Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                          Dec 02 2014, 5:51 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEY FOR APPELLEE:

DALE W. ARNETT                                    DONALD J. TRIBBETT
Winchester, Indiana                               Tribbett Law Office
                                                  Logansport, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

RICHARD RAY,                        )
                                    )
     Appellant-Defendant,           )
                                    )
            vs.                     )                      No. 08A02-1405-PL-380
                                    )
TWIN LAKES REGIONAL SEWER DISTRICT, )
                                    )
     Appellee-Plaintiff.            )


                    APPEAL FROM THE CARROLL SUPERIOR COURT
                          The Honorable Kurtis G. Fouts, Judge
                             Cause No. 08D01-1302-PL-10



                                       December 2, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                                  STATEMENT OF THE CASE

       Richard Ray appeals the trial court’s judgment in favor of Twin Lakes Regional

Sewer District (“the District”) on the District’s complaint, which sought injunctive relief

directing Ray to connect his property to the District’s public sewer. Ray presents two

issues for our review, but we address a single dispositive issue, namely, whether he

presented sufficient evidence to prove that he is entitled to a statutory exemption to the

ordered sewer connection.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       The parties stipulated to the facts underlying this case as follows:

       1. [The District] is a regional sewer district providing sewage collection
       and treatment services within its territorial boundaries, including within
       territory in Carroll County, Indiana. [The District] is organized and exists
       pursuant to the provisions of Article 26 of Title 13 of the Indiana Code.

       2. Pursuant to Limited Corporate Warranty Deed dated the 29th day of
       November, 1979, and recorded in the Office of the Recorder of Carroll
       County, Indiana on the 3rd day of December 1979, . . . Ray is the owner of
       real estate commonly known as 11301 W. 950 N., Monticello, Indiana. . . .
       Said real estate is located within the territorial boundaries of [the District]
       and within 300 feet of an available sewer. Glenda L. Ray[, Ray’s wife,]
       departed this life on May 13, 2013.[1]

       3. On or about April 15, 2009, [the District] sent notice to Ray to connect
       his property at 11301 W. 950 N., Monticello, Indiana, to [the District’s]
       public sewer and to discontinue the use of any privy, cesspool, septic tank,
       or similar structure. Additional notices to connect were sent to Ray on or
       about May 19, 2010, and June 20, 2010. To date, Ray has not connected
       his property to [the District’s] public sewer.

       4. On or about October 16, 2012, Ray submitted to [the District] a request
       that his property be exempted from connecting to [the District’s] public

       1
           The Rays were both named in the District’s complaint, but Ray is the only surviving defendant.
                                                    2
        sewer. A true and correct copy of said request is attached hereto as
        “Exhibit B.”

        5. On or about October 30, 2012, [the District], by and through its attorney,
        sent Ray a letter denying his request for an exemption. A true and accurate
        copy of said letter is attached hereto as “Exhibit C.”

        6. On February 15, 2013, [the District] initiated this action requesting an
        order compelling Ray to connect his property to [the District’s] public
        sewer.[2]

        7. Ray contends that, pursuant to P.L. 97-2012 effective July 1, 2012, his
        property is exempt from connecting to [the District’s] public sewer. Ray
        bears the burden of establishing his right to any such exemption.

        8. [The District] contends that P.L. 97-2012 does not apply to Ray’s
        property and that Ray’s October 16, 2012, exemption request did not, in
        any event, establish his entitlement to an exemption.

        9. The parties agree that there are no other facts pertinent to the issue
        presently before the court and that the court may determine the issue as a
        matter of law. The parties propose to submit memoranda to the court to
        present their various legal arguments and respectfully request that the court
        decide this case on this stipulation and the memoranda to be submitted.

Appellant’s App. at 39-41. After each party submitted a memorandum to the trial court,

the court entered a general judgment in favor of the District and ordered Ray to connect

his property to the District’s public sewer and to discontinue use of “any privy, cesspool,

septic tank, or similar structure within 90 days of this order.” Id. at 13. This appeal

ensued.

                                 DISCUSSION AND DECISION

        Here, the facts are undisputed and the dispositive issue presented on appeal is a

question of law. Further, the trial court’s determination was made on a paper record,


        2
           The Rays failed to respond to the complaint, and the trial court entered default judgment against
them in March 2013. But the trial court subsequently granted Ray’s Trial Rule 60(B) motion to set aside
default judgment.
                                                     3
rather than after an evidentiary hearing. Our review on appeal is de novo. See State v.

Moss-Dwyer, 686 N.E.2d 109, 110 (Ind. 1997); Stewart v. Kingsley Terrace Church of

Christ, Inc., 767 N.E.2d 542, 546 (Ind. Ct. App. 2002).

      Indiana Code Section 13-26-5-2(8) (“Section 2”) provides in relevant part as

follows:

      Except as provided in sections 2.5 and 2.6 of this chapter, [a regional sewer
      district may] require connection to the district’s sewer system of property
      producing sewage or similar waste, and require the discontinuance of use of
      privies, cesspools, septic tanks, and similar structures if:

             (A) there is an available sanitary sewer within three hundred
             (300) feet of:

                    (i) the property line, if the property is adjacent
                    to a body of water, including a lake, river, or
                    reservoir; . . . . [and]

             (B) the district has given written notice by certified mail to
             the property owner at the address of the property at least
             ninety (90) days before a date for connection to be stated in
             the notice; . . . .

      Indiana Code Section 13-26-5-2.6 (“Section 2.6”) provides

      A district may not require the owner of a property described in section 2(8)
      of this chapter to connect to the district’s sewer system if:

             (1) the property is located on at least ten (10) acres;

             (2) the owner can demonstrate the availability of at least two
             (2) areas on the property for the collection and treatment of
             sewage that will protect human health and the environment;

             (3) the waste stream from the property is limited to domestic
             sewage from a residence or business;

             (4) the system used to collect and treat the domestic sewage
             has a maximum design flow of seven hundred fifty (750)
             gallons per day; and
                                             4
                (5) the owner, at the owner’s expense, obtains and provides to
                the district a certification from the local health department or
                the department’s designee that the system is functioning
                satisfactorily.

        It is undisputed that the District was, in the first instance, entitled to order Ray to

connect his real property to the sewer system under Section 2. But Ray contends that he

is entitled to the exemption created by Section 2.6.3 In particular, in his memorandum to

the trial court, Ray argued that

        Exhibit A of the Stipulations shows Mr. Ray has 10 or more acres.

                Exhibit B[,] page 2 shows that the sewage is from the residence and
        that the system is in working order. Pages 3 and 4 show there are 2 or more
        areas available on the property for the proper treatment and collection of
        sewage[,] as well as the present septic location.

                The letter from [the District] dated October 30th 2012 (Exhibit C)
        claims deficiency in Mr. Ray’s application for exemption in subsections 2,
        4, and 5 of I.C. [§] 13-26-5-2.6[;] however[,] as stated above, the
        requirement of sections 2 (2 areas for collection and treatment) and (5)
        (certification from the Health Department [that] the system is functioning
        satisfactorily) have been met or substantially complied with.

              If Mr. Ray needs to determine under subsection (4) of the statute if
        the maximum design flow is 750 gallons per day, then he can have the
        Health Department or a certified installer do that.

               Rather than working with citizens under the exemption law, it
        appears from Exhibit C that [the District] intends to continue to require
        connection in spite of the exemption language. [The District] should have
        and could have explained to Mr. Ray, a layman, what would be further
        required, if anything, for him to receive the exemption under I.C. [§] 13-26-
        5-2.6.

             However, they [sic] didn’t do that[] and instead filed legal action.
        Mr. Ray is ready, willing[,] and able to supply any further information

        3
           The parties raised the issue of whether Section 2.6, effective July 1, 2012, applied to Ray, who
was ordered to connect to the sewer in 2009. But we need not address the issue of the statute’s
retroactivity. Assuming for the sake of argument that the statute is retroactive, we hold that Ray has not
proven that he is entitled to the exemption.
                                                    5
        required by [the District] to obtain the statutory exemption and has
        attempted to comply with the statutory requirements for such exemption.

Appellant’s App. at 19 (emphases added).

        The parties stipulated to the trial court that Ray bears the burden of establishing

his right to the exemption under Section 2.6. In his memorandum submitted to the trial

court, Ray offers to provide evidence that the system he currently uses to collect and treat

the domestic sewage has a maximum design flow of 750 gallons per day, which evidence

is required under subsection 4 of the statute. But the time to present that evidence has

passed. Ray has not presented evidence sufficient to prove that he is entitled to the

exemption under Section 2.6.4 The trial court did not err when it ordered Ray to connect

his real property to the District’s public sewer.

        Affirmed.

BAILEY, J., and PYLE, J., concur.




        4
           In addition, Ray did not demonstrate the availability of at least two areas on the property for the
collection and treatment of sewage that will protect human health and the environment as required under
subsection 2 of Section 2.6. While Ray submitted to the trial court a document entitled “Septic System
Soils/Site Evaluation Form” and an accompanying diagram purporting to show two such areas, the
document does not state whether the property complies with subsection 2.
                                                      6
