Bradley v. City of New Castle
| Decision Date | 26 June 2000 |
| Docket Number | No. 33A01-9807-CV-281.,33A01-9807-CV-281. |
| Citation | 730 N.E.2d 771 |
| Parties | James E. BRADLEY, Kay C. Miller and 354 Other Persons Owning Property in the Proposed Annexed Territory, Appellants-Plaintiffs, v. CITY OF NEW CASTLE, Indiana, Appellee-Defendant. |
| Court | Indiana Appellate Court |
George T. Patton, Jr., Kevin S. Smith, Bose McKinney & Evans, Indianapolis, Indiana, E. Edward Dunsmore, Knightstown, Indiana, Attorneys for Appellants.
Bruce W. McLaren, Mary Louise Dague Buck, Warner, Wallace, McLaren & Dague, Muncie, Indiana, Attorneys for Amici Curiae in Support of Appellants.
Kevin W. Dogan, Indianapolis, Indiana, David L. Copenhaver, R. Scott Hayes, Scotten & Hinshaw, New Castle, Indiana, Attorneys for Appellee.
R. Thomas Bodkin, Jason P. Lueking, Douglas A. Welp, Bamberger, Foreman, Oswald and Hahn, LLP, Evansville, Indiana, Attorneys for Amici Curiae in Support of Appellee.
Appellants-Plaintiffs, James E. Bradley, Kay C. Miller and 354 Other Persons Owning Property in the Proposed Annexed Territory (hereinafter "Remonstrators"), appeal the trial court's Order granting partial summary judgment in favor of the Appellee-Defendant, City of New Castle, Indiana (hereinafter "City" or "City of New Castle"). Remonstrators further appeal the trial court's decision allowing the City to amend its Fiscal Plan during trial.
We reverse and remand with instructions.
Remonstrators raise two issues on appeal, which we restate as follows:
1. Whether the trial court improperly granted partial summary judgment in favor of the City of New Castle with regard to paragraphs six (6) through ten (10) and twelve (12) through fourteen (14) of Count II of Remonstrator's Third Amended Petition for Declaratory Judgment and Remonstrance.
2. Whether the trial court improperly allowed the City of New Castle to amend its Fiscal Plan during trial.
On December 7, 1992, the Common Council of the City of New Castle passed Ordinance No. 2892, as amended. Ordinance No. 2892 provides for the annexation of four areas in Henry County, Indiana, which are contiguous to the City of New Castle. These four areas were identified in Ordinance No. 2892 as: Annexation Area # 1, Elmwood Addition; Annexation Area # 2, Blue River Valley; Annexation Area # 3, McGrew Addition; and Annexation Area # 4, Wildwood Estates (west half and east half). These four areas total approximately 757.3 acres.
In October 1992, Ordinance No. 2892 was formulated. A public information hearing regarding this Ordinance and the City's Fiscal Plan for annexation was held by the New Castle Common Council on October 19, 1992. At a meeting of the Common Council on November 2, 1992, Ordinance No. 2892 passed first reading. At the November 16, 1992, Common Council meeting Ordinance No. 2892 was amended to exclude a 24 acre tract of vacant farm land from Annexation Area # 4, separating this area into a west half and east half. The amendment was voted on and approved. Further, at this meeting, Ordinance No. 2892, as amended, was also voted on and approved on second reading. On December 7, 1992, a third and final reading of Ordinance No. 2892, as amended, was voted on and passed by the City Common Council. Amended Ordinance No. 2892 was signed by the Mayor of the City of New Castle on December 7, 1992.
Also, at the November 2, 1992, Common Council meeting, the City's Fiscal Plan was passed by resolution. However, at the November 16, 1992, council meeting, the Fiscal Plan was amended and further, at the December 7, 1992, council meeting the Fiscal Plan was again amended. A resolution to adopt the Fiscal Plan, as amended, was passed on December 7, 1992.
On December 10, 1992, and December 17, 1992, Ordinance No. 2892 was published in two New Castle area newspapers, the News Republican and the Courier Times. However, this Ordinance was published without maps of the City containing the proposed annexed areas. The City had previously published copies of the maps in these newspapers on November 19 and 26, 1992, without publishing a copy of the Ordinance.
On February 5, 1993, the Remonstrators filed a Petition for Declaratory Judgment and Petition for Remonstrance. The Remonstrators are property owners who reside in the above-described annexed areas. Essentially, the Remonstrators object to the City's annexation of land upon which they own property. More specifically, the Remonstrators challenge the manner in which the annexation ordinance was passed by the City's Common Council and the alleged failure of the City to comply with certain statutory requirements for annexation.
Remonstrators' Petition was amended several times and on May 25, 1994, the Remonstrators filed their Third Amended Petition for Declaratory Judgment and Remonstrance in two counts. Count I sought declaratory judgment and Count II sought remonstrance under Ind.Code § 36-4-3-11. On June 9, 1994, the City filed a Response to the Remonstrators' Third Amended Petition. The trial court treated the City's Response as a motion for summary judgment. Thereafter, the parties submitted to a briefing schedule and filed briefs and designated materials. On July 18, 1995, the trial court issued its Order granting a final partial summary judgment in favor of the City of New Castle on Count I of Remonstrators' Third Amended Petition for Declaratory Judgment and Remonstrance. The trial court further granted partial summary judgment in favor of the City on paragraphs six (6) through ten (10) and twelve (12) through fourteen (14) of Count II of the Remonstrator's Third Amended Petition.
Remonstrators initiated an appeal of the trial court's decision concerning Count I and sought certification for interlocutory appeal of the trial court's decision with regard to Count II. The Remonstrators further requested a stay of the proceedings in the trial court. On August 24, 1995, the trial court certified for interlocutory appeal the summary judgment order as to Count II but denied the Remonstrator's request for a stay of the proceedings in the trial court. On October 2, 1995, this court accepted jurisdiction of the interlocutory appeal. On November 9, 1995, the parties filed with this court a Joint Motion to Dismiss Appeal seeking a dismissal with prejudice of the appeal concerning Count I and a reservation to appeal after final judgment the partial summary judgment granted with regard to Count II. This motion was subsequently granted by this court.
The trial of this matter began on November 13, 1995. On the third day of trial, the City changed its theory of annexation regarding Area # 2 (Blue River Valley) as a result of this court's decision in Rogers v. Municipal City of Elkhart, 655 N.E.2d 593 (Ind.Ct.App.1995).1 Thus, the plaintiffs requested a continuance of the trial in order to defend on this new ground. Therefore, on November 15, 1995, the trial court granted a continuance of the trial.
On December 1, 1995, the Remonstrators filed a motion to dismiss due to the change in the City's theory. On December 14, 1995, the trial court denied this motion. The Remonstrators also filed a motion requesting the trial court to determine that the City had made a judicial admission. This motion was also denied on January 10, 1996. The trial resumed on July 29, 1996, and was concluded on August 6, 1996. On March 3, 1997, the City filed a motion pursuant to Ind. Trial Rule 53.2. As a result, on April 8, 1997, the Indiana Supreme Court appointed the Honorable Barbara A. Harcourt as Special Judge in this case. At a status conference with Special Judge Harcourt on June 12, 1997, the parties agreed that no additional trial time was needed and further agreed that the Special Judge could enter judgment after listening to the audiotapes from the nine day trial and by reviewing the exhibits admitted at trial. Thereafter, on June 17, 1998, Special Judge Harcourt issued her Judgment in favor of the City, which included Findings of Fact and Conclusions of Law.
This appeal ensued.2
The trial court granted partial summary judgment in favor of the City as to Count I of Remonstrator's Third Amended Petition for Declaratory Judgment and Remonstrance and as to paragraphs six (6) through ten (10) and twelve (12) through fourteen (14) of Count II of Remonstrator's Third Amended Petition. However, as noted, Remonstrators previously dismissed with prejudice their appeal of Count I and are pursuing herein an appeal of the trial court's decision granting partial summary judgment as to above-mentioned paragraphs in Count II.
In paragraphs six (6) through ten (10) and twelve (12) through fourteen (14) of Count II of Remonstrators' Third Amended Petition, Remonstrators raise various challenges to the adoption of the annexation ordinance and the City's Fiscal Plan. The trial court considered these challenges procedural in nature.
In paragraph 6(f), the Remonstrators allege that the City violated Ind.Code § 36-4-3-33 by failing to define the City's corporate boundaries. Paragraph 6(g) also asserts that the City violated Ind. Code § 36-4-6-134 because Ordinance No. 2892, as amended, created a different ordinance from the original Ordinance No. 2892, and as such, its introduction on November 16, 1992, failed to comply with Ind.Code § 36-4-6-13 in that there was no record of a unanimous consent of the members present on that date. Additionally, Remonstrators assert in paragraph 6(h) that the City failed to comply with Ind.Code § 36-7-4-205.5 Further, Remonstrators alleged in paragraph 6(j) that the City violated its previous Ordinance No. 2229, § 205, p. 5, and § 253, p. 14, and Ind.Code § 36-9-23-7,6 in passing a resolution regarding sewer and water hook-up for the annexed areas. Paragraph 6(l ) alleges that the requirements of Ind.Code § 36-4-3-13(d)7 were not met on the purported date of the passage of the Annexation...
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