                                                                         FILED
                                                                     Oct 11 2018, 8:14 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR APPELLANTS                              ATTORNEYS FOR APPELLEE
Libby Yin Goodknight                                  David M. Austgen
Krieg DeVault LLP                                     Michael J. Jasaitis
Indianapolis, Indiana                                 Michael L. Muenich
                                                      Ryan A. Deutmeyer
Shannon L. Noder
                                                      Austgen Kuiper Jasaitis P.C.
Krieg DeVault LLP
                                                      Crown Point, Indiana
Merrillville, Indiana
G. Michael Schopmeyer
Michael E. DiRienzo
Kahn, Dees, Donovan & Kahn, LLP
Evansville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

David Joseph Guzzo, Robert                                 October 11, 2018
Glenn Guzzo, and Betty Jo                                  Court of Appeals Case No.
Keller,                                                    45A05-1711-PL-2736
Appellants-Defendants,                                     Appeal from the Lake Superior
                                                           Court
        v.                                                 The Honorable Diane Kavadias
                                                           Schneider, Judge
Town of St. John, Lake County,                             Trial Court Cause No.
Indiana,                                                   45D11-1403-PL-37
Appellee-Plaintiff.




Bradford, Judge.



Court of Appeals of Indiana | Opinion 45A05-1711-PL-2736 | October 11, 2018                  Page 1 of 12
                                           Case Summary                    1




[1]   David Joseph Guzzo, Robert Glenn Guzzo, and Betty Jo Keller (“the Guzzos”)

      appeal from the trial court’s entry of summary judgment in favor of the Town of

      St. John, Lake County (“the Town”), in its eminent domain action against land

      once owned by the Guzzos (“the Property”). The Guzzos challenge the trial

      court’s conclusion that they are only entitled to receive 100% of the fair market

      value of the Property. The Guzzos claim that the Property was either a “parcel

      of real property occupied by the owner as a residence,” which would entitle

      them to receive 150% of its fair market value, or “agricultural land,” which

      would entitle them to 125% of its fair market value. Because we disagree with

      both contentions, we affirm.



                             Facts and Procedural History
[2]   From approximately 1966 until he passed away in 1990, James Robert Guzzo

      was the owner of the Property, consisting of two parcels of land (the “North

      Parcel” and the “South Parcel”) located in St. John, Indiana, along U.S. 41.

      Altogether, the Property consisted of approximately 8.65 acres of wooded,

      untillable land upon which was a house and a barn, among other

      improvements. The North Parcel was located in a “C-2” highway commercial

      zoning district while the South Parcel was located in an “I” light industrial




      1
        We heard oral argument in this case on October 2, 2018, in the Court of Appeals Courtroom in
      Indianapolis, Indiana. We commend counsel for the high quality of their presentations.



      Court of Appeals of Indiana | Opinion 45A05-1711-PL-2736 | October 11, 2018                      Page 2 of 12
      zoning district. Due to the age of the Property and the fact that the house

      predated the current Town zoning ordinance, the Property was treated as a

      legal non-conforming use. Pursuant to the zoning ordinance, a non-conforming

      use ceases six months after the Property is abandoned, a “crops only”

      agricultural use is permitted in a I zoning district, and commercial greenhouses

      and/or nurseries are permitted in C-2 zoning district. Other than these types of

      agricultural uses, none of which actually occurred, the Property could not be

      used for agriculture pursuant to the zoning ordinance.


[3]   Upon James’s death, the Property was transferred to the Guzzos, subject to a

      life estate reserved for Rosemary Rokosz-Guzzo. In September of 2009,

      Rosemary vacated the Property, and on December 18, 2009, she quitclaimed

      her life-estate interest to the Guzzos. After Rosemary vacated the Property,

      neither any of the Guzzos nor any other person resided on the Property.

      Northern Indiana Public Service Company terminated the gas and electric

      service, also in December of 2009, and removed the utility meters the next year.

      Gas and electric services to the Property were never restored.


[4]   When the Guzzos owned the Property, no agricultural crops were grown or

      harvested nor were any agricultural animals, birds, or other creatures grown,

      raised, husbanded, or otherwise maintained on it. Moreover, the Guzzos have

      never offered any evidence to suggest that they had any agriculturally-related

      plan for the Property. The Guzzos have produced no federal, local, or state tax

      returns that show that any income was received as a consequence of the




      Court of Appeals of Indiana | Opinion 45A05-1711-PL-2736 | October 11, 2018   Page 3 of 12
      conduct of agricultural activities on the Property, and the Property was never

      assessed as “agricultural” during their ownership.


[5]   Sometime, apparently in 2013, the Town engaged appraisers to value the

      Property. At the time the appraisals were completed, it was noted that the

      residence had been vacant for at least a year. On or about December 30, 2013,

      the Town entered into an agreement with a developer which involved the

      proposed development of the Property along with additional public

      improvements related to U.S. 41. On February 3, 2014, the Town issued a

      “Uniform Property Acquisition Offer” to each of the Guzzos, in compliance

      with applicable law, seeking to purchase the Property for a “Roadway

      Improvement and Economic Development Project.” Appellants’ App. II pp.

      189, 192, 195, 198, 201, 204. On March 18, 2014, the Guzzos rejected the

      Town’s offer.


[6]   On March 28, 2014, the Town instituted condemnation proceedings. On July

      31, 2014, the trial court approved and entered an agreed order of appropriation

      of real estate and appointment of appraisers, pursuant to which the Property

      was appropriated by the Town and was to be appraised by three court-

      appointed appraisers. The Property was formally transferred to the Town on

      October 24, 2014, when the Town deposited the appraisal amount of

      $745,000.00 with the trial court.


[7]   On September 7, 2016, the Guzzos filed a motion for partial summary

      judgment, designation of materials in support, and brief in support on the



      Court of Appeals of Indiana | Opinion 45A05-1711-PL-2736 | October 11, 2018   Page 4 of 12
      matter of enhanced compensation pursuant to Indiana Code section 32-24-4.5-

      8. The Guzzos argued that the Town should compensate them 150% of fair

      market value for their property because it was “a parcel of real property

      occupied by the owner as a residence.” See Ind. Code § 32-24-4.5-8(2).

      Alternatively, the Guzzos maintained that the Town should compensate them

      125% of fair market value for their property because the Property qualified as

      “agricultural land.” See Ind. Code § 32-24-4.5-8(1). On February 23, 2017, the

      Town filed its response to the Guzzos’ motion for partial summary judgment

      and cross-moved for partial summary judgment, responding to the issue of

      enhanced compensation and requesting a declaratory judgment on the legality

      of the Town’s taking of the Property.


[8]   On November 8, 2017, the trial court granted the Town’s cross-motion for

      partial summary judgment as to the legality of its taking of the Property. The

      trial court also concluded that the Property did not qualify as residential

      property under Indiana Code section 32-24-4.5-8(2) because it was not being

      occupied by the owner as a residence at the time of the taking. The trial court

      further concluded that the Property did not qualify as agricultural land under

      Indiana Code section 32-24-4.5-8(1) “because it was never used for agricultural

      purposes.” Appellants’ App. Vol. II p. 34. On November 20, 2017, the trial

      court amended its order to direct the entry of final judgment in favor of the

      Town.


                                  Discussion and Decision


      Court of Appeals of Indiana | Opinion 45A05-1711-PL-2736 | October 11, 2018   Page 5 of 12
[9]   The Guzzos appeal from the entry of summary judgment in favor of the Town

      as to the amount of compensation they are entitled to receive for the Property.

      On review of a trial court’s decision to grant or deny summary judgment, we

      must determine whether there is a genuine issue of material fact that precludes

      summary judgment and whether the moving party is entitled to judgment as a

      matter of law. Ind. Trial Rule 56(C); Carie v. PSI Energy, Inc., 715 N.E.2d 853,

      855 (Ind. 1999). A fact is “material” if its resolution would affect the outcome

      of the case and “genuine” if a trier of fact is required to resolve the parties’

      differing accounts of the truth, or if the undisputed material facts support

      conflicting reasonable inferences. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.

      2009) (quoting Ind. T.R. 56(C)).


              In reviewing the propriety of a ruling on a motion for summary
              judgment, we apply the same standards as the trial court and
              review all the pleadings, depositions, admissions, answers to
              interrogatories, and any affidavits designated to the trial court in
              the light most favorable to the nonmovant. The movant bears
              the burden of proving the propriety of summary judgment, and
              all rational assertions of fact and reasonable inferences to be
              resolved therefrom are deemed to be true and are viewed in the
              nonmovant’s favor.
      Lindsey v. DeGroot, 898 N.E.2d 1251, 1256 (Ind. Ct. App. 2009) (citation

      omitted).




      Court of Appeals of Indiana | Opinion 45A05-1711-PL-2736 | October 11, 2018    Page 6 of 12
[10]   The Guzzos limit their challenge2 to the trial court’s conclusion that they are

       not entitled to enhanced compensation pursuant to Indiana Code section 32-24-

       4.5-8, which provides, in part, as follows:


               a condemnor that acquires a parcel of real property through the
               exercise of eminent domain under this chapter shall compensate
               the owner of the parcel as follows:
                    (1) For agricultural land:
                        […]
                             (i) payment to the owner equal to one hundred twenty-
                             five percent (125%) of the fair market value of the
                             parcel as determined under IC 32-24-1; or [….]
                    (2) For a parcel of real property occupied by the owner as a
                    residence:
                        (A) payment to the owner equal to one hundred fifty
                        percent (150%) of the fair market value of the parcel as
                        determined under IC 32-24-1[…]
                    (3) For a parcel of real property not described in subdivision
                    (1) or (2):
                        (A) payment to the owner equal to one hundred percent
                        (100%) of the fair market value of the parcel as determined
                        under IC 32-24-1[.]
[11]   The trial court concluded that the Property was neither “a parcel of real

       property occupied by the owner as a residence” nor “agricultural land” and so

       ruled that the Guzzos were only entitled to 100% of the assessed fair market




       2
         Although the Town contends that the Guzzos continue to challenge the actual taking, they specifically
       disclaim such a challenge: “The Guzzo Family does not challenge the underlying legality of the Town’s
       taking of their property.” Appellants’ Br. pp. 7–8.



       Court of Appeals of Indiana | Opinion 45A05-1711-PL-2736 | October 11, 2018                     Page 7 of 12
       value. The Guzzos challenge both of those conclusions. Ultimately, the

       questions are ones of statutory interpretation.


               When interpreting a statute, our primary goal is to fulfill the
               legislature’s intent. Adams v. State, 960 N.E.2d 793, 798 (Ind.
               2012). And the “best evidence” of that intent is the statute’s
               language. Id. If that language is clear and unambiguous, we
               simply apply its plain and ordinary meaning, heeding both what
               it “does say” and what it “does not say.” State v. Dugan, 793
               N.E.2d 1034, 1036 (Ind. 2003).
       Day v. State, 57 N.E.3d 809, 812 (Ind. 2016).


[12]   An issue of statutory construction presents a question of law which is reviewed

       de novo on appeal. Chrysler Group, LLC v. Review Bd. of the Ind. Dep’t. of Workforce

       Dev., 960 N.E.2d 118, 124 (Ind. 2012). Pursuant to this standard of review, this

       court owes no deference to the trial court’s statutory interpretation. Morgan Cty.

       v. Ferguson, 712 N.E.2d 1038, 1043 (Ind. Ct. App. 1999). As an initial matter, it

       seems clear that the legislative intent of Indiana Code section 32-24-4.5-8 is to

       protect the property rights of certain Hoosiers by erecting an additional

       obstacle, in the form of enhanced compensation, to the taking of land that falls

       into certain categories. Whether the Property fell into one of those categories is

       the question we must answer.


           I. Whether the Property Qualified as “Real Property
                Occupied by the Owner as a Residence”
[13]   While acknowledging that the last resident of the Property moved out in 2009,

       the Guzzos nonetheless contend that the Property qualifies as “a parcel of real



       Court of Appeals of Indiana | Opinion 45A05-1711-PL-2736 | October 11, 2018   Page 8 of 12
       property occupied by the owner as a residence” pursuant to Indiana Code

       section 32-24-4.5-8(2). The Guzzos argue that (1) they “occupied” the Property

       by mowing it, performing repairs, etc.; (2) interpreting the subsection to require

       occupancy at the time of the taking is to graft a temporal requirement onto the

       statute that it does not include; and (3) requiring actual occupancy at the time of

       the taking could potentially lead to unfair results.


[14]   The first of the Guzzos’ arguments is without merit. Even if one assumes that

       the Guzzos were not already required by law to at least mow the Property and

       keep the house in repair, mowing and repair to an unoccupied house does not

       equal occupancy. It is undisputed that no owner had actually lived in the house

       for several years as of the taking, and there is no indication that the absence was

       ever intended to be anything other than permanent, as it is also undisputed that

       none of the Guzzos had any intention of ever living on the Property. Indeed,

       the utilities were shut off and the meters removed several years before the

       taking. While we will not attempt to formulate a general rule as to what

       constitutes occupancy, we can say that the facts of this case fall short.


[15]   As for the Guzzos’ second argument, we conclude that the only reasonable

       interpretation of the occupancy requirement is that it is satisfied only when the

       parcel is actually being occupied by an owner as a residence at the time of the

       taking. The adjective “occupied,” even when not preceded by “is” or “being,”

       is generally understood to refer to an occupation that is occurring at a certain

       point in time, not an occupation that occurred prior to that time but has since

       ceased. In cases such as this, that certain point in time is when the


       Court of Appeals of Indiana | Opinion 45A05-1711-PL-2736 | October 11, 2018   Page 9 of 12
       governmental unit actually takes the land. We conclude that this is the only

       interpretation that is consistent with the clear legislative intent. To the extent

       that the General Assembly wants to make it more difficult for a governmental

       unit to take someone’s home, that is not what happens when it takes property

       containing a house that has been vacant for many years, as was the case here.

       If we were to accept the Guzzos’ proposed interpretation—essentially that the

       Property qualifies if any owner ever resided on it—then very little land in the

       State of Indiana would fail to qualify for 150% compensation. This would have

       the effect of rendering the other two compensation categories in Indiana Code

       section 32-24-4.5-8 largely superfluous, and it is well-settled that “[w]e must not

       interpret one provision of a statute so as to render other provisions of the same

       meaningless.” Kaser v. Barker, 811 N.E.2d 930, 932 (Ind. Ct. App. 2004), trans.

       denied.


[16]   Finally, the Guzzos mention a number of circumstances under which a

       governmental unit could allegedly unfairly avoid paying enhanced

       compensation. Examples include the taking of homes put on the market by

       deceased or relocated owners, summer homes, lake homes, or homes left vacant

       when the owners are temporarily in nursing homes. While these hypotheticals

       may be thought-provoking, the Guzzos do not suggest that any of this has

       occurred in this case. We decline the Guzzos’ invitation to address these

       hypotheticals because they are not before us. The trial court correctly

       concluded that the Property did not qualify as land occupied by an owner as a

       residence.



       Court of Appeals of Indiana | Opinion 45A05-1711-PL-2736 | October 11, 2018   Page 10 of 12
                           II. Whether the Property Qualified
                                as “Agricultural Land”
[17]   In the alternative, the Guzzos contend that the Property was “agricultural land”

       pursuant to Indiana Code section 32-24-4.5-8(1). There is no dispute that the

       Property was not being used for any actual agriculture at the time of the taking

       and had not been for at least several years. The Guzzos argue that the statute

       does not refer to the use of the land but, rather, its character. While this is true,

       it does not get the Guzzos where they need to go, because it is a parcel’s use for

       agriculture that gives it “agricultural” character. “Agriculture” is an activity, as

       opposed to some inherent characteristic such as soil type or location, which

       may be defined as “[t]he science or art of cultivating soil, harvesting crops, and

       raising livestock.” BLACK’S LAW DICTIONARY 83 (10th ed. 2014). Because

       there was no agriculture occurring on the Property at the time of the taking, it

       was not “agricultural land” pursuant to Indiana Code section 32-24-4.5-8(1).

       While the General Assembly could have included explicit language that

       required the land at issue be in current agricultural use to qualify for enhanced

       compensation, we conclude that this was not necessary. While we decline to

       formulate a general rule as to what constitutes “agriculture,” the facts of this

       case fall short.


[18]   As with the Guzzos’ other argument, we conclude that our interpretation is the

       only one that is consistent with the clear legislative intent. To the extent that

       the General Assembly wants to make it more difficult for a governmental unit

       to take someone’s farm, that is not what happened here. If we were to accept


       Court of Appeals of Indiana | Opinion 45A05-1711-PL-2736 | October 11, 2018   Page 11 of 12
       the Guzzos’ proposed interpretation, nearly all land in the state would be

       entitled to enhanced compensation as “agricultural land” pursuant to Indiana

       Code subsection 32-24-4.5-8(1), rendering subsection -8(3) (which describes

       land entitled to 100% compensation) largely superfluous. As previously

       mentioned, “[w]e must not interpret one provision of a statute so as to render

       other provisions of the same meaningless.” Kaser, 811 N.E.2d 932. The trial

       court correctly concluded that the Property did not qualify as agricultural land.


[19]   The judgment of the trial court is affirmed.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 45A05-1711-PL-2736 | October 11, 2018   Page 12 of 12
