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. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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