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FOR PUBLICATION

FILED
Jun 25 2008, 8:37 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANT: STEVE CARTER Attorney General of Indiana DAVID STEINER Deputy Attorney General Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: DAVID V. MILLER ROBERT L. BURKHART Ziemer Stayman Weitzel & Shoulders, LLP Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA
STATE OF INDIANA, Appellant-Defendant, vs. JOHN M. DUNN, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 82A01-0705-CV-223

APPEAL FROM THE VANDERBURGH CIRCUIT COURT The Honorable J. Douglas Knight, Special Judge Cause No. 82C01-0309-PL-668

June 25, 2008 OPINION - FOR PUBLICATION

VAIDIK, Judge

Case Summary The State's construction of a median strip that makes the route of travel to a business property more circuitous is not a compensable taking. We therefore reverse the trial court's partial summary judgment in favor of business owner John M. Dunn against the State and the subsequent damages awarded to Dunn by a jury. Facts and Procedural History1 Dunn entered the hotel business in 1978. Since that time, he has developed, owned, and operated more than twenty hotel properties. Appellant's App. p. 114. One of these properties is located at 100 South Green River Road in Evansville, Indiana ("Subject Property"). Id. In the late 1980s, the State decided to construct the Lloyd Expressway near the Subject Property. When the Lloyd Expressway was initially constructed, all entrances connecting the Subject Property to Green River Road were eliminated. Id. at 129. However, the State then initiated condemnation proceedings to acquire a nearby strip of land belonging to Dunn in order to build a service road connecting the western boundary of the Subject Property to Green River Road. Id. at 130. The State successfully acquired the land and constructed the service road, and Dunn received compensation for the taking. See State v. Dunn, 837 N.E.2d 206 (Ind. Ct. App. 2005).2

Because we resolve this case based upon the summary judgment issue and do not reach the other issues raised by the State, we confine our examination of the facts to those materials designated by the parties during the summary judgment stage of the proceedings.
2

1

This earlier case dealing with the compensation owed to Dunn is unrelated to the case at hand.

2

Thereafter, the Subject Property had access, via the service road, to and from the northbound and southbound lanes of Green River Road. Appellant's App. p. 130. This changed in July 2004, when the State, acting through the Indiana Department of Transportation, installed a concrete median in the center of Green River Road, id. at 116, 118, near that road's interchange with State Road 66, id. at 165. This median prevents southbound traffic from Green River Road from making left turns into the service road entrance to the Subject Property. Id. at 116, 131. The elimination of left-hand turns onto the service road "was designed as a safety measure," as a southbound driver making such a turn would have to cross five lanes of oncoming northbound traffic. Id. at 166. The service road remains accessible to the public, although southbound drivers on Green River Road must follow a circuitous route to reach the service road and, hence, the Subject Property. The State undertook this project pursuant to its authority under Indiana Code

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Indiana Law