McGill v. Muddy Fork of Silver Creek Watershed Conservancy Dist., 1-976A159

• Citation: 175 Ind.App. 48,370 N.E.2d 365
• Decision Date: 06 December 1977
• Docket Number: No. 1-976A159,1-976A159
• Parties: Aubrey C. McGILL and Beatrice McGill, Appellants (Defendants below), v. MUDDY FORK OF SILVER CREEK WATERSHED CONSERVANCY DISTRICT, Appellee (Plaintiff below).
• Court: Court of Appeals of Indiana

Page 365

370 N.E.2d 365

175 Ind.App. 48

Aubrey C. McGILL and Beatrice McGill, Appellants (Defendants below), v. MUDDY FORK OF SILVER CREEK WATERSHED CONSERVANCY DISTRICT Appellee (Plaintiff below).

No. 1-976A159.

Court of Appeals of Indiana, First District.

Dec. 6, 1977.

William J. Hanger and William L. Allen, III, Hanger, Allen & Engebretson, Clarksville, for appellants.

Chester R. Hobbs, Salem, for appellee.

LYBROOK, Judge.

This appeal arises from a judgment of the trial court in a condemnation proceeding. The trial court granted motions, filed by the plaintiff-appellee conservancy district (District), to withdraw its exceptions to the appraisers' report as well as those exceptions filed by the defendants-appellants, Aubrey C. and Beatrice McGill, which thereby removed the issue of compensation for damages from a determination by a jury and fixed damages at the amount stated in the appraisers' report.

We affirm.

A statement of the proceedings in this case will reveal the facts necessary for our decision. On November 4, 1971, the District filed its complaint in condemnation against the McGills, who entered an appearance in the same month. At a hearing on December 15, 1971, the court issued the order of appropriation and appointment of appraisers, wherein the appraisers were ordered to file their report with the clerk on the 10th day of January, 1972, at 9:30 o'clock, a. m. The order reveals that Aubrey C. McGill, Beatrice McGill and the attorney for the District were present in court when the order was issued. The District filed a request for trial by jury on the issue of damages, on December 20, 1971. The appraisers filed their report as ordered, on January 10, 1972, and on the same day the District filed its exceptions to the report. The McGills did not file their exceptions to the report until January 21, 1972. No other pleadings were filed in this case until February 21, 1975, at which time the McGills requested a jury trial. The trial was set for June 26, 1975. On June 20, 1975, the District filed three motions: (1) to withdraw its own exceptions to the appraisers' report, (2) to withdraw the McGills' exceptions, and (3) for summary judgment. On June 25, 1975, the McGills filed a motion to strike the District's motions and submitted a supporting brief. The trial date was continued, and on April 7, 1976, the court granted the District's motions to withdraw and dismiss the exceptions. Because the court did not rule on the motion for summary judgment, the McGills filed a Trial Rule 53.1 motion to withdraw submission of the motion from the judge. On June 21, 1976, the Indiana Supreme Court denied the motion to withdraw submission based on its finding that the motion for summary judgment was moot. On June 7, 1976, the McGills moved for a rehearing on the District's motions and in the alternative moved to correct errors. The trial court denied the motions and an appeal was perfected.

The McGills present eight issues for our review:

I. Whether the District withdrew its exceptions to the appraisers' report in an untimely manner;

II. Whether the District filed its motions (a) to dismiss its exceptions, (b) to dismiss the McGills' exceptions and (c) for summary judgment in an untimely manner and in contradiction of a local rule of Clark County Circuit Court;

III. Whether the District's motion for summary judgment was improperly filed under Trial Rule 56;

IV. Whether the 1973 amendment of IC 1971, 32-11-1-8 (Burns Code Ed.) is a procedural amendment which must be applied retroactively to this case;

V. Whether the same 1973 Amendment was remedial and whether it should be applied to this case;

VI. Whether the clerk of the court was required, by Trial Rules 5(A) and 72(D), to notify the McGills or their attorney of the filing of the appraisers' report, and whether failure to so notify was prejudicial to the McGills;

VII. Whether the trial court erred in refusing a trial by jury;

VIII. Whether the rulings of the trial court constitute an unconstitutional taking of the McGills' property without just compensation as required by both the United States and Indiana constitutions.

I.

McGills contend that the trial court erred in granting the District's motion to dismiss its exceptions to the appraisers' report, which, coupled with the granting of its other motions, allowed the District to withdraw the case from a determination by a jury "on the eve of trial." The McGills contend that they were prejudiced by this ruling because they had invested substantial time and had incurred expenses in preparation for the trial.

The McGills argue that State v. Blount (1972), 154 Ind.App. 580, 290 N.E.2d 480, is similar and therefore controlling on the issue whether the District's motions for withdrawals of exceptions to appraisers' report were untimely.

In Blount, the State filed a condemnation complaint, the order of appropriation was entered, appraisers were appointed, their report was filed, and the State filed exceptions to the award and a demand for a jury trial. There the similarity to the instant case ends. Pursuant to Ind.Rules of Procedure, Trial Rule 16, the parties in Blount attended a pre-trial conference and the court entered a pre-trial order. That order listed the issues, stated that the issues were closed, set the trial date, and further declared:

" 'Pre-trial order governs : This pre-trial order has been formulated after a conference with Counsel for the respective parties and unless corrections are submitted to the Court within five days from the date of receipt of copy of the order, this order will control the course of the trial and may not be amended except by consent of the parties and the court, or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein.' (Emphasis supplied)." 290 N.E.2d at 482.

On the day of the trial the State refused to proceed. Subsequently the State moved to withdraw its exceptions but that motion was denied and the case proceeded to trial. On appeal the State argued that it had an absolute right to withdraw its exceptions in a condemnation case. This court held that the State, having sought a jury trial and having agreed thereto via the pre-trial order, could not thereafter unilaterally withdraw or dismiss its exceptions in contravention of the agreed pretrial order.

The parties in the case at bar did not participate in a pre-trial conference or agreement, or receive a pre-trial order. This court did not hold in Blount that there is some time span after which a motion to withdraw in a condemnation case becomes untimely; or that solely by filing a request for a jury trial some "implied agreement" arises between the parties which precludes any later withdrawal of the exceptions.

We do not find Blount compelling in this case. In the absence of such an express agreement or pre-trial order we hold that the District's motion to withdraw its exceptions was timely filed and the trial court did not err in granting said motion.

II.

Secondly, the McGills contend that the trial court erred in considering and ultimately granting the District's motion to dismiss its exceptions to the appraisers' report, to dismiss the defendants' exceptions to the appraisers' report, and for summary judgment, which were improperly filed under Rule 11 of the Local Rules of Practice of the Clark Circuit Court. The Rule provides that:

"Each adverse party shall have 15 days after service of the motion in which to file and serve his response, and the moving party shall have 5 days after service of the response in which to file and serve his reply."

The District's three motions were filed on June 20, 1975, six days before the date set for trial.

Clearly the purpose of this local rule is to provide an opportunity for the party against whom a motion is filed to oppose the motion and to have ample time to prepare a brief to aid the trial court in its ruling on the motions. The McGills apparently had ample opportunity to oppose the motion, because on June 25, 1975, they filed both a motion to strike the District's motions as well as a thorough brief on the points of law. The same day, after the court took the matter under advisement, the attorneys for the parties jointly moved for a continuance, ¹ which motion the court granted. The ruling on the motions was not made before the end of the period provided in Rule 11 for filing of opposing motions and briefs. On September 9, 1975, the McGills filed a supplemental brief, and on April 7, 1976, the court ruled on the motions.

The motions filed by the District were not ruled on before affording the McGills reasonable opportunity to oppose them. The McGills do not argue that they were prejudiced by these proceedings, but only contend without authority that since the motions were filed improperly under the local rule, said motions should have been dismissed.

Since the parties were able to file their briefs and motions, the McGills were not prejudiced and the purpose of the local rule was not thwarted. We hold that the trial court committed no error in considering the District's motions and in rendering its decision thereon.

III.

Since we have held above that the trial court's judgment granting the District's motions to dismiss the exceptions is without error, we do not need to consider the McGills' third issue in which they argue that the District's motion for summary judgment, also filed on June 20, 1975, was improperly filed under Ind.Rules of Procedure, Trial Rule 56(C). ² The decision of the trial court which dismissed the exceptions to the appraisers' report removed the necessity for a trial and rendered moot the motion for summary judgment which was subsequently stricken from the trial record.

IV. & V.

We will consider together the McGills' fourth and fifth issues, wherein they contend that the amendment of IC 1971, 32-11-1-8 (Burns Code Ed.), which became effective in 1973, should have been applied...