[CITE: Beaumont v. Knieriem, 11 CADDNAR 76 (2007)]

[VOLUME 11, PAGE 76]

Cause #: 04-180F

Caption: Beaumont v. Knieriem

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

Beaumont’s complaint, being barred by the Doctrine of Res Judicata, is dismissed.

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 Beaumont, cleared and graded portions of the Easement, resulting in the initiation of Beaumont v. Wimp. That cause of action was dismissed on the motion of Beaumont on November 19, 2003. Thereafter, in the fall of 2004, Wimp hired Knieriem to harvest timber from within the easement.

4. Citing 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), it was determined at finding #15 of the Interlocutory Order that:

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 Beaumont and Wimp could have determined the issues now existing and presented here between Beaumont and Knieriem, who is Wimp’s privy, or agent.

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. 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).

8. Knieriem maintained that the dismissal, granted on the motion of Beaumont, by the Harrison County Circuit Court, was granted with prejudice. However, the Harrison County Circuit Court’s Civil Chronological Case Summary did not identify the dismissal as one rendered with prejudice.

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 Beaumont’s complaint was not barred by the Doctrine of Res Judicata.

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, Beaumont filed his “Motion to Correct Errors” in Beaumont v. Wimp claiming error associated with the December 6, 2005 determination that the previous dismissal was with prejudice.

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 Beaumont’s Motion to Correct Errors.

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 Beaumont’s Complaint under the Doctrine of Res Judicata is now determined to exist.

---

[i] BEFORE THE

NATURAL RESOURCES COMMISSION

OF THE

STATE OF INDIANA

IN THE MATTER OF:

CEDRIC S. BEAUMONT, )

Claimant, ) Administrative Cause

) Number: 04-180F

vs. )

)

CURTIS L. KNIERIEM, )

Respondents. )

INTERLOCUTORY ORDER ON SUMMARY JUDGMENT MOTION

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 Beaumont’s allegation that Knieriem harvested timber from real property owned by Beaumont, without compensation to Beaumont for the value of the timber and without prior authorization from Beaumont.

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 Jason A. Lopp, counsel for Knieriem, sought to have established a schedule for the filing of dispositive motions, which was granted.

7. On December 27, 2004, Knieriem’s Motion for Summary Judgment, along with a memorandum in support was filed. Following a granted extension of time, Gordon D. Ingle, counsel for Beaumont, filed Beaumont’s response and evidence in opposition to Knieriem’s motion for summary judgment on April 15, 2005.

8. Beaumont’s response was amended and evidentiary material, including Beaumont’s affidavit, was filed with authorization from the administrative law judge on April 28, 2005 and again on April 30, 2005.

9. Knieriem filed his reply brief on May 3, 2005 along with his motion to strike portions of Beaumont’s affidavit.

10. Beaumont, on April 15, 2005 and again on April 28, 2005 moved for the Commission to hear oral argument regarding the motion for summary judgment. Having taken Beaumont’s April 15, 2005 request for oral argument under advisement pending completion of briefing, said motion was granted on May 18, 2005.

11. Oral argument on both the pending summary judgment motion as well as Knieriem’s motion to strike was scheduled and heard on June 22, 2005.

12. An entry was issued on June 23, 2005 denying Knieriem’s motion to strike portions of Beaumont’s affidavit. It was also determined that the affidavit would be considered consistent with Beaumont’s clarification that the tree(s) at issue were harvested from Beaumont’s real property within the boundary of a thirty (30) foot easement owned by Georgetta Wimp (“Wimp”), but from a location outside of the existing roadway area contained within that easement. In Beaumont’s opinion harvesting of the tree(s) was unnecessary for Wimp’s use of the easement in the manner for which it was intended.

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 July 8, 2005 followed by the filing of Beaumont’s post-hearing brief on July 25, 2005.

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 (Ind. App. 2002).

16. On summary judgment, all reasonable inferences must be resolved in favor of the non-moving party. Id.

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. Beaumont is the owner of record of the real property from which timber at issue herein was harvested.

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 Beaumont filing a cause of action in the Harrison County Circuit Court under Cause Number 31C01-9908-CP-234 on August 2, 1999. Respondent’s Exhibit F.

7. Beaumont’s Complaint before the Harrison County Circuit Court alleged that:

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. Beaumont sought, through his Harrison County Circuit Court action, “judgment against the Defendant in a sum, in excess of any jurisdictional limitations upon this Court which sum will fairly and adequately compensate Plaintiff for his damages sustained herein.” Respondent’s Exhibit F.

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 Indiana on January 29, 2003, Beaumont filed his Motion to Dismiss that action on September 3, 2003. Respondent’s Exhibits J, K, and I.

10. Beaumont’s Motion to Dismiss the Harrison County Circuit Court action was filed pursuant to Indiana Rules of Trial Procedure, Trial Rule 41(A)(2), but states “the Plaintiff would respectfully request this Court sign the attached Order granting Plaintiff’s Motion to Dismiss this cause with prejudice.” Respondent’s Exhibit K.

11. The Harrison County Circuit Court granted Beaumont’s Motion to Dismiss, following a hearing on such motion, on November 19, 2003. Respondent’s Exhibit L.

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 Beaumont for the tree(s) and Knieriem did not obtain authorization from Beaumont before harvesting the tree(s).

DOCTINE OF RES JUDICATA:

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. Beaumont maintains and it is clearly the case that “the acts of which the Claimant complains in this cause of action are different from the acts which resulted in the 1999 cause of action filed by the Claimant.” “Claimants Amended Designation of Issues of Material Fact”

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 Beaumont’s claim in the Harrison County Circuit Court was formed by the allegation that in 1998 Wimp, by her agents, cleared more of the Easement than she had the right to use for the specified purpose of the Easement, which was ingress and egress. This identical claim resonates in this proceeding. Furthermore, Beaumont’s complaint in the Harrison County Circuit Court, similar to the instant proceeding, seeks damages for, in part, the loss of tree(s) caused by such clearing. Respondent’s Exhibit F.

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. Id.

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 Beaumont’s earlier action with prejudice as suggested by Knieriem, or without prejudice as maintained by Beaumont.

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 Beaumont’s motion to dismiss that action as well as Wimp’s motion for leave to amend and add counterclaim, granted Beaumont’s motion to dismiss with prejudice, as requested by Beaumont in his motion filed on September 3, 2003. See Respondent’s Exhibits L and K and the CCCS presented by Claimant.

26. The bases of Knieriem’s belief that the Harrision County Circuit Court granted Beaumont’s dismissal motion with prejudice are twofold. First Knieriem maintains that the dismissal was granted with prejudice because it was granted as requested by Beaumont. Second, Knieriem contends that Trial Rule 41(A)(2) required the Court to dismiss Beaumont’s action with prejudice unless it allowed Wimp’s counterclaim to proceed, which it did not do. Respondent’s Exhibit L.

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 Beaumont’s motion to dismiss. Furthermore, Beaumont’s motion to dismiss specifically states that “no counterclaim by the Defendant, Georgetta Wimp, has ever been filed.” Claimant’s Exhibit, CCCS; Respondent’s Exhibit K.

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. Indianapolis Airport Authority, 563 N.E.2d 1271, (Ind. 1990).

29. What is clear from the evidence presented by Knieriem and Beaumont is that Beaumont filed his motion to dismiss on September 3, 2003 seeking a dismissal with prejudice at a time when Wimp had not yet pleaded a counterclaim. On September 8, 2003 the Harrison County Circuit Court issued an order setting a hearing on the motion to dismiss and on the motion for leave to amend to add counterclaim. The CCCS does not identify the date of Wimp’s filing of her motion for leave to add counterclaim, but this entry clearly implies that Wimp filed her motion on a date after September 3, 2003 and on or before September 8, 2003.

30. While the particulars of the Harrison County Circuit Court Judge’s hearing on the motions are not memorialized in its entry of November 19, 2003, two findings can be established without controversy. First, Wimp’s motion for leave to file counterclaim intervened between the filing of Beaumont’s motion to dismiss and the Court’s grant of the same. Second, a dismissal with prejudice of Beaumont’s action would have precluded Beaumont from pursuing his action on another day while leaving intact Wimp’s ability to litigate the matter at issue in her counterclaim. This result appears inconsistent with Trial Rule 41(A)(2)’s intention to authorize judicial discretion to act “in accordance with what is fair and equitable within the confines of justice, in light of and confined to the facts and circumstances of a particular case.” Cloyd v. Pasternack, 791 N.E.2d 757, 759, (Ind.App. 2001).

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 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.

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 Beaumont has failed to state a claim upon which relief may be granted due to Wimp’s absolute right to effectuate improvements to an easement necessary to the intended purpose of that easement.

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, (January 17, 2001). Additional citations omitted.

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, Beaumont states in his affidavit dated April 20, 2005, which was clarified on June 22, 2005, that Wimp’s action with respect to Knieriem’s harvesting of timber from the Easement exceeded action necessary to effectuate the intended purpose of ingress and egress. Claimant’s Exhibit, Affidavit of Cedric Beaumont, “Entry Following Oral Argument on Motion for Summary Judgment and Motion to Strike”

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. Beaumont’s proceeding initiated herein pursuant to I.C. 25-36.5 is not barred by the doctrine of res judicata.

2. Beaumont’s correspondence is sufficient to state a claim upon which relief can be granted.

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, Beaumont is entitled to redress from Knieriem for the value of tree(s) harvested from within the Easement.