State v. Palmwic Indiana Realty, Inc.

297 N.E.2d 479 (1973)

STATE of Indiana, Appellant, v. PALMWIC INDIANA REALTY, INC., et al., Appellees.

No. 2-672A22.

Court of Appeals of Indiana, Second District.

June 26, 1973.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., for appellant.

William F. LeMond, Kammins, LeMond, Carson & Stewart, Stephen B. Caplin, Caplin & Levinson, Indianapolis, for appellees.

PER CURIAM.

The facts and the trial court judgment and the issues on appeal in the case at bar are, in every significant respect, substantially identical to those recited in the consolidated opinion handed down May 9, 1973, by the Supreme Court of Indiana in State v. Holder et al., and State v. Rentchler et al., Ind., 295 N.E.2d 799, 36 Ind.Dec. 331. On authority of that opinion we order the trial court to vacate that part of its final judgment which required the State to pay appellees' attorney fees, appraisers' fees, and "other expenses".

SULLIVAN, Judge (concurring).

I deem the dissenting opinion in State v. Holder and State v. Rentchler (May 9, 1973), Ind., 295 N.E.2d 799 to be extremely persuasive insofar as it construes Trial Rule 41 (A) (2) to constitute authorization for the trial court in its discretion to assess attorney fees and expenses of trial preparation against the State as a term or condition of dismissal of the State's exceptions to the appraisers' report in an eminent domain action. We are, however, bound by the holding of the majority in Holder and Rentchler, supra. It is for this reason that I concur.