                                                                               FILED
                                                                           Jun 16 2016, 8:57 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEYS FOR APPELLANT TOWN                               ATTORNEYS FOR APPELLEE
OF REYNOLDS                                                BOARD OF COMMISSIONERS OF
Alex C. Intermill                                          WHITE COUNTY
Stephen C. Unger                                           Nicholas K. Kile
Andrew M. McNeil                                           Mark J. Crandley
Bose McKinney & Evans LLP                                  Hillary J. Close
Indianapolis, Indiana                                      Barnes & Thornburg LLP
                                                           Indianapolis, Indiana
ATTORNEYS FOR AMICUS CURIAE
CITY OF FORT WAYNE                                         George W. Loy
Thomas K. Downs                                            Monticello, Indiana
Karen E. Arland
Timothy E. Ochs                                            ATTORNEYS FOR APPELLEE
Ice Miller LLP                                             MAG PELLET, LLP
Indianapolis, Indiana                                      Matthew M. Price
                                                           Gregory A. Neibarger
                                                           Jessica Whelan
                                                           Bingham Greenebaum Doll
                                                           LLP
                                                           Indianapolis, Indiana

                                                           ATTORNEY FOR AMICUS CURIAE
                                                           CONCERNED CITIZENS OF
                                                           NORTH IV
                                                           Kent M. Frandsen
                                                           Barnes & Thornburg LLP
                                                           Parr Richey Obremskey Frandsen
                                                           & Patterson LLP
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Court of Appeals of Indiana | Opinion 79A02-1511-MI-1821 | June 16, 2016                           Page 1 of 13
      Town of Reynolds,                                          June 16, 2016
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 79A02-1511-MI-1821
              v.                                                 Appeal from the Tippecanoe
                                                                 Superior Court
      Board of Commissioners of                                  The Honorable Steven P. Meyer,
      White County and Certain                                   Special Judge
      Identified Landowners                                      Trial Court Cause No.
      Remonstrating Against                                      79D02-1506-MI-56
      Ordinance No. 2014-09-02EX-2,
      Appellees-Plaintiffs.




      Bradford, Judge.



                                           Case Summary
[1]   In January of 2015, Appellant-Defendant the Town of Reynolds (the “Town”)

      adopted an annexation ordinance through which it sought to annex two parcels

      of land. The Town, however, failed to include certain contiguous county roads

      in the annexation ordinance as required by statute. Appellee-Plaintiff the Board

      of Commissioners for White County (the “County”) subsequently filed a

      lawsuit seeking a declaratory judgment that the Town’s failure to comply with

      the relevant statute rendered the annexation ordinance void.


[2]   After determining that the Town’s failure to comply with the relevant statute

      did in fact render the annexation ordinance void, the trial court rendered a

      declaratory judgment in favor of the County. The Town appeals from this

      judgment. We affirm.

      Court of Appeals of Indiana | Opinion 79A02-1511-MI-1821 | June 16, 2016                Page 2 of 13
                             Facts and Procedural History
[3]   On January 6, 2015, the Town, which is located in White County, adopted

      Annexation Ordinance No. 2014-09-02EX2 (the “annexation ordinance”). The

      northern boundary of the annexation area extends to the center line of County

      Road 100 North. On the northeastern boundary, the annexation area also

      touches Parcel No. 91-74-34-000-000.901.005, which is owned by the County

      and used as a right-of-way for County Road 50 East. The parcel is publically

      maintained and is occupied by County Road 50 East. The right-of-way and

      County Road 50 East are contiguous to the annexation area and were not

      included in ordinance. County Road 100 North and County Road 50 East are

      open to the public for vehicular traffic and are maintained by the County.


[4]   The annexation area includes two parcels. One parcel is owned by Appellee-

      Plaintiff Mag Pellet, LLP (“Mag Pellet”) and has an assessed value of

      $4,185,700.00. The other parcel is owned by Appellee-Plaintiff Allen Farms

      ‘N’ LLC (“Allen Farms”) and has an assessed value of $361,000.00. The Allen

      Farms parcel constitutes 7.94% of the total assessed value of the annexed area

      with the Mag Pellet parcel constituting the remaining 92.06% of the assessed

      value of the annexed area.


[5]   On April 21, 2014, Mag Pellet and the Town entered into a Sewer and Water

      Main Extension Contract. The contract provided for developing and

      establishing Mag Pellet’s parcel. The contract also provided for allowing Mag

      Pellet to connect to the Town’s existing sewer and water facilities. In exchange


      Court of Appeals of Indiana | Opinion 79A02-1511-MI-1821 | June 16, 2016   Page 3 of 13
      for permission to connect to the Town’s existing sewer and water facilities, Mag

      Pellet agreed to release and waive all rights to remonstrate against or oppose,

      and in fact consented to, any future annexation by the town. Mag Pellet has

      since tapped into and connected to the Town’s existing sewer main.


[6]   On April 14, 2015, the County and Allen Farms filed a two-count complaint for

      declaratory judgment. In the first count, the County sought a determination

      that the Town’s failure to include County Road 100 North, County Road 50

      East, and Parcel No. 91-74-34-000-000.901.005 in the annexation ordinance

      rendered the annexation ordinance void. In the second count, the County and

      Allen Farms filed a statutory remonstrance action against the annexation. On

      April 15, 2015, the County and Allen Farms amended the remonstrance action

      to include Mag Pellet as an additional remonstrator.1


[7]   The Town filed an answer, counterclaim, and motion for partial summary

      judgment on May 28, 2015. On June 29, 2015, the County, Allen Farms, and

      Mag Pellet filed a cross-motion for summary judgment together with a

      designation of evidence in support of their motion and a brief in support of their

      motion and in opposition to the Town’s motion for partial summary judgment.




      1
        The Town argues that Mag Pellet waived its right to join the action as a remonstrator. For its
      part, Mag Pellet argues that its alleged waiver of the right to remonstrate was not valid.
      However, because we decide this matter on the merits of whether the County had standing to
      seek declaratory relief, we need not reach the question of whether Mag Pellet’s alleged waiver
      of its right to remonstrate was valid.

      Court of Appeals of Indiana | Opinion 79A02-1511-MI-1821 | June 16, 2016             Page 4 of 13
[8]   The trial court conducted a hearing on the parties’ competing motions for

      summary judgment on August 18, 2015, after which it took the matter under

      advisement. On October 13, 2015, the trial court issued an order granting

      declaratory judgment to the County. Specifically, the trial court concluded as

      follows:


              In conclusion, the court finds the territory covered by the
              annexation ordinance at issue is contiguous to the northern half
              of County Road 100 North and its right of way and is also
              contiguous to Parcel No. 91-74-34-000-000.091.005, which is
              owned by White County and used as a right of way for County
              Road 50 East. The parcel is a way that is publicly maintained by
              the County and is occupied by County Road 50 East. The
              Town’s annexation ordinance failed to include these areas as
              required by I.C. 36-4-3-2.5. The County has standing to seek a
              declaratory action for relief because this irregular annexation
              procedure fails to relieve the County of its obligation to maintain
              the contiguous roadways and it bypasses the County’s right to be
              joined as a landowner and thus remonstrate. The court finds in
              favor of the County on Count I of its Complaint for Declaratory
              Judgment and its cross Motion for Summary Judgment and
              hereby declares the Town’s annexation ordinance to be void.
              The Court denies the Town’s Motion for Summary Judgment
              regarding the issue.
                                               ****
              Because this court has determined the annexation ordinance to
              be void as stated above, the court determines that the
              Remonstrance Complaint in Count II is moot and the court
              declines to enter any further ruling on that Count.


      Appellant’s App. pp. 14-15. This appeal follows.




      Court of Appeals of Indiana | Opinion 79A02-1511-MI-1821 | June 16, 2016   Page 5 of 13
                                 Discussion and Decision                         2




                                      I. Standard of Review
[9]   Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary

      judgment is appropriate when there are no genuine issues of material fact and

      when the moving party is entitled to judgment as a matter of law. Heritage Dev.

      of Ind., Inc. v. Opportunity Options, Inc., 773 N.E.2d 881, 887 (Ind. Ct. App.

      2002).

               “On appeal from the denial of a motion for summary judgment,
               we apply the same standard applicable in the trial court.
               Summary judgment is appropriate only if there is no genuine
               issue as to any material fact and the moving party is entitled to
               judgment as a matter of law. Ind. Trial Rule 56(C). We
               therefore must determine whether the record reveals a genuine
               issue of material fact and whether the trial court correctly applied
               the law. A genuine issue of material fact exists where facts
               concerning an issue, which would dispose of the litigation are in
               dispute, or where the undisputed material facts are capable of
               supporting conflicting inferences on such an issue. If the material
               facts are not in dispute, our review is limited to determining
               whether the trial court correctly applied the law to the undisputed
               facts. When there are no disputed facts with regard to a motion




      2
        The County has filed a motion to strike certain portions of the Town’s reply brief. Specifically,
      the County argues that the challenged portions of the Town’s reply brief raise a new argument
      that was not previously included in the Town’s Appellant’s brief or its Appellee’s brief. Because
      we find the challenged portions of the Town’s reply brief to be marginally related to arguments
      previously raised by the parties, we deny the County’s motion in an order handed down
      simultaneously with this memorandum decision.

      Court of Appeals of Indiana | Opinion 79A02-1511-MI-1821 | June 16, 2016               Page 6 of 13
               for summary judgment and the question presented is a pure
               question of law, we review the matter de novo.”


       Clary v. Lite Machs. Corp., 850 N.E.2d 423, 430 (Ind. Ct. App. 2006) (quoting Bd.

       of Trs. of Ball State Univ. v. Strain, 771 N.E.2d 78, 81-82 (Ind. Ct. App. 2002)

       (internal quotation marks and some citations omitted)).


[10]   “‘In reviewing cross-motions for summary judgment, we consider each motion

       separately.’” Alva Elec., Inc. v. Evansville-Vanderburgh Sch. Corp., 7 N.E.3d 263,

       267 (Ind. 2014) (quoting Girl Scouts of S. Ill. v. Vincennes Ind. Girls, Inc., 988

       N.E.2d 250, 253 (Ind. 2013)).

               A party seeking summary judgment bears the burden to make a
               prima facie showing that there are no genuine issues of material
               fact and that the party is entitled to judgment as a matter of law.
               American Management, Inc. v. MIF Realty, L.P., 666 N.E.2d 424,
               428 (Ind. Ct. App. 1996). Once the moving party satisfies this
               burden through evidence designated to the trial court pursuant to
               Trial Rule 56, the non-moving party may not rest on its
               pleadings, but must designate specific facts demonstrating the
               existence of a genuine issue for trial. Id.


       Heritage Dev., 773 N.E.2d at 888. “On appeal, the trial court’s order granting or

       denying a motion for summary judgment is cloaked with a presumption of

       validity.” Van Kirk v. Miller, 869 N.E.2d 534, 540 (Ind. Ct. App. 2007), trans.

       denied. However, we are not limited to reviewing the trial court’s reasons for

       granting or denying summary judgment but rather may affirm the trial court’s

       ruling if it is sustainable on any theory found in the evidence designated to the



       Court of Appeals of Indiana | Opinion 79A02-1511-MI-1821 | June 16, 2016       Page 7 of 13
       trial court. See Alva Elec., 7 N.E.3d at 267 (citing Wagner v. Yates, 912 N.E.2d

       805, 811 (Ind. 2009)).


                                                 II. Analysis
[11]   Indiana Code section 36-4-3-2.5(b) (“Section 2.5”) provides that “An

       annexation of territory under this chapter after June 30, 1996, that includes land

       contiguous to a public highway must also include contiguous areas of: (1) the

       public highway; and (2) rights-of-way of the public highway.” (Emphasis

       added). A public highway includes “a street, an alley, a road, a highway, or a

       thoroughfare in Indiana, including a privately owned business parking lot and

       drive, that is used by the public or open to use by the public.” Ind. Code § 9-25-

       2-4. Section 2.5 “presumably prevents municipalities from shirking

       responsibility for maintenance of roads bordering the annexed property.” City

       of Boonville v. Am. Cold Storage, 950 N.E.2d 764, 771 (Ind. Ct. App. 2011) (“City

       of Boonville I”).


[12]   In awarding summary judgment in favor of the County, the trial court found

       that the Town failed to comply with Section 2.5. The Town does not dispute

       that it failed to comply with Section 2.5, but argues that its failure to do so

       should be overlooked. We cannot agree. Additionally, in arguing that its

       failure to comply with Section 2.5 was merely a “technical non-compliance”

       which should be overlooked, the Town asserts that the County did not have

       standing to challenge the annexation through a declaratory judgment action.

       Appellant’s Br. p. 14. Specifically, the Town argues that Section 2.5 does not


       Court of Appeals of Indiana | Opinion 79A02-1511-MI-1821 | June 16, 2016   Page 8 of 13
       confer standing on the County to challenge the validity of the annexation.

       Again, we disagree.


[13]           Annexation is an “essentially legislative function and courts
               should not micromanage it.” Bradley v. City of New Castle, 764
               N.E.2d 212, 215 (Ind. 2002). Accordingly, it is “subject to
               judicial review only as provided by statute, and ‘[t]he larger
               object of the annexation statute is, as it always has been, to
               permit annexation of adjacent urban territory.’” Id. (quoting
               Rogers v. Mun. City of Elkhart, 688 N.E.2d 1238, 1242 (Ind. 1997)).
               As a general rule, a remonstrance is the exclusive means
               available to landowners within an annexed area for challenging
               an annexation proceeding. In re Remonstrance Appealing Ordinance
               Nos. 98–004, 98–005, 98–006, 98–007, and 98–008 of the Town of
               Lizton, 769 N.E.2d 622, 629 (Ind. Ct. App. 2002). Declaratory
               judgment actions are for the most part available only to taxpayers
               of the annexing city. Id.


       City of Boonville I, 950 N.E.2d at 769. However, we have previously recognized

       certain exceptions to the general rule.


[14]   With regards to determinations relating to whether a party has standing to bring

       a claim, we have stated as follows:


                        [t]he judicial doctrine of standing focuses on whether
                        the complaining party is the proper person to invoke
                        the court’s power. Standing is similar to, though not
                        identical with, the real party in interest requirement
                        of Indiana Trial Rule 17. Both are threshold
                        requirements intended to insure that the party before
                        the court has the substantive right to enforce the
                        claim being asserted. Under the traditional private
                        standing doctrine, a party must demonstrate both a
                        personal stake in the outcome of the lawsuit and, at a

       Court of Appeals of Indiana | Opinion 79A02-1511-MI-1821 | June 16, 2016   Page 9 of 13
                        minimum, that he is in immediate danger of
                        sustaining some direct injury as a result of the
                        conduct at issue.

               Hosler ex rel. Hosler v. Caterpillar, Inc., 710 N.E.2d 193, 197 (Ind.
               Ct. App. 1999) (citations, quotation marks, and brackets
               omitted), trans. denied. “[T]he question of whether a party has
               standing is purely one of law and does not require deference to
               the trial court’s determination.” Wood v. Walden, 899 N.E.2d
               728, 731 (Ind. Ct. App. 2009).


       City of Greenwood v. Town of Bargersville, 930 N.E.2d 58, 65-66 (Ind. Ct. App.

       2010), trans. granted, opinion vacated sub nom. City of Greenwood v. Town of

       Bargersville, IN, 940 N.E.2d 831 (Ind. 2010), and opinion reinstated, 942 N.E.2d

       110 (Ind. 2011).


[15]   The Indiana Declaratory Judgment Act (the “Act”) provides that:


               Any person interested under a deed, will, written contract, or
               other writings constituting a contract, or whose rights, status, or
               other legal relations are affected by a statute, municipal
               ordinance, contract, or franchise, may have determined any
               question of construction or validity arising under the instrument,
               statute, ordinance, contract, or franchise and obtain a declaration
               of rights, status, or other legal relations thereunder.


       Ind. Code § 34-14-1-2. The County is included in the class of individuals who

       may bring a declaratory judgment action under the Act. See City of Greenwood,

       930 N.E.2d at 66 (citing City of Hobart v. Town of Merrillville, 401 N.E.2d 726,

       728 (Ind. Ct. App. 1980) (providing that the Act specifically allows

       governmental entities to file suit), trans. denied); see also Ind. Code § 34-14-1-13


       Court of Appeals of Indiana | Opinion 79A02-1511-MI-1821 | June 16, 2016        Page 10 of 13
       (providing that the word “person” as used in the Act includes municipal

       corporation3 or “other corporation of any character whatsoever”). In addition,

       we have previously found that a governmental entity has standing to challenge

       an annexation of certain property by another governmental entity by bringing a

       declaratory judgment action when the matter presented a true controversy

       between two adverse parties and the governmental entity seeking to bring the

       declaratory judgment action had “‘shown that a decision would affect its rights,

       status, or other legal relationships.’” Id. (quoting City of Hobart, 401 N.E.2d at

       728).


[16]   In City of Boonville I, we concluded that “[w]hile the adjacent property owners

       technically have title to the centerline of the public roadways, they do not have

       the right to construct, lay out, alter, vacate, maintain, or otherwise control the

       roadways. Those powers are given to government entities.” 950 N.E.2d at

       771. Thus, it follows that with regard to Section 2.5, the governmental entity

       which, prior to annexation, had the responsibility for maintaining a roadway

       bordering an annexed parcel should be treated as the owner of said roadway for

       purposes of challenging annexation by another governmental entity. 4




       3
         A “municipal corporation” includes any separate local governmental entity that may sue and
       be sued. Ind. Code § 36-1-2-10.
       4
         We believe this proposition finds general support from the Indiana Supreme Court’s opinion
       in American Cold Storage v. City of Boonville, 2 N.E.3d 3, 6 (Ind. 2014) (“City of Boonville II”) which
       provides that land which is controlled by a governmental entity and comprises the portion of a
       public roadway included in an annexed territory should be considered and counted as a single
       parcel in determining whether the remonstrating landowners compromised 65% of the owners
       of the annexed property.


       Court of Appeals of Indiana | Opinion 79A02-1511-MI-1821 | June 16, 2016                  Page 11 of 13
       Therefore, said governmental entity would undoubtedly have an interest in

       protecting its rights relating to the roadway.


[17]   We agree with the trial court that since the County maintains the roadways at

       issue, it has a direct interest in enforcing Section 2.5. Thus, we conclude that

       the County had standing to enforce Section 2.5 by bringing the underlying

       declaratory judgment action.5 Otherwise, the County would have no recourse

       to protect its interests as provided within the annexation code. Such a result

       would appear to be contrary to the intent of the General Assembly and would

       arguably render Section 2.5 unenforceable.6



                                                Conclusion
[18]   In sum, we conclude that the County had standing to seek to enforce Section

       2.5 via a declaratory judgment action. This conclusion coupled with the fact

       that the Town admitted that it violated Section 2.5 by not including County

       Road 100 North, County Road 50 East, and Parcel No. 91-74-34-000-

       000.901.005 in the annexation ordinance leads us to the opinion that the

       Town’s failure to include the roadways in question in the annexed ordinance as

       is required by Section 2.5 cannot be overlooked. We therefore conclude that




       5
        Indeed, if the County does not have standing to seek to enforce Section 2.5, we are left
       wondering who would.
       6
         In reviewing a statute, we aim to construe statutes to avoid an absurd result or a result that the
       legislature, as a reasonable body, could not have intended. Raider v. Pea, 613 N.E.2d 870, 872
       (Ind. Ct. App. 1993).

       Court of Appeals of Indiana | Opinion 79A02-1511-MI-1821 | June 16, 2016               Page 12 of 13
       the trial court properly found the annexation ordinance to be void and granted

       summary judgment in favor of the County. As such, we affirm the judgment of

       the trial court.


[19]   The judgment of the trial court is affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 79A02-1511-MI-1821 | June 16, 2016   Page 13 of 13
