State v. Innkeepers of New Castle, Inc.

• Citation: 392 N.E.2d 459,271 Ind. 286
• Decision Date: 25 July 1979
• Docket Number: No. 779S196,779S196
• Parties: STATE of Indiana, Appellant (Plaintiff Below), v. INNKEEPERS OF NEW CASTLE, INC., Appellee (Defendant Below).
• Court: Supreme Court of Indiana

Page 459

392 N.E.2d 459

271 Ind. 286

STATE of Indiana, Appellant (Plaintiff Below), v. INNKEEPERS OF NEW CASTLE, INC., Appellee (Defendant Below).

No. 779S196.

Supreme Court of Indiana.

July 25, 1979.

Theodore L. Sendak, Atty. Gen., Indianapolis, for appellant.

Robert J. Maley, Harrington, Maley, Gardner & Sayre, Richmond, Jim C. Cordes, Cordes, Baker & Bodwell, Connersville, for appellee.

ON PETITION TO TRANSFER

PRENTICE, Justice.

This case is before us upon the petition of the defendant, appellee, Innkeepers of New Castle, Inc. (Innkeepers) to transfer from the Court of Appeals, First District, that Court having reversed the judgment of the trial court entered upon the verdict, being an award of damages against the appellant, State of Indiana (State) for the appropriation of a portion of Innkeepers' land and elimination of its existing access to State Road No. 3, in Fayette County.

The sole issue presented by the State, on appeal, was the exclusion of purportedly available evidence that Innkeepers had an easement over adjoining land, which easement mitigated against the loss of access to Road No. 3 occasioned by the appropriation. The Court of Appeals reversed the trial court and ordered a new trial, by opinion published at 375 N.E.2d 1129; but in so doing, it failed to give a statement upon an issue presented by Innkeepers. A resolution of that issue, contrary to Innkeepers' position, was essential to sustain said Court's decision and contravened a ruling precedent of this Court, to-wit: State v. Stabb, (1948) 226 Ind. 319, 79 N.E.2d 392. In that case, it was held that knowledge by an owner of a proposed highway which, if built, would result in the taking of his land, imposed no duty upon the owner to anticipate a taking and to restrain his use of the land in such manner as to mitigate his damages in the event of appropriation.

Because of such contravention and other contraventions that we need not here relate, transfer is now granted, and the decision and opinion of the Court of Appeals is hereby vacated. Innkeepers asserts that there are other errors in the opinion of the Court of Appeals, in that it took into consideration various facts not in evidence and not contained in any offer to prove. ¹ However because the existence of such facts, if proven, nevertheless would not change the result reached herein, we have elected not to treat each such challenge of Innkeepers. Rather, we will address the case upon its merits, upon the factual situation as determined by the Court of Appeals.

There is another matter reflected by the record of this case that bears mention. Two extensions of time for filing the record of proceedings with the Court of Appeals were granted upon the strength of affidavits filed by the State. The certifications to the transcript indicate that the statements related as facts by such affidavit were false. If so, the appeal should have been dismissed by the Court of Appeals, as the timely filing of the record is jurisdictional, and extensions of time granted in error are meaningless and cannot confer jurisdiction. State ex rel. Buis v. Hendricks Superior Court, (1964) 246 Ind. 1, 201 N.E.2d 697. From the information furnished, at our request, at oral arguments upon the petition to transfer and because the Deputy Attorney General who petitioned for the time extension was not at that time associated with the appeal and was not then available, we have been unable to determine, with certainty, the cause of the apparently irreconcilable inconsistencies.

Only because our preliminary review of the appeal revealed error of law in the decision of the Court of Appeals requiring that decision to be vacated and the judgment of the trial court to be affirmed, have we proceeded to dispose of this case upon its merits, thereby rendering the jurisdictional issue moot. Nevertheless, evidence of an attempted fraud upon the Court is such that it cannot be ignored or lightly regarded. Accordingly, this aspect of the case will be referred to our Disciplinary Commission for a determination by it of whether or not probable cause exists to believe that there has been professional misconduct warranting disciplinary action.

The State filed eminent domain proceedings against Andrew and Lucille Tabor in December, 1969, to appropriate a certain strip of land adjacent to and eliminating access right to Indiana State Road No. 3, near New Castle. In September, 1971, State moved to join Innkeepers as a party defendant, which motion was erroneously granted, but such error is not material to this appeal.

Separate trials for Innkeepers and for the Tabors were granted, and in December, 1976, a jury trial was held to determine the damages to be awarded to Innkeepers. A verdict for damages was rendered, and the court entered judgment thereon. The State's subsequent motion to correct errors was denied, and this appeal followed. The error assigned is the ruling of the trial court in excluding evidence that the Tabors were the grantors from whom Innkeepers derived their title to subject real estate and that Andrew Tabor was a stockholder and officer of Innkeepers, a corporation.

On July 8, 1966, subject real estate and contiguous real estate, a total area of 33.96 acres, was owned by Andrew L. Tabor and Lucille Tabor, husband and wife. The entire 33.96 acre parcel was bounded on the west by State Road No. 3 (a public roadway), on the south by County Road No. 300 South (a public roadway) and on the north and east by lands of other owners. Subject real estate was contiguous to State Road No. 3 but not to County Road No. 300 South. On that date, Andrew Tabor made a written application, in the name of "Holiday Inn," to the State Highway Commission for a permit to construct a driveway entrance and approach from subject real estate onto State Road No. 3; and on November 29, 1966, he received a written response from the Commission's permit engineer. The response was not a denial but it did indicate that the application would be denied because it was proposed that State Road No. 3 would, at some future time, become a limited access facility, limiting access to existing public roadways. The notification further noted that Tabor was apparently the owner of land lying between subject real estate and such an existing public roadway, i. e. County Road 300 South, and suggested the construction of a frontage road across such adjoining parcel, to provide access for the proposed motel site near said County Road.

In April of 1969, the plans of the Highway Commission had progressed to the point of purchasing rights-of-way for the limited access facility, and an offer was made to the Tabors to purchase a strip approximately fifty-five feet wide along the west boundary of the entire 33.96 acre parcel, which purchase, would have eliminated the aforesaid direct access of Tabors onto State Road No. 3. The offer was refused. On May 31, 1969, Andrew and Lucille Tabor conveyed subject real estate to Innkeepers, a corporation. Subject real estate was a 4.82 acre parcel. It had a frontage of three hundred fifty feet along State Road No. 3 and was bounded on the other three sides by lands retained by the Tabors.

On December 19, 1969, more than six months subsequent to the aforesaid conveyance by Tabors to Innkeepers, the State filed a complaint against Tabors to appropriate the aforesaid strip of land. The intended effect of such appropriation was to eliminate the existing direct access from said 33.96 acre parcel onto State Road No. 3. Because of the prior conveyance of Innkeepers, and their not being made a party defendant, however, the actual effect was to eliminate such access only from Tabors remaining land. Notwithstanding public notice of that conveyance, by recording on June 2, 1969, of the deed from Tabors to Innkeepers, the State did not negotiate with Innkeepers as required by the Condemnation Statutes, Ind. Code § 32-11-1-1, nor did it file suit against Innkeepers.

On September 13, 1971, the State moved to join Innkeepers as a party defendant, which motion was sustained Ex parte upon the same date. Innkeepers subsequently filed objections to the joinder, which issue was briefed by the parties; and the court, thereafter, on March 23, 1973, overruled the objection. This appears to have been erroneous, inasmuch as the exclusive statutory procedure for appropriating the land of Innkeepers had not been followed and could not be followed in proceedings against Tabors. However, a determination of that issue is not necessary to the appeal before us. Ultimately, the matter progressed to a jury trial to determine Innkeepers' damages, which trial was separate from the trial as to Tabors' damages, essentially in the same manner as it would have, had the State proceeded correctly in the first instance.

Prior to commencement of Innkeepers' trial, Innkeepers filed a motion In limine which was granted without opposition and which prohibited the State from offering evidence, without prior approval of the court to be obtained in the absence of the jury, that would give rise to an inference that Innkeepers either had or could obtain a right-of-way across the land of Tabors onto State Road No. 3, via County Road No. 300 South.

The evidence adduced at the trial reflected that at the time of the appropriation by the State, Innkeepers' 4.82 acre parcel was improved with the Holiday Inn Motel and Restaurant, that its only access to State Road No. 3 had been eliminated by the appropriation, that its fair market value immediately prior to the appropriation was $812,629.00 and immediately thereafter, $11,118.00.

On cross examination, the State attempted to elicit testimony from one of Innkeepers' expert witnesses reflecting Innkeepers' origin of title and the 1966 application of Mr. Tabor, as a representative of Holiday Inn, for a highway access permit. The court excluded the testimony as irrelevant and violative of the limine order.

The State...