James M. Houck
Attorneys for Appellees
Robert C. Perry
Appellant (Defendant below ),BONNIE K. KIRKBRIDE, Appellees (Plaintiffs below).
ROBERT E. KIRKBRIDE and
) Supreme Court No.
) Court of Appeals No.
March 6, 2001
Ronald and Bonnie Kirkbride were owners of two subdivision lots, Lots 51 and
52, which were situated within the boundaries of the District. The two
lots had been deeded together in a single warranty deed which was duly
recorded in the office of the recorder. The Kirkbrides single family home
was constructed on the property line between the two lots. The Kirkbrides,
along with other benefited landowners, received a notice, dated August 6, 1998, informing
them that each lot had been assessed $3,800 which would be imposed unless
they filed an exception to the report before September 29, 1998, the time
set for court hearing on whether to accept the appraisers report. The
Kirkbrides neither filed an exception to the appraisers report nor attended the hearing.
Having raised no objection to the report, the Kirkbrides were assessed a
total of $7,600 for the two lots. On October 29, 1998, the
trial court approved the appraisers report.
On January 14, 1999, the Kirkbrides sought relief under Indiana Trial Rule 60(b)(1), alleging mistake, surprise, or excusable neglect for failure to file an exception to the appraisers report. See footnote Their motion requested that the trial court amend its order and reduce the assessment from $7,600 to $3,800, the amount of a single lot. On March 22, 1999, the trial court granted the Kirkbrides motion and modified its order accordingly. The District appealed. The Court of Appeals affirmed, finding that because the Kirkbrides failure to file exceptions constituted the equivalent of a default judgment, Trial Rule 60 was available for the trial court to reduce the assessment. See Clear Creek Conservancy Dist. v. Kirkbride, 719 N.E.2d 852 (Ind. Ct. App. 1999).
The only issue presented in this appeal is whether benefited landowners in conse
districts are allowed to file untimely exceptions to appraisers report by seeking judicial
relief under Indiana Trial Rule 60(B)(1).
Id. at 582 (internal citations omitted) (emphasis added). The Lehnen court held
that because the landowners failed to file timely their exceptions, the trial court
did not have jurisdiction to step in and consider the issue of modifying
the damage assessment. Id.
The Court of Appeals in this case declined to follow Lehnen, finding that, unlike the eminent domain statute, the legislature [did] not provide a similar comprehensive statutory scheme for filing exceptions to appraisers reports in exceptional benefits assessment actions. Kirkbride, 719 N.E.2d at 855. Based on this distinction, the court concluded that the trial courts order approving the appraisers report constituted a default judgment and affirmed the trial courts use of Trial Rule 60 in granting relief. Id. We disagree.
Judge Friedlanders dissent in this case was correct when he stated, [T]he principle
to be distilled from
Lehnen, i.e., when a statute fixes a definite procedure,
it must be followed, applies without regard to the volume or size of
the statutes. Kirkbride, 719 N.E.2d at 857 (Friedlander, J., dissenting) (quoting Lehnen,
693 N.E.2d at 582). This Court has held repeatedly that a partys
failure to file exceptions within the statutory time limit in eminent domain actions
deprives the trial court of jurisdiction to consider the issue of damages.
See Southern Indiana Gas & Elec. Co. v. Decker, 261 Ind. 527, 524,
307 N.E.2d 51, 53 (1974) (citing Agan v. Hendricks Super. Ct., 250 Ind.
675, 235 N.E.2d 458 (1968); Denny v. State, 244 Ind. 5, 189 N.E.2d
820 (1963); State v. Redmon, 205 Ind. 335, 186 N.E. 328 (1933)); see
also Best Realty Corp. v. State, 400 N.E.2d 1204, 1205 (Ind. Ct. App.
Indeed, this principle has been applied in at least one case involving a conservancy district. See In re The Big Raccoon Conservancy Dist., 173 Ind. App. 218, 222, 363 N.E.2d 1004, 1007-08 (1977) (holding that because the conservancy district act is a creature of the legislature, freeholders were required to follow statutory procedures for dissolving the district).
Similar to the eminent domain procedures,
the Conservancy Act fixes a definite procedure
for the imposition of exceptional benefits assessments. After court approval of the
conservancy districts comprehensive plan for the accomplishment of the purpose for which the
district was established, see Ind. Code § 14-33-6-6(c)(1998), and a decision by the
districts board to meet its expenses and obligations from the collection of assessments
from land that receives exceptional benefits from the operation of the district plan,
see id. § 14-33-7-7(a)(3), the court appoints a board of three competent, disinterested
persons to serve as appraisers, see id. § 14-33-8-1(2).
In the case of sewer projects, the board of appraisers, following the requirements
see id. §§ 14-33-8-6 and 14-33-8-8, appraises the amount of exceptional benefits
received by each record owner of real property and files a report of
its findings with the court, see id. §§ 14-33-8-9 and 14-33-8-10. The
report must contain the name of each record owner of real property appraised
and the amount of exceptional benefits. See id. The court then sets
a date for a hearing on the report. See id. § 14-33-8-12(a).
The court gives notice of the hearing by publication, by mail to each
owner named in the report, and by mail to the district.
id. § 14-33-8-12(b). Publication of the notice must occur at least 30
days and the mail notice must occur at least 20 days before the
date of the hearing. See id. The owner is considered to
have acquiesced in the appraisal unless, within the time limit prescribed by the
notice of hearing on the report of the board of appraisers, the interested
person files an exception to the appraisers report specifying in the exceptions ...
the appraisal of exceptional benefits. Id. § 14-33-8-13(b). While the determinations
of the board of appraisers are considered prima facie correct, a person filing
exceptions is entitled to be heard and present evidence at the hearing.
See id. § 14-33-8-15. At the conclusion of the hearing, the trial
court either dismisses or approves the report; its order is subject to appellate
review. See id. § 14-33-8-16.
In short, the Conservancy Act provides a definite procedure for interested landowners to follow when contesting an appraisers report, and where the statute fixes a definite procedure, it must be followed. Lehnen, 693 N.E.2d at 582. Landowners must comply with the special statutory procedures laid out by the legislature before seeking judicial review of either the damage assessment (under eminent domain actions), see Decker, 261 Ind. at 524, 307 N.E.2d at 53, or exceptional benefits assessments (under conservancy district statutes). Allowing landowners to file untimely exceptions in the trial court is simply not authorized by the conservancy district statutory scheme.
Here, the Kirkbrides were required to take action by filing timely exceptions to
the appraisers report pursuant to Indiana Code § 14-33-8-13 and as explained in
the notification sent to them. That is, they were required to file
exceptions to the appraisers report before September 29, 1998, the date of the
hearing, in order to contest the exceptional benefits assessment of $7,600. The
Kirkbrides do not dispute that they received notification of the hearing detailing the
implications of the appraisers report, but they neither attended the hearing nor filed
exceptions. Consequently, the Kirkbrides are deemed to have acquiesced in the appraisers
report, and it became conclusive as to them.
As noted supra, the Kirkbrides seek to invoke the provisions of Trial Rule
60 (B)(1) which allow relief from a final order or judgment on grounds
of mistake ... or excusable neglect. They argue that their mistaken impression
that their exceptional benefit liability was $3,800 (rather than $7,600) entitled them to
invoke the rule. Given the legislatures detailed and clear specification of the
way in which exceptional benefit assessments are to be contested, we hold that
the Kirkbrides misunderstanding here was not a mistake within the meaning of the
rule. To hold otherwise would undermine the statutory scheme for fixing in
place the financing arrangements of conservancy districts and, by extension, of other governmental
units operating under similar statutory arrangements.