In re Remonstrance Appealing Ordinance

• Decision Date: 06 June 2002
• Docket Number: No. 32A01-0108-CV-298.,32A01-0108-CV-298.
• Citation: 769 N.E.2d 622
• Parties: In re REMONSTRANCE APPEALING ORDINANCE NOS. 98-004, 98-005, 98-006, 98-007 AND 98-008, OF THE TOWN OF LIZTON, Indiana. Reece R. and Carolyn S. Fuehrer, and Gary and Bonnie J. DeGolyer, Appellants-Intervenors, and Town of Lizton, Indiana, Defendant, v. William and Concetta Storm and Anna Shelton, Appellees-Plaintiffs-Remonstrators.
• Court: Indiana Appellate Court

769 N.E.2d 622

In re REMONSTRANCE APPEALING ORDINANCE NOS. 98-004, 98-005, 98-006, 98--008, OF THE TOWN OF LIZTON, Indiana.

Reece R. and Carolyn S. Fuehrer, and Gary and Bonnie J. DeGolyer, Appellants-Intervenors, and Town of Lizton, Indiana, Defendant, v. William and Concetta Storm and Anna Shelton, Appellees-Plaintiffs-Remonstrators.

No. 32A01-0108-CV-298.

Court of Appeals of Indiana.

June 6, 2002.

Judy L. Woods, Melinda R. Shapiro, Bose McKinney & Evans, LLP, Indianapolis, IN, Attorneys for Appellants.

Jeffrey A. Townsend, Plews Shadley Racher & Braun, Indianapolis, IN, Attorney for Appellees.

OPINION

KIRSCH, Judge.

Reece R. and Carolyn S. Fuehrer and Gary and Bonnie J. DeGolyer ("Landowners") challenge the trial court's judgment holding certain annexation ordinances of the Town of Lizton, Indiana void, raising the following issues for review:

I. Whether William and Concetta Storm and Anna Shelton ("Remonstrators") have standing to challenge the ordinances.

II. Whether the trial court erred in denying Landowners' motion to strike portions of the affidavit of William Storm as legal conclusions and statements not based on personal knowledge. III. Whether a municipality may meet the contiguity requirement of IC 36-4-3-1.5 by serially adopting ordinances annexing parcels that are contiguous to one another when only the first is contiguous to the municipality.

IV. Whether the trial court erred by sua sponte finding a taking or condemnation of property as a result of the annexation.

In addition, Remonstrators raise the following issue:

V. Whether Landowners' appeal is frivolous and therefore entitles Remonstrators to costs pursuant to Ind. Appellate Rule 66(E).

We affirm.

FACTS AND PROCEDURAL HISTORY¹

The following facts are taken from this court's opinion in the previous appeal:

"On May 4, 1998, the Town of Lizton ("the Town' adopted five ordinances, each of which annexed separate parcels of land. The five parcels were designated as parcels one, two, three, four, and five. Parcel one is contiguous to the Town's borders, but the other four are not. Landowners own parcels three, four, and five.

On July 13, 1998, Remonstrators filed suit against the Town seeking a declaratory judgment that the five annexation ordinances were void. On January 25, 1999, Landowners moved for the trial court's permission to intervene in the suit, alleging that the annexation dispute would have a material impact on the value of their property. On March 5, 1999, Remonstrators filed a motion for partial judgment on the pleadings, challenging the annexation of parcels two, three, four, and five.

The trial court held a hearing on Landowners' motion to intervene on March 23, 1999. At that hearing, the Town announced that it did not oppose Remonstrators' motion for partial judgment on the pleadings. Subsequently, the trial court issued an order in which it denied Landowners' motion to intervene and granted Remonstrators' motion for partial judgment on the pleadings. The trial court later dismissed the case...."

In re Remonstrance Appealing Ordinance Nos. 98-004, 98-005, 98-006, 98-007 and 98-008 of Town of Lizton, 737 N.E.2d 767, 768 (Ind.Ct.App.2000).

In the prior appeal, this court held that Landowners were entitled to intervene because neither party in the litigation represented their interests. Id. On remand, Landowners moved to intervene and moved for summary judgment. Remonstrators moved the trial court to reenter judgment on the pleadings and submitted the affidavit of William Storm in support of their motion. Landowners responded by moving to strike Paragraphs Eight and Nine of the affidavit.

The trial court issued findings of fact and conclusions thereon in which it granted Landowners' motion to intervene, denied Landowners' motion to strike, denied Landowners' motion for summary judgment, and granted Remonstrators' motion to reenter judgment on the pleadings, effectively declaring the ordinances annexing Parcels Two through Five null and void.

Landowners now appeal.

DISCUSSION AND DECISION

The trial court granted Remonstrators' motion to re-enter judgment on the pleadings and denied Landowners' motion for summary judgment. A motion for judgment on the pleadings pursuant to Ind. Trial Rule 12(C) attacks the legal sufficiency of the pleadings. Eskew v. Cornett, 744 N.E.2d 954, 956 (Ind.Ct.App. 2001), trans. denied. A judgment on the pleadings is proper only when there are no genuine issues of material fact and when the facts shown by the pleadings clearly establish that the non-moving party cannot in any way succeed under the facts and allegations therein. Id. Ind. Trial Rule 12(C) provides:

"After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."

Here, Remonstrators submitted the Storm affidavit, a matter outside the pleadings, with their motion. Thus, the motion should be treated as one for summary judgment.

The trial court entered extensive findings of fact and conclusions of law. While normally the requested entry of specific findings and conclusions triggers a different standard of review, it does not do so in summary judgment proceedings. Hemingway v. Sandoe, 676 N.E.2d 368, 369 (Ind.Ct.App.1997). By its very nature, a summary judgment is a judgment entered when there are no genuine issues of material fact to be resolved. Id. Thus, in the summary judgment context, we are not bound by the trial court's specific findings of fact and conclusions of law. Id. They merely aid our review by providing us with a statement of reasons for the trial court's actions. Id. Hence, we employ our usual standard of review for cases disposed of by summary judgment. Id.

When reviewing the grant or denial of a summary judgment motion, this court applies the same legal standard as the trial court, i.e., summary judgment is appropriate when no designated genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Indiana Ins. Co. v. Am. Cmty. Servs., Inc., 718 N.E.2d 1147, 1152 (Ind.Ct.App.1999); May v. Frauhiger, 716 N.E.2d 591, 594 (Ind.Ct.App.1999) (citing Ind. Trial Rule 56(C)); Birrell v. Indiana Auto Sales & Repair, 698 N.E.2d 6, 7 (Ind.Ct.App.1998), trans. denied (quoting Stevenson v. Hamilton Mut. Ins. Co., 672 N.E.2d 467 (Ind. Ct.App.1996), trans. denied (1997)). A party appealing the denial of summary judgment carries the burden of persuading this court that the trial court's decision was erroneous. Indiana Ins. Co., 718 N.E.2d at 1152. The movant must demonstrate the absence of any genuine issue of fact as to a determinative issue and only then is the non-movant required to come forward with contrary evidence. Id. (citing Jarboe v. Landmark Cmty. Newspapers, 644 N.E.2d 118, 123 (Ind.1994)). This court may not search the entire record but may only consider the evidence that has been specifically designated. Id.; Birrell, 698 N.E.2d at 7

(quoting Stevenson, 672 N.E.2d at 467).

All pleadings, affidavits, and testimony are construed liberally and in the light most favorable to the nonmoving party. May, 716 N.E.2d at 594. Even when facts are undisputed, summary judgment is not appropriate if those undisputed facts "`give rise to conflicting inferences which would alter the outcome.'" Id. (quoting Underwood v. City of Jasper Mun. Util., 678 N.E.2d 1280, 1282 (Ind.Ct.App.1997),trans. denied).

The annexation of land by municipalities is governed by IC 36-4-3-1 to IC XX-X-X-XX. City of Muncie v. Lowe, 705 N.E.2d 528, 530 (Ind.Ct.App.1999), trans. denied. Generally, the annexation process formally begins when a municipality adopts an ordinance annexing territory pursuant to either IC 36-4-3-3 or IC 36-4-3-4. Id. The legislative adoption of the ordinance is followed by an opportunity for remonstrance by affected landowners and judicial review. City of Hobart v. Chidester, 596 N.E.2d 1374, 1375 (Ind.1992). A remonstrance abates the culmination of the annexation pending a review by the courts and places upon the municipality the burden of sustaining the annexation in the courts as provided by statute. City of Indianapolis v. Wynn, 239 Ind. 567, 576, 157 N.E.2d 828, 833 (1959). At the remonstrance hearing, the burden is on the municipality to demonstrate its compliance with the annexation statutes. In re Matter of Annexation Ordinance No. X-07-91 (Blackhawk Annexation), 645 N.E.2d 650, 652 (Ind.Ct.App.1995), trans. denied.

I. Standing

Landowners contend that Remonstrators lack standing to challenge the ordinances. Remonstrators William and Concetta Storm own a small percentage of Parcel Two, and Remonstrator Anna Shelton is a taxpayer of the city of Lizton, but does not own any property in or adjoining the proposed annexation.

A party seeking relief from annexation must have the proper standing. Deaton v. City of Greenwood, 582 N.E.2d 882, 885 (Ind.Ct.App.1991). The issue of standing focuses on whether the complaining party is the proper person to invoke the court's power and is designed to assure active and vigorous litigation. Id. To have standing, a party must demonstrate a personal stake in the outcome of the lawsuit and must show, at a minimum, the immediate danger of sustaining some direct injury as a result of the conduct at issue. Id. Further, one may not assert a cause of action based solely on the infringement of the rights of others. Id.

A. Right to Remonstrate

Landowners note that an annexation may only be challenged by statutory remonstrance or declaratory judgment. They further contend that the Storms do not meet the requirements to bring a statutory...