Hass v. State, Dept. of Transp.

• Decision Date: 20 March 2006
• Docket Number: No. 64A03-0501-CV-11.,64A03-0501-CV-11.
• Citation: 843 N.E.2d 994
• Parties: Randall HASS, Lewis Hass, III, Dr. Richard Hass, and Porter County, Indiana, Appellants-Defendants, v. STATE of Indiana — Department of Transportation, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 994

843 N.E.2d 994

Randall HASS, Lewis Hass, III, Dr. Richard Hass, and Porter County, Indiana, Appellants-Defendants, v. STATE of Indiana — Department of Transportation, Appellee-Plaintiff.

No. 64A03-0501-CV-11.

Court of Appeals of Indiana.

March 20, 2006.

COPYRIGHT MATERIAL OMITTED

Randall Hass, Lewis Hass, III, Dr. Richard Hass, Villa Park, IL, pro se Appellants.

Steve Carter, Attorney General of Indiana, Maureen Ann Bartolo, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

Randall Hass, Richard Hass, and Lewis Hass III ("Appellants") appeal the trial court's judgment arising from an eminent domain case in which they had their land appropriated by the Indiana Department of Transportation ("INDOT"). Specifically, Appellants allege that the trial court erred by overruling their objections to INDOT's complaint for appropriation, that the compensation award did not include all statutorily-required damages, and that the trial court judge should have recused himself. Finding no error, we affirm.

Facts and Procedural History

On October 30, 2002, INDOT wrote to Appellants, informing them that it needed a parcel of their land on U.S. 6 in Porter County, Indiana, for purposes of Project No. STP-212-1(14), a public highway improvement ("the Project"). INDOT offered to purchase Appellants' land for the sum of $9580.00, but Appellants rejected this offer. Thereafter, on September 25, 2003, INDOT filed a Complaint for Appropriation of Real Estate ("Complaint") asking the trial court to order the appropriation of Appellants' land.

Appellants then filed twenty-three objections to INDOT's Complaint. Judge Bradford overruled all of Appellants' objections and appointed three appraisers, who determined the fair market value of Appellants' property to be $28,480.00. The court ordered INDOT to deposit that amount and the $2150.00 appraisers' fee with the clerk of courts, which INDOT did. As Appellants failed to file exceptions to the appraisers' report by the statutory deadline, INDOT filed a Motion for Judgment. Therefore, on August 24, 2004, Judge Bradford entered judgment, awarding title to the land to INDOT and $28,480.00 to Appellants.

Thereafter, on November 9, 2004, the trial court clerk received Judge Bradford's August 24, 2004, order, and service was issued that day. On November 17, 2004, Appellants filed two motions, a "Motion to Vacate a Judgment Based on Fraud or in the Alternative Motion to Reconsider Based on Failure to Meet Requirements of Law" ("Motion to Vacate Judgment") and a "Motion To For [sic] Stay of Proceedings" ("Motion to Stay"). Id. at 136-40. Judge Bradford filed the following order on December 10, 2004:

The Court has reviewed the motions and other items pending in this cause and finds that further hearing is unnecessary. The Court now denies [Appellants'] Motion to Stay Proceedings filed November 17, 2004 and further denies [Appellants'] Motion to Vacate Judgment, that was also filed November 17, 2004.

The judgment entered by the Court on August 24, 2004 shall stand as a final appealable order in this cause.

On October 12, 2004 [Appellants] filed a Notice of Appeal. The Clerk has subsequently filed a Notice of Completion of Clerk's Record. That record should be supplemented by a copy of the August 24, 2004 judgment. This cause is to proceed on appeal as if [Appellants'] Notice of Appeal was filed on the date of this order.

Appellee's App. p. 144. Appellants filed a Notice of Appeal on January 7, 2005, and this appeal ensues.¹

Discussion and Decision

As a preliminary matter, INDOT contends that Appellants waived appellate review on all issues by failing to provide cogent argument and adequate citations to the record. See Ind. Appellate Rule 46(A)(8)(a). While we agree with INDOT that the briefs submitted by the pro se Appellants are at times difficult to understand, we prefer to address issues on their merits if possible. Welch v. State, 828 N.E.2d 433, 436 (Ind.Ct.App.2005). Here, we were able to identify the following issues: (1) whether the trial court properly overruled Appellants' objections challenging INDOT's need for their property and claiming that INDOT fraudulently concealed the true purpose of the taking; (2) whether the appraisers failed to consider certain elements of damages; and (3) whether Judge Bradford should have recused himself. We discuss each issue below.

I. Objections

Appellants' main contention on appeal is that the trial court erred in overruling its objections to INDOT's Complaint. Specifically, Appellants argue (1) that INDOT does not need their land for the Project and (2) that INDOT's true purpose in taking their land is to benefit private utility companies. INDOT responds that Appellants waived appellate review of the trial court's order overruling its objections by failing to timely appeal from that interlocutory order. We must agree.

"Eminent domain proceedings are statutory, and where the statute fixes a definite procedure it must be followed." Lehnen v. State, 693 N.E.2d 580, 582 (Ind. Ct.App.1998), trans. denied. The procedure for the exercise of eminent domain is outlined at Indiana Code § 32-24-1-1 et seq. This Court has summarized the process 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 twenty days of the date the report of appraisal is filed, either or both parties may file "exceptions" to the appraisal. 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.

Id. at 581-82. Generally stated, the "objections" phase of an eminent domain proceeding concerns the propriety of the taking itself, while the "exceptions" phase deals with the issue of just compensation. See Cordill v. City of Indianapolis Through Dep't of Parks and Recreation, 168 Ind.App. 685, 694, 345 N.E.2d 274, 279 (1976) (Sullivan, J., dissenting) ("Eminent domain proceedings . . . are peculiarly bifurcated.").

An appeal could arise from either of these two phases. Here, the Appellants filed objections, which the trial court overruled. Indiana Code § 32-24-1-8(e) provides, in pertinent part: "If the objections are overruled, the court shall appoint appraisers as provided for in this chapter. Any defendant may appeal the interlocutory order overruling the objections and appointing appraisers in the same manner that appeals are taken from final judgments in civil actions[.]"

In construing similar language from the predecessor to Indiana Code § 32-24-1-8,² the Indiana Supreme Court has held that if a defendant fails to timely appeal from an interlocutory order overruling objections, he waives review of those issues. Thiesing Veneer Co. v. State, 254 Ind. 699, 700-01, 262 N.E.2d 382, 383 (1970). The Court has explained the reason for this rule:

If there was sufficient injury done the appellant at that point in the proceedings, it would be only fair to all concerned that the issue be expeditiously presented to this court for consideration on appeal before further proceedings were had therein, consuming time and money of all the parties concerned.

Whitlock v. Pub. Serv. Co. of Ind., Inc., 239 Ind. 680, 686, 159 N.E.2d 280, 283 (1959), reh'g denied; see also State v. Robertson, 260 Ind. 174, 179-180, 293 N.E.2d 775, 778-79 (1973) (finding waiver where plaintiff failed to take interlocutory appeal of trial court order sustaining defendant's objections). In other words, the reason a defendant is required to immediately appeal an interlocutory order overruling objections is that if those objections are sustained on appeal, the trial court may not even need to reach the second phase of the eminent domain proceeding, i.e., the valuation phase.

We acknowledge what may be considered a trend in Indiana decisions toward finding that a claimed error in an interlocutory order is not waived for failure to take an interlocutory appeal but may be raised on appeal from the final judgment. Bojrab v. Bojrab, 810 N.E.2d 1008, 1014 (Ind.2004); Georgos v. Jackson, 790 N.E.2d 448, 452 (Ind.2003). This trend places into question the continued validity of the mandatory interlocutory appeal rule of Whitlock, Thiesing Veneer, and Robertson. This Court has said that the rationale behind a rule prohibiting appeals of interlocutory orders after final judgment is that those appeals are often moot by the time final judgment is entered. In re Newman's Estate, 174 Ind.App. 537, 545-46, 369 N.E.2d 427, 432 (1977) (asserting that an appellate court would be wasting its time to consider the merits of a trial court's issuing a temporary injunction when the injunction has been either superseded or dissolved by the time of the appeal from a final judgment in proceedings subsequent to the issuance of the injunction). However, a trial court's overruling of a defendant's objections to an eminent domain complaint does not become moot upon entry of final judgment. To the contrary, if a defendant could prove on appeal that the trial court erred in overruling his objections, it is possible that the appellate court would have to reverse the trial court's final judgment, not just the decision on the objections.

That being said, we are constrained by Indiana Supreme Court precedent to hold that a defendant who fails to take an interlocutory appeal of a trial court order denying objections to an eminent domain complaint waives review of that...