State v. Hladik

• Decision Date: 24 October 1973
• Docket Number: No. 2--572A4,2--572A4
• Citation: 302 N.E.2d 544,158 Ind.App. 223
• Parties: STATE of Indiana, Appellant (Plaintiff below), v. Jean Ashley HLADIK, and Francis J. Hladik, her husband, Appellees (Defendants below).
• Court: Indiana Appellate Court

Page 544

302 N.E.2d 544

158 Ind.App. 223

STATE of Indiana, Appellant (Plaintiff below), v. Jean Ashley HLADIK, and Francis J. Hladik, her husband Appellees (Defendants below).

No. 2--572A4.

Court of Appeals of Indiana, Second District.

Oct. 24, 1973.

Theodore L. Sendak, Atty. Gen., John T. Carmody, Deputy Atty. Gen., Indianapolis, for appellant.

Russell I. Richardson, Lebanon, Power & Little, Robinson, Robinson & Miller, Frankfort, for appellees.

WHITE, Judge.

The State of Indiana appeals from a judgment of $53,900 and interest rendered in an eminent domain action the State brought against Mr. and Mrs. Hladik (owners) to appropriate a strip of land in front of their nursing home for the widening of State Road 28, in or near the City of Frankfort in Clinton County. We affirm.

I.

After due notice to owners, and pursuant to the eminent domain statutes ¹ an appropriation order was entered and appraisers were appointed, no objections to the taking having been filed. Both the State and the owners filed exceptions to the appraisers' assessment of damages and requested trial by jury of the issue of damages. Thus the normal 'condemnation' issues of value of land taken and the amount of damage to the residue were joined for jury trial. But during the three years which elapsed before the case came on for trial, events occurred which resulted in an unusual additional issue of damages being injected into the case.

Some eight months before the trial the owners filed an 'Amended Supplemental Pleading' in which they denominated themselves 'third parties plaintiff' and 'complain(ed) of the third party defendants, City of Frankfort, Hernley Brothers, Inc. and T. & F. Construction Corp. of Indiana'. The gist of the allegations of that pleading was that the State of Indiana 'did permit and authorize' the construction of a sewer and high tension electrical line by the City of Frankfort and its contractors in such a manner as to damage the nursing home and constitute an additional taking not included in the State's Complaint or the appraisers' award of damages.

The State and all the third party defendants filed identical motions to strike the owners' and supplemental pleading. ² The motions of all the third party defendants were sustained but the motion of the state was overruled. These rulings were a part of the pre-trial order of April 23, 1971, which also stated, inter alia:

'During the recess the Court has considered the matter even further and has come to the conclusion that the Motions to Strike should be granted and now are granted insofar as third parties are concerned as to the City of Frankfort, Hernly Brothers, Inc., T. & F. Construction Corporation of Indiana, in this cause for the following reasons:

'1. That the matters in issue in this cause, condemnation versus the parties defendant, was instituted by the State of Indiana;

'2. That the manner of taking and construction of the highway was such as to invite the incursions of third party defendant, if any;

'3. That the incursions and the taking, if any, by said third party defendants or either of them and the supplemental pleadings calling the same to the attention of the State of Indiana are sufficient notice to the State of Indiana to either answer as to the differences between the State and the third parties or to amend their complaint for taking and to cause the issues as between the parties defendant and the State to be fairly tried in the cause pending herein.

'The Court does, now, therefore, order the State of Indiana to amend it's pleading to include the taking of air space as alleged in Defendant's Supplemental Pleading and further to amend it's complaint to include the temporary taking as to the construction of the sewer facilities as alleged in defendant's Supplemental Pleading, Paragraph 7, or in the alternative to Reply in General Denial, for the reason that if the complaint is so amended or Reply filed, then Defendant Hladik's Amended Supplemental Pleading can be treated as a special affirmative answer filed after exceptions taken to the formal appraisal heretofore filed pursuant to Court order, condemnation entered March 22, 1968.'

Some six weeks later, on June 7, 1971, the court made the following entry:

'The Court having examined the Pre-Trial Entry of April 23, 1971 now clearly denies and overrules the States Motion to Strike and affirms the Court's order to the State to Amend it's Complaint or to Reply to Defendant's Supplemental Pleading.

'The Court further rules that in the absence of Amendment or Reply as ordered that the State may be defaulted upon such issues and the Clerk directed to enter the default prior to introduction of evidence in the jury trial to begin on June 14, 1971. Likewise in the absence of Amendment or Reply and the subsequent entry of default of the State upon such issues raised by Defendant's Supplemental Pleading the Court gives notice to the parties now under Trial Rule 55B and without further notice that evidence as to amount of damages must be introduced as to these issues in the defendant's case in chief in discharge of defendant's burden of proof before Court and jury June 14, 1971. The jury will be instructed to return damages for the taking of airspace, etc. in the same manner as the taking of land for the right of way as well as for all other damages as a consequence of the taking, manner of construction, etc.'

A further entry was made the day of trial, in part as follows:

'At conference preceding prior to submission of the matter for trial this day, counsel report their conference with reference to Court's entry of April 23, 1971 and June 7, 1971. The cause is now submitted upon the issues raised by the within complaint, exceptions to the appraiser's award, the amended supplemental pleading herein by defendants and pursuant to the Court's ruling that third party defendants are not in this cause under the Court sustaining of Third Parties motion to strike in part amended supplemental pleading by defendant. The State's Motion to Strike said Amended Supplemental Pleading heretofore overruled and said ruling is now affirmed. The State's automatic exception to said overruling is saved for the record. Likewise the State has elected not to amend it's complaint nor to reply to the amended supplemental pleading of defendants. The defendants have not requested and do not now request default but agree to the submission of this cause upon the pleadings as aforesaid. The State does not join in said agreement relying upon its exception to the Court overruling of the State's Motion to Strike.'

Despite its exception to the court's motion to strike owners' amended supplemental pleading (hereinafter also 'counterclaim') and its refusal to plead to it, the State has assigned no error with respect to that ruling. The first point in the proceedings at which the State's motion to correct errors assigns trial court error with respect to the matters alleged in the counterclaim is the point at which the trial court overruled the State's objection to the court's Preliminary (jury) Instruction No. 3. That instruction reads as follows:

'You are further instructed that after the formal taking or appropriation of the land and improvements by the State of Indiana the defendants have filed an Amended Supplemental Pleading alleging certain damages which arose after such taking from the manner of the appropriation and the manner of construction of the improvements upon land taken by the State of Indiana. You are also to determine these damages as a part of your verdict on the south side of Highway 28 West if evidence is offered and admitted by the Court upon these issues.'

The State's objection was:

'No. 1. The amended supplemental pleading of defendant is by its terms not directed at plaintiff but is directed at third party defendants which are not present at this trial. That the Court has heretofore stricken said pleading as it applied to said third party defendants. That no issue is raised as to the plaintiff by said supplemental pleading.

'No. 2. The amended supplemental pleading was filed more than ten days after the filing of the report of the appraisers.

'No. 3. Paragraph 6 of said pleading alleges that the Court appraisers understood that the nursing home would not be affected by the taking, which allegation cannot raise any issue against the State of Indiana.

'No. 4. The amended supplemental pleading purports to raise issues as to possible damages which cannot be attributed to the State as to the electric wires and sewers which might be proper allegations against the named third party defendants in the nature of trespass, nuisance or inverse condemnation, but are not proper allegations against the State of Indiana.

'No. 5. The Court has no right to tell the jury that they are to make certain damage findings if certain evidence is offered and admitted as the Court cannot anticipate evidence and rulings as to admissibility until such evidence is offered at the trial.'

In response to the State's objection the trial court stated:

'Alright, the same are on the record. The Court now indicates that it will give the Court's Preliminary Instruction No. 3 as tendered over the objection of the State of Indiana thereto and for the reason that the Court has given the State of Indiana the opportunity to amend, the opportunity to reply, the opportunity to bring in third party defendants, and as in previous rulings the Court has indicated that the Court is not without remedy to enforce its ruling in this matter. The Court is presenting by this instruction the issue which the State has refused in two pre-trial conferences to comply with the ruling of the Court, and has assumed the stance and the position that it wishes to go to trial upon the record as is. The Court is not left powerless to raise the issue in the fashion that the Court deems it wise short of: (1) mandate, (2) contempt proceedings, (3) default, and now indicates it...