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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: DAVID F. MCNAMAR McNamar & Associates, P.C. Indianapolis, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ELIZABETH ROGERS Deputy Attorney General Indianapolis, Indiana

FILED
Sep 24 2008, 9:31 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
DANNY K. WHEELER, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 30A05-0802-CV-56

APPEAL FROM THE HANCOCK CIRCUIT COURT The Honorable Robert D. Culver, Judge Cause No.30C01-0504-PL-234

September 24, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issue In this eminent domain proceeding, Danny Wheeler appeals the trial court's order allowing the State of Indiana to withdraw its exceptions to an appraisal of the condemned property. On appeal, Wheeler raises two issues, which we consolidate and restate as whether the trial court abused its discretion when it allowed the State to withdraw its exceptions. Concluding that the trial court did not abuse its discretion when it allowed the State to withdraw, we affirm. 1 Facts and Procedural History On April 6, 2005, the State filed a complaint to appropriate a portion of Wheeler's property for a highway improvement project on State Road 67 in Hancock County. The State had previously offered Wheeler $125,425 for the property, but he rejected that offer. On August 22, 2005, the court-appointed appraisers filed their report, assessing the fair market value of the property at $161,100, which was calculated as follows: $59,600 for the condemned property, $1,500 for improvements to the land, $99,850 for damages to the residue as a result of the condemnation, and $150 for additional damages as a result of the proposed improvements to the highway. On September 12, 2005, the State filed exceptions to the appraisers' report, alleging that the report's itemized fair market values were "too high" and demanding that the matter proceed to a jury trial. Appellant's Appendix at 25. On January 17, 2007, the trial court conducted a pre-trial conference and entered a pre-trial order. In its pre-trial order, the trial court scheduled a jury trial for July 31, 2007, and ordered, among other things, that the parties participate in mediation on or

Because we decide the issue on appeal in favor of the State, we deny as moot its motion to strike portions of Wheeler's reply brief.

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before May 1, 2007, that discovery conclude thirty days before trial, and that any independent appraisal reports be exchanged at least sixty days before trial. The trial court also stated in its order that "[t]he parties believe that all amendments to the pleadings and all parties in this action have now been joined." Id. at 47. On April 30, 2007, the parties participated in mediation, but were unable to reach a compromise. At the mediation, the State represented that it was contemplating filing a motion to withdraw its exceptions to the appraisers' report, which, if granted, would end the litigation and result in the trial court awarding Wheeler $161,100. To foreclose this possibility, Wheeler filed exceptions on May 7, 2007, but the trial court denied that motion because the exceptions were not filed within the twenty-day time period required by Indiana Code section 32-24-1-11(a). On June 7, 2007, the State followed through on the representation it made during mediation by filing a motion to withdraw its exceptions. On June 14, 2007, having not received a ruling on its motion to withdraw, the State filed its forty-five day settlement offer as required by Indiana code section 32-24-1-12, stating that it would pay Wheeler $161,100 "to settle all claims in this case." Id. at 95. On June 20, 2007, Wheeler filed a counteroffer, stating that he would settle the case for $250,000 plus $25,000 in attorney fees. However, Wheeler's motion was mooted because, on June 19, 2007, the trial court granted the State's motion to withdraw and ordered that the State pay Wheeler $161,100 for the property. On July 5, 2007, Wheeler filed a motion to correct errors. On November 7, 2007, the trial court conducted a hearing on Wheeler's motion, which was deemed denied due to the trial court's failure to rule on the motion within thirty days from the hearing. Wheeler now appeals.
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Discussion and Decision I. Standard of Review The decision to grant or deny a motion to withdraw exceptions is entrusted to the trial court's discretion, and a reviewing court will reverse only if the trial court has abused its discretion. See State v. Bishop, 800 N.E.2d 918, 922 (Ind. 2003). Abuse of discretion occurs if the trial court's decision "is clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable, and actual deductions to be drawn from those facts and circumstances." Id. (quoting Lucre Corp. v. County of Gibson, 657 N.E.2d 150, 152 (Ind. Ct. App. 1995), trans. denied, cert. denied, 519 U.S. 950 (1996)). II. Propriety of Trial Court's Decision Wheeler argues the trial court abused its discretion when it granted the State's motion to withdraw its exceptions. Indiana Code chapter 32-11-1 governs eminent domain proceedings, and this court has provided the following rough outline of how those proceedings unfold: First, when the complaint is filed a notice is issued and served on the landowner requesting his appearance at a stated time to show cause, if any he have, why the land should not be appropriated. If he believes he has cause he may file "objections." If no objections are filed, or if those filed are overruled, an order of appropriation is entered and three appraisers are appointed and ordered to file their report appraising the damage to the landowner resulting from the appropriation. Second, within twenty days of the date the report of appraisal is filed, either or both parties may file "exceptions" to the appraisal. If timely filed, exceptions raise the issue of the amount of the landowner's damages. That issue is tried de novo by the judge, or by a jury if timely requested. If no exceptions are timely filed the appraisers' award becomes final.
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Daugherty v. State, 699 N.E.2d 780, 781-82 (Ind. Ct. App. 1998) (quoting Lehnen v. State, 693 N.E.2d 580, 581-82 (Ind. Ct. App. 1998) (citation and footnotes omitted), trans. denied), trans. denied. Wheeler's appeal concerns the second part of the proceedings described in Daugherty, specifically the filing and withdrawal of exceptions to the appraisers' report. The statute governing exceptions to the appraisers' report does not explicitly allow a party to withdraw them as a matter of right, but does state in a "catch-all" provision that "[t]he court may make orders and render findings and judgments that the court considers just." Ind. Code

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