Judge.

Appellant–Defendant Green River Motel Management of Dale, LLC (“GRMM”), appeals from a judgment in its favor in the amount of $288,000 following Appellee–Plaintiff the State of Indiana's taking of 3.983 acres of GRMM's land. As restated and reordered, GRMM contends that the trial court erred in denying its summary judgment motion, the trial court abused its discretion in instructing the jury, and the trial court abused its discretion in admitting certain evidence. We affirm.

FACTS AND PROCEDURAL HISTORY

In April of 1997, Bhaskar Desai, acting in his capacity as one of the members of GRMM, purchased 11.692 acres of land along U.S. Highway 231 near its intersection with Interstate 64 and the town of Dale. GRMM built a Motel 6 on the property, and the three-story, interior corridor facility was opened for business in 1999. In 2002, Desai learned that the State intended to close the existing I–64–U.S. 231 interchange and replace it with a new interchange between I–64 and a newly-built and realigned U.S. 231 approximately 1/4 mile to the west. The relocation was completed in 2008.

As a result of the relocation, the Motel 6 is located on what is now called Old U.S. 231, and the means of access to it by road from I–64 have changed. Motorists exiting I–64 onto the new U.S. 231 who are attempting to reach the Motel 6 must drive south on U.S. 231, turn left onto one of at least two eastbound roads that connect with Old U.S. 231, and then turn left onto northbound Old U.S. 231. Access in this fashion via eastbound County Road 2050 North (“CR 2050”) adds approximately 1.6 miles to the trip, while access via eastbound State Road 62 adds approximately 4.6 miles.

Additionally, construction of the new interchange required State appropriation of some of GRMM's land. On April 2, 2003, the State filed a complaint for appropriation of 3.983 acres of GRMM's parcel. On June 4, 2003, the trial court appointed three disinterested freeholders of Spencer County to assess the benefits and damages of the taking. On July 23, 2003, the freeholders reported that GRMM was entitled to $283,550.00 from the State as a result of the appropriation. Both GRMM and the State filed exceptions to the freeholders' report. On December 2, 2003, appraiser Gregory Abell, working on behalf of the State, completed an appraisal of the appropriated property and valued it at $288,000.00.

On June 4, 2009, GRMM filed for summary judgment, asking the trial court to rule as a matter of law that the proper measure of damages to which it was entitled was the difference between value of the entire parcel before the taking and after. In the memorandum attached to the summary judgment motion, GRMM argued that the economic impact on its business resulting from moving the interchange amounted to a compensable taking under the United States and Indiana constitutions. On January 28, 2010, the trial court denied GRMM's summary judgment motion.

Prior to trial, the trial court permitted GRMM to present evidence outside the presence of the jury that Dale had an eight-ton weight limit on all of its roads; that in June of 2010 Dale had signed an agreement with the Indiana Department of Transportation (“INDOT”) to take full responsibility for operation, construction, maintenance, regulation, and liability related to Old U.S. 231 and the portion of CR 2050 connecting it with new U.S. 231; and that Indiana's weight limit for U.S. highways was forty tons. GRMM, citing the above, claimed that, as of Dale's takeover of Old U.S. 231 from INDOT, semi-trailer trucks would no longer be able to access the Motel 6 because they would exceed the weight limits for that road. The trial court ruled that it would allow GRMM to present evidence related to any loss related to decreased truck traffic.

At trial, Abell testified on behalf of GRMM. Abell testified that due to the interchange relocation and the weight limit on Dale roads, GRMM's property could no longer be considered commercial property and that total damages to GRMM were $2,235,000.00. When State's appraiser William Bartlett II was asked by the State's counsel if the “change in access [to GRMM's property was] a compensable damage to the property[,]” he replied, “No sir, it's not.” Tr. p. 143. Bartlett also testified that he was told by the Dale Town Attorney that an exception to the weight limit had been enacted for Old U.S. 231, so that GRMM's property remained accessible to large trucks. Bartlett also testified that the Town Attorney had told him that semi-trailer trucks were still being allowed to use CR 2050, even though that road was not mentioned in the ordinance containing the exception. Admitted at trial was a Dale Ordinance No.2011–2, enacted February 22, 2011, exempting Old U.S. 231, a/k/a Washington Street, from the town's eight-ton weight limit. Bartlett opined that the taking of the 3.983 acre parcel resulted in $120,000.00 of damages to GRMM. The jury returned a verdict fixing GRMM's damages at $288,000.00, which is consistent with Abell's 2003 estimate of the value of the 3.983 acres taken by the State. Both parties seem to be proceeding on the assumptions that the jury's award reflects compensation only for the 3.983 acres taken and that the jury accepted the State's argument that GRMM was entitled to no damages for loss of access to its property. We will proceed on the same assumption.

DISCUSSION AND DECISION

I. Whether the Trial Court Erred in Denying GRMM's Summary Judgment Motion

When reviewing the grant or denial of a summary judgment motion, we apply the same standard as the trial court. Merchs. Nat'l Bank v. Simrell's Sports Bar & Grill, Inc., 741 N.E.2d 383, 386 (Ind.Ct.App.2000). Summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Id.; Ind. Trial Rule 56. All facts and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. Id. To prevail on a motion for summary judgment, a party must demonstrate that the undisputed material facts negate at least one element of the other party's claim. Id. Once the moving party has met this burden with a prima facie showing, the burden shifts to the nonmoving party to establish that a genuine issue does in fact exist. Id. The party appealing the summary judgment bears the burden of persuading us that the trial court erred. Id.

Article I, section 21 of the Indiana Constitution provides that “No person's property shall be taken by law, without just compensation; nor, except in case of the State, without such compensation first assessed and tendered.” The Fifth Amendment of the U.S. Constitution similarly provides that “nor shall private property be taken for public use, without just compensation.” The Fifth Amendment's Takings Clause applies to the states via the Due Process Clause of the Fourteenth Amendment. Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980); Chi., Burlington & Quincy R.R. v. City of Chicago, 166 U.S. 226, 241, 17 S.Ct. 581, 41 L.Ed. 979 (1897). We have held that the state and federal takings clauses are textually indistinguishable and are to be analyzed identically. Cheatham v. Pohle, 789 N.E.2d 467, 472–73 (Ind.2003) (citing B & M Coal Corp. v. United Mine Workers of Am., 501 N.E.2d 401, 406 (Ind.1986)).

There is no question that an exercise of eminent domain ... is a constitutional “taking.” Other forms of governmental action, however, are “takings” only if they meet the prevailing federal standard, which is that government action effects a taking if it deprives an owner of all or substantially all economic or productive use of his or her property. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 538–40, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005).

State v. Kimco of Evansville, Inc., 902 N.E.2d 206, 210–11 (Ind.2009).

GRMM contends that the alteration of access to its property caused by the relocation of the interchange resulted in losses such that a taking has occurred and that it designated undisputed evidence to that effect, entitling it to summary judgment. In essence, this is an inverse condemnation claim, although not designated as such. “Inverse condemnation is a process provided by statute that allows individuals to be compensated for the loss of property interests taken for public purposes without use of the eminent domain process.” Ctr. Townhouse Corp. v. City of Mishawaka, 882 N.E.2d 762, 770 (Ind.Ct.App.2008) (citing Ind.Code § 32–24–1–16), trans. denied.

“It has long been recognized that the right of ingress and egress is a property right which cannot be taken without compensation.” Jenkins v. Bd. of Cnty. Comm'rs of Madison Cnty., 698 N.E.2d 1268, 1270 (Ind.Ct.App.1998), trans. denied. On the other hand, however, “although an elimination of rights of ingress and egress constitutes a compensable taking, the mere reduction in or redirection of traffic flow to a commercial property is not a compensable taking of a property right.” Kimco, 902 N.E.2d at 214. “The general rule is that there is no property right of an abutting property owner in the free flow of traffic past his property and thus no compensation can be claimed if traffic is diverted from his premises or made to travel a more circuitous route.” Id. at 213 (quoting State v. Ensley, 240 Ind. 472, 489, 164 N.E.2d 342, 350 (1960)).

Here, GRMM designated no evidence in support of its summary judgment motion tending to...