MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
                                                                   Mar 29 2017, 8:06 am
court except for the purpose of establishing
the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Rosemary Adams Huffman                                   Yasmin L. Stump
Indianapolis, Indiana                                    James A. Carter
                                                         Yasmin L. Stump Law Group, P.C.
                                                         Carmel, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Green Fields LTD,                                        March 29, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         29A04-1607-PL-1649
        v.                                               Appeal from the Hamilton
                                                         Superior Court
Hancock County, Indiana,                                 The Honorable Steven R. Nation,
acting by and through The Board                          Judge
of Commissioners of Hancock                              Trial Court Cause No.
County, Indiana,                                         29D01-1602-PL-1758
Appellee-Plaintiff.




Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A04-1607-PL-1649 | March 29, 2017       Page 1 of 9
                               Case Summary and Issues
[1]   In this condemnation proceeding, Hancock County filed a complaint to

      appropriate land owned by Green Fields, Ltd., for the purpose of improving a

      bridge on a county road running through a portion of Green Fields’ property.

      Green Fields filed objections to the complaint, and after the trial court

      overruled the objections, the trial court ordered the appropriation and the

      appointment of appraisers. Green Fields now appeals, raising two issues for

      our review: 1) whether the County is permitted by law to acquire Green Fields’

      property in fee simple, and 2) whether the County made a good faith offer and

      effort to negotiate the purchase of Green Fields’ property pursuant to Indiana

      law. Concluding Indiana law permits a condemning authority to acquire

      property in fee simple and the County made a good faith offer and effort to

      negotiate the purchase of Green Fields’ property, we affirm.



                            Facts and Procedural History
[2]   Green Fields owns approximately eighty-nine acres of real property in Hancock

      County, Indiana. The property is bisected by County Road 300 South, which

      splits the property into Northern and Southern Parcels. Slicing through the

      Northern parcel is Brandywine Creek, over which the County previously

      constructed a bridge on the road. In 2015, the County sought to acquire certain

      portions of the Northern and Southern parcels in fee simple for the purpose of

      improving the bridge over Brandywine Creek: approximately 3 acres of the



      Court of Appeals of Indiana | Memorandum Decision 29A04-1607-PL-1649 | March 29, 2017   Page 2 of 9
      Northern parcel and approximately 1 acre of the Southern Parcel.1 Specifically,

      the County already had an existing right-of-way under the pavement of County

      Road 300 South totaling approximately .7 acres. The County also sought to

      acquire .034 acres as a temporary right-of-way for three years. For the purposes

      of this appeal, we label the property the County seeks to acquire as the

      “Acquisition Property.”


[3]   The County tasked Kenneth Stephenson of Beam, Longest & Neff (“BLN”)

      with appraising the Acquisition Property for the purpose of a settlement.

      Stephenson is a certified general real estate appraiser in Indiana. On September

      2, 2015, Stephenson sent Rosemary Huffman, the president and representative

      of Green Fields, a letter informing her the County intended to construct the

      bridge and he had been assigned to appraise the Acquisition Property, and

      requesting she contact him if she had any questions or concerns. Huffman did

      not respond to Stephenson’s letter, and on September 9, 2015, Stephenson

      physically examined the property. A day later, after reviewing the property’s

      legal description, parcel plats, title work, and previous sales of comparable real

      estate, Stephenson issued an appraisal report and concluded the fair market

      value of the Acquisition Property was approximately $17,900.


[4]   Thereafter, a fellow certified real estate appraiser, Joseph A. Traynor, was

      tasked with independently reviewing Stephenson’s appraisal report for the



      1
       Green Field’s property abuts at least two other landowners’ properties and the record indicates the County
      has already acquired these properties in fee simple.

      Court of Appeals of Indiana | Memorandum Decision 29A04-1607-PL-1649 | March 29, 2017            Page 3 of 9
      purpose of determining whether “the original appraisal is a good appraisal.”

      Transcript at 73. Traynor’s report was consistent with Stephenson’s report and

      Traynor ultimately concluded the fair market value of the Acquisition Property

      was approximately $17,900.


[5]   On October 12, 2015, Victoria Burch, a right-of-way purchaser for BLN, sent an

      official offer letter to Green Fields, which included the County’s offer of

      $17,900 to purchase the Acquisition Property. After Green Fields countered at

      $70,803, the County raised its offer to $19,613, an offer Green Fields opted not

      to respond to.


[6]   On December 30, 2015, the County initiated condemnation proceedings against

      Green Fields. On April 6, 2016, Green Fields filed its Objections to

      Proceedings and a memorandum of law in support of its objections, arguing (1)

      the County cannot acquire the Acquisition Property in fee simple, and (2) the

      County “failed to make a good faith effort to purchase according to statute and

      case authority as the negotiations were based on a defective appraisal that was

      replete with errors, omissions and false statements, and the process violated

      Federal law.” Appellant’s Appendix at 26.


[7]   On June 10, 2016, the trial court held an evidentiary hearing at the request of

      Green Fields. At the hearing, the County admitted several exhibits and

      presented the testimony of Stephenson, Traynor, and Burch. Green Fields

      introduced evidence but did not present any witnesses. On June 23, 2016, the

      trial court overruled Green Fields’ objections, ordered the case proceed to


      Court of Appeals of Indiana | Memorandum Decision 29A04-1607-PL-1649 | March 29, 2017   Page 4 of 9
      appropriation, and appointed three additional independent appraisers pursuant

      to Indiana Code section 32-24-1-8(e). On July 25, 2016, Green Fields filed its

      notice of appeal.



                                 Discussion and Decision
                                     I. Standard of Review
[8]           The State has inherent authority to take private property for
              public use. Eminent domain proceedings for seizing private
              property are powerful instruments of government. As long as the
              governmental entity intends to use the land for a public purpose
              that is constitutional, there are few defenses to prevent a taking.
              Such powers and rights, however, are not unlimited.


              In eminent domain proceedings the focus of our judicial review is
              narrow. Significantly the courts are not to infringe upon the
              administrative act of determining the necessity or reasonableness
              of the decision to appropriate and take land. Like the trial court,
              we must restrict our review to whether the condemnation
              proceedings were legal, whether the condemning authority had
              authority to condemn the property in question, and whether the
              property was to be taken for a public purpose. Additionally, we
              have the power to question whether the condemnation was
              fraudulent, capricious, or illegal. In addressing allegations of
              fraud or bad faith, however, we are limited to considering only
              whether there was fraud, bad faith, capriciousness, or illegality as
              to the necessity of the taking, i.e., whether the property taken will
              not be used for a public purpose, or the proceeding is a subterfuge
              to convey the property to a private use.


      Knott v. State, 973 N.E.2d 1259, 1262 (Ind. Ct. App. 2012) (citations and

      internal quotation marks omitted), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 29A04-1607-PL-1649 | March 29, 2017   Page 5 of 9
                                       II. Eminent Domain
[9]    Article 1, Section 21 of the Indiana Constitution, otherwise known as Indiana’s

       eminent domain provision, provides, “No person’s property shall be taken by

       law, without just compensation; nor, except in the case of the State, without

       such compensation first assessed and tendered.” Eminent domain proceedings

       are governed by Indiana Code chapter 32-24-1 and take place in two separate

       phases: 1) the initial or summary phase, and (2) a phase where damages are

       determined. State v. Dunn, 888 N.E.2d 858, 861 (Ind. Ct. App. 2008), trans.

       denied, cert. denied, 558 U.S. 823 (2009).


[10]   During the initial or summary phase of the proceedings, the action consists

       solely of legal issues which are decided by the trial court. State ex rel. Bd. of

       Aviation Comm’rs of City of Warsaw v. Kosciusko Cty. Super. Ct., 430 N.E.2d 754,

       755 (Ind. 1982). Pursuant to Indiana Code section 32-24-1-8, the landowner

       may use this phase to file objections to the proceedings. Id. (addressing Indiana

       Code section 32-11-1-5 which was repealed and replaced with Indiana Code

       section 32-24-1-8). In addition, the party objecting has the burden of

       demonstrating condemnation is not proper. State v. Collom, 720 N.E.2d 737,

       742 (Ind. Ct. App. 1999). “After a consideration of the legality of the action

       and any objections which may have been filed, the trial court concludes this

       phase of the proceedings by entering an order of appropriation and appointing

       appraisers to assess the damages.” Kosciusko, 430 N.E.2d at 755.




       Court of Appeals of Indiana | Memorandum Decision 29A04-1607-PL-1649 | March 29, 2017   Page 6 of 9
[11]   Green Fields’ first objection challenges the County’s power to acquire the

       Acquisition Property in fee simple. Indiana Code section 32-24-1-3(a) states,

       “Any person that may exercise the power of eminent domain for any public use

       under any statute may exercise the power only in the manner provided in this

       article, except as otherwise provided by law.” In addition, subsection (f) also

       clearly provides “the entire fee simple title may be taken and acquired.” In

       sum, Indiana’s eminent domain laws provide the County the power to

       appropriate and condemn real estate in fee simple if, in its discretion, it

       determines the real estate sought to be condemned is necessary for a public use.

       Knott, 973 N.E.2d at 1264.


[12]   Here, the County determined fee simple title in the Acquisition Property was

       necessary for a public use, i.e. to improve an already-existing bridge accessible

       by all members of the public traveling on a public road, and we fail to find any

       Indiana law or precedent supporting Green Fields’ assertion that the County

       must submit additional evidence justifying its reasons for taking property in fee

       simple. In fact, our supreme court previously stated,


               We do not think the court has the power to inquire into the
               wisdom or propriety of such judgment unless a question of fraud
               or bad faith is raised as where an attempt is made to show that
               the property taken will not be used for a public purpose, or the
               proceeding is a subterfuge to convey the property to a private use.


       Cemetery Co. v. Warren Sch. Twp. of Marion Cty., 236 Ind. 171, 188, 139 N.E.2d

       538, 546 (1957). We see no evidence of fraud, bad faith, illegality, or

       capriciousness. This argument fails.

       Court of Appeals of Indiana | Memorandum Decision 29A04-1607-PL-1649 | March 29, 2017   Page 7 of 9
[13]   Green Fields’ second objection challenges whether the County made a good

       faith offer or effort to negotiate the purchase of the Acquisition Property. Prior

       to initiating condemnation proceedings, the condemning authority “must make

       an effort to purchase for the use intended the land, right-of-way, easement, or

       other interest, in the property.” Ind. Code § 32-24-1-3(b). An offer to acquire

       land prior to condemnation proceedings is considered a good faith offer as a

       matter of law if (1) the offer is based on the fair market value of the property as

       determined by an independent appraisal, (2) the offer is set forth in a uniform

       form letter sent to the landowner, (3) the offer includes a proposed purchase

       price, (4) the purchaser provides the property owner with an appraisal or other

       evidence used to establish the proposed purchase price, and (5) the purchaser

       conducts good faith negotiations with the owner of the property. See Wagler v.

       W. Boggs Sewer Dist., Inc., 898 N.E.2d 815, 819, 819 n.2 (Ind. 2008).


[14]   On the face of Green Fields’ brief, it does not appear it directly challenges any

       of the specific elements noted above. Rather, Green Fields’ argument relies

       solely on its claim Stephenson’s appraisal was defective and therefore the

       County could not as a matter of law make a good faith offer or good faith effort

       to negotiate the purchase of the Acquisition Property. We certainly

       acknowledge some errors in Stephenson’s appraisal, some of which are

       typographical, but Stephenson testified none of these errors changed his opinion

       of the fair market value of the Acquisition Property. In addition, Traynor also

       testified Stephenson’s appraisal was a valid appraisal and agreed the fair market

       value of the Acquisition Property was $17,900. Further, even assuming the


       Court of Appeals of Indiana | Memorandum Decision 29A04-1607-PL-1649 | March 29, 2017   Page 8 of 9
       errors affected Stephenson’s opinion of the fair market value, we have

       previously noted a “[f]ailure to consider certain factors affecting damages and

       value does not render the offer invalid as not being in good faith.” Id. at 819

       (alteration in original) (citation omitted).


[15]   Prior to the County initiating condemnation proceedings, Stephenson

       independently appraised the property and concluded the fair market value of

       the property was $17,900. The County then sent a uniform form letter to Green

       Fields offering $17,900 for the Acquisition Property; the County also provided

       Green Fields’ with Stephenson’s appraisal. When Green Fields countered with

       a substantially higher price, the County raised its original offer, but the parties

       still could not come to an agreement. Based on this evidence, the County made

       a good faith offer and good faith effort to negotiate the purchase of the

       Acquisition Property. We conclude the trial court did not err in overruling

       Green Fields’ objections.



                                               Conclusion
[16]   The trial court did not err in overruling Green Fields’ objections to the County’s

       condemnation action. Accordingly, we affirm.


[17]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A04-1607-PL-1649 | March 29, 2017   Page 9 of 9
