Barrow v. City of Jeffersonville

• Citation: 973 N.E.2d 1199
• Decision Date: 31 August 2012
• Docket Number: No. 10A05–1112–PL–647.,10A05–1112–PL–647.
• Parties: Patricia J. BARROW and Charlie Hanka, Appellants–Plaintiffs, v. CITY OF JEFFERSONVILLE, Jeffersonville Planning and Zoning Department, Jeffersonville Board of Zoning Appeals, Jeffersonville Building Commission, MAC Construction and Excavating, and Ingram Land Corp., Appellees–Defendants.
• Court: Court of Appeals of Indiana

973 N.E.2d 1199

Patricia J. BARROW and Charlie Hanka, Appellants–Plaintiffs,

v.CITY OF JEFFERSONVILLE, Jeffersonville Planning and Zoning Department, Jeffersonville Board of Zoning Appeals, Jeffersonville Building Commission, MAC Construction and Excavating, and Ingram Land Corp.,¹ Appellees–Defendants.

No. 10A05–1112–PL–647.

Court of Appeals of Indiana.

Aug. 31, 2012.

Elijah D. Baccus, Marilyn L. Widman, Allotta, Farley & Widman Co., LPA, Toledo, OH, Attorneys for Appellants.

Leslie C. Shively, Shively & Associates, P.C., Evansville, IN, Attorney for Appellee MAC Construction and Excavating.

R. Thomas Lowe, Corporation Counsel, City of Jeffersonville, Jeffersonville, IN, Attorney for Appellee City of Jeffersonville et al.

OPINION

KIRSCH, Judge.

Patricia J. Barrow (“Barrow”) and Charlie Hanka (“Hanka”) (collectively, “the Plaintiffs”) appeal the trial court's order granting summary judgment in favor of City of Jeffersonville (“the City”), Jeffersonville Planning and Zoning Department, Jeffersonville Board of Zoning Appeals, Jeffersonville Building Commission, MAC Construction and Excavating (“MAC”), and Ingram Land Corp. (collectively, “the Defendants”) on the Plaintiffs' complaint for declaratory judgment and mandatory injunction. The Plaintiffs raise several issues on appeal, which we consolidate and restate as:

I. Whether the statute of limitations established in Indiana Code section 34–11–2–6 is applicable to this case, specifically whether the Director of the City's Planning and Zoning Department and the City's Building Commissioner are public officers; and

II. Whether the Plaintiffs' cause of action is barred by the statute of limitations.

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

During the summer of 2005, Dan Marra (“Marra”), attorney for Liter's Quarry (“Liter's”), contacted Chester Hicks (“Hicks”), who was the City's Director of Planning and Zoning (“the Director”) at the time, regarding a zoning interpretation on the parcel of land located at 1415 Quarry Road, Jeffersonville, Indiana (“the Property”). Liter's was the leaseholder of the Property and sought a zoning interpretation to allow it to lease a section of the Property to MAC for the operation of an asphalt plant. The Property was operated by Liter's as a quarry and had been designated as an 11 Business Park/ Light Industrial use under the City's Zoning Ordinance. In a letter to Marra dated July 14, 2005, Hicks stated that “Article Ten of the Jeffersonville Zoning Ordinance permits the ... Director to allow one nonconforming use to be equally appropriate or more appropriate to the zoning district than the existing one.” Appellants' App. at 28; Appellee MAC's App. at 40. Hicks further stated that he found the conversion of a part of the Property to an asphalt plant to be “a more appropriate use in the I1 district because it would generate less noise, vibration, and debris than a quarry operation.” Appellants' App. at 28; Appellee MAC's App. at 40. On August 4, 2005, an Improvement Location Permit (“ILP”) was issued for the Property and signed by Russell Segraves (“Segraves”), the City's Building Commissioner (“Commissioner”).

The duties of Hicks as Director are set forth in the City's Zoning Ordinance. Hicks testified at his deposition that his duties and responsibilities included the administrative function of interpreting the City's Zoning Ordinance. Appellee MAC's App. at 48. He also testified that the Director performed all of the administrative functions of the City's Planning and Zoning Department. Id. at 50–53. Segraves testified at his deposition that the duties of the Commissioner are set out in the City Ordinance 87–OR–53. Id. at 58–59. He further testified that the Commissioner is the sole official in the City's Building Commission responsible for issuing permits and exercising his authority and that the Commission is not governed by a board. Id. at 59–66.

The Plaintiffs filed a complaint on August 16, 2010, requesting a declaratory judgment action against the Defendants stating that the July 14, 2005 zoning interpretation and the August 4, 2005 ILP were improperly issued and requesting a mandatory injunction revoking both the zoning interpretation and the ILP. MAC filed an answer and motion for judgment on the pleadings, arguing that the action was barred by the statute of limitations set forth in Indiana Code section 34–11–2–6. The trial court held a hearing as to the motion for judgment on the pleadings, and after the hearing, the trial court determined that, before ruling on the motion, it was necessary for a supplemental hearing to hear evidence as to whether Hicks and Segraves were “public officers” for purposes of Indiana Code section 34–11–2–6. On July 25, 2011, MAC filed a motion for summary judgment, again asserting that the Plaintiffs' claims were barred by the statute of limitations. The Plaintiffs filed a cross-motion for summary judgment. On October 17, 2011, the trial court granted summary judgment in favor of the Defendants, and on November 10, 2011, the trial court signed the final order granting summary judgment. The Plaintiffs now appeal.

DISCUSSION AND DECISION

Standard of Review

On appeal from a grant of summary judgment, our standard of review is the same as that of the trial court. Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of Ind., Inc., 832 N.E.2d 559, 562 (Ind.Ct.App.2005). We stand in the shoes of the trial court and apply a de novo standard of review. Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind.Ct.App.2006). Our review of a summary judgment motion is limited to those materials designated to the trial court. Ind. Trial Rule 56(H); Robson v. Tex. E. Corp., 833 N.E.2d 461, 466 (Ind.Ct.App.2005), trans. denied. Summary judgment is appropriate only where the designated evidence shows there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. T.R. 56(C). For summary judgment purposes, a fact is “material” if it bears on the ultimate resolution of relevant issues. Wilcox Mfg., 832 N.E.2d at 562. We view the pleadings and designated materials in the light most favorable to the non-moving party. Id. Additionally, all facts and reasonable inferences from those facts are construed in favor of the nonmoving party. Troxel Equip. Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind.Ct.App.2005), trans. denied.

A trial court's grant of summary judgment is clothed with a presumption of validity, and the party who lost in the trial court has the burden of demonstrating that the grant of summary judgment was erroneous. Cox, 848 N.E.2d at 695–96. Where a trial court enters specific findings and conclusions, they offer insight into the rationale for the trial court's judgment and facilitate appellate review, but are not binding upon this court. Id. We will affirm upon any theory or basis supported by the designated materials. Id. When a trial court grants summary judgment, we carefully scrutinize that determination to ensure that a party was not improperly prevented from having his or her day in court. Id.

Statute of Limitations

The statute of limitations at issue in the present case states:

An action against:

(A) a sheriff;

(B) another public officer; or

(C) the officer and the officer's sureties on a public bond; growing out of a liability incurred by doing an act in an official capacity, or by the omission of an official duty, must be commenced within five (5) years after the cause of action accrues. However, an action may be commenced against the officer or the officer's legal representatives, for money collected in an official capacity and not paid over, at any time within six (6) years after the cause of action accrues.

Ind.Code § 34–11–2–6.

I. Whether Hicks and Segraves Were Public Officers

The Plaintiffs argue that the trial court erred when it found Hicks and Segraves were public officers protected by the statute of limitations contained in Indiana Code section 34–11–2–6. They contend that Hicks and Segraves were not public officers because they did not meet the necessary criteria to be considered a public officer in Indiana. The Plaintiffs assert that the individual must serve in a position that is either elected or appointed, that such position must have sovereign power prescribed by law not contract, and that the individual must have taken an oath of office within thirty days of taking office. Because Hicks and Segraves did not meet any of these criteria, the Plaintiffs claim that the statute of limitations in Indiana Code section 34–11–2–6 does not apply to the facts of this case.

This case presents an issue of first impression in Indiana as we have found no Indiana authority defining public officer as it applies to Indiana Code section 34–11–2–6. Although both sides cite to Indiana cases and statutes defining public officer, the cited authorities do not specifically define the term public officer as it is used in Indiana Code section 34–11–2–6. In Mosby v. Board of Commissioners of Vanderburgh County, 134 Ind.App. 175, 186 N.E.2d 18 (1962), this court held that a person appointed as a county park manager by the county park board pursuant to statute, and who was required to execute a bond but who did not take an oath, was not an officer but an employee whose three-year contract of employment, which was given before his original contract had expired, was not void under the Indiana rule that an appointment to fill a vacancy in an office is void if there is no vacancy. 134 Ind.App. at 182, 186 N.E.2d at 22. In making such a determination, the court stated that, “[g]enerally, one who holds an elective or appointive position for which public duties are prescribed by law is a ‘public officer.’ ” 134 Ind.App. at 179, 186 N.E.2d at 20. Further, the court stated that “[t]he oath and bond, being merely incidents, and not requirements, of public office, do not serve as absolute guides in determining the character of...