Twin Lakes Reg'l Sewer Dist. v. Teumer
| Citation | 992 N.E.2d 744 |
| Decision Date | 22 July 2013 |
| Docket Number | No. 91A04–1212–PL–638.,91A04–1212–PL–638. |
| Parties | TWIN LAKES REGIONAL SEWER DISTRICT, Appellant–Plaintiff, v. Robert W. TEUMER and Paula K. Teumer, Appellee–Defendant. |
| Court | Court of Appeals of Indiana |
OPINION TEXT STARTS HERE
Donald J. Tribbett, Tribbett Law Office, Logansport, IN, Attorney for Appellant.
Twin Lakes Regional Sewer District appeals the trial court's judgment regarding appropriation of easements on the property of Robert W. Teumer and Paula K. Teumer. Twin Lakes presents three condensed and restated issues on appeal: 1) whether the trial court improperly admitted the report of the court-appointed appraisers; 2) whether there was sufficient evidence to support the trial court's damage award; and 3) whether the trial court properly directed the clerk to refund Twin Lakes's overpayment of damages. Concluding that the court-appointed appraisal was improperly admitted and that there was insufficient evidence to support the trial court's damage award, and that the trial court correctly directed the clerk to refund Twin Lakes's overpayment, we reverse and remand.
In January 2011, Twin Lakes filed a Complaint for Appropriation of Easement, seeking to appropriate two permanent sewer easements and two temporary construction easements—one each on two plots of land owned by the Teumers. In March 2011, following a hearing at which the Teumers appeared pro se, the court issued an interlocutory judgment of condemnation, determining that the Teumers owned the property over which Twin Lakes sought the easements, that the easements were required for Twin Lakes's sewer project, and that the Teumers waived any objection to the acquisition but were entitled to fair compensation. The court also appointed three appraisers to assess the damages to which the Teumers were entitled.
In May 2011, the court-appointed appraisers filed a report concluding that just compensation for the taking amounted to $5,434. On June 3, 2011, Twin Lakes paid $5,434 to the clerk of the White Circuit Court, and as a result the court ordered that Twin Lakes was entitled to take immediate possession of the easements. That same day, Twin Lakes filed exceptions to the appraisers' report. Three days later, the court clerk erroneously sent $5,434 to the Teumers.
In August 2012, a bench trial was held on the issue of the Teumers' damages, at which the Teumers appeared pro se. Twin Lakes called two witnesses, the Twin Lakes superintendent, and a licensed appraiser. The appraiser valued the combined easements at a total of $950. The Teumers introduced no evidence. The court, on its own motion, admitted into evidence the report of the court-appointed appraisers, noting in the chronological case summary entry that the court took judicial notice of the report.
In October 2012, the court entered final judgment and order and determined that the Teumers' damages were $5,000. In November 2012, Twin Lakes filed a motion to correct error. The court ordered the court clerk to refund to Twin Lakes $434 from overpayment to the Teumers but otherwise denied the motion to correct error. This appeal followed. Additional facts will be supplied as necessary.
Where, as here, the appellee has failed to submit a reply brief, we need not develop an argument on the appellee's behalf. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind.2006). Instead, we will reverse the trial court's judgment if the appellant's brief presents a case of prima facie error. Id. Prima facie error in this context means “at first sight, on first appearance, or on the face of it.” Id. (citation omitted). We will affirm if the appellant is unable to meet this burden. Id.
As background, we provide a brief overview of appraisals in an eminent domain case. Indiana Code section 32–24–1–5 requires that a condemnor first make an offer to purchase the easement or other interest in question. If the condemnor and condemnee cannot agree on a price, then the condemnor may file suit to have the damages determined. Ind.Code § 32–24–1–4. In that case, once the court is satisfied that the condemnor has the right to exercise the power of eminent domain, the court must appoint three appraisers to assess the damages that the property owners may sustain as a result of the taking. Ind.Code § 32–24–1–7(c). Once the court-appointed appraisers have assessed the damages, if the condemnor pays that amount to the court clerk, the condemnor may take possession of the interest in the property, although the amount of damages is subject to review if the appraisal is challenged. Ind.Code § 32–24–1–10. If neither party challenges the court-appointed appraisal within the statutory time limit, then that award becomes final and there is no issue for trial. State v. Berger, 534 N.E.2d 268, 269 (Ind.Ct.App.1989), trans. denied. However, either party may file an exception, challenging the award determined by the court-appointed appraisers. Ind.Code § 32–24–1–11(b). If an exception is filed, the case proceeds to trial for a determination of the damages.
As for any money that the condemnor deposited with the court clerk following the initial court-appointed appraisal, the condemnee may file a written request for payment of the damages forty-five days after the court clerk has mailed a copy of the appraisers' report. Ind.Code § 32–24–1–11(d). When such a request is filed, the clerk must notify the condemnor, and the condemnor must be provided an opportunity to show cause why the requested amount should not be paid to the condemnee. Ind.Code § 32–24–1–11(d)(2). After a hearing, the court determines and orders any payment to the condemnee. Ind.Code § 32–24–1–11(d)(3). If an exception has been filed to the court-appointed appraisal, the court clerk may not make payment to the condemnee until the condemnee has filed a written undertaking with an approved surety for repayment to the condemnor of any excess payment once the final damages have been determined at trial. Ind.Code § 32–24–1–11(d)(4).
Twin Lakes first complains that the court was improperly influenced by the Teumers because they appeared pro se. It is well settled that pro se litigants are to be held to the same standard as licensed lawyers. Goossens v. Goossens, 829 N.E.2d 36, 43 (Ind.Ct.App.2005). The record indicates that the court admitted the report of the court-appointed appraisers, without a motion by either party, because the court was giving extra latitude to the Teumers. At the trial, Twin Lakes objected to the court's admission of the report, because it had not been offered and there had been no testimony from the appraisers. The court stated that, “I understand that you want to say that nobody offered this or nobody came and testified, I—I'm not going to hold that against a pro se, uh, defendant whose property has been uh, condemned ...” Transcript at 59. While we understand the difficulties faced by a defendant when proceeding pro se, and appreciate that judges sometimes exercise additional patience with pro se parties, the law is clear that they are to be held to the same legal standards as licensed attorneys. The court may not admit evidence on its own motion where it would not otherwise be able to do so, in order to not “hold it against” a pro se party.
Twin Lakes argues that judicial notice was an improper means for admission of the court-appointed appraisers' report. While it appears that the court had an improper motive for admitting the report, as discussed above, we analyze here whether judicial notice was nonetheless an appropriate avenue for admission of the report. We conclude that it was not.
Judicial notice excuses the party having the burden of proving a fact from producing formal proof to establish that fact. Hutchinson v. State, 477 N.E.2d 850, 854 (Ind.1985). Indiana Evidence Rule 201 allows a court to take judicial notice of both certain kinds of facts and certain kinds of laws. “A judicially-noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Evid.R. 201(a). Types of law of which a court may take judicial notice include
(1) the decisional, constitutional, and public statutory law, (2) rules of court, (3) published regulations of governmental agencies, (4) codified ordinances of municipalities, (5) records of a court of this state, and (6) laws of other governmental subdivisions of the United States or of any state, territory or other jurisdiction of the United States.
Evid.R. 201(b). The court here did not mention judicial notice at the trial when admitting the appraisers' report, and the chronological case summary entry does not note under which subsection of Evidence Rule 201 the court admitted the report.
Twin Lakes suggests, and we agree, that there is no question that the report was inadmissible as a kind of fact in this case, because the amount of damages was not only “subject to reasonable dispute,” but was in fact the entire dispute underlying the case. Of the possible kinds of law of which a court may take judicial notice, only “records of a court of this state” appears to potentially fit the court-appointed appraisal. However, while a party's pleading may be judicially noticed, the facts in those pleadings are not necessarily subject to judicial notice. See, e.g., Lutz v. Erie Ins. Exch., 848 N.E.2d 675, 678 (Ind.2006) (); Brown v. Jones, 804 N.E.2d 1197, 1202 (Ind.Ct.App.2004) (...
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