Exceptions to appraisers' reports
Sec. 11. (a) Any party to an action under this chapter aggrieved by
the assessment of benefits or damages may file written exceptions to
the assessment in the office of the circuit court clerk. Exceptions to
the assessment must be filed not later than twenty (20) days after the
filing of the report.
(b) The cause shall further proceed to issue, trial, and judgment
as in civil actions. The court may make orders and render findings
and judgments that the court considers just.
(c) Notice of filing of the appraisers' report shall be given by the
circuit court clerk to all known parties to the action and their
attorneys of record by certified mail. The period of exceptions shall
run from and after the date of mailing. Either party may appeal a
judgment as to benefits or damages as in civil actions.
(d) Twenty (20) days after the filing of the report of the
appraisers, and if the plaintiff has paid the amount of damages
assessed to the circuit court clerk, any one (1) or more of the
defendants may file a written request for payment of each defendant's
proportionate share of the damages held by the circuit court clerk.
The defendants making a request for payment must also file
sufficient copies of the request for service upon the plaintiff and all
other defendants not joining in the request. The defendants making
the request may withdraw and receive each defendant's proportionate
share of the damages upon the following terms and conditions:
(1) Each written request must:
(A) be verified under oath; and
(B) state:
(i) the amount of the proportionate share of the damages
to which each of the defendants joining in the request is
entitled;
(ii) the interest of each defendant joining in the request;
and
(iii) the highest offer made by the plaintiff to each of the
defendants for each defendant's respective interests in or
damages sustained in respect to the property that has been
acquired by the plaintiff.
(2) Upon the filing of a written request for withdrawal and
payment of damages to any of the defendants, the circuit court
clerk shall immediately issue a notice to the plaintiff and all
defendants of record in the cause who have not joined in the
request for payment. The notice must contain the following:
(A) The names of the parties.
(B) The number of the cause.
(C) A statement that a request for payment has been filed.
(D) A notice to appear on a day, to be fixed by the court, and
show cause, if any, why the amounts requested should not be
withdrawn and paid over by the circuit court clerk to those
defendants requesting the amounts to be paid.
(E) A copy of the request for payment.
If a defendant not requesting payment is a nonresident of
Indiana, or if that defendant's name or residence is unknown,
publication and proof of the notice and request for payment
shall be made as provided in section 4 of this chapter.
(3) After a hearing held after notice of a written request made
under this section, the court shall determine and order the
payment by the circuit court clerk of the proportionate shares of
the damages due to the defendants requesting payment. Any of
the defendants may appeal an order under this subdivision
within the same time and in the same manner as provided for
allowable appeals from interlocutory orders in civil actions.
(4) If exceptions to the appraisers' report have been duly filed
by the plaintiff or any defendant, the circuit court clerk may not
make payment to any defendant of any part of the damages
deposited with the clerk by the plaintiff until the defendants
requesting payment have filed with the circuit court clerk a
written undertaking, with surety approved by the court, for the
repayment to the plaintiff of all sums received by those
defendants in excess of the amount or amounts awarded as
damages to those defendants by the judgment of the court upon
trial held on the exceptions to the assessment of damages by the
appraisers. However, the court may waive the requirement of
separate surety as to any defendant who is a resident freeholder
of the county in which the cause is pending and who is owner
of real property in Indiana that is liable to execution, not
included in the real property appropriated by the plaintiff, and
equal in value to the amount by which the damages to be
withdrawn exceed the amount offered to the defendants as
stated in their request or the amount determined by the court if
the plaintiff has disputed the statement of the offer. A surety or
written undertaking may not be required for a defendant to
withdraw those amounts previously offered by the plaintiff to
the defendant if the plaintiff has previously notified the court in
writing of the amounts so offered. The liability of any surety
does not exceed the amount by which the damages to be
withdrawn exceed the amount offered to the defendants with
whom the surety joins in the written undertaking. Each written
undertaking filed with the circuit court clerk shall be
immediately recorded by the clerk in the order book and entered
in the judgment docket, and from the date of the recording and
entry the written undertaking is a lien upon all the real property
in the county owned by the several obligors, and the
undertaking is also a lien upon all the real property owned by
the several obligors in each county of Indiana in which the
plaintiff causes a certified copy of the judgment docket entry to
be recorded, from the date of the recording.
(5) The withdrawal and receipt from the circuit court clerk by
any defendant of that defendant's proportionate share of the
damages awarded by the appraisers, as determined by the court
upon the written request and hearing, does not operate and is
not considered as a waiver of any exceptions duly filed by that
defendant to the assessment of damages by the appraisers.
(6) In any trial of exceptions, the court or jury shall compute
and allow interest at an annual rate of eight percent (8%) on the
amount of a defendant's damages from the date plaintiff takes
possession of the property. Interest may not be allowed on any
money paid by the plaintiff to the circuit court clerk:
(A) after the money is withdrawn by the defendant; or
(B) that is equal to the amount of damages previously
offered by the plaintiff to any defendant and which amount
can be withdrawn by the defendant without filing a written
undertaking or surety with the court for the withdrawal of
that amount.
As added by P.L.2-2002, SEC.9.
Last modified: May 24, 2006