CITY OF GARY, ETC. v. Ruberto

354 N.E.2d 786, 171 Ind. App. 1, 1976 Ind. App. LEXIS 1050
CourtIndiana Court of Appeals
DecidedSeptember 22, 1976
Docket3-1274A214
StatusPublished
Cited by18 cases

This text of 354 N.E.2d 786 (CITY OF GARY, ETC. v. Ruberto) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
CITY OF GARY, ETC. v. Ruberto, 354 N.E.2d 786, 171 Ind. App. 1, 1976 Ind. App. LEXIS 1050 (Ind. Ct. App. 1976).

Opinions

Staton, P.J.

Vita Ruberto owned a five-unit cold-water apartment building at 1726 Jefferson Street in midtown Gary, Indiana. On December 23, 1969, she brought this action against the City of Gary by and on behalf of its Redevelopment Department1 for (1) damages arising from the taking of her property under an urban renewal plan without compensation (inverse condemnation), and (2) punitive damages and damages for lost rental income arising from the conspira-tory efforts of various municipal departments to encourage tenants to stop paying rent and to vacate the premises. After an evidentiary hearing on September 8, 1970, the trial court found that a taking had occurred on September 1, 1969. The court appointed appraisers to value the property as of that date. Later, a jury returned a verdict for plaintiff Ruberto for $19,000.00 on her inverse condemnation claim and for $8,000.00 on the conspiracy claim.

The City contends that there was insufficient evidence to support the trial court’s finding that a taking occurred and insufficient evidence to sustain the jury’s verdict on the damages claim. Since we agree, and we must reverse on these grounds, we need not consider the other contentions of error raised by this appeal.

[4]*4I.

Waiver

Initially, we must dispose of Ruberto’s contentions that the City has waived its right to challenge the sufficiency of the evidence. Ruberto argues that the City’s statement of the facts is “incomplete, biased and does not impartially state the evidence presented . . . .” This

Court has held that:

“The failure to set forth fully the evidence in narrative form as is necessary to present a full understanding of the questions presented will be deemed a waiver of any questions depending upon the evidence. Flanagan, Wiltrout and Hamilton, Indiana Trials and Appellate Practice, § 2677, Comment 8.” Tice v. Thompson (1965), 137 Ind. App. 338, 345, 208 N.E.2d 203, 206.

We have reviewed the entire record. We conclude that the narrative is sufficiently impartial and complete “to present a full understanding of the questions presented.” See Indiana Rule of Procedure, Appellate Rule 8.3(A)(5). We find no waiver on this ground.

Ruberto also suggests that the transcript of the evidentiary hearing held on September 8, 1970, has not been properly certified and made a part of the record on appeal. The judge’s certification followed two transcripts of evidence prepared by the court reporter on the same day and presented to the judge at the same time. One transcript was of the evidence at the bench trial on September 8, 1970, on the issue of taking, and the other transcript was of the evidence at the jury trial on March 19, 1974, on the issues of damages and conspiracy. The judge’s certification states that “this transcript of the proceedings at the trial correctly sets forth and contains all of the evidence given at the trial of this cause ... in the Newton Circuit Court.” Ruberto’s argument presumes that the phrase “transcript of the proceedings at the trial” includes only the proceedings at the jury trial and does not include the proceedings at the bench [5]*5trial on the taking issue. We disagree. The trial of this case included both the hearing on the taking issue and the jury trial on the damages issue. See Levee Auth. Dist. v. Towne Motel, Inc., (1966), 247 Ind. 161, 213 N.E.2d 705. Clearly, the judge’s certificate ■ is sufficiently worded to apply to the transcripts of the two phases of the case.

II.

Sufficiency of the Evidence

When the sufficiency of the evidence is challenged on appeal this Court may not weigh the evidence or judge the credibility of the witnesses. In Estate of Anderson v. Smith (1974), 161 Ind.App. 480, 316 N.E.2d 592, 593, the Court stated:

“Our task is to determine whether there is substantial evidence of probative value in support of each necessary element of plaintiff’s case. This means there must be competent, relevant, material evidence which would naturally lead, or involuntarily tend to lead, a rational, impartial mind to a conclusion for which there is a substantial reason, rather than one based upon mere guess, conjecture, surmise, possibility or speculation.”

Of course, appellee is entitled to all reasonable inferences from the evidence in the record, and we must look to the evidence most favorable to the findings of the trier of fact. State Farm Life Ins. Co. v. Spidel (1964), 246 Ind. 458, 202 N.E.2d 886; Hinds v. McNair (1955), 235 Ind. 34, 129 N.E.2d 553.

A. Taking — Inverse Condemnation

At the evidentiary hearing on September 8,1970, the burden was on plaintiff Ruberto to establish that a taking of her property had occurred. The test for a taking of property has been stated as follows:

“It therefore follows that either some physical part of the real estate must be taken from the owner or lessor, or some substantial right attached to the use of the real estate taken before any basis for compensable damage may be obtained [6]*6by an owner of real estate in an eminent domain proceeding. It must be special and peculiar to the real estate and not some general inconvenience suffered alike by the public.” State v. Jordan (1966), 247 Ind. 361, 368, 215 N.E.2d 32, 35. See also Schuh v. State (1968), 251 Ind. 403, 241 N.E.2d 362; State v. Stefanaik (1968), 250 Ind. 631, 238 N.E.2d 451.

We conclude that the evidence presented at the evidentiary hearing on September 8, 1970, was insufficient to establish a taking under this test.

The evidence viewed in the light most favorable to Ruberto shows that in 1969 Ruberto’s property was forty-five years old and “like all the properties of that area had what the City calls violations that are greater than minimum.” Between March 17, 1966, and January 1969, Ruberto’s property was inspected by the City Building Department a number of times, and Ruberto received notices to make repairs because of building code violations. Ruberto did not make the required repairs because they were economically unfeasible. For example, an estimate for only the minor electrical repairs was equivalent to one year of rental income from the five apartments.

After repeated visits to Ruberto’s apartment building by Building Department inspectors in January 1969, the inspectors posted signs on the apartment saying “Condemned by the City of Gary. Unfit for human habitation.” After that, the tenants refused to pay rent and, finally, moved out of the building in September or October of 1969. The vacant building, although secured and boarded up, attracted vandals, who stripped the structure to a mere shell.

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CITY OF GARY, ETC. v. Ruberto
354 N.E.2d 786 (Indiana Court of Appeals, 1976)

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Bluebook (online)
354 N.E.2d 786, 171 Ind. App. 1, 1976 Ind. App. LEXIS 1050, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-gary-etc-v-ruberto-indctapp-1976.