State v. Berger

• Decision Date: 21 February 1989
• Docket Number: No. 02A03-8807-CV-199,02A03-8807-CV-199
• Citation: 534 N.E.2d 268
• Court: Indiana Appellate Court
• Parties: STATE of Indiana, Plaintiff-Appellant, v. Lawrence A. BERGER, Betty Lou Berger, Auditor of Allen County, and Treasurer of Allen County Defendants-Appellees.

Page 268

534 N.E.2d 268

STATE of Indiana, Plaintiff-Appellant, v. Lawrence A. BERGER, Betty Lou Berger, Auditor of Allen County, and Treasurer of Allen County Defendants-Appellees.

No. 02A03-8807-CV-199.

Court of Appeals of Indiana Third District.

Feb. 21, 1989.

Linley E. Pearson, Atty. Gen., Dennis K. McKinney, Deputy Atty. Gen., Indianapolis, for plaintiff-appellant.

Walter P. Helmke, J. Timothy McCaulay, Helmke, Beams, Boyer & Wagner, Fort Wayne, for defendants-appellees.

GARRARD, Presiding Judge.

This eminent domain proceeding was tried to a jury upon the landowners' exceptions to the award of the court appointed appraisers. It resulted in a verdict and judgment of damages in the sum of $151,515.21.

The state appeals, contending that the trial court committed reversible error in permitting the amount of damages to be tried by jury because the landowners failed to file timely exceptions. To place the argument in perspective it is necessary to review the procedural occurrences that led to the trial.

On February 18, 1986 the state filed its complaint seeking to appropriate a parcel of real estate owned by the Bergers together with access rights from the residue to I 69.

On March 19, 1986 the court ordered the real estate appropriated and appointed appraisers to assess damages. At that time Bergers had not been served with process. (See IC 32-11-1-3 requiring notice and IC 32-11-1-4 requiring proof of notice before the court orders appropriation and appoints appraisers.) On April 24, 1986 Bergers appeared by counsel; the court determined they had not been served with process and the order of March 19 was vacated.

On May 13, 1986 the state requested alias summons be issued and Bergers were subsequently served.

On May 22, 1986 the court named Bill Farbing as an appraiser to assess damages. (The court did not reappoint the other two appraisers or re-enter an order of appropriation.) The next day counsel filed written appearance on behalf of the Bergers.

On June 22, 1986 the three appraisers (Farbing and two others named in the order of March 19th) returned their report assessing total damages of $22,178.65.

The report of appraisal was mailed by the clerk to Bergers on July 16, 1986 and to the state on August 5, 1986. (IC 32-11-1-8 provides that any party may file exceptions to the appraisers' report within twenty (20) days after the date of mailing by the clerk of the notice of the filing of the report of appraisers.)

On August 5, 1986 the state filed its exceptions to the report of appraisers. Bergers filed exceptions on September 17, 1986.

Then on January 13, 1987 the state moved to dismiss its exceptions. The state's motion referred to the order of March 19, 1986 and recited that Bergers had not filed exceptions. Bergers filed objections to the state's motion asserting that they had filed exceptions. The state then moved to strike Bergers' exceptions as untimely and Bergers moved to vacate the appraisers' report as not in conformity to law.

After hearing, the trial court determined that the appropriation proceedings failed to meet the statutory requirements. It vacated the appraisers' report and entered a new order appropriating the real estate and appointing appraisers. The appraisers' report pursuant to this order was filed June 8, 1987; Bergers filed exceptions on June 24, 1987 and the case then proceeded to trial.

In attacking the results of this procedure the state presents essentially two arguments. Its principal contention is that the exceptions filed by Bergers on September 17, 1986 were beyond the twenty day limitation provided by IC 32-11-1-8; that they were therefore a nullity; and, consequently, when the state moved to dismiss its exceptions on January 13, 1987, the court should have granted the motion and entered judgment for the amount of the appraisers' award.

The state's second argument urges that the grounds for setting aside the original appraisal (thereby creating a new opportunity to file exceptions) were merely technical deficiencies which should have been deemed waived.

As background, it may be helpful to briefly review the hornbook rules of Indiana law concerning the filing of exceptions to the report of the court appointed appraisers.

If no exceptions are filed within the statutory time limit, the appraisers' award becomes final and there is no issue left for trial. S.I.G.E.C.O. v. Decker (1974), 261 Ind. 527, 307 N.E.2d 51. On the other hand, if either party files exceptions then any party is entitled to go to trial on the exceptions and the question of damages becomes one for the jury. State ex rel. City of Lebanon v. Boone Sup.Ct. (1970), 253 Ind. 549, 255 N.E.2d 660.

The corollary that has developed from these rules is that where only one party files exceptions, he may ordinarily, by dismissing his exceptions, eliminate all basis to go to trial, P.S.C.I. v. Rounder (1981), Ind.App., 423 N.E.2d 666, or by dismissing a part of the exceptions, such as those claiming damages to the residue, he may preclude litigation of those claims. State v. Sadlier (1974), 155 Ind.App. 125, 306 N.E.2d 109. (The significance of the latter arises from the fact that evidence of benefits conferred by the taking is admissible only where damages to the residue of a landowner's property are in issue). Moreover, the decisions generally hold that a party is entitled to dismiss his exceptions if he chooses. Rounder, supra.

Of course, this may occasionally result in a trap for the...