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Judges affirm dismissal of city’s counterclaim without prejudice

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The Indiana Court of Appeals held Tuesday that a dismissal based on the failure to provide an appraisal with an offer to purchase property for road work improvements was not an adjudication on the merits, allowing a city’s counterclaim for appropriation of the property to be dismissed without prejudice.

The city of Madison and Jefferson County entered into an interlocal agreement to improve Hutchinson Lane and needed about four acres of John Hutchinson’s land for temporary and permanent right-of-ways. The city was in charge of the road project.

The city offered Hutchinson around $25,000 for the property but didn’t include an appraisal. Hutchinson challenged the agreement between the city and county, after which Madison filed a counterclaim for appropriation of the property it needed for the project. The trial court held the agreement was valid and denied Hutchinson’s declaratory judgment action.

The trial court later dismissed the city’s counterclaim without prejudice and the city conceded that it didn’t comply with statute by not tendering an appraisal when it presented the acquisition offer.

In John A. Hutchinson v. The City of Madison, 39A01-1208-CC-394, the parties dispute whether the counterclaim should have been dismissed without prejudice. Hutchinson argued that the counterclaim should be dismissed with prejudice because a July 25, 2012, hearing was a “full-blown hearing” on the issue of whether the city complied with I.C. 32-24-1-3(c) and was an adjudication on the merits.

“We are not convinced that the failure to comply with Indiana Code Section 32-24-1-3(c) forever bars the state from acquiring that property so long as a property owner receives just compensation for the taking,” Judge Michael Barnes wrote. “This conclusion is supported by Indiana Code Section 32-24-1-8(d), which provides that, if a property owner objects to the proceedings and the objection is sustained, the complaint may be amended or the decision appealed. Although, as the parties acknowledge, the City cannot remedy the failure to provide an appraisal by amending the complaint, we believe this provision is indicative of the legislature’s intent to allow the City the opportunity to correct procedural errors and refile the complaint.”

The judges went on to find that given the city’s inherent authority to take private property and the statutory scheme for appropriating property, the dismissal based on the failure to provide an appraisal with an offer to purchase was not an adjudication on the merits.

They also held that the trial court properly determined that the interlocal agreement was valid.



 

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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