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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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