Indiana Department of Natural Resources v. Lick Fork Marina (1/6/05 IndCtApp) [Inverse Condemnation]
Baker, Judge
Appellant-defendant Indiana Department of Natural Resources (DNR) appeals the trial court’s judgment in favor of appellee-plaintiff Lick Fork Marina, Inc. (Lick Fork). Specifically, DNR raises two issues, one of which we find dispositive: whether the trial court erred in determining that DNR inversely condemned Lick Fork’s property. Finding that no taking occurred, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion. * * *Joseph E. Napier v. State of Indiana (1/6/05 IndCtApp) [Criminal Law & Procedure]The Lease provided that Lick Fork would pay $3,000 per year in rent, which equates to $250 per month, plus small percentages of the gross income derived from boat sales, boat rental, gas sales, and other business operations conducted on the leased premises. Lick Fork retained 90 to 99 percent of the income generated at the facility, depending on the item from which the income was derived. The Lease further stated:
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. * * *On February 23, 2001, counsel for DNR sent a letter to Lick Fork stating its opinion that “the marina building, landscaping, concrete ramps or cement work, pads and stairs, utilities and accessories leading to various docks, in-ground fuel storage with all attachments, utility lines and rip-rap are not personal property. . . .” DNR concluded that these items were considered to be the State’s property and could not be removed. DNR further instructed Lick Fork to remove items of personal property on or before March 31, 2001.On April 19, 2001, Lick Fork filed a complaint against DNR entitled, “Complaint in Inverse Condemnation,” and the trial court treated the case as one arising under Indiana’s eminent domain statutes. DNR maintained that Lick Fork did not own the property in question and that the dispute regarding the Lease must be handled through application of contract law. On August 30, 2001, the trial court conducted a hearing to determine whether there had been a taking. The trial court adopted Lick Fork’s proposed findings of fact and conclusions of law, thereby ruling that DNR acquired property belonging to Lick Fork without compensation. * * *
DNR argues that the trial court erred in finding that DNR effectuated a taking. Specifically, DNR contends that this case should have been decided under principles of contract law and not eminent domain law, and that under the contract, the property in question did not belong to Lick Fork. * * *
This contract was mutually beneficial to the parties. And Martin Fallon was familiar with the business of operating marina facilities and the laws regulating their operation. Moreover, Martin had former experience in similar enterprises and had been involved in the construction and operation of similar facilities for several years. Thus, it can be said that when he signed the lease on behalf of Lick Fork, he understood the financial implications of the Lease. The contract unambiguously states that fixtures are property of the government and not of Lick Fork. And we must give effect to the intent of the parties in agreeing to this provision. Therefore, we find that any fixtures on the real estate were not the property of Lick Fork, and Lick Fork is not entitled to compensation.
The judgment of the trial court is reversed and remanded for proceedings consistent with this opinion.
SHARPNACK, J., and FRIEDLANDER, J., concur.
This is a case of first impression, where we are called upon to decide the applicability of the rule set forth in Crawford v. Washington, 124 S.Ct. 1354 (2004), as it relates to the State’s method of establishing a proper evidentiary foundation regarding the admissibility of various documents that are used to prove the results of a criminal defendant’s breath test. Appellant-defendant Joseph E. Napier appeals his conviction for Operating a Vehicle With a BAC of .08 Percent Or More, a class C misdemeanor, claiming that his conviction may not stand because admitting breath test results by certification documents and a BAC DataMaster Evidence Ticket (BAC ticket) violates the Confrontation Clause[*] of the United States Constitution. Napier further claims that the admission of the breath test ticket violates the Indiana Rules of Evidence, inasmuch as that evidence is inadmissible hearsay.[Note] Hammon and Fowler were both issued on June 14th, 2004. See the ILB entry here. See also the transfer information in this ILB entry from 12/10/04.
We conclude that the admission of the breath test instrument certification documents at issue here did not violate the rule set forth in Crawford. And our legislature has provided that certificates regarding the inspection and compliance with relevant regulations of breath test instruments are admissible in prosecutions for operating a vehicle with a BAC of .08% or greater.However, we also find that admitting into evidence the BAC ticket purporting to prove the breath test results—absent any “live” testimony that would establish a foundation for its admission—was improperly admitted. Thus, we reverse Napier’s conviction on this basis. * * *
[W]e conclude that the procedures permitted by our supreme court and our legislature for establishing a foundation for the admission of the certifications regarding the breath test machine and the regulations of the Toxicology Department do not run afoul of the rule announced in Crawford and the Confrontation Clause. Thus, Napier does not prevail on this issue. * * *
[W]e were presented with uncontradicted evidence that the breath test operator was, in fact, not properly trained pursuant to the Department Of Toxicology’s regulations. In these circumstances, we are of the view that the State’s manner of proving Napier’s breath test results failed because the State failed to lay an adequate evidentiary foundation for their admission into evidence. We must conclude, therefore, that the State’s failure to present any “live testimony” at trial from the officer who conducted the tests runs afoul of the Confrontation Clause of the Sixth Amendment to the United States Constitution in light of Crawford. That is, the State failed to establish an adequate evidentiary foundation for the admission of the test results into evidence. Hence, we find that the trial court abused its discretion in admitting Napier’s breath test results into evidence, and his conviction is reversed on this basis.
SHARPNACK, J., and FRIEDLANDER, J., concur.
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[*] The meaning of “testimonial” evidence has been addressed by this court in two very recent decisions: Hammon v. State, 809 N.E.2d 945 (Ind. Ct. App. 2004), and Fowler v. State, 809 N.E.2d 960 (Ind. Ct. App. 2004), both of which were handed down on the same day. These cases involved domestic battery convictions where the respective victims did not appear to testify, and the State proceeded with its prosecution on the basis of statements that the victims had supplied to the police that were admitted into evidence under the excited utterance exception to the hearsay rule. We recognized the Crawford court’s determination that “testimonial” statements need not be under oath. It is apparent that our supreme court is also wrestling with the definition of “testimonial evidence,” inasmuch as transfer was granted in both Hammon and Fowler on December 9, 2004.
Stories about the young attorney, now nearly legendary, who won two big cases before the U.S. Supreme Court this year, not only Crawford v. Washington but also the even better known Blakely v. Washington, may be found in ILB entries here and here.
Posted by Marcia Oddi at January 6, 2005 02:31 PM