MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Gregory F. Zoeller

Attorney General of Indiana

David L. Steiner

Deputy Attorney General

Indianapolis, Indiana

Yasmin L. Stump

J. Eric Rochford

Yasmin L. Stump Law Group, PC

Carmel, Indiana

ATTORNEYS FOR APPELLEE

Thomas R. Malapit, Jr.

Joshua A. Brown

McKinney & Malapit, P.C.

Muncie, Indiana

IN THE

COURT OF APPEALS OF INDIANA

State of Indiana,

Appellant-Plaintiff,

v.

Monroe Liberty, LLC,

Appellee-Defendant

July 15, 2016

Court of Appeals Case No.

53A05-1508-PL-1009

Interlocutory Appeal from the

Monroe Circuit Court

The Honorable Frances G. Hill, 

Judge

Trial Court Cause No.

53C06-1402-PL-402

Crone, Judge.

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Case Summary

[1] The State of Indiana brings this interlocutory appeal in an eminent domain 

action involving the taking of real property owned by Monroe Liberty, LLC, for 

the extension of I-69 from Evansville to Indianapolis. This action is in the 

damages phase, which has yet to be tried by the jury.1

 The subject of this 

appeal is the “Trial Order for June 23, 24, 2015” (“the Order”), denying the 

State’s motion in limine. On appeal, the State contends that the trial court 

erred in refusing to exclude certain evidence and testimony. Specifically, the 

State asserts that certain evidence and testimony pertaining to the highest and 

best use and/or the value of Monroe Liberty’s property is inadmissible because 

that evidence and testimony are based wholly or partly on the construction and 

completion of I-69, the project for which the property is being taken.2

 Because 

we conclude that the evidentiary issues raised by the State are not ripe for our 

review, we dismiss the State’s appeal.

Facts and Procedural History

[2] Monroe Liberty is owned and managed by Leo Hickman. On or about 

February 15, 2011, Monroe Liberty purchased a vacant house on 2.818 acres

(“the Property”), commonly known as 2201 West Fullerton Pike, Bloomington. 

1

 The first phase of an eminent domain proceeding concerns the propriety of the taking itself, while the 

second phase deals with the issue of just compensation. Hass v. State, Dep’t of Transp., 843 N.E.2d 994, 998 

(Ind. Ct. App. 2006), trans. denied.

2

 Monroe Liberty purports to file a cross-appeal, but it does not ask for relief from any part of the Order. Its 

argument is not actually a cross-appeal but simply a counter-argument in support of the trial court’s rulings. 

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The purchase price was $58,500. The Property is located on the southeastern 

quadrant of State Road 37 and Fullerton Park. Monroe Liberty spent 

approximately $46,700 to improve the house and began leasing it for residential 

use. The Property is zoned Agriculture/Rural Reserve (“AG/RR”), which 

permits general agricultural and residential uses. The Property is also located 

within the Business/Industrial Overlay District, which permits uses limited to 

those allowed in light industrial and heavy industrial districts. 

[3] The State offered Monroe Liberty $52,800 to acquire a 1.240-acre rectangular 

strip of the Property for the construction of I-69. This strip does not contain the 

rental house. Monroe Liberty rejected the State’s offer.

[4] On February 27, 2014, the State filed its eminent domain complaint. The trial 

court found that the State’s taking was appropriate, and the action proceeded to 

the damages phase. Pursuant to Indiana Code Section 32-24-1-9, the trial court 

appointed three impartial appraisers. 

[5] Monroe Liberty retained Steven M. Shockley to provide an appraisal. Monroe 

Liberty also enlisted Herman Bernitt, formerly a licensed real estate agent, to 

testify as an expert regarding the highest and best use and the value of the 

Property. Bernitt had advised Hickman to purchase the Property in 2011. In 

addition, Monroe Liberty enlisted Michael L. Carmin, a real estate attorney, to 

serve as an expert on local zoning ordinances, describe the procedure for 

rezoning the Property from AG/RR to commercial, and provide his opinion 

that rezoning the Property for commercial purposes is very probable. 

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[6] In June 2015, the State filed its motion in limine and brief in support thereof. 

In relevant part, the State sought to exclude as inadmissible the reports and/or

testimony of Shockley, Carmin, Bernitt, and Hickman, contending that they 

relied on the completion of I-69 to form their opinions on the highest and best 

use and the value of the Property.

[7] On June 18 and 19, 2015, the trial court held a preliminary hearing on expert 

qualifications. On June 23 and 24, 2015, the trial court held a hearing on the 

admissibility of testimony and evidence, including the remaining issues raised 

by the State’s motion in limine. Based on the evidence provided at these two 

hearings, as well as witness depositions, the trial court issued the Order, which 

in relevant part provides as follows:

Argument was heard on the State’s motion to exclude testimony 

on the basis of the [Project Rule], set out in State v. Sovich, 252 

N.E.2d 582 (Ind. 1969). The court rules that the [Project Rule], 

as stated in Southtown Properties, Inc. v. City of Fort Wayne, 840 

N.E.2d 393, 400 (Ind. Ct. App. 2006) is a rule of relevancy that is 

applicable to this proceeding. The court adopts the restatement 

of Sovich from Southtown Properties that “evidence of changes in 

the value of property brought about by the project for which the 

property is being taken is irrelevant to the determination of the 

value of the property on the date of the condemnation, i.e. the 

date the condemnation action is filed.” Southtown Properties at 

400. This ruling by the court excludes any offered evidence 

(testimony, exhibits) on the effect of the construction or 

completion of the I-69 Highway project on the highest and best 

use for which the taken property is adaptable as of the date of 

taking ... and the fair market value of the taken property on the 

date of taking. ....

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All witnesses are subject to the above stated ruling of exclusion.

The court finds ... that some witnesses considered the effect of 

the construction and completion of the I-69 Highway project in 

formulating their opinions of highest and best use, value of 

surrounding real estate, and determination of fair market value. 

The court also finds that the testimony ... of all the witnesses 

challenged by [the State] considered additional factors that are 

relevant, besides the I-69 Highway project, in formulating their 

opinions. Some of the challenged witnesses, but not all, testified 

in person or by deposition (in essence) that their opinions would 

not change or were not based solely or significantly upon, the 

construction or completion of the I-69 Highway project. Because 

the opinions of the witnesses are based upon multiple factors that 

are relevant, the court denies the request of [the State] to exclude 

the testimony of a witness on the grounds that the witness stated 

... that the witness “considered” the construction or completion 

of the I-69 Highway in forming his opinion of highest or best use 

or fair market value or the value of surrounding real estate as to 

the property taken. [The State] may ask on cross examination if 

the witness based his opinion on the I-69 Highway project and

the witness may testify as is necessary to answer the question. 

The court anticipates objections regarding whether the answer of 

a witness may include the relevancy of the I-69 Highway project 

to his/her opinion and whether [the State] has opened the door 

to testimony about the I-69 Highway project and how that affects 

highest and best use or valuation of the property taken. 

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Appellant’s App. at 20-21. The Order also includes determinations specifically 

with respect to Hickman, Bernitt, and Carmin.3

 This interlocutory appeal 

ensued.

Discussion and Decision

[8] The State asserts that the trial court abused its discretion by denying its motion 

in limine. Specifically, the State contends that reports and/or testimony of 

Shockley, Hickman, Bernitt, and Carmin regarding the highest and best use 

and/or the value of the Property is inadmissible because it violates the Project 

Rule adopted in State v. Sovich, 253 Ind. 224, 252 N.E.2d 582 (1969), and 

restated in Southtown Properties, Inc. v. City of Fort Wayne ex rel. Dep’t of 

Redevelopment, 840 N.E.2d 393 (Ind. Ct. App. 2006), trans. denied. 

[9] In Sovich, our supreme court articulated the Project Rule as follows: “neither an 

increase nor a decrease in the market value of the property sought to be taken, 

which is brought about by the same project for which the property is being 

3

 The trial court found that Monroe Liberty agreed that Hickman will not testify as an expert, but that he 

can testify to his opinions on value and highest and best use within the confines of Evidence Rule 701. The 

trial court also found that “[h]e can testify as to intent to purchase the subject project for commercial 

purposes but not as to an intended specific future use such as a gas station.” Appellant’s App. at 21. As for 

Bernitt, the trial court concluded that Monroe Liberty qualified him as an expert on highest and best use but 

that he is not qualified as an expert on fair market valuation. The trial court also found that Bernitt may 

testify as a skilled witness on commercial sales that “he has personally been involved in if he clarifies his 

involvement on the record.” Id. at 22. Finally, the trial court found that the parties agreed that Carmin’s 

written report would not be offered into evidence and that neither the Monroe County Urbanizing Plan nor 

any ordinances or statutes that went into effect after the date of taking would be offered into evidence or 

testified to by Carmin. 

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taken, may be considered in determining the value of the property.” 253 Ind. at 

234, 252 N.E.2d at 588.4

[10] In Southtown, another panel of this Court discussed the Project Rule in the

context of the Indiana Rules of Evidence, which were adopted subsequent to

Sovich. The Southtown court explained, “We believe that the rule announced in 

Sovich is essentially a rule of the relevancy of evidence.”5

 840 N.E.2d at 400.

The Southtown court stated, “Sovich basically stands for the proposition that 

evidence of changes in the value of property brought about by the project for 

which the property is being taken is irrelevant to the determination of the value 

of the property on the date of condemnation, i.e., the date the condemnation 

action is filed.” Id.

[11] Based on our review of Sovich and Southtown, we agree with the trial court’s 

statement of the Project Rule. On appeal, the parties vigorously dispute 

whether any or all of the challenged witnesses actually relied on the 

construction and completion of I-69 in reaching their opinions as to the highest 

and best use and/or the value of the Property. They also disagree on various 

aspects related to the scope of the Project Rule, such as whether the Project 

4

 In Gradison v. State, 260 Ind. 688, 300 N.E.2d 67 (1973), the supreme court declined to apply Sovich to 

valuation of the residue in a condemnation action. In so doing, the Gradison court concluded that valuation of 

the residue may include consideration of “benefits derived by the residue from the improvements resulting 

from the condemnation project.” Id. at 710, 300 N.E.2d at 82.

5

 Pursuant to the Indiana Rules of Evidence, “[i]rrelevant evidence is not admissible” and, with some 

exceptions, “[r]elevant evidence is admissible.” Ind. Evid. Rule 402. Evidence is relevant if “it has any 

tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of 

consequence in determining the action.” Ind. Evid. Rule 401.

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Rule excludes evidence of highest and best use and/or valuation if that 

evidence is based even in part on the project for which the property is being 

taken. 

[12] We observe that “[o]rdinarily the denial of a motion in limine can occasion no 

error; the objectionable occurrence is the improper admission of items in 

evidence.” Perry v. Gulf Stream Coach, Inc., 871 N.E.2d 1038, 1047 (Ind. Ct. 

App. 2007). “A trial court’s ruling on a motion in limine does not determine 

the ultimate admissibility of the evidence; that determination is made by the 

trial court in the context of the trial itself.” Gibson v. Bojrab, 950 N.E.2d 347, 

350 (Ind. Ct. App. 2011). “If the trial court errs by admitting evidence, the 

exclusion of which was sought by the motion in limine, then the error is in 

admitting the evidence at trial in violation of an evidentiary rule, not in denying 

the motion in limine.” Bova v. Gary, 843 N.E.2d 952, 955 (Ind. Ct. App. 2006).

[13] We note that an appeal of a motion in limine is a discretionary interlocutory 

appeal.

6 “[O]ur decision whether or not to accept a discretionary interlocutory 

appeal is entirely discretionary.” Bridgestone Americas Holding, Inc. v. Mayberry, 

854 N.E.2d 355, 358-59 (Ind. Ct. App. 2006), summarily aff’d in relevant part by

878 N.E.2d 189, 191 n.2 (Ind. 2007). “It is well established that we may 

reconsider a ruling by our motions panel.” Wise v. State, 997 N.E.2d 411, 413 

(Ind. Ct. App. 2013). “More specifically, we have the authority to reconsider 

6 Such appeals are governed by Indiana Appellate Rule 14(B), which provides, “An appeal may be taken 

from ... interlocutory orders if the trial court certifies its order and the Court of Appeals accepts jurisdiction 

over the appeal.” 

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our motions panel’s initial ruling on a motion to accept interlocutory 

jurisdiction.” Id. 

[14] We conclude that the evidentiary issues raised by the State are not ripe for our 

review. These issues are fact-sensitive, and we will be in a far superior position 

to decide these questions after the trial is held and the precise character of the 

evidence and the nature of the objections are available to us. The Order’s 

suppositions regarding specific questions and the consequences of those 

questions are advisory at best and speculative at worst. We are not insensitive 

to the parties’ dilemma in wading into this difficult area, but our ability to 

render an opinion on the issues raised is constrained by not having specific 

rulings or specific evidence before us. Because we conclude that the issues are 

not ripe for review, we dismiss the State’s appeal.

[15] Dismissed.

Robb, J., and Pyle, J., concur.

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