                                                                                  FILED
                                                                              Dec 04 2018, 8:13 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      James E. Ayers                                             Brian A. Karle
      Wernle, Ristine & Ayers                                    Jason Ramsland
      Crawfordsville, Indiana                                    Ball Eggleston, PC
                                                                 Lafayette, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Cindy K. Marsh,                                            December 4, 2018
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 18A-MI-50
              v.                                                 Appeal from the Tippecanoe
                                                                 Circuit Court
      Town of Dayton, Indiana,                                   The Honorable Thomas H. Busch,
      Appellee-Defendant                                         Judge
                                                                 Trial Court Cause No.
                                                                 79C01-1707-MI-118



      Crone, Judge.


                                              Case Summary
[1]   Cindy K. Marsh, a resident, landowner, and taxpayer of the Town of Dayton,

      Indiana, filed a complaint for declaratory judgment against the Town,

      challenging the adequacy of its fiscal plan for a proposed annexation. The

      Town filed a motion to dismiss Marsh’s complaint for failure to state a claim.

      Court of Appeals of Indiana | Opinion 18A-MI-50 | December 4, 2018                              Page 1 of 7
      After a hearing, the trial court granted the Town’s motion. Marsh appealed.

      The Town contends that we must dismiss the appeal because Marsh failed to

      timely file a motion to compel the court reporter to file the hearing transcript

      with the trial court clerk. Because such a dismissal is discretionary, rather than

      mandatory, we disagree with the Town’s contention and exercise our discretion

      to consider the appeal. For her part, Marsh contends that the trial court erred

      in granting the Town’s motion to dismiss her complaint. Finding no error, we

      affirm the trial court.


                                  Facts and Procedural History
[2]   In June 2017, the Town approved a resolution for the adoption of a fiscal plan

      for the annexation of approximately fifty-five acres on which a residential

      subdivision is slated to be built. In July 2017, Marsh filed a complaint for

      declaratory judgment against the Town, asking that the resolution be voided

      due to the Town’s alleged failure to comply with Indiana Code Section 36-4-3-

      13, which sets various requirements for fiscal plans. The Town filed a motion

      for judgment on the pleadings and a motion to dismiss. After a hearing, the

      trial court denied the former and granted the latter. In November 2017, Marsh

      filed an amended complaint. The Town filed a motion to dismiss for failure to

      state a claim pursuant to Indiana Trial Rule 12(B)(6). After a hearing, the trial

      court granted the motion. Marsh now appeals. Additional facts will be

      provided below.




      Court of Appeals of Indiana | Opinion 18A-MI-50 | December 4, 2018         Page 2 of 7
                                      Discussion and Decision

      Section 1 – Dismissal of an appeal for an appellant’s failure to
       timely file a motion to compel the court reporter to file the
                transcript is discretionary, not mandatory.
[3]   In her notice of appeal, Marsh asked the court reporter to prepare a transcript of

      the hearing on the Town’s motion to dismiss pursuant to Indiana Appellate

      Rule 11. Appellate Rule 11(B) provides that the court reporter has forty-five

      days after the appellant files the notice of appeal to file the transcript with the

      trial court clerk. The court reporter failed to meet that deadline. Appellate

      Rule 11(D) provides that if the court reporter fails to file the transcript with the

      clerk “within the time allowed, the appellant shall seek an order from the Court

      on Appeal compelling the” reporter to do so. The rule further provides,

      “Failure of appellant to seek such an order not later than seven (7) days after

      the Transcript was due to have been filed with the trial court clerk shall subject

      the appeal to dismissal.” Id. Marsh failed to meet that deadline, which fell on

      February 19, 2018. On February 27, the Town filed a motion to dismiss

      Marsh’s appeal; the motion was not entered onto this Court’s docket until

      March 5. Meanwhile, on February 28, Marsh filed a motion to compel, which

      this Court granted on March 6. On March 15, this Court denied the Town’s

      motion to dismiss.


[4]   The Town now asks us to reconsider that ruling, contending that Marsh’s

      appeal “should be dismissed pursuant to the mandatory language of Appellate

      Rule 11(D).” Appellee’s Br. at 9. It is true, as the Town observes, that “shall”

      Court of Appeals of Indiana | Opinion 18A-MI-50 | December 4, 2018           Page 3 of 7
      has been deemed “mandatory” for purposes of statutory construction. Id.

      (quoting In re Bi.B., 69 N.E.3d 464, 469 (Ind. 2017)). But Appellate Rule 11(D)

      does not say that an appeal “shall be dismissed” if an appellant fails to meet the

      seven-day deadline; instead, it says that such a failure “shall subject the appeal

      to dismissal.” We have deemed such language to be discretionary, rather than

      mandatory, with respect to the untimely filing of briefs. See Haimbaugh

      Landscaping, Inc. v. Jegen, 653 N.E.2d 95, 98 (Ind. Ct. App. 1995) (stating that

      former Appellate Rule 8.1(A)’s provision that appellant’s failure to timely file

      brief “shall subject the appeal to summary dismissal” did “not mandate an

      automatic dismissal” and that “[d]ismissal for the late filing of an appellant’s

      brief is within the discretion of this court”), trans. denied (1996). We see no

      reason to decide any differently in this context, and the Town has failed to

      argue, let alone establish, that the denial of its motion to dismiss Marsh’s appeal

      was an abuse of this Court’s discretion. Consequently, we reaffirm our ruling

      and exercise our discretion to consider the appeal.


       Section 2 – The trial court did not err in granting the Town’s
                             motion to dismiss.
[5]   We now consider Marsh’s argument that the trial court erred in granting the

      Town’s motion to dismiss her amended complaint for failure to state a claim.

      Such a motion “tests the legal sufficiency of a complaint, not the facts

      supporting it.” Allen v. Clarian Health Partners, Inc., 980 N.E.2d 306, 308 (Ind.

      2012). “Thus, the motion tests whether the allegations in the complaint

      establish any set of circumstances under which a plaintiff would be entitled to

      Court of Appeals of Indiana | Opinion 18A-MI-50 | December 4, 2018          Page 4 of 7
      relief.” Id. “In ruling on a motion to dismiss for failure to state a claim, the

      trial court is required to view the complaint in the light most favorable to the

      non-moving party with every inference in its favor.” Id. We review the trial

      court’s ruling de novo. Id. “We may affirm the grant of a motion to dismiss if

      it is sustainable on any theory.” Watson v. Auto Advisors, Inc., 822 N.E.2d 1017,

      1023 (Ind. Ct. App. 2005), trans. denied.


[6]   During an annexation proceeding, a municipality must develop and adopt a

      written fiscal plan that must show, among other things, “[t]he cost estimates of

      planned services to be furnished to the territory to be annexed” and “[t]he

      method or methods of financing the planned services[,]” and that “services of a

      capital improvement nature,” including sewer facilities and water facilities,

      “will be provided to the annexed territory within three (3) years after the

      effective date of the annexation ….” Ind. Code §§ 36-4-3-3.1(b), 36-4-3-

      13(d)(1), -(2), -(5). “The plan must present itemized estimated costs for each

      municipal department or agency[,]” “must explain how specific and detailed

      expenses will be funded[,] and must indicate the taxes, grants, and other

      funding to be used.” Ind. Code § 36-4-3-13(d)(1), -(2).


[7]   In her amended complaint for declaratory judgment, Marsh asserted that the

      Town’s fiscal plan was inadequate because it


              [did] not disclose the source of funding for the possible sidewalk
              extensions from the new subdivision to the existing sidewalks
              and the source of funding for the construction and extension of
              sewer and water main services from the new subdivision to the


      Court of Appeals of Indiana | Opinion 18A-MI-50 | December 4, 2018           Page 5 of 7
              existing utilities within three (3) years of annexation, all as
              required by I.C. 36-4-3-13(d) to be included in any such Plan.


      Appellant’s App. Vol. 2 at 96.


[8]   Leaving aside the questions of whether Marsh has standing to challenge the

      adequacy of the Town’s fiscal plan and whether she used the proper procedural

      vehicle to do so, her assertions are meritless, for two reasons. First, as the

      Town points out, there are currently no plans (let alone legal requirements) for

      the construction of sidewalk extensions to the annexation area, and Marsh cites

      no authority for the proposition that a fiscal plan must include estimated costs

      and specify funding sources for purely hypothetical projects. Second, the fiscal

      plan clearly discloses the source of funding for the construction and extension

      of sewer and water main services.1 See Appellant’s App. Vol. 2 at 19 (“The

      Dayton Municipal Water Utility … provides water service in the immediately

      surrounding area and has the capacity and capability to serve the Annexation

      Area if and when connection is desired based upon the actual buildout of the

      area. The Developer of the Annexation Area will be responsible to pay the

      Water Utility’s cost recovery fees of $98,910, plus $425 per lot in inspection and

      connection fees.… Water distribution infrastructure within the area will be

      constructed by the Developer.”) and 20 (“The Dayton Municipal Wastewater




      1
        Marsh attached a copy of the fiscal plan as an exhibit to her original complaint but not to her amended
      complaint. The Town does not challenge the adequacy of Marsh’s amended complaint on this basis or argue
      that the trial court’s consideration of the plan converted the motion to dismiss to a motion for summary
      judgment. Neither party contends that we are precluded from considering the plan on appeal.

      Court of Appeals of Indiana | Opinion 18A-MI-50 | December 4, 2018                            Page 6 of 7
      Utility … provides wastewater service to the immediately surrounding area and

      has the capacity and capability to serve the Annexation Area if and when

      connection is desired based upon the actual build out of the area. The

      Developer of the Annexation Area will be responsible to pay the Wastewater

      Utility’s cost recovery fees of $65,940, plus $325 per lot in inspection and

      connection fees.… Sanitary sewer collection system infrastructure with in [sic]

      the area will be constructed by the Developer.”).2 Consequently, we affirm the

      dismissal of Marsh’s amended complaint.


[9]   Affirmed.


      Najam, J., and Pyle, J., concur.




      2
       At the hearing on the motion to dismiss, Marsh claimed to “have an affidavit from [a] builder” who
      “estimate[d] that this is a $200.00 [sic] to $400,000.00[,] $250,000 to $400,000 project in terms of sewer and
      water ….” Tr. Vol. 2 at 11. She further asserted that a bond issue would be needed to pay for the extension
      of sewer and water services to the subdivision. In response, the Town denied that a bond issue would be
      needed and stated that
            numbers like $98,910.00 or $65,940.00 are not half hazardly [sic] arrived at those are numbers
            that are—that are the subject of cost recovery studies and formulation so for [Marsh] to suggest
            that these are sort of half baked numbers they’re not at all and [Marsh has] no evidence to that
            affect [sic].
      Id. at 16. In her reply brief, Marsh claims that the Town “quotes the terms of the Plan which require [the
      Town] to pay for any improvement within the subdivision and implies that they apply to the extensions from
      [the] Town to the subdivision.” Appellant’s Reply Br. at 9 (emphasis altered). Marsh cites no authority for
      this assertion. If the Town’s cost recovery estimates ultimately prove inadequate, whether through
      inadvertence or intention, the Town’s taxpayers may voice their displeasure at the ballot box.

      Court of Appeals of Indiana | Opinion 18A-MI-50 | December 4, 2018                                  Page 7 of 7
