MDM INVESTMENTS v. City of Carmel

• Citation: 740 N.E.2d 929
• Decision Date: 21 December 2000
• Docket Number: No. 29A02-9912-CV-834.,29A02-9912-CV-834.
• Parties: MDM INVESTMENTS, Appellants-Movant Below, v. CITY OF CARMEL, Indiana, Appellee-Plaintiff Below, and Carlsbad Construction Company, Carlsbad Building Company, Robert W. Brenton, Community Bank, FSB, Safeco, Inc., Castleton Lumber Co., Inc., and Blair Window Products, Inc., Defendants Below.
• Court: Court of Appeals of Indiana

740 N.E.2d 929

MDM INVESTMENTS, Appellants-Movant Below, v. CITY OF CARMEL, Indiana, Appellee-Plaintiff Below, and Carlsbad Construction Company, Carlsbad Building Company, Robert W. Brenton, Community Bank, FSB, Safeco, Inc., Castleton Lumber Co., Inc., and Blair Window Products, Inc., Defendants Below.

No. 29A02-9912-CV-834.

Court of Appeals of Indiana.

December 21, 2000.

Michael D. Ramsey, Johnson, Smith, Pence & Heath, Indianapolis, Indiana, Attorney for Appellant.

Christopher L. Riegler, Robert A. Hicks, Letha S. Kramer, Hall, Render, Killian, Heath & Lyman, Indianapolis, Indiana, Attorneys for Appellee City of Carmel.

OPINION

SULLIVAN, Judge

Appellant, MDM Investments (MDM), appeals the trial court's order denying its motion to reopen condemnation proceedings initiated by appellee, the City of Carmel (City). In particular, MDM contends that the City was statutorily required to amend the condemnation complaint during the condemnation proceedings for a right-of-way to name MDM as an owner, once it learned of MDM's status as a subsequent purchaser. MDM further contends that even if the City was not required to amend the complaint, at a minimum the City was required to provide MDM, a known party, with notice of the valuation process.

We affirm.

On January 27, 1998, the City, pursuant to its eminent domain powers, initiated proceedings to condemn property owned by Carlsbad Construction Company¹ (Carlsbad). After unsuccessfully attempting to purchase the property, the City filed a condemnation complaint, naming Carlsbad as owner of the property. That same day, the City filed in the Hamilton County Superior Court a lis pendens notice indicating that condemnation proceedings had been initiated against the property. The following day, the City sent a copy of the summons and complaint by certified mail to all named parties, including Carlsbad and Brenton. The summons informed the parties to appear in the Hamilton Superior Court No. 1 on February 25, 1998, to show cause why the property in question should not be appropriated. Although the summonses sent to Carlsbad and Brenton were returned unsigned and marked "not deliverable," the City later obtained service upon them by alias summons on February 20,1998. Record at 34, 35, 40. While the City was attempting service upon Carlsbad and Brenton, MDM purchased the property at a sheriff's sale in connection with a mortgage foreclosure on January 30, 1998, three days after the condemnation complaint was filed. On February 6, 1998, the City's attorney sent Marshall Welton, who was purportedly acting on behalf of MDM, a letter, informing him that the City was in the process of condemning a strip of land on the north end of the property. Included in the letter was a copy of the condemnation complaint and a proposal to purchase the property for $14,630. The letter specifically provided, however, that the offer was contingent upon MDM providing proof of ownership.

What happened next is disputed. MDM contends that upon receiving the letter, Welton contacted the City's attorney and asked him what MDM needed to do to preserve its rights to the property. Allegedly, the City's attorney advised Welton "not to worry," that he need not attend the condemnation hearing and that the City would "handle" the issues related to the condemnation. Record at 109. The City, by its attorney, claims that the City never received a response to the February 6, 1998 letter, but eventually spoke to an unidentified individual, allegedly representing MDM, and told him that a hearing was to be held. The City's attorney specifically denied telling MDM's agent not to worry about the hearing. No one from MDM made an appearance at the condemnation hearing.

On March 23, 1998, the City filed a Motion to Appoint Appraisers which was granted by the court on March 31, 1998. On April 30, 1998, the appraisers filed their report, valuing the property at $4,000. The trial court entered an order accepting the appraisers' report on May 7, 1998, and on July 14, 1998, Carmel filed a Motion for Order of Appropriation which was also granted by the trial court. Although Carlsbad continued to receive notice of the appraisers' report and the court's order transferring the property to the City, MDM did not.

Sometime later, MDM discovered that the right-of-way had been appropriated to the City. As a result, on August 25, 1999, MDM filed a Motion to Reopen Proceedings and Notice of Exceptions to Appraiser's Report. The trial court denied MDM's motion and MDM now appeals.

As stated in Lehnen v. State (1998) Ind. App., 693 N.E.2d 580, 582,trans. denied: "Eminent domain proceedings are statutory, and where the statute fixes a definite procedure it must be followed." Because MDM's argument is based upon the eminent domain statute set forth at I.C. XX-XX-X-X et seq. (Burns Code Ed. Repl. 1995), we briefly summarize those provisions. A party seeking to exercise its eminent domain powers must make an effort to purchase the property for its intended use. I.C. XX-XX-X-X(b); I.C. XX-XX-X-X.1. If the condemnor and the owner cannot agree upon a purchase price, the condemnor may file a complaint with the clerk of the circuit court of the county where the land is situated. I.C. XX-XX-X-X. The complaint must include among other things "[t]he names of all owners, claimants and holders of liens on the property or right, if known, or a statement that they are unknown, who shall be styled defendants." I.C. XX-XX-X-X(2). "Upon the filing of such complaint the clerk shall issue a notice requiring the defendants to appear before said court ... on the day to be fixed by the plaintiff by indorsement on the complaint at the time of filing said complaint, and to show cause, if any, why the property sought to be condemned should not be appropriated." I.C. XX-XX-X-X(a). The notice must be served in "the same manner as a summons is served in civil actions." I.C. XX-XX-X-X(b). Defendants are then afforded an opportunity to file objections to the condemnation. I.C. XX-XX-X-X. If no objections are filed or any objections made are overruled, the trial court appoints appraisers to assess the value of the property. I.C. XX-XX-X-X. Once the appraisers' report is filed, "[n]otice of filing of the appraisers' report shall be given by the clerk of the court to all known parties to the action and their attorneys of record by certified mail." I.C. XX-XX-X-X. A party aggrieved by the assessment may file written exceptions twenty (20) days after the filing of the report. I.C. XX-XX-X-X. If no exceptions are filed and the party seeking condemnation pays the amount assessed into the clerk of the court, the auditor transfers the property to the condemnor. I.C. XX-XX-X-X. When the City filed its condemnation complaint on January 27, 1998, MDM was not the record owner of the property, as the sheriff's sale did not occur until January 30, 1998. Pointing to its status as a subsequent owner, MDM contends that the City should have amended its complaint to include MDM after it purchased the property. MDM asserts that because the City had knowledge of MDM's status as owner as of February 6,1998, its failure to amend the complaint violated Section 2's requirement that all owners receive notice of the proceedings. MDM further contends that even if the City was not statutorily obligated to amend its complaint to include MDM, the City, at least, should have provided MDM with notice of the appraisers' report so that it had an opportunity to contest the valuation of the property. In support of its contention, MDM observes that condemnation actions are bifurcated, consisting of an appropriation and a valuation stage, and Section 8 specifically requires that notice of the appraisers' report be sent to "all known parties to the action." Thus, MDM contends it should have received notice of the appraisers' report and because it did not, the twenty-day period for filing exceptions to the appraisers' report was extended indefinitely.

Initially, we note our standard of review. The nature of MDM's "Motion to Reopen Proceedings and Notice of Exceptions to Appraiser's Report" is not readily apparent. While substantively the motion seeks to "reopen" the valuation proceedings to enable MDM to contest the appraisers' report, it does not refer to a particular trial rule. It appears, however, that the trial court, in concluding that "MDM has given no reason for this Court to set aside a valid, final judgment," treated MDM's motion as a motion to set aside the judgment under Ind. Trial Rule 60. Record at 144. This court has indicated its preference to place substance over form. See Town of St. John v. Home Builders Ass'n of Northern Indiana, Inc. (1981) Ind.App., 428 N.E.2d 1299, 1302

(determining that although party labeled a motion as a "motion to reconsider," it would be treated as a T.R. 60 motion because substantively it met the requirements of a T.R. 60 motion), trans. denied. Therefore, we agree with the trial court's treatment of the motion. We further note that because T.R. 60 provides only "a party"² relief from judgment, MDM's motion was also a request to intervene under Ind. Trial Rule 24 for purposes of filing the T.R. 60 motion. See T.R. 60(B) ("On motion and upon such terms as are just the court may relieve a party ... from ... final order, or final judgment ....") (emphasis supplied); Greenfield v. Greenfield (1992) Ind.App., 591 N.E.2d 1057, 1059 (noting that trial court did not have authority under T.R. 60 to set aside a judgment and reinstate a dissolution action where petitioners were not original parties to the dissolution action and did not file appropriate motions to become parties to the action), trans. denied; T.R. 24(C) (allowing for intervention "after trial or after judgment for purposes of a motion under Rules 50, 59, or 60...."). Thus, we will review the denial of MDM's motion as a denial of a motion to set aside a judgment. Moreover, for purposes of...