dissenting.
I respectfully dissent from Part I of the majority opinion.
Representatives of the Indiana Department of Highways manifestly demonstrated obdurate conduct in dealing with the Hicks in the course of litigation against them. I do not believe the doctrine of governmental immunity precludes use of the power vested in the court to award the attorneys’ fees and extraordinary litigation expenses occasioned by the bad faith conduct.
Initially, I take issue with the majority’s repeated characterization of the State’s obdurate conduct as “alleged.” Such characterization is inaccurate inasmuch as there has been a determination that the State was liable for the defamation. The State did not appeal from the jury’s determination that it was liable for the defamation which necessitated the change of venue. The State is therefore bound, as are we, to accept as fact that it was guilty of obdurate conduct.
Concepts of equity and fairness must be read into I.C. 32-11-1-10 which provides that in case of a contested eminent domain action costs occasioned by the contest shall be paid “as the court shall adjudge.” This language gives the court discretion. That discretion should not be restricted by arcane views as to what may and what may not constitute “costs” — particularly if that restriction prevents the court from according fair treatment to the unwilling litigant who was forced into an expensive and unwarranted procedural situation by the obdurate conduct of State officials in the course of the eminent domain proceedings.
This very statutory provision, I.C. 32-11-1-10, pursuant to a 1977 amendment, contemplates a measure of recompense for “litigation expenses” (as that term may differ from “additional costs”) if the State, whether innocently or with overreaching and oppressive intent, has unnecessarily forced the landowner to litigate the value of the property taken.
I have little doubt that the 1977 amendment was a response to State v. Holder (1973) 260 Ind. 336, 295 N.E.2d 799 in which the court by 3-2 vote disallowed necessary litigation expenses as “additional costs”. See also State v. Palmwic Indiana Realty, Inc. (2nd Dist.1973) 156 Ind.App. 488, 297 N.E.2d 479. The legislation appears to enact the philosophy of the dissenters in Holder. See State v. Holder, supra, Arterburn dissenting, 295 N.E.2d at 802 et seq.
I do not believe the compensatory award of expenses occasioned by the change of venue is made necessary by the constitutional requirement that a party not be deprived of his property without just compensation. The compensation is not for the real estate condemned. The conceptual underpinnings are similar, however, in terms of fairness and justice.
*1152As stated in the dissenting opinion in Holder:
the propriety of allowance [of litigation expenses and fees] should be based upon the facts and circumstances of each case as determined by the trial court in its exercise of sound discretion.
... bad faith or oppressive conduct by either party such as that used by the state in this case, is most relevant in determining if the trial court should exercise its discretion.” 295 N.E.2d at 804-805.
Requiring the State to reimburse Mr. Hicks for the reasonable and necessary expenses occasioned by the State’s irresponsibility is not punitive to the State and therefore not precluded by I.C. 34-4-16.5-4. Such reimbursement is compensatory, although not as a part of the “just compensation” for the property appropriated. Rather, the compensation is the expenses of the change of venue necessitated by the obdurate conduct of the State. Had the State not defamed the condemnee, the additional or extraordinary litigation expenses would not have been incurred. To require the State to reimburse the Hicks for these expenses is only equitable and fair. It would in no way penalize the State because it would merely require reimbursement for the costs occasioned by the State’s defamation of Mr. Hicks and no more. Therefore, I disagree with the dictum in In re Wardship of Turrin (4th Dist.1982) Ind.App., 436 N.E.2d 130, which implies otherwise. In addition, I would make no distinction between attorney’s fees and other necessary litigation expenses attributable to the change of venue. See Cox v. Ubik (3d Dist.1981) Ind.App., 424 N.E.2d 127 at 131 (Garrard, J. concurring in part and dissenting in part).
The trial court properly assessed the compensatory costs of attorney fees and other litigation expenses occasioned by the change of venue.