State v. Universal Outdoor, Inc.

• Decision Date: 21 February 2008
• Docket Number: No. 49S05-0707-CV-290.,49S05-0707-CV-290.
• Citation: 880 N.E.2d 1188
• Parties: STATE of Indiana, Appellant, v. UNIVERSAL OUTDOOR, INC., Appellee.
• Court: Indiana Supreme Court

880 N.E.2d 1188

STATE of Indiana, Appellant, v. UNIVERSAL OUTDOOR, INC., Appellee.

No. 49S05-0707-CV-290.

Supreme Court of Indiana.

February 21, 2008.

Steve Carter, Attorney General of Indiana, Frances H. Barrow, Deputy Attorney General, Elizabeth Rogers, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

Joseph W. Hammes, Tabbert, Hahn, Earnest & Weddle, LLP, Indianapolis, IN, Attorney for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-0609-CV-536

DICKSON, Justice.

In this eminent domain proceeding initiated by the State of Indiana against Universal Outdoor, Inc., owner of a billboard leasehold interest, the trial court entered an order of appropriation, and the appointed appraisers concluded that Universal 'sustained damages of $243,800 from the appropriation. The trial court, finding that neither party filed exceptions during the statutory exceptions period, granted judgment for Universal in the amount of the appraisers' award. The State appeals, asserting that its exceptions were timely filed, The Court of Appeals reversed. State v. Universal Outdoor, Inc., 864 N.E.2d 403 (Ind.Ct.App.2007). We granted transfer.

The parties dispute the proper application of conflicting statutory provisions. Pursuant to Indiana Code § 32-24-1-11, after the appraisers file their report, either party may file exceptions to the appraisal. But the provisions prescribing the time limitations for filing these exceptions appear to be inconsistent:

(a) Any party to an action under this chapter aggrieved by the assessment of benefits or damages may file written exceptions to the assessment in the office of the circuit court clerk. Exceptions to the assessment must be filed not later than twenty (20) days after the filing of the report.

* * *

(c) Notice of filing of the appraisers' report shall be given by the circuit court clerk to all known parties to the action and their attorneys of record by certified mail. The period of exceptions shall run from and after the date of mailing. Either party may appeal a judgment as to benefits or damages as in civil actions.

Ind.Code § 32-24-1-11 (2004) (emphasis added). Clarification defining the precise exception period is crucial because the failure to file exceptions within the articulated time frame deprives the trial court of jurisdiction to hear the issue of damages. Lehnen v. State, 693 N.E.2d 580, 582 (Ind.Ct. App.1998), trans. denied, 706 N.E.2d 169 (Ind.1998). If no exceptions are timely filed, the appraisers' award in the filed report becomes final. Id.

On February 3, 2006, the three appointed appraisers submitted their report to the court. Universal filed its exceptions on February 13, and the State filed its exceptions on February 16. Then, on March 9, after both parties had filed their exceptions, the clerk sent the certified mail notice required by subsection (c) that the appraisers' report had been filed. Finding that the period of time within which to file exceptions did not begin to run until March 9, 2006, when the clerk's notice was sent by certified mail, the trial court concluded that both parties' exceptions were premature and thus untimely. The Court of Appeals disagreed, ruling that "exceptions are timely if filed within twenty days of the filing of the appraisers' report but no later than twenty days after the clerk sends notice of the appraisers' report to the parties" and it reversed and remanded for consideration of both parties exceptions. Universal Outdoor, 864 N.E.2d at 407. We agree with the reversal and remand, but granted transfer to revisit and clarify the window of time during which a party may file exceptions to the appraisers' report.

Both the State and Universal support their positions with established rules of statutory interpretation. Universal asserts that the trial court properly found that exceptions must be filed only within the twenty-day period after the clerk mails notice that the report was filed. Universal emphasizes the rule that, where two statutes are repugnant in any of their provisions, the later enacted statute controls and serves to repeal the earlier provision in conflict. Bd. of Trs. of Ind. Public Employees' Ret. Fund v. Grannan, 578 N.E.2d 371, 375 (Ind.Ct.App.1991), trans. denied, citing Southwest Forest Indus. v. Firth, 435 N.E.2d 295, 297 (Ind.Ct.App. 1982), trans. not sought.

Prior to 1973, the statutory exception period was "within ten (10) days after the filing" of the appraisers' report.¹ In 1973, the statute was amended to change ten days to twenty days, to add a requirement that the court clerk sent certified mail notices of the filing of the appraisers' report to all parties, and to add a sentence declaring: "The period of exceptions shall run from and after the date of mailing."² This amended statute was repealed in 2002, and reenacted in its present form as Ind.Code § 32-24-1-11,³ which included the "twenty days after filing" language as subsection (a) and the "run from and after the date of mailing" language as subsection (c).

While the language of subsection (c) was enacted later than that of subsection (a), we find an ambiguity in subsection (c)'s phrase "run from and after." Was this language intended to create a new starting point for the exception period or was it added merely to extend the prior exception period to assure that each party had at least twenty days after the clerk notified the parties of the filing of the appraisers' report? Helpful insight is found in Southern Ind. Gas & Elec. Co. v. Decker, 261 Ind. 527, 307 N.E.2d 51 (1974), a condemnation action brought by a public utility to acquire an easement for electrical transmission lines. In August of 1969, six days after the filing of the appraisers' report, the landowner obtained a ten-day extension of time in which to file objections to the appraisers' report, on grounds that the landowner had not been given any notice of the filing of the report. From the resulting jury verdict awarding damages almost three times the amount in the appraisers' report, the utility initiated an appeal to this Court in 1971. During the twenty-three months that the case was pending in this court, the Indiana General Assembly enacted the statutory changes that added the "run from and after" language now found in subsection (c). When the opinion was finally issued in February, 1974, it reversed the trial court's extension of time, noting consistent existing precedent that,...