ILNews

Court: DNR case can proceed despite 11-year delay

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals has looked past a trial rule calling for diligent prosecution of claims, finding that a state Department of Natural Resources land ownership dispute can proceed despite an 11-year delay in prosecuting because it’s of great public importance and should be decided on the merits.

A 20-page decision comes Thursday in the case of Indiana DNR v. Ronald W. and Sandra J. Ritz, No. 24A01-1009-PL-442, a Franklin Circuit case involving a tract of land along the former Whitewater Canal that the state sought to use for a hiking and biking trail.

Both sides claimed ownership, with the DNR citing a title through a quit claim deed in 1946 from the Whitewater Canal Association of Indiana while the husband and wife had a title from 1971 that they’d obtained from previous property owner deeds. When the DNR put markers on the property in 1991 for the proposed development, Ronald and Sandra Ritz, who operated a canoe business on adjacent land, removed them and blocked the state employees from accessing the property. That led to a court complaint in 1991 by the DNR.

But the case docket doesn’t clearly show what happened with that case, except for entries that it was dismissed more than once according to Indiana Trial Rule 41(E) requiring diligent prosecution. But the court didn’t dismiss it and instead kept it alive. Records aren’t completely clear on whether the court held hearings on dismissal, as required by the trial rule, but the claim was ultimately dismissed in 1999 because of Rule 41(E).

In the background of all that happening, the state agency had abandoned the original plans to develop the Whitewater Canal Trail in 1996, but asked the Indiana Attorney General’s Office to continue pursuing that original action against the Ritzes. The state resurrected the Whitewater Canal Project in 2004, but the state agency wasn’t aware of the initial action against the Ritzes. It wasn’t until 2009 that the state began pursuing it again with a second action – after the 10-year statutory period when the AG’s office destroys records.

The Ritzes challenged the second action on the grounds that the 1991 complaint had been dismissed with prejudice and that the statute of limitations had since expired regarding the second action. The DNR filed a motion to reinstate the original action, contending that a hearing wasn't held and so dismissal was improper. The trial court reinstated the orignal action.

Now, both parties are arguing over whether the case should be decided on the merits or whether the DNR lost the right to prosecute the case because of its inaction according to Rule 41(E). The trial court dismissed both actions against the Ritzes, but the Court of Appeals - combining both actions on appeal -  has reversed that ruling and ordered it be kept alive.

The appellate panel opted to consider the merits of the case, finding that Ritzes suffered minimal prejudice because of the delay and that the significant impact of the land ownership question warranted review. The appellate court found no evidence that the DNR is “manipulating the judicial system” as the Ritzes allege, and the appellate judges pointed out that many trial courts routinely issue show cause orders simply when the docket shows no activity.

“Although it is unclear from the record what caused the Attorney General’s Office to fail to pursue the action in the 1990s, there is no evidence that the State was purposely and deliberately dilatory or unwilling to resolve the dispute,” the appellate panel wrote.

Judge Cale Bradford wrote a separate concurring opinion that emphasized this decision is not to be seen as providing the state immunity in following Trial Rule 41(E). Rather, the type of “unusual circumstances” in this case dictate that the state be allowed to neglect a case for as long as it did here without dismissal. The state is still required in other contexts, such as eminent domain, to avoid unnecessary delays and expedite matters.

“Nobody has greater respect for property rights than I do, and I believe that questions involving those rights should be fully litigated before they are granted or taken away,” he wrote. “Although I express no opinion on the strength of either side’s claim to the land at issue, I much prefer that questions affecting the interests of all Hoosiers be decided on the merits.”
 

ADVERTISEMENT

  • BS
    This is nothing but government corruption and poppycock. Leave the Ritzes alone! 11 year delay, what kind of crap is the state try to pull off? If the state didn 't do anything for 11 years, they obviously didn't care. What is the purpose of a statute of limitations if the courts can just say, oh well the statute doesn't apply to this case. In other words it applies when the court says it does and doesn't apply when the court says it doesn't. Now the courts decide the law and the facts, but that is OK because, article 1 section 19 of the Indiana constitution states that they can. So be it!

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

ADVERTISEMENT