Prologue — Lick Fork Marina, Inc. v. Indiana

Supreme Coun Us” /)

FILED

— O57138 VL 2 1 2005

OFFICE BFOTHE CLERK

IN THE

LICK FORK MARINA, INC.,

Petitioner,

7;

STATE. OF INDIANA,

Respondent.

On Petition For Writ of Certiorari

To The Indiana Court of Appeals

PETITION FOR WRIT OF CERTIORARI

James C. Tucker

Counsel of Record

Tucker and Tucker, P.C.

188 South Court Street

Paoli, IN 47454

Telephone: 812-723-2313

1

QUESTION PRESENTED FOR REVIEW

Has the State of Indiana, through inverse condemnation,

in violation of the Indiana and United States Constitutions,

taken trade fixtures and personal property from one of its

citizens, without compensation of any kind, contrary to the

rule first enunciated by this Court in Van Ness v. Pacard, 27

U.S. 137 (1829) that trade fixtures are personal property and

not real property and removable by a lessee at any time

before the expiration of a leasehold; in a situation where an

impartial jury determined the value of that which was taken

by the State of Indiana to be $432,600.00, after a three day

jury trial, occurring almost two years after the trial court

correctly determined that a taking had taken place, which

decision by the trial court was not appealed, although it was

a final appealable judgment and the Indiana Supreme Court

had previously required litigants to appeal each court decision

that a taking had or had not taken place?

2

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PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

The parties to the proceedings in both the Indiana Court

of Appeals and subsequent denial by the Indiana Supreme

Court of the Petition to Transfer filed by Petitioner, Lick

Fork Marina, Inc., were Lick Fork Marina, Inc. and the State

of Indiana (Department of Natural Resources).

There are no parent corporations of petitioner Lick Fork

Marina, Inc. No publicly held corporation owns 10% or more

of the stock of Lick Fork Marina, Inc.

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TABLE OF CONTENTS

Page

Question Presented for Review ........ 2.20. oe. ee i

Parties to the Proceeding and Rule 29.6 Statement ies =

Teme Or CS oo ero oe ee eee: il

TaOte OF CAteG: AMINORIES oe i Se eS iv

CaO IO os eee ee ]

PUIEICCOIR SUN | 5 Se eee ie ]

Constitutional and Statutory Provisions Involved ...... 1

emberent OF YE COMSE 2 os Se ce A 2

Reasons for Granting the Petition ............... 13

RINE © ee PCR Ia SS ere 27

iv

TABLE OF CITED AUTHORITIES

: | Page

UNITED STATES CONSTITUTION:

~Fifth Amendment

to the United States Constitution .............. 1

Fourteenth Amendment

to the United States Constitution ............ 42

CASES:

Armstrong v. United States,

364 US. 40, 44, 46 (1960) ....... SE AEE 17

Chicago, B. & Q. R. Co. v. Chicago,

166 U.S. 226, 41 L. Ed. 979, 17 S. Ct. 581

WAOF Ee Se ar oe ea ies eG te ee ee 13

City of Monterey v. Del Monte Dunes at Monterey,

526 Uo: ORE Fis CH ees reece 14, 16

Evansville-Vanderburgh Levee Auth. v. Towne Motel, Inc.,

247 Ind. 161, 162-63, 213 N.E.2d 705, 706

Li Pas ba A eck pow aw eee 21, 22

\ First English Evangelical Church of Glendale v.

County of Los Angeles,

AS2 U5. SOK, 318 CISST). noes SS Sa SIGS 13

Illinois Cities Water Co. v. City of Mt. Vernon,

11 Ill. 2d 547, 550-51, 144 N.E.2d 729, 731

CEa ry I eS ee os 17

Lawton vs. Lawton,

© PI ee ee i ee i EN PERRO CS 18

Louisville Joint Stock Land Bank v. Radford,

FFF Ai. DAR TIE CAF) eo oe i en he a 17

Lynch v. United States,

BPG US AT OTe ose cs eek ee peer ess 17

Morton Grove Park District v. American National

Bank & Trust Co.,

78 Il. 2d 353, 362, 399 N.E.2d 1295, 1299, 35 Ill.

Dec. 767 (1980) ..... TENG pera ban are EN eae Oras 17

Olson v. United States,

292 U.S. 246, 255, 78 L. Ed. 1236, 54 S. Ct. 704

Re eg err ee eae a oes 27

Palazzolo v. Rhode Island,

Jas tis. GUO; O1T EZ00N) oe SE Se 3. 27

Ruckelshaus v. Monsanto Co,

GT RE ee 1 es PO ee ee 16, 17

State v. Robertson et al,

peo Petes LTD AMD. AFIS) oo es one ew o 21

Thiesing Veneer Co. of Ind. v. State

(1970), 254 Ind. 699, 262 N.E.2d 382... 2.5... 22

United States v. Clarke, :

445 15.5; 253, 257 (960). eo 13, 14, 16, 18

United States v. Cors,

Pee Ri ne LAE es Oe es eA 16

vi

United States v. Lynah,

188 U.S. 445, 462, 468 n2 (1903) ............ 18

Van Ness v. Pacard,

BP Wie Sd Ce hes 1, 7, 8, 18, 19, 24, 25

Warner/Elektra/Atlantic Corp. v. County of DuPage,

(CA7 ILL) 991 F 2d 1280, reh, en banc, den. (CA7 ILL)

1993°US Apo. LEAIS 135000 os. 8, 16, 25

STATUTES AND RULES:

WE USC. SINT oo

84 Stat. 1906, § 304, 42 U.S.C. § 4654............ 15

id 10

SR ee 10

OTHER AUTHORITIES:

0 A Bee VR OS a 8, 16

4 J. Sackman, Nichols on Eminent Domain § 12.01

TEN AG OG. DOV es re ENG 27

6 P. Nichols, Eminent Domain § 25.41

CS fey. OF 1972) ee Bh aed ce sks gale Was 13

Black’s Law Dictionary, 652 (7th ed. 1999) ........ 23

1

OPINIONS BELOW

The Opinion-For Publication of the Indiana Court of

Appeals is reported at 820 N‘E. 2d 152 (2005) (Pet. App., pp.

3a-13a) and the Decision Without Opinion of the Indiana

Supreme Court denying transfer is reported at 2005 Ind.

LEXIS 405. (Pet. App., pp. 1a-2a). The Judgment of the Trial

Court determining a taking occurred dated October 8, 2001 is

found in Petitioner’s Appendix on pages 19a-30a.

JURISDICTIONAL STATEMENT

The Order of the Indiana Supreme Court denying transfer

of the judgment of the Indiana Court of Appeals was entered

on April 28, 2005. The jurisdiction of this Court is requested

pursuant to 28 U.S.C. §1257: :

(a) Final judgments or decrees rendered by the

highest court of a State in which a decision could be

had, may be reviewed by the Supreme Court by writ

of certiorari * * * where any title, right, privilege, or

immunity is specially set up or claimed under the

Constitution or the treaties or statutes of, or any

commission held or authority exercised under, the

United States.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution

applicable to the states through the Fourteenth Amendment to

the United States Constitution, mandates in its entirety:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

2

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offence to

be twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall

private property be taken for public use, without just

compensation.

The Fourteenth Amendment to the United States

Constitution, Section ], requires:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall; abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

This is a case in which after bench trial held October 8,

2001, the trial court determined a taking without just

compensation in violation of the Indiana and USS.

Constitutional prohibitions thereto occurred by the State of

Indiana. Only until after a three day jury trial on damages

almost two years later as a result of the unconstitutional

~ taking did the State of Indiana appeal the judgment of the

trial court determining a taking occurred to the Court of

Appeals of Indiana.

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The inverse condemnation proceedings below arose as

follows: The Patoka Lake Project is a joint reservoir project

between the State of Indiana and the United States

Department of the Army. (Pet. App. p. 41a).

The State of Indiana, Department of Natural Resources

(Hereinafter “DNR”) prepared and advertised a Prospectus for

a marina and related facilities in the Lick Fork area of Patoka

Lake, in 1979. A Lease Agreement was executed between

DNR as Lessor and the Petitioner, Lick Fork Marina, Inc.

(Hereinafter “Lick Fork” or “Petitioner’’”) as Lessee on April

29, 1980 and provides in relevant part:

Section 14.03 Title to Property.

Title to any and all buildings, structures and other

improvements erected or placed on the Leased Real

Estate by the Lessee, which are so permanently fixed

to the real estate as to become legally a part of the

real estate is vested in the United States of America

and is leased to the Lessor under the lease attached

hereto and marked Exhibit A. All other property

placed or erected on the Leased Real Estate by the

Lessee shall belong to the Lessee. (Pet. App., p. 40a).

The Lease provided that Lick Fork paid rent to DNR and

_ DNR received a percentage of Lick Fork’s gross income.

(Pet. App., pp. 38a-40a, Sections 3.02 and 3.03).

During the course of the leasehold, Lick Fork constructed

on the leasehold a marina building, radio tower, birdhouse

poles, wire propane pen, one gazebo, octagonal wood deck,

landscaping, established concrete ramps and cement work,

pads and stairs, utilities and accessories leading to various

docks, in-ground fuel storage with all attachments, mechanical

in-ground improvements, utility lines, and rip-rap (hereinafter

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referred to as the “Jtems Condemned”). (Pet. App. p. 83a-89a

[p. 50, 1]. 21-25; p. 51, Il. 2-4; p. 52, Il. 2-8; p. 55, Il. 20-24;

p. 56, Il. 12-17; p. 57, Il. 8-9; p. 57, Il. 11-15; p. 58, Il. 7-17;

p. 60, Il. 20-23; p. 61, Il. 2-4; p. 83, 1]. 3-7]}). Lick Fork paid

for all the Items Condemned and the DNR paid nothing. (Pet.

App., p. 80a [p. 29, ll. 22-25; p. 30, 1. 2]; pp. 88a-89a [p. 83,

ll. 3-7]).

Elected Assessor Allen Thewes testified at the bench trial

determining a taking occurred that Lick Fork paid personal

property taxes on the Items Condemned. (Pet. App., p. 79a [p.

15, ll. 2-4; p. 22, Il. 7-11}). All in-ground fuel storage tanks

were registered with the Indiana Department of

Environmental Management as the property of Lick Fork, and |

not DNR. (Pet. App., pp. 82a-83a [p. 39, ll. 9-22]; pp. 95a-

102a). In December, 1999, prior to the expiration of the

Lease Agreement as extended, the DNR made an offering to

the public to make proposals on what was Lick Fork Marina

which included the Items Condemned. (Pet. App., pp. 79a-80a

[p. 27, ll. 2-5]).

On October 9, 2000 Lick Fork gave written notice to

DNR that the Items Condemned were the property of Lick

Fork. (Pet. App., pp. 42a-45a). Also at a meeting held

January 11, 2001, Lick Fork made clear to DNR that the

Items Condemned had been paid for and erected by Lick Fork

and were the property of Lick Fork. (Pet. App., pp. 80a-82a

[p. 36, ll. 20-22; p. 38, ll. 6-23]). A letter of January 18,

2001, also made clear that ownership. (Pet. App, pp. 46a-

48a). On February 6, 2001, DNR gave written notice to Lick

Fork to vacate the premises no later than March 31, 2001,

mandating: “All personal] property is to be removed by that

date; any personal property remaining thereafter shall become

the property of the State of Indiana.” (Pet. App., p. 49a).

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Seventeen days later, on February 23, 2001, Chief of

Staff and General Counsel for the DNR by letter mandated to

Petitioner Lick Fork that the Items Condemned were

considered by the State of Indiana to be the “property of the

State of Indiana and are not to be removed.” (Pet. App., pp.

50a-51a). On March 1, 2001 Lick Fork through counsel wrote

Doehrmann, as representative of the DNR, that the Items

Condemned were the personal property of Lick Fork and that

the action of the DNR constitutes a condemnation of those

items. (Pet. App., pp. 52a-55a). Ultimately, effective March

31, 2001, DNR leased the real estate together with all of the

Items Condemned to Hoosier Hills Marina, Inc. (Pet. App.,

pp. 79a-80a, [p. 27, I]. 2-5}).

Petitioner filed a Complaint in Inverse Condemnation, on

April 19, 2001, alleging both violations of the Indiana and

United States Constitution as follows: “Under both the

Constitution of the State of Indiana and the Constitution of

the United States, no person’s property can be taken for a

public purpose without just compensation.” (Pet. App., p. 47a-

Exhibit 3 of Complaint in Inverse Condemnation and

incorporated therein). On August 30, 2001, the Trial Court

held a bench triaJ] on Lick Fork’s Complaint In Inverse

Condemnation. (Pet. App., p. 56a; p. 60a).

The Lease between the U.S. Army Corps. of Engineers as

Lessor and DNR as Lessee for all Patoka Lake property

beginning July 31, 1979 was entered into evidence at the

bench trial determining a taking by inverse condemnation of

the Items Condemned occurred. The Lease was at that time

in full force and effect as to the rights of the State of Indiana

and the Petitioner. (Pet. App., p. 41a).

It 1s uncontroverted that the U.S. Army Corps of

Engineers has not transferred any rights to the DNR to the