State, Dept. of Natural Resources v. Taylor, No. 1-1080A308

• Docket Nº: No. 1-1080A308
• Citation: 419 N.E.2d 819
• Case Date: April 28, 1981
• Court: Court of Appeals of Indiana

Page 819

419 N.E.2d 819 STATE of Indiana, DEPARTMENT OF NATURAL RESOURCES et al.,
Defendants-Appellants,
v.
Arthur J. TAYLOR and Juanita Taylor, Plaintiffs-Appellees. No. 1-1080A308. Court of Appeals of Indiana, First District. April 28, 1981.

Page 820

Linley E. Pearson, Atty. Gen., of Indiana, G. Richard Potter, Deputy Atty. Gen., Indianapolis, for defendants-appellants.

James W. Boswell, III, McCormick, Weber & Boswell, Terre Haute, for plaintiffs-appellees.

NEAL, Presiding Judge.

This is an interlocutory appeal by the State of Indiana, Department of Natural Resources, Natural Resources Commission, and its individual members (Department) from a denial of its motion for summary judgment in the Parke Circuit Court, in a suit filed by Arthur J. Taylor and Juanita Taylor (Taylors) for damages, injunctive relief, and judicial review of an order of the Department.

We reverse.

STATEMENT OF THE FACTS

Taylors' complaint filed on April 13, 1976, alleges the following facts. In 1954 Taylors commenced the construction of a dam on their property. In 1967 they consulted the Department and were told that no permit for a dam was necessary because the dam and lake were wholly on their property. Taylors continued to work on their dam and stocked the attending lake with fish. However, on April 19, 1974, the Department issued an order for them to stop any further construction on the dam. A hearing regarding the safety of the dam was subsequently held on May 23, 1974, before the Natural Resources Commission, and on May 30, 1974, Taylors were ordered to cease further construction on the dam, to dewater the lake, and to breach the dam. Thereafter Taylors filed a petition for the right to introduce newly discovered evidence. They alleged that numerous letters were written to the Department which remained unanswered. On March 27, 1975, a hearing was held pertaining to the newly discovered evidence, but the ruling thereon was deferred until September 25, 1975, nearly 16 months after the original order issued. By its ruling the Department affirmed the prior order.

Further, the complaint indicates that on September 25, 1975, Taylors filed a petition for judicial review of the Department's order in the Parke Circuit Court. The Department did not certify the various letters, orders, and transcript until January 20, 1976. The record does not indicate the disposition of the proceedings on judicial review of the administrative action. The Taylors express in their appellee's brief on this appeal, however, that on some unspecified date, "a hearing was had and the Parke Circuit Court set aside the Commission's Order of September 25, 1975, which had required the Taylors to dewater their lake and breach their dam."

On March 17, 1976, Taylors filed a Notice of Tort Claim, pursuant to Ind. Code 34-4-16.5-9, against the Department, based on its action in the above-mentioned proceedings. Before expiration of the ninety-day period provided by the Tort Claims Act for the State to respond, Taylors filed a suit for damages, injunctive relief, and judicial review against the Department, thus commencing the instant case.

The record, submitted by the Department, reveals that in 1979 a second administrative hearing was held before a hearing officer for the Department. This hearing was held to determine whether Taylors' dam was constructed "in violation of the Indiana Flood Control Act and whether the dam is unsafe and dangerous to life and property under Ind. Code 13-2-20-1, et seq." The hearing officer's report and recommendation, which were later approved and adopted by the Department as a final order, reflected a finding adverse to Taylors.

Taylors sought judicial review of the 1979 order in the Parke Circuit Court. This was venued to the Montgomery Circuit Court,

Page 821

which upheld the administration action. That court's action upon the judicial review appears from the record not to have been appealed by Taylors.

The complaint in the present case contains six pleading paragraphs; as condensed by Taylors in their brief, the bases of this action are stated as follows:

"1. The Commission's actions were arbitrary, capricious and an abuse of discretion;

2. The Commission's actions were in excess of statutory authority;

3. The Commission's actions violated the Taylors' constitutional rights;

4. The Commission's actions were without observance of procedure required by law;

5. The negligence of the defendants;

6. The Commission should be estopped from ordering the Taylors to dewater their lake and destroy their dam due to the fact that the Taylors were previously informed by the Commission that no license or permit would be necessary because the dam and lake were located on the Taylors' own property; and

7. The individuals named, while not acting in pursuance of their lawful duties, intentionally and willfully committed certain acts all to Taylors' damage, which acts were ratified by the Commission."

The various paragraphs of the complaint prayed for damages, actual and punitive, injunctive relief, and judicial review.

ISSUES

The Department argues that its motion for summary judgment was erroneously denied for the following reasons:

I. The Department and the individuals therein are immune from liability for damages under Ind. Code 34-4-16.5-3 of the Indiana Tort Claims Act; and

II. The January 23, 1980, judgment of the Montgomery Circuit Court, which sustained the Department's 1979 Order should operate to bar the present suit under the doctrine of res judicata.

DISCUSSION AND DECISION

An order denying a motion for summary judgment is generally not an appealable interlocutory order, and is generally to be challenged by a motion to correct errors after a final judgment or order is entered. Ind. Rules of Procedure, Trial Rule 56(E); Pitts v. Wooldridge, (1974) 161 Ind.App. 404, 315 N.E.2d 736. However, Ind. Rules of Procedure, Appellate Rule 4(B)(5) permits us to entertain review, upon certification by the trial court, of such an appeal if we determine certain criteria are met. A.R. 4(B)(5) states that appeals from interlocutory orders may be taken to this court in the following situations, among others:

"(5) Any other interlocutory order, if the trial court certifies and the court on appeal or a judge thereof finds on petition that:

(a) The appellant will suffer substantial expense, damage or injury if the order is erroneous and the determination thereof is withheld until after judgment, or

(b) The order involves a substantial question of law, the early determination of which will promote a more orderly disposition of the case...."

The parties present no conflict in the operative facts as recited above and agree that there is no genuine issue of material fact necessitating resolution. Our review is thus limited to consideration of whether the trial court erred in denying the Department's motion for summary judgment, a finding that necessarily implies that Taylors have demonstrated a cause of action sufficient to withstand the defenses interposed by the Department. Since the Department has raised defenses which, if applicable, will entitle it to judgment as a matter of law, we find that the requisites of A.R. 4(B)(5)(a) and (b), supra, are present, and we proceed to consider the appeal.

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