Lake Monroe Regional Waste Dist. v. Waicukauski

• Decision Date: 16 December 1986
• Docket Number: No. 53A04-8602-CV-52,53A04-8602-CV-52
• Citation: 501 N.E.2d 466
• Parties: LAKE MONROE REGIONAL WASTE DISTRICT, Appellant (Defendant Below), v. Ron WAICUKAUSKI, Prosecuting Attorney for the Tenth Judicial District of the State of Indiana, Appellee (Plaintiff Below), and LaSalle's Woods Association of Owners, and the Pointe Development Company, Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 466

501 N.E.2d 466

LAKE MONROE REGIONAL WASTE DISTRICT, Appellant (Defendant Below), v. Ron WAICUKAUSKI, Prosecuting Attorney for the Tenth Judicial District of the State of Indiana, Appellee (Plaintiff Below) and LaSalle's Woods Association of Owners, and the Pointe Development Company, Appellees (Defendants Below).

No. 53A04-8602-CV-52.

Court of Appeals of Indiana Fourth District.

Dec. 16, 1986.

Stephen L. Ferguson, Ferguson, Ferguson & Lloyd, Bloomington, for appellant.

William H. Andrews, Michael L. Carmin, Cotner, Andrews, Mann & Chapman, Bloomington, for appellees.

Joseph D. O'Connor, III, Bunger, Robertson, Kelley & Steger, Bloomington, for LaSalle's Woods Ass'n of Owners.

CONOVER, Presiding Judge.

Defendant-Appellant Lake Monroe Regional Waste District (District) appeals a judgment declaring District to be the owner of a malfunctioning lift station, and therefore responsible for its operation and maintenance.

We affirm.

ISSUES

Restated, District presents the following issues for our review: ¹

1. whether res judicata barred the trying of title to the lift station in this action;

2. whether the trial court erred in determining District to be the owner of the lift station; and

3. whether the trial court erred in finding District should not be reimbursed for payments made for electrical service to the lift station and the pump used to replenish a holding pond.

FACTS

This controversy centers around a malfunctioning lift station component of a sewage treatment system built by Caslon Development Company (Caslon). The lift station is a concrete chamber which collects sewage effluent and pumps it through sewer lines to a treatment plant. The lift station has malfunctioned several times, causing raw sewage to overflow the top of the chamber and spill onto the surrounding ground. The sewage sometimes runs downhill toward Lake Monroe. That lake provides drinking water to area residents, and is widely used for recreational purposes.

The Monroe County Health Department, alarmed at the potential public health hazard, requested the Monroe County Prosecutor to intervene on behalf of the residents of Monroe County. The prosecutor brought a declaratory judgment action to determine who (a) owned the lift station, and (b) was responsible for its operation and maintenance.

The prosecutor named the following parties, all having some connection to the lift station, as defendants:

1. District, a state political subdivision which provides for the collection, treatment, and disposal of sewage in various areas of Monroe County,

2. The Pointe Development Company (Pointe), successor in interest to Caslon, the developer of The Pointe Resort located on Lake Monroe and builder of the sewage system servicing the area, and

3. LaSalle's Woods Association of Owners (LaSalle), an administrative body of the LaSalle's Woods Condominiums, currently the only source of sewage flow into the disputed lift station.

None of the parties admits ownership of the lift station. Pointe and LaSalle contend an agreement executed between District and Caslon includes the lift station as part of the sewage system transferred to District. District contends it cannot be named owner of the lift station by reason of an earlier, unsuccessful suit brought against it by LaSalle, or in the alternative, because of an easement which it claims is part of the agreement. The easement excludes the lift station, District asserts.

After a bench trial, the trial court issued findings of fact and conclusions of law determining District to be the owner of the lift station, and responsible for its operation and maintenance. District appeals.

DISCUSSION AND DECISION

I. Standard of Review

When presented with an appeal of a negative judgment, we will not set aside findings of fact and conclusions of law entered by the trial court unless they are clearly erroneous. Abels v. Monroe County Educational Association (1986), Ind.App., 489 N.E.2d 533, 540 (reh. denied ); Ind.Rules of Procedure, Trial Rule 52(A). We neither reweigh the evidence, nor judge the credibility of witnesses. Rather we consider only the evidence most favorable to the judgment, together with all reasonable inferences arising therefrom. If there is evidence of probative value to support the trial court's judgment, it will not be disturbed. Abels, supra, at 540.

II. Res Judicata

District first argues the trial court erred in failing to find this action as to District is barred under the doctrine of res judicata. District bases its argument on the grounds an earlier action was brought against District by LaSalle in which District prevailed because LaSalle's evidence in that trial was insufficient to establish District was the owner of the lift station. In this case, however, District neither affirmatively pleaded its res judicata defense by way of answer ² nor offered evidence regarding the prior proceedings at trial. District's only attempt to present that matter for the trial court's consideration was by way of a motion to dismiss, attached to which as an exhibit was a certified copy of the findings of fact and order entered in the earlier suit between District and LaSalle.

Res judicata is an affirmative defense which prohibits a tribunal from considering an issue which has been litigated in a prior hearing. Coleman v. Target Stores (1983), Ind.App., 456 N.E.2d 723, 728. The doctrine of res judicata has evolved as a matter of public policy. Fairness to the parties and economy of time are the cornerstones of this policy. Board of Zoning Appeals, City of Valparaiso v. Sink (1972), 153 Ind.App. 1, 285 N.E.2d 655, 658-659.

Res judicata has been considered over the years as a defense which must be affirmatively pleaded before the second tribunal. Id., 285 N.E.2d at 659; Indiana Rules of Procedure, Trial Rule 8(C). T.R. 8(C) reads in pertinent part:

(C) Affirmative Defenses. A responsive pleading shall set forth affirmatively and carry the burden of proving: ... res judicata, ... and any other matter constituting an avoidance, matter of abatement, or affirmative defense. A party required to affirmatively plead any matters, including matters formerly required to be pleaded affirmatively by reply, shall have the burden of proving such matters.

As noted above, District has not met these requirements. It neither pleaded res judicata as an affirmative defense nor, having the burden of proof on that issue at trial, offered evidence thereon.

Further, District's attempt to raise the res judicata issue by way of its T.R. 12(B)(6) motion to dismiss also fails. Res judicata also may be raised in a T.R. 12(B)(6) motion if the defense appears on the face of the complaint. Thrasher v. Van Buren Township of Monroe County (1979), 182 Ind.App. 121, 394 N.E.2d 215, 221; Middelkamp v. Hanewich (1977), 173 Ind.App. 571, 364 N.E.2d 1024, 1029. Thrasher presents facts almost identical to those here presented as to this issue. In Thrasher, although the complaint referred to a mandate proceeding and to a trustee's failure to comply, nothing in the complaint suggested the defense of res judicata applied in the case then at bar. There, the court held the complaint did not make out a defense of res judicata so as to permit the filing of a T.R. 12(B)(6) motion based thereon by the defendant in that case. Thrasher, 394 N.E.2d at 221.

In this case, the only reference made to the prior proceedings reads as follows:

12. A civil action between the Association and the District (Monroe Superior Court Division III, Cause Number CV8307-032D) failed to establish responsibility for the treatment of sewage at the Pointe ... (Emphasis supplied).

(R. 22). This allegation makes out no res judicata defense available to the District on the question of ownership of the lift station. Thus, such issue was not properly before the trial court because of District's T.R. 12(B)(6) motion to dismiss. To have such issue heard and determined, it was necessary to affirmatively plead such defense by way of answer and to offer evidence thereon at trial. It did not do so. Thus, the issue was not before the court below. By failing to properly plead and prove the issue, District has waived it.

III. Ownership

District contends the trial court erred in finding the easement (a) contained an error, and (b) was not an exhibit to the agreement. In this regard paragraph 9 of the transfer agreement states in pertinent part

9. Acquisition of Permits. Upon execution hereof and delivery of the required easement, the portions of the System ³ designated on Exhibit "A" shall become the property of Waste District and shall be maintained by Waste District. Waste District agrees to apply for and maintain all required permits and orders necessary to render sewage treatment services and shall obtain approval from the governmental units to whose jurisdiction this Agreement, or the service to be rendered, is subject. (Emphasis supplied).

(R. 120). District claims because paragraph 9 of the transfer agreement refers to "the required easement", the easement described by metes and bounds prepared by Mid-States Engineering which accompanied the agreement (Defendant's Exhibit B, R. 162-164) controls. Since the metes and bounds description does not include a 16.03 foot section between the lift station and the main sewer line, line S-1, title to the disputed lift station was not transferred to District, and it currently has no responsibility for its operation and maintenance, District asserts.

Further, District claims the testimony of Robert Doty, Director and Past President of District, establishes the fact District never intended to accept the lift station, and the metes and bounds easement is proof of that intention. We disagree on all counts.

In its findings of fact, the trial court found the metes and bounds easement, as prepared by Mid-States Engineering, mistakenly omitted the additional 16.03 feet necessary to connect the lift station to the main sewer...