ATTORNEY FOR APPELLANT
: ATTORNEY FOR APPELLEE
DAVID A. ROSENTHAL
Lafayette, Indiana DOUGLAS J. MASSON
Hoffman, Luhman & Masson, P.C.
ATTORNEYS FOR APPELLEE
STATE OF INDIANA:
Attorney General of Indiana
DAVID L. STEINER
Deputy Attorney General
COURT OF APPEALS OF INDIANA
OLD ROMNEY DEVELOPMENT CO., )
vs. ) No. 54A04-0406-CV-325
TIPPECANOE COUNTY, INDIANA, )
and STATE OF INDIANA, )
APPEAL FROM THE MONTGOMERY CIRCUIT COURT
The Honorable Thomas K. Milligan, Judge
Cause No. 54C01-9911-CP-334
November 30, 2004
OPINION - FOR PUBLICATION
Appellant-Plaintiff Old Romney Development Co. (Old Romney) appeals the trial courts denial of
its motion for partial summary judgment and, simultaneous, grant of summary judgment to
Appellees-Defendants, Tippecanoe County and the State of Indiana (collectively, Appellees). We affirm.
Old Romney raises one issue on appeal, which we restate as whether the
trial court erroneously granted summary judgment to Appellees because Appellees act of closing
the intersection of U.S. 231 and County Road 300 South constituted a regulatory
taking for which Old Romney is entitled to damages under the doctrine of
Facts and Procedural History
The relevant facts are undisputed. This lawsuit arises from the Indiana Department
of Transportations decision to relocate and construct U.S. 231 in Tippecanoe County.
At all times pertinent to this action, Old Romney owned property adjacent to
County Road 300 South. Prior to March 18, 1994, Old Romney also
owned a parcel of real estate located at the northeast corner of County
Road 300 South (Parcel). On March 18, 1994, Old Romney sold the
Parcel to the State, in exchange for $84,132.00, for the construction of U.S.
231. During the construction of U.S. 231, in early 1999, the State
provided access to U.S. 231 at County Road 300 South. However, on
or about March 19, 1999, the State decided to close the intersection of
U.S. 231 and County Road 300 South (hereinafter referred to as the Intersection),
and Tippecanoe County approved such closure.
At all times pertinent to this appeal, Old Romney has not enjoyed direct
access to U.S. 231. Rather, after the completion of U.S. 231 and
prior to the closing of the Intersection, Old Romney could access U.S. 231,
via the Intersection, by exiting onto County Road 300 South and traveling east
to U.S. 231. Presently, however, because the Intersection is closed, to access
U.S. 231, Old Romney must exit onto County Road 300 South, which is
an unimproved gravel road, travel 1 mile east to Old Romney Road, 1.5
miles north to State Road 25, and, then, .7 miles east
See footnote to U.S.
On September 8, 1999, Old Romney filed a complaint against Appellees alleging that
the closure of the Intersection, which eliminated its access to U.S. 231, resulted
in a taking for which it is entitled to compensation in the amount
of $750,000.00. Specifically, Old Romney alleged that [s]uch closure eliminated the sole
method by which [it] could have ingress and egress from its property to
the 300 South frontage. Tippecanoe App. at 2. On May 29,
2003, Old Romney filed a partial motion for summary judgment to address the
issue of whether the closure of the Intersection constituted a taking. In
response, on June 26, 2003, Tippecanoe County filed a cross-motion for summary judgment.
On December 10, 2003, after conducting a hearing on the competing motions
for summary judgment, the trial court denied Old Romneys partial motion for summary
judgment and granted summary judgment to Appellees. This appeal by Old Romney
Discussion and Decision
I. Summary Judgment Standard of Review
On review of a trial courts decision to grant or deny summary judgment,
we apply the same standard as the trial court: we must decide
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. Carie v. PSI Energy, Inc., 715 N.E.2d 853, 855 (Ind. 1999).
Once the moving party has sustained its initial burden of proving the
absence of a genuine issue of material fact and the appropriateness of judgment
as a matter of law, the party opposing summary judgment must respond by
designating specific facts establishing a genuine issue for trial. Stephenson v. Ledbetter,
596 N.E.2d 1369, 1371 (Ind. 1992). We may consider only those portions
of the pleadings, depositions, and any other matters specifically designated to the trial
court by the parties for purposes of the motion for summary judgment.
Ind. Trial Rule 56(C), (H). Any doubt as to the existence of
an issue of material fact, or an inference to be drawn from the
facts, must be resolved in favor of the nonmoving party. Cowe v.
Forum Group, Inc., 575 N.E.2d 630, 633 (Ind. 1991). Although the nonmovant
has the burden of demonstrating that the grant of summary judgment was erroneous,
we carefully assess the trial courts decision to ensure that the nonmovant was
not improperly denied his or her day in court. Colonial Penn Ins.
Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind. 1997). Specific findings and
conclusions by the trial court are not required, and although they offer valuable
insight into the rationale for the judgment and facilitate our review, we are
not limited to reviewing the trial courts reasons for granting or denying summary
judgment. Bernstein v. Glavin, 725 N.E.2d 455, 458 (Ind. Ct. App. 2000),
trans. denied. Rather, a grant of summary judgment may be affirmed upon
any theory supported by the designated materials. Id.
In addition, [t]he fact that the parties [made] cross-motions for summary judgment does
not alter our standard of review. Instead, we must consider each motion
separately to determine whether the moving party is entitled to judgment as a
matter of law. Ind. Farmers Mut. Ins. Group v. Blaskie, 727 N.E.2d
13, 15 (Ind. Ct. App. 2000).
On appeal, Old Romney argues that the trial court erred by denying its
motion for summary judgment and by granting summary judgment to Appellees because Appellees
act of closing the Intersection resulted in a taking for which Old Romney
is entitled to compensation under the doctrine of inverse condemnation. Inverse condemnation
is a process provided by statute that allows individuals to be compensated for
the loss of property interests taken for public purposes without use of the
eminent domain process. Town of Georgetown v. Sewell, 786 N.E.2d 1132, 1138
(Ind. Ct. App. 2003). It serves to provide a remedy for takings
of property that would otherwise violate Article I, Section 21 of the Indiana
Constitution, which provides, in relevant part, that: No persons property shall be
taken by law, without just compensation; nor, except in case of the State,
without such compensation first assessed and tendered.
Specifically, Indiana Code Section 32-24-1-16, which provides the statutory remedy for inverse condemnation,
A person having an interest in property that has been . . .
for a public use without the procedures of this article or any prior
law followed is entitled to have the persons damages assessed under this article
substantially in the manner provided in this article.
There are two stages in an action for inverse condemnation. Sewell, 786
N.E.2d at 1139. The first stage involves determining whether a taking of
property has occurred. Id. Specifically, the landowner must show that he
or she has an interest in land that has been taken for a
public use without having been appropriated under eminent domain laws. Id.
If the trial court finds that a taking has occurred, the matter proceeds
to the second stage where the court appoints appraisers and assesses damages.
Here, Old Romney contends that Appellees act of closing the Intersection constituted a
taking because it eliminated Old Romneys access to U.S. 231. In particular,
Old Romney first asserts that Appellees act of closing the Intersection amounted to
a taking because Old Romney sold the parcel to the State in reliance
on representations of the State that an interchange would be built at the
new U.S. 231 and 300 S. Appellants Reply Br. at 1.
However, we note that the warranty deed executed by Old Romney and the
State for the sale of the Parcel does not include such a representation.
As such, any evidence, including affidavits, purporting to show the existence of
such representation is barred by the Statute of Frauds.
The Statute of Frauds provides, in pertinent part, that a person may not
bring an action involving any contract for the sale of land unless the
promise, contract, or agreement on which the action is based, or a memorandum
or note describing the promise, contract, or agreement on which the action is
based, is in writing and signed by the party against whom the action
is brought or by the partys authorized agent. Ind. Code § 32-21-1-1.
Our courts have long applied the principle that an agreement to convey
land is subject to the Statute of Frauds writing requirement.
Branch, 758 N.E.2d 48, 50-51 (Ind. 2001). Because any representation regarding the
interchange falls within the Statute of Frauds and because it was apparently not
in writing, it is unenforceable.
Id. at 51.
Old Romney next asserts that a taking occurred when the Intersection was closed
because, although it has retained access to U.S. 231, such access is circuitous
and unreasonable. To support this argument, Old Romney relies heavily upon our
supreme courts opinion in State v. Tolliver, 246 Ind. 319, 205 N.E.2d 672
(1965). There, the plaintiffs owned property, which was located several hundred feet
south of highway construction, on which they operated an ornamental iron prefabrication business.
Id. at 321, 205 N.E.2d at 673. As part of its
business operation, trucks transporting raw materials to and from the factory traveled over
Foster Road to get to U.S. Highway 136. Id. However, in
1959, the State and Vermillion County closed Foster Road between the plaintiffs property
and U.S. Highway 136. Id. at 322, 205 N.E.2d at 673.
After the closure of Foster Road, the plaintiffs sole means of ingress and
egress from their property was to the south on Foster Road, which required
the crossing of a bridge that was in bad shape and had a
weight capacity far below the loads required in conducting the iron prefabricating business.
Id. In addressing the issue of whether the closing of Foster
Road constituted a compensable taking of the plaintiffs property, the Tolliver court adopted,
in relevant part, the following legal principles:
[O]ne whose property abuts upon a roadway, a part of which is closed
or vacated has no special damage if his lands do not abut upon
the closed or vacated portion so that his right of ingress and egress
is not affected. If he has the same access to the general
highway system as before, his injury is the same in kind as that
suffered by the general public and is not compensable. It is damnum
See footnote ]
* * * * *
[However,] a property owner suffers a compensable damage on account of the construction
or vacation of a public road when egress and ingress to his property
are cut off or interfered with and he has no other reasonable means
of access. The right of access under such circumstances is property which
cannot be taken from him without compensation.
Id. at 329, 331, 205 N.E.2d at 676, 678.
Because the alternative route, via the bridge, was insufficient to support the plaintiffs
business operations and, therefore, not a reasonable outlet, the Tolliver court held that,
under those exceptional circumstances, the property owner had suffered a compensable damage by
the closing of the short stretch of county road between the plant and
the main highway. Id. at 332, 205 N.E.2d at 678. In
so holding, the Tolliver court noted:
In view of the insufficient alternate route which was the only remaining outlet
available to [the plaintiffs,] we must conclude this injury to [plaintiffs] steel fabricating
plant was far greater and of a kind and nature different from the
injury suffered by the general public and therefore comes within the exception to
damnum absque injuria so as to be compensable. In fact, under these
exceptional circumstances, the closing of the highway had the effect of depriving [the
Plaintiffs] of any suitable access to their steel fabricating business.
In the present case, unlike in
Tolliver, Old Romneys right of access to
U.S. 231 has not been cut off or interfered with such that it
has no other reasonable means of access. Indeed, Old Romney concedes that
it has a circuitous access to U.S. 231, via State Road 300 South,
Old Romney Road, and State Road 25. Accordingly, Old Romney can still
reach its land by the public road system, although the distance will be
greater and the route circuitous. Because Old Romney retains a reasonable means
of accessing U.S. 231, it has failed to demonstrate that a compensable taking
See footnote Accordingly, the trial court did not err by denying Old
Romneys partial motion for summary judgment and by granting summary judgment to Appellees.
For the foregoing reasons, we affirm the trial courts summary judgment in favor
of Appellees on Old Romneys claim for inverse condemnation.
SHARPNACK, J., and MAY, J., concur.
Footnote: In his affidavit, which was properly designated to the trial court, Fritz
Holzgrefea general partner of Old Romneyasserted: to get to the New U.S. 231,
I must drive 1 mile east on unimproved, hazardous 300 S. to Old
Romney Road; then 1.5 miles North to SR 25, then
West .7 miles
to US 231. Tippecanoe App. at 19 (emphasis added). However, our
review of the plat of land at issue, which was also designated into
evidence, reveals that, from State Road 25, one must travel east to U.S.
231. Based upon the plat and the fact that the parties do
not dispute the direction of State Road 25 vis à vis U.S. 231,
we assume that one must travel .7 miles east on State Road 25
to arrive at U.S. 231.
The document relied upon by Old Romney to support this assertion, which
appears to be a deed, provides that the sale of certain land is
[s]ubject to the right to use the future street. Tippecanoe App. at
21. However, we cannot ascertain from where this document came. Indeed,
the instrument immediately following the document in the appendix, which appears to be
a continuation of the document, provides: Grantor has caused this Deed to be
executed this 5th day of July, 1991.
Id. at 22. Yet,
the undisputed evidence reveals that Old Romney conveyed the Parcel to the State
in 1994, which contains no such reservation.
In addition, Old Romney directs our attention to Holzgrefes affidavit providing, in part:
That [Old Romney and the State] discussed that US 231 ingress/egress would
be provided along CR 300 S. and the price was negotiated accordingly and
a Deed to the State was delivered on May 12, 1994. Id.
at 17. In any event, we note that, despite the closure of
the Intersection, Old Romney has access to use the future street, assuming such
street is U.S. 231.
We further observe that when oral promises fall within the Statute of
Frauds, they may be enforced under the doctrine of promissory estoppel, which requires:
(1) a promise by the promissor; (2) made with the expectation that the
promisee will rely thereon; (3) which induces reasonable reliance by the promisee; (4)
of a definite and substantial nature; and (5) injustice can be avoided only
by enforcement of the promise. Brown v. Branch, 758 N.E.2d 48, 52
(Ind. 2001). However, to establish an estoppel sufficient to remove the case
from the operation of the Statute of Frauds, Old Romney must show that
Indianas refusal to carry out the terms of the agreement has resulted not
merely in a denial of the rights which the agreement was intended to
confer, but the infliction of an unjust and unconscionable injury and loss.
Id. It has not met this burden in this case.
Tolliver court explained that the doctrine of damnum absque injuria provides
that the plaintiffs may have suffered a damage, but it was without legal
injury. 246 Ind. at 326, 205 N.E.2d at 675.
In this vein,
Old Romney also contends that the present action is
similar to the facts in [Jordan] whereby access was denied and a taking
was determined. Appellants Br. at 12. However, the Jordan court found
that no taking had occurred by the widening of a highway because the
plaintiffs did not have a leasehold interest in the property at issue.
State v. Jordan, 247 Ind. 361, 369, 215 N.E.2d 32, 36 (1966).
Old Romney appears to argue that its access to U.S. 231 is
unreasonable because State Road 300 South is unsafe. We reject this argument,
however, because regardless of whether the Intersection is opened or closed, Old Romneys
access to U.S. 231 is dependent upon its use of State Road 300