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09/09/87 LLOYD SAMPLAWSKI AND RUTH ANN SAMPLAWSKI

Filed: September 9, 1987.

LLOYD SAMPLAWSKI AND RUTH ANN SAMPLAWSKI, DEFENDANTS-APPELLANTS
v.
THE CITY OF PORTAGE, A MUNICIPAL CORPORATION, PLAINTIFF-APPELLEE



APPEAL FROM THE PORTER SUPERIOR COURT, Cause No. 85-PSC-2195.5, The Honorable Bruce W. Douglas, Judge.

Garrard, P.j., Staton, J. and Miller, P.j. Concur.

Author: Garrard

GARRARD, P.J.

The City of Portage commenced this eminent domain proceeding to secure a strip of land from Lloyd and Ruth Ann Samplawski so that it could expand Willowcreek and Crisman Roads.

After the original negotiations produced no agreement, a complaint was filed on August 23, 1985. The landowners were served with process on August 27. Contained in the summons was the following admonition:

"You are not required to file a written answer to the Complaint. The Clerk of Court will notify you by certified mail when court-appointed appraisers have filed their written valuation of your real estate. If you disagree with that valuation you must file written objections within twenty (20) days after the notice was mailed, or judgment determining value may be entered against you by default. (emphasis added)

Appraisers were duly appointed and their report was filed with the court on October 2, 1985. A copy of the report was sent to the landowners that same day by certified mail. They received it on October 4.

Three days later Mr. Samplawski met with Robert Goin, the mayor, in an effort to secure a higher price. According to Mr. Samplawski the mayor assured him that while negotiations proceeded, the landowners would not have to comply with any filing deadlines.

It appears, however, that in January the city attorney advised the mayor that the landowners filed no exceptions to the award of the appraisers and that therefore the appraisal had become final. The mayor advised the landowners, and on February 4 they filed what was denominated as a petition for preliminary injunction. Two days later they "amended" the petition to seek a declaration that the city be estopped from asserting their failure to file exceptions.

The city countered with a motion for summary judgment, which the trial court granted. This appeal followed.

IC 32-11-1-8, which applies to this action, requires that any party wishing to take exception to the report of the court-appointed appraisers must file written exceptions with the court, or in the clerk's office, within twenty days after mailing of the notice of the filing of the report. If no exceptions are filed within the time limits fixed by the statute, the report becomes conclusive upon all parties. State v. Redmon (1933), 205 Ind. 335, 186 N.E. 328; Best Realty Corp. v. State (1980), Ind. App., 400 N.E.2d 1204.

The landowners seek to avoid this effect of their noncompliance by asserting (1) the notice of the appraisers' report was defective; (2) they substantially complied with the requirement; and (3) the city should be estopped from asserting their failure to file exceptions.[Footnote 1]

Notice

The landowners contend that the summons should have been served with the appraisal report rather than with the complaint. They cite no authority for this contention, but ...


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