City of Fort Wayne, Matter of

• Citation: 381 N.E.2d 1093,178 Ind.App. 228
• Decision Date: 01 November 1978
• Docket Number: No. 3-977A226,No. X-02-74,No. 2,X-02-74,2,3-977A226
• Parties: In the Matter of the Annexation Proposed by Annexation Ordinance, being an Ordinance to annex certain territory to the CITY OF FORT WAYNE and to include same in Councilmanic DistrictJohn J. McGAHARAN et al., Appellants (Remonstrators), v. CITY OF FORT WAYNE, Indiana, Appellee (Respondent).
• Court: Court of Appeals of Indiana

Page 1093

381 N.E.2d 1093

178 Ind.App. 228

In the Matter of the Annexation Proposed by Annexation

Ordinance No. X-02-74, being an Ordinance to annex certain

territory to the CITY OF FORT WAYNE and to include same in

Councilmanic District No. 2.

John J. McGAHARAN et al., Appellants (Remonstrators), v. CITY OF FORT WAYNE, Indiana, Appellee (Respondent).

No. 3-977A226.

Court of Appeals of Indiana, Third District.

Nov. 1, 1978.

Bruce R. Snyder, Bloom & Bloom, Fort Wayne, for appellants.

Clifford E. Simon, Jr., Fort Wayne, for appellee.

HOFFMAN, Judge.

John McGaharan and others (appellants) remonstrated against annexation of certain territories known as Glenwood Park Extended and Summit Ridge Addition, by the City of Fort Wayne. The City was granted summary judgment and the remonstrators appeal.

The dispositive issue of this appeal is whether or not the trial court erred in finding that the remonstrance was invalid for lack of a requisite number of signators representing 51% Of all persons owning property in the territory sought to be annexed.

The following facts give rise to this appeal:

In 1968 the Common Council of Fort Wayne passed Annexation Ordinance No. X-03-68 and a remonstrance thereto was filed. For various reasons that action lay dormant for several years. In 1974 the City's Common Council enacted Annexation Ordinance X-02-74 in accordance with updated annexation statutes that had been revised by the Indiana Legislature in 1969. The 1974 ordinance sought to annex substantially the same area as the 1968 ordinance, which had been specifically repealed therein. Thus, the first remonstrance was rendered moot and in September of 1974 appellees filed this action. Thereafter numerous pleadings were filed and a pretrial conference was set but postponed several times. Counsel for the City then discovered the existence of certain sewer contracts containing a waiver of the right to remonstrate against annexation. The City filed a motion for summary judgment, maintaining that 533 of the 572 signatures on the remonstrance were invalidated by the sewer contracts and thus that the remonstrance was insufficient.

On March 29, 1977, a hearing was held on the motion. The City submitted documentation and supporting memorandum. The affidavit of an Assistant Vice President of Lincoln National Bank and Trust Company showed the bank as record titleholder of all lots in Summit Ridge Addition and Sections I and II of Glenwood Park Extended in 1963. The affidavit of the Chief Water Pollution Control Engineer of Fort Wayne showed that as a result of contracts entered into by Lincoln National Bank as trustee of said property and the City, sanitary sewers were installed which service all of Summit Ridge Addition and Glenwood Park Extended. The affidavit included the name and address of each property owner served in these areas. A certificate from the Allen County Auditor certified for the areas in question (1) the total number of property owners as 501, (2) the total number of property owners represented in the remonstrance as 284, (3) the percentage of property owners remonstrating as 56%, and (4) the assessed valuation of remonstrator's property as 49%. The court found the remonstrance to be insufficient based upon this and other evidence adduced at the hearing and the City entitled to summary judgment, there being no question of fact raised by the insufficient remonstrance. Specific findings of fact and conclusions of law were entered on April 1, 1977.

Appellants contend on appeal that the summary judgment ruling was improper and contrary to law. Summary judgment is a procedural device enabling prompt disposition of cases where there is no genuine issue of material fact to be determined in a trial. Hayes v. Second Nat. Bank of Richmond (1978), Ind.App., 375 N.E.2d 647.

In a contest of the propriety of annexation the trial court is charged with first passing judgment upon the standing of the parties to maintain the litigation through an examination of the sufficiency of the remonstrance. Board of Trustees, etc. v. City of Fort Wayne (1978), Ind., 375 N.E.2d 1112; Bata Shoe Co., Inc. et al. v. City of Salem et al. (1972), 153 Ind.App. 323, 287 N.E.2d 350. Thus the City properly framed the question of whether the court had subject matter jurisdiction over this action in its motion for summary judgment.

Such issue may be raised at any point during litigation and if not raised by the parties it is the duty of the reviewing court to determine the issue Sua sponte. McGraw v. Marion County Plan Commission (1961), 131 Ind.App. 686, 174 N.E.2d 757. In spite of appellants' contention that jurisdiction was waived per an earlier...