Rasp v. Hidden Valley Lake, Inc.
| Decision Date | 27 January 1986 |
| Docket Number | No. 1-685A148,1-685A148 |
| Citation | 487 N.E.2d 1338 |
| Parties | Robert RASP, Sr., Linda Rasp, Michael R. Barnes, Deborah Barnes, William O. Smith, Marjorie Smith and Mary Ann Ruble, Appellants, v. HIDDEN VALLEY LAKE, INC., Appellee. |
| Court | Indiana Appellate Court |
Robert J. Ewbank, Lawrenceburg, for appellants.
William R. Pfister, Lawrenceburg, for appellee.
Appellants-defendants, the Rasps, et al. (Rasps), appeal a Dearborn County Court order denying their Ind. Rules of Procedure, Trial Rule 12(B)(1) and (6) motions and entering judgment in favor of appellee-plaintiff, Hidden Valley Lake, Inc. (Hidden Valley).
We reverse.
On August 20, 1982, Hidden Valley filed statements of claim against appellants in separate suits in the Dearborn County Court seeking judgments for water and sewer availability fees, late charges, collection costs, and/or property taxes. 1 The claims were made as follows: Rasps $314.50; Ruble $268.76; Barnes $268.76; and Smiths $453.30. Each statement of claim was supported with exhibits of account cards, and a copy of a deed which purported to be the basis of the entitlement for the claim. The claims were not verified nor were they supported by affidavits.
Thereafter, on September 11, 1982, the Rasps, by counsel, filed their answer in denial. On the same day they filed an unverified motion to dismiss under Ind.
Rules of Procedure, Trial Rule 12(B)(6) which motion was amended on September 13. According to the unverified legal memorandum filed in support of the motion on March 26, 1984, the Rasps claimed that the charges were unlawful because they had not been approved by the Public Service Commission. No affidavits accompanied the motion.
On March 15, 1984, the Rasps filed a second unverified motion to dismiss under T.R. 12(B)(1) alleging that the Dearborn County Court lacked jurisdiction to hear the suit because it was a suit to enforce a lien. Though a legal memorandum supporting the motion was filed on March 26, 1984, no affidavits accompanied it.
On April 5, 1984, Hidden Valley filed an unverified legal memorandum in opposition to the T.R. 12(B)(6) motions.
On December 14, 1984, the trial court entered an order denying the two motions to dismiss and in the same order entered judgments for Hidden Valley against the Rasps, Ruble, the Barnes and the Smiths in the amounts claimed above. The record does not reflect that a trial was held or that evidence was taken. No affidavits were filed nor were the T.R. 12 motions converted into motions for summary judgment. There did appear in the record a joint stipulation which reads as follows:
A Motion to Correct Errors was filed by the defendants in all cases on February 12, 1985, to which was filed by Hidden Valley on February 21, 1985, an unverified Statement in Opposition thereto. That Statement in Opposition alleges that the County Court Judge who entered the judgment had left office on December 31, 1984, and a copy of the Motion to Correct Errors was not served on him as required by Ind. Rules of Procedure, Trial Rule 59(C).
The Motion to Correct Errors essentially raised the issues that the trial court committed error in: (1) entering a judgment without any form of evidentiary hearing; and (2) overruling the T.R. 12 motions. Noting that the Motion had not been served on him, the trial judge, Judge Hoffman, denied the Motion on May 3, 1985.
Appellants raise the following issues on appeal:
I. Does the Dearborn County Court have subject matter jurisdiction to declare or establish a lien.
II. May a court enter an order of judgment where there are disputed facts and defendants have had neither a trial nor the opportunity to present evidence in any manner.
III. Whether Public Service Commission approval is necessary in order for a real estate developer to charge sewer and water availability fees.
IV. Whether a restrictive covenant contained in a deed restriction providing for sewer and water availability fees to be paid to a former real estate developer is enforceable as a matter of public policy.
V. Whether appellants have forfeited their right to appeal because they failed to serve the trial judge a copy of the motion to correct errors.
VI. Whether appellants forfeited their right to appeal because they failed to include in pre-appeal filings the order overruling the motion to correct errors.
Examination of the Motion to Correct Errors revealed that Issue IV was not raised therein. Appellants having not properly presented it for review here, we will not discuss it.
Appellants contend that the Dearborn County Court lacked subject matter jurisdiction because IND. CODE 33-10.5-3-2 provides that a county court has no jurisdiction to declare or enforce liens on real estate. Hidden Valley's claim is based on the deed attached to the claim in which the grantees agreed to pay certain water and sewer availability charges. If the payments become delinquent they then become a lien on the property.
It is clear that Hidden Valley brought suit on an alleged accrued debt and did not ask that a lien be declared or foreclosed. We consider the law to be settled that even though a court lacks jurisdiction to enforce a lien, such does not preclude jurisdiction to entertain a suit on the underlying debt. Levi v. Hare (1894), 8 Ind.App. 571, 36 N.E. 369; 18 I.L.E. Liens Sec. 9 (1959).
Colonial Discount Corp. v. Bowman (1981), Ind.App., 425 N.E.2d 266, relied upon by appellants, is distinguishable. In that case, after property sold on a conditional sales contract had been repossessed, the seller sold it without following foreclosure procedures required by Skendzel v. Marshall (1973), 261 Ind. 226, 301 N.E.2d 641. That case recognized an equitable lien on the real estate in the buyer for his equity. Suit was brought by the buyers in a manner which this court characterized as a suit seeking recognition of their lien. Such was beyond the jurisdiction of a county court. However, in the case at bar the suit merely sought a money judgment on a promise to pay money. A county court has jurisdiction of such a suit.
The praecipe requested the total record. That record is devoid of any trial or summary judgment proceeding to support a judgment in favor of Hidden Valley. Hidden Valley claims that the joint stipulation contained in the above Statement of Facts permits the action taken by the trial court. We read the stipulation differently. Pending before the court were at least four cases. Two T.R. 12 motions to dismiss were pending in the Rasp case. Those motions were the only issues pending and briefed. The stipulation merely applied those pleadings to all four cases, that is, the motions to dismiss. Once the motions to dismiss had been ruled upon the case must necessarily be set for trial on the merits. The record does not support the action of the trial court. We can only adjudge this case from the record and may not guess what side agreements may have existed. If counsel for Hidden Valley had a stipulation of fact in mind it was incumbent upon him to prepare it, get it signed, file it with the court and make it a part of the record.
Hidden Valley's argument that this issue is based upon evidence outside the record, and must be supported by affidavits, is not well taken. The issue is based upon the record, or more particularly, the absence of any record showing a trial.
Appellants raised this issue with a Motion to Dismiss filed under T.R. 12(B)(6) wherein they claim that the complaint failed to state a claim upon which relief can be granted. No supporting affidavits were...
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...the trial court could have granted relief. Id. A complaint need not state all elements of a cause of action. Rasp v. Hidden Valley Lake, Inc. (1986), Ind.App., 487 N.E.2d 1338. Rather, the facts alleged in the complaint are taken as true, and dismissal is appropriate only where it appears t......
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