ILNews

COA affirms $2.3 million damage award

Michael W. Hoskins
January 1, 2007
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An Evansville shopping center owner is entitled to $2.3 million in damages for loss of access to a public thoroughfare resulting from a state highway project, the Indiana Court of Appeals ruled today.

The court's unanimous decision came in State of Indiana v. Kimco of Evansville, Inc., No. 82A01-0607-CV-301, affirming a Vanderburgh Circuit jury award that stems from the road project in 2000 impacting the Plaza East Shopping Center along State Road 66 and Green River Road.

In June 2000, the state took 0.154 acres of Plaza East (owned by Kimco) along Green River Road as part of the construction project to improve access to the state highway. Part of the project involved putting in a concrete median and changing the setup of the shopping center's two entrances, causing traffic backups and a loss of business by the time the trial began early last year.

A four-day trial in February 2006 resulted in a jury verdict of $2.3 million for Kimco, or a total judgment of almost $3.2 million with legal costs and interest. The state appealed, arguing that Kimco cannot be compensated for its loss of access as a matter of law, and that the trial court improperly admitted evidence of damages associated with the loss of access and incorrectly instructed the jury on that issue.

But in its 17-page decision that includes diagrams to map out the area being debated, the appellate judges determined that Kimco was entitled to the damages since the state had taken property and the access and the reconfiguration of the entrances amounted to more than a "mere inconvenience."

The court cited an Indiana Supreme Court ruling from January in Biddle v. BAA Indianapolis LLC, 860 N.E.2d 570, 575 (Ind. 2007), as rationale in making its decision. That decision involving the Indianapolis International Airport clarified when a taking has occurred as a question of law.

In this case, the concrete median and refigured turn and driving lanes in front of the property contributed to the problem, the court said.

"Any one of these changes by itself might not amount to a taking of access rights. When considering all of these changes, however, we conclude that a taking has occurred as a matter of law," the court wrote. "The state's reconfiguration of Green River Road and the changes to the Southern Entrance and Northern Entrance are peculiar to Plaza East and Kimco, and the changes are 'of a degree that exceeds mere inconvenience.'"
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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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