                                                                                    FILED
                                                                               Dec 20 2017, 8:39 am

                                                                                    CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




ATTORNEYS FOR APPELLANT                              ATTORNEYS FOR APPELLEE
Paul D. Vink                                         Peter J. Rusthoven
J. Christopher Janak                                 Nicholas K. Kile
Bose McKinney & Evans LLP                            Hillary J. Close
Indianapolis, Indiana                                Barnes & Thornburg LLP
                                                     Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

City of Washington, Indiana,                               December 20, 2017

Appellant-Defendant/Respondent,                            Court of Appeals Case No.
                                                           14A01-1702-PL-316

        v.                                                 Appeal from the Daviess Circuit
                                                           Court
Daviess County Rural Water                                 The Honorable Gregory A. Smith,
                                                           Judge
System, Inc.,
                                                           Trial Court Cause Nos.
Appellee-Plaintiff/Petitioner.                             14C01-1608-PL-380
                                                           14D01-1608-MI-69




Bradford, Judge.




Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017                   Page 1 of 22
                                           Case Summary
[1]   In 1992, Appellant-Defendant/Respondent the City of Washington, Indiana,

      entered into a contract (“the Contract”) to sell water to Appellee-

      Plaintiff/Petitioner the Daviess County Rural Water System, Inc. (“DCRW”).

      The Contract provides that “[a]ny increase or decrease in rates shall be based on

      a demonstrable increase or decrease in the costs of performance hereunder[.]”

      In 2016, the City passed an ordinance which raised DCRW’s rates 57%.


[2]   DCRW challenged the rate increase in two lawsuits—one a statutory challenge

      to rate increases and the other a declaratory judgment action—both lawsuits

      being based on the contention that the City breached the Contract by raising

      DCRW’s rate without a demonstrable increase in the costs of performance.

      Following a bench trial, the trial court entered judgment in favor of DCRW and

      invalidated the entire Ordinance on the basis that its provisions were not

      severable. The City appeals, contending that the trial court erred in (1)

      concluding that the City breached the Contract, (2) invalidating the entire

      Ordinance, and (3) denying its motion to dismiss DCRW’s declaratory

      judgment action. Because we disagree with the City’s first and third

      contentions but agree with the second, we affirm in part and reverse in part.



                             Facts and Procedural History
[3]   DCRW is a nonprofit water utility that purchases water from the City for resale

      to business and residential customers in rural Daviess County. DCRW has



      Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017   Page 2 of 22
      approximately 2800 customers and operates 300 miles of lines, three water

      towers, and three standpipes. On May 11, 1992, the parities executed the

      Contract, which obligates the City to sell DCRW up to thirty million gallons of

      water a month. The Contract, inter alia, set the initial rate schedule for water

      purchases and provided for authorized annual rate adjustments, subject to the

      following provision in Section C.5.: “Any increase or decrease in rates shall be

      based on a demonstrable increase or decrease in the costs of performance

      hereunder, but such costs shall not include increased capitalization of the

      seller’s system.” Appellant’s App. Vol. II p. 40.


[4]   Before 2016, the City increased DCRW’s rates pursuant to the Contract as part

      of across-the-board, pro rata rate increases on its customers, at least one of

      which increases was approved by the Indiana Utility Regulatory Commission

      and none of which were based on a cost-of-service study. The most recent rate

      increases prior to 2016 occurred in 2010 and 2012, and the latter increase was

      based on a report by H.J. Umbaugh & Associates (“Umbaugh”) which did not

      include a cost-of-service study. The 2012 increase was computed based on the

      City’s capital extension and replacement budget. The 2010 and 2012 increases

      raised rates approximately 42% between them. In 2014, Umbaugh prepared a

      draft cost-of-service study, which, as in 2012, computed rate increases based on

      the City’s capital improvements budget.


[5]   In July of 2016, Umbaugh completed a cost-of-service study (“the COS Study”)

      and recommended an increase in DCRW’s rates, which were $1.43 per 100

      cubic feet at the time. Unlike the 2012 and 2014 reports, which used a “detailed


      Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017   Page 3 of 22
      extension and replacement” or “capital improvement program” accounting

      method, the COS Study based its proposed rate increase on using the City’s

      “depreciation expense” to compute the City’s revenue requirements and cost of

      providing service to DCRW. Appellant’s App. Vol. II p. 15. The switch to

      using the depreciation method resulted in an annual increase in the City’s

      revenue requirement of more than $400,000.00.


[6]   On August 8, 2016, the City Common Council passed, and the City’s mayor

      approved, Ordinance 12-2016 (“the Ordinance”), which increased the

      wholesale rate for sale-for-resale customers to $2.25 per 100 cubic feet, which

      had the effect of increasing DCRW’s rates approximately 57%. The Ordinance

      also increased the rates of individual customers who lived outside the City by

      14.8%. The increase implemented by the Ordinance would increase the cost of

      water purchased by the DCRW by approximately $325,000.00 annually.


[7]   On August 12, 2016, pursuant to Indiana Code section 8-1.5-3-8.2,1 DCRW

      filed a petition in Daviess Superior Court challenging the Ordinance as it

      applied to them, alleging that it violated Section C.5. of the Contract. Also on

      August 12, 2016, DCRW filed a declaratory judgment action in Daviess Circuit

      Court, seeking to have the Ordinance declared void as applied to DCRW. On




      1
        This section details the procedures by which “[o]wners of property connected or to be connected to and
      served by the works authorized under this chapter may file a written petition objecting to the rates and
      charges of the utility[.]” Ind. Code § 8-1.5-3-8.2(b).



      Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017                     Page 4 of 22
      August 22, DCRW moved in Daviess Circuit Court to consolidate the two

      cases, which motion the trial court granted on August 26, 2016.


[8]   On October 26, 2016, the trial court conducted a one-day bench trial.

      Accountant Steven Brock testified that he had prepared an “Exception Report”

      to the COS Study for DCRW and that, in his opinion, the COS Study did not

      propose rate increases for DCRW that were based on a demonstrable increase

      in the cost of performance. Brock testified that, using the same methodology as

      was used in 2012, the City’s net revenue requirements increased approximately

      $263,339 from when rates were set in 2012 to 2016, or approximately 5.43%.

      Kerry Heid also opined that the COS Study did not support a 57% water rate

      increase for DCRW.


[9]   On January 24, 2017, the trial court entered its judgment, concluding, inter alia,

      that the City was bound by the Contract; the Ordinance’s rate increase as to

      DCRW breached the Contract; and the provisions of the Contract regarding the

      DCRW rate increase could not be severed from the provisions raising the rates

      on non-City-residents, thereby invalidating the entire Ordinance. The trial

      court’s order provides, in part, as follows:


                                          FINDINGS OF FACT
              ….
              23. At the hearing in this cause both [City] Mayor Wellman and
              Washington witness David Dahl testified that all prior increases
              had been across-the-board (pro-rata as to all consumers) and
              improvements made to Washington’s system since 1992 had
              been recovered through those rate increases.


      Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017   Page 5 of 22
        ….
        47. At the hearing in this cause, DCRW Witness Mr. Kerry
        Heid raised several serious concerns about the 2016 Umbaugh
        study and Mr. Dean Rogers, on behalf of the City of
        Washington, responded to these criticisms.
        48. Accordingly, the Court finds that the question of how much
        it currently costs Washington to serve DCRW is in dispute.
        ….
        51. The July, 2016 Umbaugh report calculates the City of
        Washington’s revenue requirement utilizing depreciation
        expense.
        52. The evidence revealed that the 2012 and 2014 reports
        utilized a detailed extension and replacement budget instead of
        the depreciation expense figure.
        53. Depreciation changed very little among 2012, 2014 and
        2016. (See Pl.’s Ex. 59; see also Pl.’s Exhs.3, 14, 17 and 18.)
        54. However, by switching from the budgeted improvements
        method to depreciation resulted in an increase to Washington’s
        revenue requirement by more than $400,000 per year. (See Pl.’s
        Ex. 59).
        55. The Court finds that this is not an actual increase in costs,
        but an increased assignment of capital costs that the City of
        Washington was already incurring and had already shared
        proportionately with all consumers (including DCRW) through
        the last rate increase in 2012.
        56. The Court makes this finding concerning the change in
        methodology based on some of the following facts and evidence.
        On cross-examination the City of Washington witness, Mr. Dean
        Rogers, confirmed that: (1) Washington’s revenue requirements
        have only increased by about 15.7% since 2012 according to
        Umbaugh’s calculation; (2) when total costs being incurred by
        Washington in 2012 (as reflected in the 2012 Umbaugh report)
        were adjusted to measure them the same way as in the July, 2016
        Umbaugh report (i.e., using depreciation expense in the revenue

Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017   Page 6 of 22
        requirement calculation as opposed to an extension and
        replacements budget), costs have only increased by
        approximately 5.89%; and (3) Mr. Rogers did not know the
        difference between what he contends is the current cost to serve
        DCRW and what that cost was in 2012 when DCRW incurred
        its last rate increase. (See Pl.’s Ex. 59.)
        57. Additionally, Mr. Seever, who was a Witness for the City of
        Washington, testified that he would not expect DCRW’S relative
        share of the costs to have changed since 2012. (See Pl.’s Ex. 55,
        p. 31, lines 8-12.)
        58. The 2016 Umbaugh report shows (at page 15) the derivation
        of the revenue requirement Washington allocated to DCRW,
        which directs the portion of debt service and depreciation based
        on the allocation of capital plant derived on page 10. It also
        shows the operating expenses and taxes apportioned on the basis
        of allocated capital plant at pages 12 and 13. P1.’s Ex. 3, pp.
        10,12,13 & 15.
        59. The Court finds that the City of Washington has not
        demonstrated that its proposed rate increase to DCRW is based
        upon a “demonstrable increase in costs” as required in the
        contract since the contract was last modified by changing rates in
        2012.
        ….
        67. All rates in a rate ordinance are interrelated such that if the
        Court were to find one rate is unlawful, it would impact other
        rates in the ordinance.
        68. The rate ordinance at issue herein (Ordinance No. 12-2016)
        does not contain a severability clause.
        ….
        81. To the contrary the most credible testimony to the Court
        indicates that at best the City of Washington could only
        demonstrate an increase of 5.89% as to DCRW.




Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017   Page 7 of 22
        82. The Court heard and observed the witnesses who testified at
        trial and weighed their respective credibility and demeanor in
        assigning the weight to be given to their testimony.
        …
                                 CONCLUSIONS OF LAW
        ….
        15. Washington cannot increase DCRW’s rates on a basis other
        than proportionately [sic] without first demonstrating that the
        increase is based on a demonstrable increase in costs not
        including an increased share of capitalization. If Washington’s
        performance can be justified simply by claiming that it is entitled
        to rely on its expert, the contractual commitment is meaningless.
        Accord City of Baxter v. Smith Util. Dist., 1987 Tenn. App. LEXIS
        2543 (Tenn. Ct. App. 3/16/1987) at *9 (see also endnotes infra).
        ….
        20. Paragraph C.5[.],”Modification of Contract”, explicitly
        limits the City of Washington’s authority to raise rates at its sole
        discretion[] and requires the City of Washington to show that
        any attempted rate increase is based on an actual increase in
        Washington’s costs to serve DCRW, not including costs
        associated with an increased share of the capitalization of the
        City of Washington’s system.
        21. For purposes of interpreting the contract, a “demonstrable
        increase or decrease in the costs of performance” means based
        upon an increase or decrease in the costs of performance since the
        last rate increase. Utilities Bd. of City of Tuskegee v. Town of
        Notasulga, 530 So. 2d 228, 229-30 (Ala. 1988) (holding that (1)
        that the period over which the demonstrable increase is to be
        calculated is since the last time rates were modified and (2) the
        provision would not allow a disproportionate increase.)
        22. Since the last rate change in 2012, Washington has only
        demonstrated an increase in costs of at most 5.89% and not 57%.
        Washington’s witnesses Mr. Rogers and Mr. Seever[] both



Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017    Page 8 of 22
        admitted that Washington does not know the cost to serve
        DCRW as of 2012.
        ….
        33. The Court finds that the contract is enforceable against the
        parties in accordance with its terms and the modification
        provision of the contract prohibits a rate increase without first
        showing a demonstrable increase in the costs of performance and
        further prohibits assigning an increased share of capitalization to
        DCRW. Beyond a 5.89% cost increase according to
        Washington’s calculations (which DCRW also contested), there
        has been no demonstrable increase in Washington’s costs to
        perform under the contract since 2012. As a result, the proposed
        rate increase is improper.
        34. Because the City of Washington’s proposed rate increase to
        DCRW per Ordinance 12-2016 is not based upon a demonstrable
        increase in the costs of performance under the contract since
        2012, the ordinance is in breach of the contract and, therefore, is
        unlawful.
        ….
        37. The ordinance at issue (12-2016) setting rates contains no
        severability clause and is, therefore, presumed to be not
        severable.
        38. Since the Ordinance 12-2016 setting the wholesale rate to be
        charged DCRW is invalid and there is no severability clause, the
        lack of a severability clause renders the entire rate ordinance
        invalid.
               IT IS, THEREFORE, ORDERED, ADJUDGED AND
        DECREED that judgment be entered against the Defendants on
        the breach of contract action, that Ordinance No. 12-2016
        adopted by the City of Washington is hereby declared void, and
        Washington’s Motion to Dismiss this action is DENIED. The
        bond posted by DCRW is ORDERED hereby released.
Order pp. 2, 4, 6-8, 10, 12, 13, 14, 15 (some formatting altered).



Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017   Page 9 of 22
                                  Discussion and Decision
                                         Standard of Review
[10]   DCRW moved the trial court to issue findings of fact and conclusions thereon

       pursuant to Indiana Trial Rule 52. In such cases, we employ a two-tiered

       standard of review:


               “[W]e determine whether the evidence supports the trial court’s
               findings, and we determine whether the findings support the
               judgment. We will not disturb the trial court’s findings or
               judgment unless they are clearly erroneous. Findings of fact are
               clearly erroneous when the record lacks any reasonable inference
               from the evidence to support them, and the trial court’s judgment
               is clearly erroneous if it is unsupported by the findings and the
               conclusions which rely upon those findings. In determining
               whether the findings or judgment are clearly erroneous, we
               consider only the evidence favorable to the judgment and all
               reasonable inferences to be drawn therefrom.”
       Infinity Prod., Inc. v. Quandt, 810 N.E.2d 1028, 1031–32 (Ind. 2004) (quoting

       Bussing v. Ind. Dep’t of Transp., 779 N.E.2d 98, 102 (Ind. Ct. App. 2002)

       (citations omitted), trans. denied.).


               I. Whether the Trial Court Erred in Concluding
                    that the City Breached the Contract
[11]   The trial court concluded that the City breached the Contract by passing the

       Ordinance, which would have raised DCRW’s rates approximately 57%. The

       trial court found that the City had failed to establish that the rate increase was

       based on a “demonstrable increase or decrease in the costs of performance

       hereunder [and did not] include increased capitalization of the seller’s system.”

       Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017   Page 10 of 22
       Appellant’s App. Vol. II p. 40. The City argues that (1) the trial court erred in

       not giving its decision the deference it would receive in a typical rate-making

       case; (2) DCRW—not it—had the burden of proof, even under a contract

       theory; and (3) DCRW failed to carry its burden of proof. DCRW counters

       that the trial court correctly (1) treated this as a contract case, (2) concluded that

       the City was bound by the Contract, and (3) found that the City failed to

       establish a demonstrable increase in costs of performance that would justify a

       rate increase.


                                   A. Rate-Making or Contract
[12]   As an initial matter, the parties are in conflict regarding how the trial court was

       supposed to review the Ordinance. The City contends that it was engaging in

       the legislative function of rate-making, entitling it to a great deal of deference.

       DCRW counters that the City is entitled to no such deference in this case as it

       was acting pursuant to the Contract and therefore bound by its provisions. On

       this point, we agree with DCRW.


[13]   The Indiana Supreme Court has addressed a similar question and concluded

       that contractual obligations which limited the municipality’s exercise of its

       legislative powers were valid. S. Ind. Gas & Elec. Co. v. City of Boonville, 252 Ind.

       385, 391, 248 N.E.2d 343, 346 (1969). In Boonville, Boonville sought to provide

       electrical service to two subdivisions it had recently annexed and, to that end,

       brought a condemnation action against Southern Indiana Gas & Electric’s

       transmissions lines in the subdivisions. Id. at 386–88, 248 N.E.2d at 343–45.

       At the time, Boonville was purchasing its electricity from Southern Indiana Gas

       Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017   Page 11 of 22
       & Electric, and, as part of the purchase contract between the parties, Boonville

       agreed not to extend its services beyond the city’s limits as they existed on June

       6, 1941 (which, of course, excluded the newly-annexed subdivisions). Id. at

       387, 248 N.E.2d at 344.


[14]   Boonville argued “that the contractual provision is invalid because the city, in

       effect, contracts away its power of eminent domain.” Id. at 388–89, 248 N.E.2d

       at 345. The Boonville Court rejected this argument, concluding that


               The delegation of the powers of eminent domain for the
               operation of a utility is for business purposes, as distinguished
               from a governmental or a sovereign purpose. The exercise by a
               municipality of its eminent domain powers in connection with its
               utility operations therefore involved a proprietary or a business-
               like decision. It is simply a business operation.
       Id. at 389, 248 N.E.2d at 345.


[15]   The Boonville Court went on to cite several Indiana Supreme Court precedents

       as support for this proposition:


               In City of Vincennes v. Citizens’ Gas Light Company (1892), 132 Ind.
               114, 126, 31 N.E. 573, 577, 16 L.R.A. 485, it is said:
                    “There is a distinction between powers of a legislative
                    character and powers of a business nature. The power to
                    execute a contract for goods, for houses, for gas, for water,
                    and the like, is neither a judicial nor a legislative power,
                    but is a purely business power. * * *”
               Also, in City of Indianapolis v. Indianapolis Gas-Light & Coke
               Company (1879), 66 Ind. 396, 407, our Court said:
                    ‘* * * When it (a municipal corporation) makes a contract
                    within the scope of its power * * *, it must be enforced the

       Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017   Page 12 of 22
                    same as the contract of a business corporation, or a person.
                    * * *’ (Parenthesis added)
               In the case of Public Service Co. of Ind. v. City of Newcastle (1937),
               212 Ind. 229, 237, 8 N.E.2d 821, 825, this Court stated:
                    ‘It is well settled that, when furnishing electric energy to
                    light its streets, buildings, and public places, the city is
                    exercising a governmental function, but that, when it
                    furnishes and sells energy for domestic and commercial
                    purposes, it acts as a private business corporation, and, in
                    the latter case, it is subject to the rules governing private
                    corporations.’
               In the operation of a utility a city is bound in the same fashion as
               any other owner of a utility, corporate or otherwise, and may
               contract with reference to the disposition of such property and its
               operation. Department of Treasury v. City of Linton (1945), 223 Ind.
               363, 60 N.E.2d 948; Chadwick, Treasurer v. City of Crawfordsville
               (1940), 216 Ind. 399, 24 N.E.2d 937, 129 A.L.R. 469; Public
               Service Co. of Ind. v. City of Newcastle, supra; City of Huntington v.
               Northern Ind. Power Co. (1937), 211 Ind. 502, 5 N.E.2d 889, 6
               N.E.2d 335; City of Logansport v. Public Service Comm. (1931), 202
               Ind. 523, 177 N.E. 249, 76 A.L.R. 838.
       Id. at 389–90, 248 N.E.2d at 345.


[16]   The Court held that Boonville could not exercise its eminent domain powers to

       take possession of the lines and poles in question, concluding that “the City of

       Boonville is bound by its contract made in good faith in operating a utility as a

       proprietor. Once appellee engaged in a public utility business, it became bound

       by its business decisions, the same as any other utility.” Id. at 391, 248 N.E.2d

       at 346.




       Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017      Page 13 of 22
[17]   We see no meaningful distinction between this case and the situation presented

       in Boonville. By participating in the public utility business by selling water to

       DCRW, the City is bound by its business decisions, which are not due the

       deference that a purely legislative decision would be. The City argues that

       DCRW’s argument is a straw man, as it has never claimed that it is not bound

       by the Contract. Be that as it may, the City is still trying to argue that its rate-

       making decisions are due the extreme deference that legislative decisions

       receive. We do not, however, see how this particular circle can be squared.

       Being bound by the Contract’s provisions regarding rates removes rate-making

       (at least in the case of DCRW) from the realm of legislative decision-making.


                                           B. Burden of Proof
[18]   The City notes that the trial court concluded that “the burden is on the City

       when they are trying to alter rates (or rate methodology) set by contract.”

       Order p. 9. The City contends that the burden of proof in this case is actually

       DCRW’s. We assume, without deciding, that the City is correct on this point.

       At least in this case, however, where both parties presented ample evidence to

       support their respective positions, we do not see how burden shifting, even if

       erroneous, could have made the slightest bit of difference to the outcome. In

       any event, the City points to nothing beyond the trial court’s statement above to




       Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017   Page 14 of 22
       indicate that the trial court improperly evaluated either party’s evidence due to

       erroneous burden shifting.2


                        C. Whether the City Breached the Contract
[19]   The City contends that DCRW failed to meet its burden of proof to establish

       that the City breached the Contract by increasing its rates without being “based

       on a demonstrable increase … in the costs of performance[.]” Appellant’s App.

       Vol. II p. 40. Most of the evidence submitted at trial focused on whether a

       demonstrable increase in the costs of the City’s performance of the Contract

       was established or refuted.


[20]   The City claims that the trial court erroneously concluded the City’s switch to

       the depreciation method did not reflect the actual increase in costs. The City

       does not dispute that the switch to the depreciation method resulted in a

       $400,000 increase in revenue requirements and acknowledges that “reasonable

       minds can differ as to which accounting method is preferable[.]” Appellant’s

       Br. p. 30. The City acknowledges the testimony from their witness Rogers, who

       agreed that if the depreciation method had been used in the 2012 Umbaugh

       report, revenue requirements would have only increased 5.89% in the interim.

       The City nonetheless argues that such a switch in accounting methods is within

       its rate-making discretion and should be afforded substantial deference. As we



       2
         As a practical matter, the utility in a case such as this (at least if it wants to win) is almost certainly going to
       have to introduce evidence that a proposed rate increase is based on an increase in the costs of performance,
       regardless of which party technically has the burden of proof. As mentioned, in this case both parties
       produced substantial amounts of evidence touching on the question.



       Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017                             Page 15 of 22
       have concluded, however, this is not a case in which the City’s business

       decision is due the substantial deference that courts show to legislative

       decisions. It was within the trial court’s discretion to credit evidence that the

       City’s revenue requirements would only have increased 5.89% since 2012 had

       the City been consistent with its accounting methods. Put another way, the

       trial court was entitled to believe that an increase in revenue requirements that

       would not have occurred without a change in accounting methods was not an

       actual increase. In the end, both sides presented evidence to support their

       positions, and the trial court found DCRW’s to be more credible. The City’s

       argument in this regard is an invitation to reweigh the evidence, which we will

       not do.


[21]   The City also argues that, even if one accepts the trial court’s finding that the

       actual revenue requirements had only increased some 6% since the 2012 rate

       increase, this is still a demonstrable increase, presumably fully justifying a 57%

       rate increase. This argument, however, does not account for the contractual

       requirement that a rate increase must be “based on” the demonstrable increase

       in the cost of performance.


[22]   Were we to accept the City’s apparent contention that any demonstrable

       increase in cost of performance—however slight—could justify any rate

       increase, the requirement that a rate increase be “based on” a cost increase

       would be rendered meaningless.


               When interpreting a contract, the contract must be read as a
               whole and the court should accept an interpretation of the

       Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017   Page 16 of 22
                 contract that harmonizes its provisions. [OEC-Diasonics, Inc. v.
                 Major, 674 N.E.2d 1312, 1315 (Ind. 1996)]. We also should
                 make every effort to avoid a construction of contractual language
                 that renders any words, phrases, or terms ineffective or
                 meaningless. Bicknell Minerals, Inc. v. Tilly, 570 N.E.2d 1307,
                 1316 (Ind. Ct. App. 1991), trans. denied. Courts should presume
                 that all provisions included in a contract are there for a purpose
                 and, if possible, reconcile seemingly conflicting provisions to give
                 effect to all provisions. George S. May Intern. Co. v. King, 629
                 N.E.2d 257, 261 (Ind. Ct. App. 1994), trans. denied.
       Ind. Gaming Co., L.P. v. Blevins, 724 N.E.2d 274, 278 (Ind. Ct. App. 2000), trans.

       denied.


[23]   We have little trouble concluding that a 57% rate increase cannot be based on a

       5.89% increase in the cost of performance. To “base on/upon” may be defined

       as “to form, make, or develop (something, such as an opinion, decision, or

       calculation) by using (something, such as information) as a basis, starting point,

       etc.” https://www.merriam-webster.com/dictionary/base%20on/upon (last visited

       November 22, 2017). A contract provision specifying that a rate increase be

       based solely on a cost increase leads to the unavoidable conclusion that the

       parties intended that there be a strong correlation between the two figures.

       While Section C.5. seems to allow for some deviation, we do not believe that a

       reasonable person would think that a 57% rate increase could be “based on” a

       mere 6% cost increase.3




       3
         We leave the question of just how much deviation might be acceptable for another day. We do not believe
       that this is a close case, however.



       Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017                  Page 17 of 22
[24]   Our conclusion is consistent with the Alabama Supreme Court’s interpretation

       of the exact same contract language in Utilities Board of City of Tuskegee v. Town of

       Notasulga, 530 So. 2d 228 (Ala. 1988). In that case, the seller of water sought to

       increase buyer’s water rates 100% based on a demonstrated increase in cost of

       performance of from 17% to 22%:


               The Board’s position is that it is not limited under that provision
               to a rate increase directly proportional to the increased cost of
               producing water, but, rather, that upon a showing of any
               production cost increase, however slight, the Board is entitled to
               an increase-even a disproportionate increase, and, in this case a
               100% increase.
               …
               We find that the “Modification of Contract” provision at issue is
               unambiguous and, giving it a reasonable construction, that it
               clearly relates an increase in rates paid by [buyer] to the actual
               increase in the [seller]’s cost of production. Thus, the dispositive
               issue is by what percentage the [seller] may increase the rate
               [buyer] pays based upon the actual increase in its cost of
               production from May 1, 1981, to October 1, 1984.
       Id. at 229–30. We find the Tuskegee Court’s approach to be reasonable and

       adopt it for this case. Given the large disparity between the actual increase in

       the City’s cost of performance and the Ordinance’s rate increase, we conclude




       Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017   Page 18 of 22
       that the trial court did not abuse its discretion in concluding that the City has

       breached the Contract.4


              II. Severability of the Provisions of the Ordinance
[25]   The City argues that even if the Ordinance is invalid as to DCRW, the trial

       court erred in invalidating the rate increase of 14.8% as to out-of-City

       customers. Section 10.07 of the City’s Code of Ordinances provides, in part, as

       follows:


                § 10.07 SEVERABILITY.
                   (A) If any section of this code now enacted or subsequently
                amended or its application to any person or circumstances is held
                invalid, the invalidity does not affect other sections that can be
                given effect without the invalid section or application.
                   (B) Except in the case of a section or amendment to this code
                containing a nonseverability provision, each division or part of
                every section is severable. If any portion or application of a
                section is held invalid, the invalidity does not affect the
                remainder of the section unless:
                       (1) The remainder is so essentially and inseparably
                    connected with and so dependent upon the invalid provision
                    or application that it cannot be presumed that the remainder




       4
         DCRW also argues that federal law supports a conclusion that the City breached the Contract, noting that
       DCRW has borrowed from the United States Department of Agriculture’s Rural Utility Service (“RUS”) in
       the past. The RUS lends money to rural utilities like DCRW, who must comply with various federal
       regulations, among which are that a purchase contract with a supplier “[s]pecify the initial rates and provide
       a type of escalator clause which will permit rates for the association to be raised or lowered proportionately
       as certain specified rates for the supplier’s regular customers are raised or lowered.” 7 C.F.R. § 1780.62(c).
       Because Indiana contract law is sufficient to determine the issue, we need not address how federal law or
       regulations apply.



       Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017                      Page 19 of 22
                    would have been enacted without the invalid provision or
                    application; or
                       (2) The remainder is incomplete and incapable of being
                    executed in accordance with the legislative intent without the
                    invalid provision or application.
[26]   The City argues that the trial court erroneously concluded that the Ordinance

       was presumed to be nonseverable due to its lack of a severability clause. We

       agree with the City on this point of law. Section 10.07 makes it clear that, in

       fact, the opposite is true: Severability is presumed in the absence of a

       nonseverability clause.5


[27]   The question, then, is whether the record is sufficient to sustain the trial court’s

       conclusion that the Ordinance is nonseverable, and we conclude that it is not.

       As the City points out, DCRW did not raise the severability issue until its post-

       trial brief, which means that the issue was not litigated at trial. Not

       surprisingly, then, there is no evidence in the record to support the trial court’s

       finding that “[a]ll rates in a rate ordinance are interrelated such that if the Court

       were to find one rate is unlawful, it would impact other rates in the ordinance.”

       Order p. 8. Indeed, even if we assume the above to be true, it would not

       necessarily support a conclusion that “[t]he remainder is so essentially and

       inseparably connected with and so dependent upon the invalid provision or

       application that it cannot be presumed that the remainder would have been




       5
         This proposition is consistent with Indiana law regarding statutes. See Ind. Code § 1-1-1-8 (“Except in the
       case of a statute containing a nonseverability provision, each part and application of every statute is
       severable.”).



       Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017                     Page 20 of 22
       enacted without the invalid provision or application[.]” WASHINGTON, IND.,

       CODE OF ORDINANCES § 10.07(B)(1). While the notion that all rates in a rate

       ordinance are interrelated does not seem unreasonable at first blush, we are

       unprepared to affirm such a finding in the absence of any evidence to support it.

       We conclude that the trial court erred in deeming the Ordinance to be

       nonseverable and reverse that portion of its judgment invalidating it in its

       entirety.


                   III. The Trial Court’s Refusal to Dismiss the
                          Declaratory Judgment Action
[28]   Finally, the City contends that the trial court erroneously retained jurisdiction

       over DCRW’s declaratory judgment action because that claim allegedly

       amounts to an attempt to circumvent the procedures for challenging utility rate

       hikes detailed in Indiana Code section 8-1.5-3-8.2. The City’s argument is

       based on the false premise that DCRW somehow “circumvented” section 8-1.5-

       3-8.2. Far from being circumvented, the statutory claim was pursued

       simultaneously. Moreover, the City acknowledges that the issues raised in both

       causes of action are identical, and the City does not claim, much less establish,

       that DCRW violated any of section 8-1.5-3-8.2’s requirements.6 The City has




       6
          The City does claim, however, that DCRW engaged in forum shopping, suggesting that DCRW filed a
       declaratory judgment action and subsequent consolidation motion in order to hand-pick the court that would
       adjudicate its challenge to the Ordinance. The City, however, fails to explain how being in Daviess Circuit
       Court would help DCRW or hurt the City. In any event, even if we assume that having the case heard in
       Daviess Circuit Court conferred some advantage upon DCRW, it seems that DCRW could have simply filed
       its statutory challenge there in the first place.



       Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017                   Page 21 of 22
       failed to establish that the trial court abused its discretion in consolidating the

       causes of action or in denying the City’s motion to dismiss the declaratory

       judgment action.



                                                Conclusion
[29]   We conclude that the trial court did not abuse its discretion in finding that the

       City breached the Contract by enacting the Ordinance and, therefore, the

       Ordinance as it relates to DCRW is null and void. We conclude, however, that

       the trial court erroneously invalidated the entire Ordinance based on its

       conclusion that it was nonseverable and, therefore, the Ordinance as it relates to

       the out-of-City customers (other than DCRW) remains in full force and effect.

       Finally, we conclude that the trial court did not err in declining to dismiss

       DCRW’s declaratory judgment action or in consolidating the two causes of

       action.


[30]   The judgment of the trial court is affirmed in part and reversed in part.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 14A01-1702-PL-316 | December 20, 2017   Page 22 of 22
