A TTORNEY FOR A PPELLANTS A TTORNEYS FOR A PPE L LEE

Mark Small Alan S. Townsend Indianapolis, Indiana Bryan H. Babb Stephen C. Ung er Indianapolis, Indiana

_______________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 14S00

- 0710

- CV

- 397

RANDALL AND MARLA WA GLER , ET AL ., Appellants (Defendants below) ,

v .
WEST BOGGS SEWER DIS TRICT , INC ., Appellee (Plaintiff below)

.

_________________________________ Appeal from the Daviess Circuit Court, No. 14C01

- 0512

- PL

- 437

The Honorable Gregory A. Smith, Judge

_________________________________ On Petition to Transfe r Pursuant to Appellate Rule 56(A)

_________________________________

December 24, 2008 Sullivan, Justice.
In this case, certain property owners appealed a trial court’s order of condemnation and appropriation in respect of land for sewer easements and p ersuaded the Court of Appeals to stay the trial court’s order requiring an appeal bond. We assumed jurisdic t ion of the case to vacate the action of the Court of Appeals and now affirm the judgment of the trial court on the merits.2 Background
West Bogg s Sewer District, Inc., is a not

- for

- profit corporation organized under the laws of the State of Indiana. In January, 2002, West Boggs filed a Verified Application with the Indiana Utility Regulatory Commission for a Certificate of Territorial A u thority ( “CTA”) to provide sewage disposal service in rural areas of Daviess and Martin Counties. West Boggs was granted a CTA in August, 2003. In June, 2005, the Ind i ana Department of Environmental Management issued a permit to West Boggs to co n struct a sanitary sewer system.
West Boggs sought easements in order to construct the necessary facilities. It initially attempted to have the easements donated by the land owners. When it was not successful in

secu r ing all the easements by donation, West Boggs then hire d a certified land appraisal firm to pr e pare an independent assessment of the easement values. West Boggs then sent a Uniform Land Acquisition Offer (“Offer Letter”) to all the land owners who had refused to donate easements, offering them a sum based on the assessment of the easement value.
West Boggs subsequently brought condemnation proceedings in three separate cases against the property owners who did not accept the Offer Letter (“Property Ow n ers”). Among the Property Owners were Charles and Connie Ash and Randall and Marla Wagler.
More details on the procedural history of this case are set forth in part III, infra . For purposes of background, it is sufficient to say that West Boggs filed a motion for summary jud g ment in each of the cases and that the Property Owners did not respond. Thirty

- nine days after West Boggs filed its motions, the trial court granted summary judgment against each of the property owners and issued an order condemning and appropriating the property in question (“A p propriatio n Order”). The trial court denied the Property Owners’ request to stay enforcement of the Appropriation Order pending a p peal, and the court issued an order on June 11, 2007, setting bond for appeal in the amount of $50,000. On July 20, 2007, the Property Owners filed with the Court of A p peals an emergency motion to waive or reduce that bond and toll any deadlines for payment pending resolution of their emergency motion. West Boggs opposed that emerge n cy motion. On August 6, 2007, a divided panel of the Court of Appeals3

issued an o r der that, inter alia , stayed the Appropriation Order and relieved the Property Owners of the obligation to file an appeal bond.
West Boggs filed a Motion for Emergency Transfer asking this Court to assume jurisdiction on an ex pedited basis pursuant to Indiana Appellate Rule 56(A). We a c cepted jurisdiction over this appeal and vacated those parts of the August 6th order of the Court of Appeals that had stayed the Appropriation Order pending appeal and had relieved the Property Owners of the obligation to post the bond for this appeal. The Pro p erty Owners have not asked us to address the stay or bond issue in any respect in the Appe l lants’ Brief. Accordingly, we do not address this issue further.
The cases against all Property Owners have subsequently settled with the exception of Randall and Marla Wagler. 1

Discussion

I
The Property Owners contend that sewer districts throughout Indiana like West Boggs do not have condemnation authority. The Property Owners’ argument rests on the assertion that two different statutes granting condemnation authority are irreconcilable and thus the statute omitting sewer districts takes precedence over the statute granting condemnation authority to sewer districts.

The first of the statutes i n question is in Title 8 of the Indiana Code, which generally g o verns public utilities. The Code defines a “public utility” to include every corporation or company that “may own, operate, manage, or control any plant or equi p ment” used for the “collection , treatment, purification, and disposal in a sanitary manner of li q uid and solid waste, sewage, night soil, and industrial waste.” Ind. Code § 8

- 1

- 2

- 1(a). And it grants condemnation

1 The settled cases were case numbers 14C01

- 0601

- PL

- 032, 14C01

- 05 12

- PL

- 439, 14C01

- 0511

- PL

- 361, 14C01

- 0601

- PL

- 027, 14C01

- 0601

- PL

- 028, 14C01

- 0601

- PL

- 017, 14C01

- 0601

- PL

- 035, 14C01

- 0512

- PL

441, 14C01

- 0601

- PL

- 030, 14C01

- 0601

- PL

- 018, and 14C01

- 0601

- PL

- 011.4

authority to public utilities engaged in, among other functions, “collec tion, treatment, purification, and disposal in a sanitary manner of liquid and solid se w age.” I.C. § 8

- 1

- 8

- 1(a).
The second statute in question appears in Article 24 of Title 32, which generally governs eminent domain. The Article begins with a provi so that an entity exercising the power of

em i nent domain must do so in accordance with the Article “except as otherwise provided by law.” I.C. § 32

- 24

- 1

- 3. A subsequent provision in Article 24 grants condemnation authority to a “person, firm, partnership , limited liability company, or corpor a tion” authorized to perform certain explicit functions. I.C. § 32

- 24

- 4

- 1(a). The Property Ow n ers argue that because I.C. § 32

- 24

- 4

- 1 does not grant eminent domain authority to “private sewer or waste treatment entit ies,” West Boggs is not entitled to pr o ceed with its condemnation action.

Indiana Code § 8

- 1

- 8

- 1(a) plainly grants the authority for a public utility to co n demn land for the collection, treatment, purification, and disposal of liquid and solid wastes. Indiana Code § 32

- 24

- 4

- 1 also grants the authority to condemn land to a person, firm, partnership, or corpor a tion for many public utility purposes but omits sewer and sewage treatment from the list of a u thorized purposes.
When interpreting two statutes, this Court recognizes “a strong presumption that when the legislature enacted a particular piece of legislation, it was aware of existing st a tutes relating to the same subject.” See Poehlman v. Feferman , 717 N.E.2d 578, 582 (Ind. 1999) ( citing Glick v. De p ’ t of Commerce , 180 Ind. App. 12, 387 N.E.2d 74, 78 (1979) , trans. denied ). We attempt to harmonize two conflicting statutes. See State v. Universal Outdoor, Inc. , 880 N.E.2d, 1188, 1191 (Ind. 2008) ( citing Bd. of Trs. o f Ind. Public Employees’ Ret. Fu nd v. Grannan , 578 N.E.2d 371, 375 (Ind. Ct. App. 1991) , trans. denied ). “So long as two statutes can be read in harmony with one another, we presume that the Legislature intended for them both to have effect.” Burd M gmt. , LLC v. State , 831 N.E.2d 104, 1 08 (Ind. 2005). The standard of statutory construction requiring harmonization must be a p plied unless “a later act is so repugnant to an earlier one as to render them irre concilable.” Universal Outdoor, Inc. , 880 N.E.2d at 1191 ( citing Grannan , 578 N.E.2 d at 375).5

There is no dispute that West Boggs is a public utility under I.C. § 8

- 1

- 2

- 1(a). Indiana Code § 8

- 1

- 8

- 1 grants condemnation and appropriation authority to public utilities and explicitly includes entities engaged in the collection, treatment, purification, and disposal of liquid and

so l id wastes. This is sufficient statutory authority for West Boggs to take the action it took here. To read the absence of additional authority in I.C. § 32

- 24

- 4

- 1 as a pr o hibition on the exercise of condemnation authority would require the Court to read a conflict into the two statutes rather than harmonizing them. Finally, the “except as otherwise provided by law” clause of I.C. § 32

- 24

- 1

- 3 can easily be read as an explicit recognition by the Legislature that c ondemnation authority exists in the Indiana Code outside of A r ticle 24.
Under the rules of statutory construction long held by this Court, the two statutes should be read harmoniously unless the differences make the statutes so repu g nant as to render them irreconcilable. Indiana Code § 8

- 1

- 8

- 1 and I.C. § 32

- 24

- 4

- 1 are clearly not repugnant to one another and thus present no impediment to West Boggs exercising condemnation autho r ity.

II
The Property Owners contend that West Boggs was not entitled to acqu ire the easements because it did not make a “good faith” offer for their property as required by Indiana condemn a tion law.
Before filing a condemnation lawsuit, a condemning authority must attempt to negotiate in “good faith” a purchase of property deemed necessary to carry out its public purpose. I.C. § 32

- 24

- 1

- 5. An offer to purchase easements prior to initiating condemnation proceedings is considered an offer in good faith as a matter of law if it sati s fies two elements. 2 First, a good faith offer i s one that is based on the fair market value of the property. See Unger v. Ind. &

2 Effective March 24, 2006, I.C. § 32

- 24

- 1

- 3 was amended to require ce rtain additional efforts before pr o ceeding to condemnation. The amended statute still requires an attempt to purchase the property interest. I.C. § 32

- 24

- 1

- 3(b)(2) (Supp. 2006). However, the purchase effort must now include three additional elements. T he purchaser must establish a proposed purchase price for the property, provide the property owner with an appraisal or other evidence used to establish the proposed purchase price, and conduct good faith negotiations with the owner of the property. Id. § 3(c). This amendment does not apply to the current case because all of the complaints in this litigation were filed on or before January 9, 2006.6

Mich. Elec. Co. , 420 N.E.2d 1250, 12 60 (Ind. Ct. App. 1981) , reh’g denied . This element of good faith is satisfied when the offer is an amount based on an independent appra isal. See Lake County Parks and Recreation Bd. v. Ind i ana - American Water Co., Inc. , 812 N.E.2d 1118, 1124 (Ind. Ct. App. 2004). However, “[f]ailure to consider certain factors affecting damages and value does not render the o f fer invalid as not being in good faith.” Oxendine v. Pub. Serv

. Co. of Ind

. , Inc. , 423 N.E. 2d 612, 620 (In d. Ct. App. 1980). An offer need only meet the good faith requir e ment and does not need to pay the price asked by the property owner. See Wampler v. Trs

. of Ind

. U n iv

. , 241 In d. 449, 172 N.E.2d 67, 71 ( 1961).

Second, the good faith offer must be set forth in a uniform form letter sent to the owner of the property sought to be acquire d

. I.C. § 32

- 24

- 1

- 5(c) . When a condemning authority uses the uniform form letter to make an o ffer based on the independent appraiser’s fair market valuation, the offer is considered good faith as a matter of law. See Lake County Parks and Recre a tion Bd. , 812 N.E.2d at 1124.
The Property Owners argue that the appraisals were “morally oblique,” a nd ther e fore not in good faith, because West Boggs made an initial effort to have the land owners sign away easements without payment before sending the Offer Letters. (Appellants’ Br. at 15.) We are of the view that the fact that West Boggs sought land donations did not undermine its ability to establish good faith as a matter of law when it was unable to s e cure all the easements by donation. We perceive the Legislature’s purpose in mandating that offers be made in good faith to be that the condemning a uthority’s burden of coming forward with an offer before a property owner must take any action be a meaningful one. If the burden could be shifted to the property owner simply by a low

- ball bid, the co n demning authority’s burden would be very modest, inde ed. But a request for donation is not the same as a low

- ball offer because it imposes or shifts no burden on or to the pro p erty owner at all. If a property owner is unwilling to donate, it need do nothing at all.
The Property Owners also argue that the methodology used for the appraisal failed to take into account unique aspects of each property and thus did not constitute an actual appraisal. While an appraisal may be less than perfectly accurate, failing to take into account certain unique7

aspects of each property does not mean that the efforts made by an appraiser did not constitute an appraisal. Furthermore, it is established that the failure to consider certain factors in the valu a tion of property does not render an appraisal invalid as not being i n good faith. See Oxendine , 423 N.E. 2d at 620

. Thus, so long as the offer is based on an independent appraiser’s valuation, the element of good faith is sati s fied. See Lake County Parks and Recreation Bd. , 812 N.E.2d at 1124.
West Boggs hired an indep endent appraiser to carry out the valuation of the land it would eventually seek to condemn as required in Lake County Parks and Recreation Bd. , 812 N.E.2d at 1124. West Boggs used the appraisal in its Offer Letters, also as required in Lake County Parks and Recreation Bd. , 812 N.E.2d at 1124. The Offer Letters used the uniform form letter provided by I.C. § 32

- 24

- 1

- 5(c) and were sent to each Property Owner. Because West Boggs hired an independent appraiser and it used the apprai s al in the Offer Letters prior to the commencement of condemnation proceedings, West Boggs’s o f fer was in good faith as a matter of law.

III
The Property Owners contend that the trial court improperly consolidated their cases, and denied them their rights to due process by impro perly granting summary judgment against all of the Property Owners without giving each of them reasonable notice and a fair hea r ing.
To analyze this claim, it is necessary to describe the case history in greater detail.

As noted supra , West Boggs brought condemnation proceedings against the Property Owners in three separate cases. 3 On September 13, 2006, West Boggs filed a Motion for Consolidation in one of the se cases, West Boggs Sewer Dist. v. Charles and Connie Ash . This motion was served on the atto rney who represented all of the Property Ow n ers. On September

3 These cases were all filed in Daviess County. The case with respect to one defendant was v e nued to anothe r county and proceeded separately. This opinion relates only to those defendants in Daviess Cou n ty.8

14, 2006, West Boggs filed a Motion for Summary Judgment in the Ash case and asked the t rial

c ourt for s ummary j ud g ment in all of the cases.

On October 13, 2006, Charles and Connie Ash filed a r esponse. The t rial c ourt held a summary judgment hearing on November 1, 2006. At the hearing, counsel for the Property Owners stated that she was prepared to respond only to the Ash case. At the conclusion of the hearing, the t rial c ourt discussed w ith counsel for both sides how the parties w ould proceed on summary judgment if consolidation were to be granted in the ot h er cases. West Boggs offered to

re - file a full set of briefs in each of the cases but the court instead instructed West Boggs only t o file for summary judgment in each case and cross - reference the materials already filed in the Ash

case.
On December 11, 2006, the t rial c ourt entered an Order for Consolidation in all of the

c ases and granted West Boggs’ s summary judgment request agains t Charles and Co n nie Ash. The summary judgment against the Ash es was made part of each of the cases’ records. On January 18, 2007, West Boggs filed a Motion for Entry of Summary Jud g ment in each of the other case s . The Property Owners did not respond to these motions . On February 26, 2007, the t rial c ourt entered an Order Granting Motion for Summary Judgment and Findings of Fact, Conclusions of Law, and Order of Appropri a tion in each case. ( See Appellants’ Br., Attachs. A through I.)

The trial court c onsolidated these cases pursuant to Ind. Trial Rule 42(A):
When actions involving a common question of law or fact are pending before the court, [the court] may order a joint hearing or trial of any or all the ma t ters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnece s sary costs or delay. The consolidation rule permits a joint hearing or trial if a common que s tion of law or fact is determinative in the actions

. See Bodem v. Bancroft , 825 N.E.2d 380, 382 (Ind. Ct. App. 2005). Consolidation may only be overturned when a manifest abuse of discr e tion is established. See id. In condemnation pr o ceedings, the plaintiff also has the option to include all par cels in a9

county that are required for the same public use in one procee d ing or in separate proceedings. I.C. § 32

- 24

- 1

- 4(c). And a court has discretion in this instance to consolidate the cases or pr o ceed separately for the sake of convenience and the e nds of justice. Id.
The Property Owners argue that these consolidated actions did not involve a determinative common question of law or fact, that since different parties and different va l ues of property were involved in the issue of a good faith offer, there is no common que s tion of law or fact.
However, while the Property Owners each raised the same “good faith” issue, they have not pointed to any evidence that is unique to an ind i vidual Property Owner. West Boggs filed identical complaints and the Property Owners each filed the same sub s tantive objections. The Property Owners even admit the central issue in the condemn a tion action is whether a good faith offer was made. And as discussed supra , the good faith offer is determined by a common issue

o f fact: whether West Boggs hired an independent appraiser and used the appraisal in the

un i form form letter prior to commencing condemnation proceedings. Since there are common que s tions of law and fact among the cases, the trial court did not abuse its d iscretion in consolidating them.
The Property Owners argue that the consolidation violated their due process rights by effectively denying them an opportunity to respond to West Boggs’s Motion for Summary Judgment. Property Ow n ers contend that when the M otion for Consolidation was filed in Ash , no entry was made in the CCS of the other cases regarding consolid a tion. The Motion for Summary Judgment was filed the following day in Ash and again they say no entry of the Motion for Summary Judgment was made i n the CCS of any of the other cases.
In point of fact, the Property Owners had ample notice of and multiple opportunities to respond to West Boggs’s Motion for Summary Judgment. From the outset, the cases were treated as a common group; for instance, all cases were set for the same hearings at the same times while the parties were all represented by the same counsel.10

At the hearing on summary judgment in the Ash case, West Boggs requested summary judgment in all of the cases at the hea r ing. Counsel for the Property Owners stated that she was prepared to respond only to Charles and Connie Ash . At the concl u sion of the hearing, the trial court addressed how the parties would proceed on summary judgment if consolidation were to be granted. West Boggs o f

fe red to re

- file the briefs in all of the cases but was instead instructed to only file for summary judgment and cross

- refe r ence the materials filed in the Ash case. Property Owners did not object.
When the trial court granted consolidation of all the case s into Ash , the decision was made part of the record in each of the cases. West Boggs then filed a Motion for Summary Judgment in each of the Daviess County cases. None of the Property Ow n ers responded within the required 30 days and after 39 days the tr ial court e n tered individual summary judgments, as noted supra . Finally, this appeal is from the individual grants of summary judgment and not the summary judgment granted in the Charles and Connie Ash suit alone. As such, the Pro p erty Owners were not d enied their due process rights. They had an opportunity to r e spond but did not do so.

Conclusion

We affirm the trial court.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.