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Court: DNR case can proceed despite 11-year delay

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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.”
 

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  • 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!

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

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  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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