[CITE:
[VOLUME 11, PAGE 76]
Cause #: 04-180F
Caption:
Administrative Law Judge: Jensen
Attorneys: Knasel; Lopp
Date: March 2, 2007
[NOTE: TO FACILITATE
THIS CADDNAR ENTRY, THE “INTERLOCUTORY ORDER ON SUMMARY JUDGMENT” DATED JULY
29, 2005, AND REFERENCED IN FINDING 1, WAS INSERTED AS “ENDNOTE i”.]
FINAL JUDGMENT
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
1. Following the completion of briefing by both parties an “Interlocutory Order on Summary Judgment Motion” (“Interlocutory Order”), was issued on July 29, 2005 and is attached and incorporated by reference herein.[i]
2. One matter at issue on summary judgment was Knieriem’s position that Beaumont’s complaint herein was barred by the Doctrine of Res Judicata as a result of previous litigation in the Harrison County Circuit Court between Beaumont and Georgetta Wimp (Wimp), (Beaumont v. Wimp, 31C01-9908-CP-234).
3.
In 1998, Wimp, who is the owner of a thirty foot
easement running across the real property of
4. Citing
Small v. Centocor, Inc., 731 N.E.
2d 22, 26, (
The doctrine of res judicata is intended to prevent repetitive litigation of the same dispute between the same parties and it is well settled that a claim is barred by the doctrine when the following four conditions exist.
(1) the former judgment must have been rendered by a court of competent jurisdiction;
(2) the former judgment must have been rendered on the merits;
(3) the matter now in issue was, or could have been, determined in the prior action, and
(4) the controversy adjudicated in the prior action must have been between the same parties to the present suit or their privies.
[VOLUME 11, PAGE 77]
5. It
was determined in the Interlocutory Order that the Harrison County Circuit
Court is a court of competent jurisdiction and the previous complaint between
6. However, it was concluded that one of the conditions prerequisite to the applicability of the Doctrine of Res Judicata was not present because the Harrison County Circuit Court’s dismissal of Beaumont v. Wimp had not been rendered with prejudice and consequently did not constitute a judgment on the merits.
7. A
dismissal with prejudice is viewed as a determination on the merits.
8. Knieriem
maintained that the dismissal, granted on the motion of
9. Consequently, in the Interlocutory Order it was determined that “because the Harrison County Circuit Court’s order does not specify that the dismissal of Beaumont’s complaint was with prejudice, by operation of Trial Rule 41(A)(2), prejudice did not attach to that dismissal. As such the dismissal entered by the Harrison County Circuit Court does not constitute a judgment rendered on the merits.” Finding 33.
10. On that
basis it was ultimately determined that
11. Following issuance of the Interlocutory Order, Knieriem’s counsel filed a Motion for Nunc Pro Tunc Order in Beaumont v. Wimp seeking to have the dismissal identified as a dismissal with prejudice.
12. On December 6, 2005, the Harrison County Circuit Court issued its Order concluding that the dismissal granted in Beaumont v. Wimp on November 19, 2003 “is with prejudice.”
13. On December 12, 2006, Knieriem filed “Respondent’s Motion to Reconsider His Motion for Summary Judgment” based upon the December 6, 2005 determination of the Harrison County Circuit Court that the dismissal of Beaumont v. Wimp had been granted with prejudice.
[VOLUME 11, PAGE 78]
14. On January
4, 2006,
15. On November
30, 2006, following a hearing conducted on November 13, 2006, Harrison County
Circuit Court Special Judge Larry Blanton entered an Order denying
16. The dismissal in Beaumont v. Wimp having been issued with prejudice, as clarified through the Order of the Harrison County Circuit Court entered on December 6, 2005 and supported by the Order Denying Motion to Correct Errors, entered on November 30, 2006, obligates reconsideration of the Interlocutory Order as requested by Knieriem on December 12, 2005.
17. The dismissal of Beaumont v. Wimp, 31C01-9908-CT-234 with prejudice constitutes a judgment on the merits. Midway Ford Truck Center v. Gilmore, 415 N.E.2d 134, (Ind.App. 1981), Ilagen v. McAbee, 634 N.E.2d 827, (Ind.App. 4 Dist. 1994) and Richter, supra at 1002.
18. Each of the
four conditions necessary to bar
[i]
BEFORE THE
NATURAL RESOURCES COMMISSION
OF THE
STATE OF
IN THE MATTER OF:
CEDRIC S. BEAUMONT, )
Claimant, ) Administrative Cause
) Number: 04-180F
vs. )
)
CURTIS L. KNIERIEM, )
Respondents. )
INTERLOCUTORY ORDER ON SUMMARY
1.
On September 27,
2004 the Claimant, Cedric S. Beaumont (“Beaumont”),
filed correspondence with the Natural Resources Commission (“Commission”) seeking redress from the Respondent, Curtis L.
Knieriem (“Knieriem”) pursuant to
I.C. 25-36.5, commonly referred to as the “Timber Buyer’s Statute.”
2.
At issue in this
proceeding is
3.
Pursuant to 312
IAC 14-1-2(d), the Commission is the ultimate authority for actions commenced
under I.C. 25-36.5.
4.
I.C. 4-21.5
commonly referred to as the “Administrative Orders and Procedures Act” or
“AOPA” governs this matter procedurally.
The Commission has also adopted administrative rules at 312 IAC 3-1 to
aid in the implementation of AOPA in proceedings before it and as such 312 IAC
3-1 is also applicable to this proceeding.
5.
The Commission
has jurisdiction over both the persons of the parties and the subject matter of
this proceeding.
6.
A prehearing
conference was held on November 19, 2004, at which time
7.
On December 27,
2004, Knieriem’s Motion for Summary
8.
9.
Knieriem filed
his reply brief on May 3, 2005 along with his motion to strike portions of
10.
11.
Oral argument on
both the pending summary judgment motion as well as Knieriem’s motion to strike
was scheduled and heard on
12.
An entry was
issued on
13.
The parties
sought the opportunity to submit post-hearing briefs on one particular matter
at issue herein, which was granted.
14.
Knieriem’s
post-hearing brief was filed on
15.
Summary judgment
is appropriate where the moving party has sufficiently established that there
exists no genuine issue of material fact and the movant is entitled to judgment
as a matter of law. Indiana Department of Environmental Management v. Schnipple
Construction, Inc., 778 N.E.2d 407 (
16.
On summary
judgment, all reasonable inferences must be resolved in favor of the non-moving
party.
17.
AOPA provides for
summary judgment at I.C. 4-21.5-3-23 and states that,
The
judgment sought shall be rendered immediately if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits and testimony, if any, show that a genuine issue as to any material
fact does not exist and that the moving party is entitled to a judgment as a
matter of law. A summary judgment may be
rendered upon fewer than all the issues or claims … although there is a genuine
issue as to damages or liability, as the case may be. A summary judgment upon fewer than all the
issues involved in a proceeding or with respect to fewer than all the claims or
parties is not a final order. The
administrative law judge shall designate the issues or claims upon which the
judge finds no genuine issue as to any material facts."
I.C.
4-21.5-3-23(b).
DESIGNATED ISSUES OR CLAIMS UPON WHICH THERE EXISTS NO
GENUINE ISSUE OF MATERIAL FACT:
1.
Knieriem is a
“timber buyer” within the meaning of I.C. 25-36.5-1-1.
2.
3.
Wimp is the owner
of a thirty (30) foot wide easement running across the real property of
Beaumont from “Buck Creek Valley Road east and along the southern line of the
southwest quarter of Section 32, Township 4 South, Range 4 East in Harrison
County, Indiana, for approximately 1, 752.07 feet,” (hereinafter “Easement”). Respondent’s Exhibits B and D.
4.
The timber at
issue was harvested from within the Easement.
5.
The Easement was
granted “to provide access” to Wimp’s parcel of land described as “all that
part of the east half of the northwest quarter of Section 5, township south,
range 4 east, lying north of Buck Creek, containing thirty (30) acres, more or
less, and being thirty (30) acres off the north end of said east half. Respondent’s
Exhibit D.
6.
In 1998, Wimp
cleared and graded portions of the Easement, which resulted in
7.
4. … the Defendant, Georgetta L. Wimp, hired bulldozer
operators to clear off more of the easement than she had a right to use. In addition, she, through her agents,
negligently cleared this easement and caused significant damage to trees of
significant value…
Respondent’s
Exhibit F.
8.
9.
Following a grant
of summary judgment in favor of Wimp by the Harrison County Circuit Court on
April 22, 2002, which was reversed and remanded in an unpublished opinion of
the Court of Appeals of
10.
11. The Harrison County Circuit Court granted
12. The Harrison County Circuit Court’s order granting
Beaumont’s motion to dismiss, is not an order attached by Beaumont’s counsel
but is instead entitled “Entry for November 19, 2003.” Such entry/order addressing not only
Beaumont’s Motion to Dismiss but also denying Wimp’s Motion for Leave to Amend
to Add Counterclaim, is silent as to whether Beaumont’s requested dismissal was
granted with or without prejudice. Respondent’s Exhibit L.
13.
In the fall of
2004, Wimp hired Knieriem to harvest the tree(s) at issue in this proceeding
from the Easement.
14.
Knieriem did not
compensate
DOCTINE OF RES
15.
The doctrine of
res judicata is intended to prevent repetitive litigation of the same dispute
between the same parties and it is well settled that a claim is barred by the doctrine
when the following four conditions exist.
(1) the former judgment must have been rendered by a court
of competent jurisdiction;
(2) the former judgment must have been rendered on the
merits;
(3) the matter now in issue was, or could have been,
determined in the prior action; and
(4) the controversy adjudicated in the prior action must
have been between the same parties to the present suit or their privies.
Small v. Centocor, Inc., 731 N.E.2d
22, 26, (Ind.App. 2000); Richter v. Asbestos Insulating & Roofing,
790 N.E.2d 1000, 1002, (Ind.App. 2003).
16.
Without question,
the Harrison County Circuit Court is a court of competent jurisdiction.
17.
18.
However, the
issue to be decided with respect to res judicata does not revolve around the
particular acts, but instead involves
a determination of whether “the matter now in issue was, or could have been,
determined in the prior action.” Small, at 27.
19.
The basis of
20.
The reality that
Beaumont’s complaint, filed in the Harrision County Circuit Court, resulted
from acts separate and apart from the acts alleged herein does not negate the
conclusion that the claims raised therein regarding the extent to which Wimp
could clear the Easement and the extent to which Wimp was liable to Beaumont
for trees harvested in the clearing process would have been previously
determined by that action.
21.
A privy is a person who while not a party
to an action, maintains such a relationship with a party that the person’s
interests “may nevertheless be bound by the judgment in that action.” Small,
at 28, citing Marsh v. Paternity of Rodgers by Rodgers, 659 N.E.2d 171,
(Ind.App. 1995). Such a person
includes those persons whose interests are represented by a party to the
action.
22.
There is no
dispute that Knieriem was acting as the agent of Wimp and as such is the privy
of Wimp with respect to a previous judgment involving the claims presented
here. Knieriem, whose interests in this
proceeding would have been decided by the previous Harrison County Circuit
Court action, had it proceeded, is certainly in privity with Wimp.
23.
What has proven
an interesting point of contention involves the question whether the Harrison
County Circuit Court dismissed
24.
A dismissal with prejudice is viewed as a
determination on the merits. Midway Ford Truck Center v. Gilmore,
415 N.E.2d 134, (Ind.App. 1981), Ilagen v. McAbee, 634 N.E.2d 827,
(Ind.App. 4 Dist. 1994) and Richter, supra at 1002.
25.
Knieriem
maintains that the Harrison County Circuit Court’s “Entry for November 19,
2003,” which addresses
26.
The bases of
Knieriem’s belief that the Harrision County Circuit Court granted
27.
Knieriem’s latter
position is without merit. Indiana Trial
Rule 41(A)(2) expressly prohibits the court from dismissing an action upon
objection by a defendant only if the counterclaim or cross-claim was pleaded
before service upon him of the plaintiff’s motion to dismiss. The Civil Chronological Case Summary (“CCCS”) does not reveal that Wimp’s
motion for leave to amend by adding a counterclaim had been plead before
service upon her of
28.
It is the case
that “generally, dismissals should be allowed unless the defendant will suffer
some legal prejudice other than the mere prospect of a second lawsuit.” Rose
v. Rose, 526 N.E.2d 231, (Ind.App. 1988). The “terms and conditions” clause of Trial
Rule 41(A)(2) tempers that general notion by authorizing a court to exercise
discretion in crafting provisions necessary to protect defendants from
harassment and incurring legal expenses as a result of a plaintiff’s dismissal
on one day followed by refiling the next.
Highland Realty, Inc. v.
29.
What is clear
from the evidence presented by Knieriem and
30.
While the
particulars of the Harrison County Circuit Court
31.
While one could
speculate that Wimp’s intervening motion for leave to amend to add counterclaim
or the inequity of precluding future refiling of Beaumont’s complaint while
leaving Wimp free to pursue an action relating to her counterclaim lead the
Harrison County Circuit Court to grant Beaumont’s dismissal without prejudice
instead of as Beaumont had asked, such an endeavor is unnecessary.
32.
Trial Rule 41(A)(2) is specific in its final
sentence. “Unless otherwise specified in
the order,
a dismissal under this subsection is without prejudice.” Emphasis
added.
33.
Because the
Harrison County Circuit Court’s order does not specify that the dismissal of
RIGHT OF EASEMENT HOLDER TO MAKE NECESSARY
IMPROVEMENTS TO EFFECTUATE THE INTENDED PURPOSE OF THE EASEMENT/FAILURE TO
STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED:
34.
Knieriem
maintains that
35.
It is well
settled that “administrative pleadings are to be liberally construed and
amended. A complaint in an
administrative proceeding need not ‘enumerate precisely every event to which a
hearing examiner may finally attach significance.’ Rather the purpose of the administrative
complaint is to give the responding party notice of the charges against
him.” Bieda v. B&R Development and DNR, 9 CADDNAR 1, (
36.
In supporting his
contention, Knieriem presents deposition testimony of Wimp taken on February 3,
2000 in which she explains that the condition of the roadway within the
Easement was not useable for its intended purpose of ingress and egress to her
real property. Respondent’s Exhibit E and G.
37.
In opposition to
Knieriem’s contention,
38.
The law is clear
that the grantee of an easement is possessed of the right to make alterations
and improvements as are necessary for the use of an easement for the intended
purpose. Holding v. Indiana and Michigan Electric Co., 400 N.E.2d 115,
(Ind.App. 1980) and Litzelswope v. Mitchell, 451 N.E.2d 366, (Ind.App.
1983).
39.
Ascertaining the
proper extent of such necessary alteration or improvement to an easement is a
factually based inquiry. While the
respective parties provide conclusory determinations as to the necessity of
Wimp’s alterations and improvements, neither party has presented any
evidentiary material in support of those conclusions.
ORDER:
1.
2.
3.
Further
proceedings are necessary for the following purposes:
a)
To ascertain
whether Knieriem, acting as the agent of Wimp, was authorized to harvest timber
from the Easement to effectuate the use of the Easement for its intended
purpose; and
b)
To ascertain the
extent to which, if at all,