Court of Appeals of Indiana | Opinion 22A-PL-2969 | November 28, 2023 Page 1 of 12

ATTORNEYS FOR APPELLANT

Theodore E. Rokita

Attorney General of Indiana

Frances Barrow

Deputy Attorney General

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

FRANCISCAN ALLIANCE, INC.

Paul D. Vink

Seema R. Shah

Bose McKinney & Evans LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

SCP 2010-C36-018

Nadine E. McSpadden

Andrielle M. Metzel

Taft Stettinius & Hollister, LLP

Indianapolis, Indiana

Ryan Simatic

Biersdorf & Associates, PA

Minneapolis, Minnesota

I N T H E

COURT OF APPEALS OF INDIANA

State of Indiana,

Appellant-Plaintiff,

v.

Franciscan Alliance, Inc. f/k/a 

Sisters of St. Francis Health 

Services, Inc.; The Market Place 

at State Road 37, LLC; Hook 

SupeRX, LLC; SCP 2010-C36-

November 28, 2023

Court of Appeals Case No.

22A-PL-2969

Appeal from the Johnson Superior 

Court

The Honorable Marla K. Clark, 

Judge

Trial Court Cause No.

41D04-1911-PL-181
Court of Appeals of Indiana | Opinion 22A-PL-2969 | November 28, 2023 Page 2 of 12

018 LLC; and Johnson County, 

Indiana,

Appellee-Defendants

Opinion by Judge Weissmann

Judge Riley and Senior Judge Robb concur.

Weissmann, Judge.

[1] As part of the Interstate 69 construction project, the State seized 0.632 acres of 

land owned by Franciscan Alliance in Greenwood, Indiana. The seizure 

consequently altered the traffic flow to Franciscan’s remaining land, which was 

undeveloped, and to an adjacent CVS pharmacy owned by SCP. Franciscan 

and SCP (collectively “Owners”) convinced a jury that the State owed them 

compensation not just for the seized land but also for the impact from the less 

convenient access. The jury awarded $680,000 to Franciscan and $1.5 million

to SCP. 

[2] The State appeals asking if inconvenience associated with traffic flow, as 

opposed to ingress-egress loss of access, is a compensable injury. The State 

maintains it is not, and accordingly asks this court to reduce the damage award 

entered against it to $47,400. The State’s argument relies on deep rooted 

Indiana Supreme Court precedent holding that damages associated with traffic
Court of Appeals of Indiana | Opinion 22A-PL-2969 | November 28, 2023 Page 3 of 12

flow variations are not compensable. Finding this precedent controlling, we 

reverse and remand for a reduction in the damages award.

Facts

[3] To transform State Road 37 into part of the I-69 corridor, the State needed to 

acquire a 0.632-acre commercial strip of land owned by Franciscan (the Strip).

The Strip appears in red below. SCP’s CVS is located within the bottom-left 

block labeled “Marketplace”:
Court of Appeals of Indiana | Opinion 22A-PL-2969 | November 28, 2023 Page 4 of 12

Exhs. Vol. VI, p. 92.

[4] Originally, Owners had direct access to State Road 37 via Fairview Road. But 

after the construction project, Fairview Road will not connect to the new I-69 

and will instead be turned into a dead-end cul-de-sac. Consequently,

northbound traffic needs to travel another mile to reach Owners’ properties, and

southbound traffic just over three extra miles.

[5] As part of the condemnation proceedings, multiple appraisers weighed in on 

what the State owed the owners for the seizure. The Strip was valued at either

$40,500 or $47,400, and according to the State’s appraiser, this taking was the 

only compensable damage. But Owners’ appraisers found the inconvenient 

access changed the properties’ viable uses from commercial to residential—

significantly reducing their values. Franciscan’s appraiser calculated a $3 

million loss. And SCP’s appraiser landed on a value of $4.4 million because the 

CVS’s income derives from “spontaneous buyers” who need the “quick, in and 

out” that access to a major roadway provides. Tr. Vol. III, p. 95. The appraiser

testified that the loss of easy access would doom the store: “if you don’t have 

access . . . you really don’t survive.” Id. Additionally, a joint report from the 

appraisers calculated damages at about $1.9 million for both Franciscan and 

SCP. From these bases, the jury ultimately landed on compensation of 

$680,000 for Franciscan and $1.5 million for SCP. 
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Discussion and Decision

[6] Both Article 1, § 21 of the Indiana Constitution and the Fifth Amendment to 

the United States Constitution prevent the taking of private property for public 

use without “just compensation.” These provisions “are textually 

indistinguishable and are to be analyzed identically.” State v. Kimco of Evansville, 

Inc., 902 N.E.2d 206, 210 (Ind. 2009).

[7] At the heart of this dispute is whether Owners are entitled to compensation 

related to changes in their properties’ access. The resolution rests on whether 

this is merely a change in traffic flow or circuity of travel case, as in State v. 

Ensley, 164 N.E.2d 342 (Ind. 1960) and Kimco, 902 N.E.2d 206 (Ind. 2009), or 

an ingress-egress, loss-of-access case where the property’s highest and best use 

has changed, as in City of Hammond v. Marina Entertainment Complex, Inc., 733 

N.E.2d 958 (Ind. Ct. App. 2000). 

I. Waiver

[8] As a preliminary matter, Owners contend the State waived any challenge to the 

jury award by failing to properly object to their valuation evidence.1 We 

disagree. 

1 At oral argument, SCP’s counsel likened the waiver arguments here to the invited error doctrine. Oral 

Arguments online, State of Indiana v. Franciscan Alliance, Inc. et al., at 30:20 (Oct. 4, 2023), 

https://mycourts.in.gov/arguments. The doctrine of invited error “forbids a party from taking ‘advantage of 

an error that she commits, invites, or which is the natural consequence of her own neglect or misconduct.’” 

Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018) (quoting Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005)). 
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[9] At the outset of the jury trial, the State objected to a jury instruction that it

argued improperly implied that increased travel times were compensable 

damages. Tr. Vol. II, pp. 10-12. The State even obtained the trial court’s 

permission, with no complaint from Owners, to view its objection as continuing 

throughout the trial. Id. at 13-14. Thus, the State properly objected.

[10] Owners also complain that the State should have filed a motion to dismiss the 

case before the jury trial began, noting there was little point in holding a trial if 

the vast majority of damages turned out to be non-compensable. But Owners 

identify no requirement for the State to have done so to preserve its valuation 

argument. We also note that, prior to the trial, the State filed a motion in limine 

to prevent owners from presenting their valuation evidence relating to the loss 

of access. Appellant’s App. Vol. II, p. 18. 

[11] Accordingly, we find no waiver of the State’s argument. 

II. Damages

Circuity of Travel or Traffic Flow Damages

[12] A party may not obtain damages in an eminent domain action resulting from a 

claim that “traffic is diverted from [the] premises or made to travel a more 

circuitous route.” State v. Ensley, 164 N.E.2d 342, 350 (Ind. 1960). This general 

rule has been reaffirmed many times. See, e.g., State v. Kimco of Evansville, 902 

N.E.2d 206, 212-16 (Ind. 2009) (reaffirming Ensley in the context of a shopping 

mall whose traffic flow was negatively affected by street construction); AAA 

Fed. Credit Union v. Ind. Dep’t of Transp., 79 N.E.3d 401, 405 (Ind. Ct. App. 
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2017) (holding “an abutting landowner has no cognizable property right in the 

free flow of traffic past his property (‘the traffic-flow rule’)”); State v. Dunn, 888 

N.E.2d 858, 864-66 (Ind. Ct. App. 2008) (noting “our Supreme Court has made 

clear that a taking does not occur where ingress and egress is made more 

circuitous and difficult” (internal quotation omitted)). 

[13] The Indiana Supreme Court established the traffic flow rule in 1960 under 

similar facts as presented here. State v. Ensley, 164 N.E.2d 342 (Ind. 1960).

Though we must follow the precedent from Ensley, society has shifted 

dramatically since the first applications of the rule. In 1960, customers had no 

choice but to drive the more circuitous traffic route to obtain necessary goods 

and services. Today customers can, and often do, avoid inconvenient trips by 

shopping online. For instance, in State v. Kimco of Evansville, the shopping mall’S

loss of easy access to its premises led to a 40% drop in tenants. 902 N.E.2d at 

209. Because of changing societal habits, the factual distinction between the 

legal concepts of a change in traffic flow versus ingress and egress has become a 

difficult basis on which to base a resolution. But the reevaluation of this 

decades-old rule is a role left for our Supreme Court. The policy justifications 

for this rule have long been recognized: 

The propriety of such an allowance in any case where only an 

indirect access is cut off, the landowner being left with other, 

although more circuitous, indirect ways of approaching the 

highway, seems doubtful, since obviously if the principle were 

extended to its logical limits almost every member of the public 

could claim compensation on the theory that the convenience of 

the highway was reduced by closing any means of access.
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State v. Tolliver, 205 N.E.2d 672, 676 (Ind. 1965) (emphasis in original) (internal 

quotation omitted).

[14] This case is a textbook illustration of the traffic flow rule. First and foremost,

Owners still have access to the new I-69. AAA Fed. Credit Union, 79 N.E.3d at 

405-06 (collecting cases which denied compensation where “the points of 

ingress and egress over the land remain unaffected”). Granted, the construction 

project will add approximately 1 to 3 miles of travel distance to reach their 

property. But this Court has already held that the increase of 4 miles in travel 

distance is not severe enough to be considered an effective elimination of 

ingress and egress rights. Green River Motel Mgmt. of Dale, LLC v. State, 957 

N.E.2d 640, 645 (Ind. Ct. App. 2011) (holding a 4.5-mile increase in travel 

distance to a motel was not a compensable taking because motorists could still 

access the property, albeit through “a more circuitous route”).

[15] More recently, in a related case concerning the Market Place property on which 

the CVS sits, a panel of this Court found that essentially the same factual 

scenario “falls squarely within the traffic-flow-rule cases.” State v. The Mkt. Place 

at State Road 37 LLC, No. 22A-PL-2765, 211 N.E.3d 539, *3 (Ind. Ct. App. 

2023) (mem.), trans. denied. The State argued that the owner of the Market Place 

property could not introduce evidence of any damages from the closure of 

Fairview Road because “the closure of the intersection is not a ‘taking’ for 

which Market Place is entitled to compensation.” Id. at *1. This Court agreed 

that business would suffer from the I-69 traffic flow changes but found those

damages non-compensable because “an abutting landowner has no cognizable 
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property right in the free flow of traffic past his property.” Id. at *2 (citing AAA 

Fed. Credit Union, 79 N.E.3d at 405). Given that we are confronted here with 

essentially the same facts as the panel in Market Place, we see no justification for 

reaching a different result. 

Change in Highest and Best Use

[16] Owners argue that this case is an exception to the traffic flow rule because there 

is a change in their property’s “highest and best use.” Owners support this

argument with a decades old case, itself based on shaky precedent—City of 

Hammond v. Marina Entertainment Complex, 733 N.E.2d 958, 960 (Ind. Ct. App. 

2000).

[17] In Marina Entertainment, this court ruled damages could be awarded where a 

city closed a road just north of the landowners’ property resulting in 1.7 miles of

increased travel distance. In reaching this conclusion though, the Marina 

Entertainment panel ignored controlling precedent and relied instead on a 1945 

Indiana Supreme Court decision, State v. Ahaus, 63 N.E.2d 199, 201 (Ind. 

1945). But our Supreme Court had already rejected the applicability of Ahaus to

a case involving an impaired right to access land. Ensley, 164 N.E.2d at 349

(emphasizing that Ahaus involved “interference in the use of appellees’ 

property”). In doing so, the Indiana Supreme Court confirmed the “general rule 

. . . that there is no property right of an abutting property owner in the free flow 

of traffic past his property and thus no compensation can be claimed if traffic is 

diverted from his premises or made to travel a more circuitous route.” Id. at 350

(collecting cases). As the Marina Entertainment decision appears to rest on a 
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branch of eminent domain law pruned away over half a century ago, we decline 

to follow it today. See Wellman v. State, 210 N.E.3d 811, 816 n.4 (Ind. Ct. App. 

2023) (“Indiana does not recognize horizontal stare decisis.”).

[18] In summary, this case cleanly fits within the ambit of our existing caselaw on 

circuity of travel and traffic flow, and thus the $2.2 million judgment is 

erroneous. 

III. Attorney Fees

[19] Next, the State raises an additional argument that the trial court erred in 

awarding attorney fees to both Owners because the relevant statute only 

contemplates awarding costs to one defendant. But our above analysis on 

compensable damages renders this point moot. As only the value of the Strip is 

compensable, and the Strip was solely owned by Franciscan, there are no longer 

any damages for SCP to recover. Thus, SCP may no longer recover attorney’s 

fees under Indiana Code § 32-24-1-14(b) as the recovery of a “defendant’s 

litigation expenses, including reasonable attorney’s fees” is limited to when “the 

amount of damages awarded to the defendant by the judgment . . . is greater 

than the amount specified in the last offer of settlement made by the plaintiff.”

IV. Prejudgment Interest

[20] Lastly, the State argues that the trial court applied the wrong statute in setting 

the amount of prejudgment interest. The trial court applied 8% interest as 

allowed by Indiana’s eminent domain statute. Ind Code § 32-24-1-11(d)(6). But 

the State argues the court should have applied 6% interest as set forth in the 
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more general statute governing government interest payments on final 

judgments. Ind. Code § 34-54-8-5.

[21] “As a matter of interpretation, general statutes yield to more specific statutes.” 

State v. Neukam, 189 N.E.3d 152, 155 (Ind. 2022) (citing Grether v. Ind. State Bd. 

of Dental Exam’rs, 159 N.E.2d 131, 134 (Ind. 1959)). Thus, the fact that Indiana 

Code § 32-24-1-11 is located within the eminent domain article of the Indiana 

Code strongly implies that the Legislature intended for it to govern eminent 

domain matters.

[22] The State cites no cases applying its chosen statute in the eminent domain 

context. In contrast, a panel of this Court has endorsed applying a more specific 

interest rate payment statute when two statutory frameworks conflict. Glick v. 

Dep’t of Com., 387 N.E.2d 74, 77-78 (Ind. Ct. App. 1979) (applying the Indiana 

Tort Claims Act’s then existing interest payment framework—instead of more 

general statutes—in part, because the statute was “the more specific and 

detailed treatment of” the relevant area of law).

[23] Accordingly, the trial court did not err in applying the prejudgment interest 

framework in Indiana Code § 32-24-1-11. But on remand, the amount of 

prejudgment interest owed will need to be recalculated due to the change in the 

underlying jury award. 

Conclusion

[24] Given our earlier holding that the jury award given to Franciscan and SCP 

wrongly included non-compensable damages, we reverse and remand with 
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instructions that the trial court vacate the judgment in favor of SCP. The court 

shall enter judgment for Franciscan and recalculate the prejudgment interest

consistent with this opinion. 

Riley, J., and Robb, S.J., concur.