                                                                         FILED
                                                                     Nov 22 2019, 8:31 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




      ATTORNEY FOR APPELLANTS                                   ATTORNEY FOR APPELLEE
      Jeffrey O. Meunier                                        Steven A. Holt
      Carmel, Indiana                                           Holt Legal
                                                                Noblesville, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Kip Bergman, Scot Gasho, Jane                             November 22, 2019
      Harper, Philip Overdorf, Brent                            Court of Appeals Case No.
      Snow, and George Tebbe,                                   19A-MI-1486
      Appellants-Petitioners,                                   Appeal from the Tipton Circuit
                                                                Court
              v.                                                The Honorable Mark Dudley,
                                                                Special Judge
      Big Cicero Creek Joint Drainage                           Trial Court Cause No.
      Board,                                                    80C01-1710-MI-340
      Appellee-Respondent.



      Najam, Judge.


                                        Statement of the Case
[1]   Kip Bergman, Scot Gasho, Jane Harper, Philip Overdorf, Brent Snow, and

      George Tebbe (collectively “Landowners”) filed a petition for judicial review of

      a decision by the Big Cicero Creek Joint Drainage Board (“the Board”)



      Court of Appeals of Indiana | Opinion 19A-MI-1486 | November 22, 2019                  Page 1 of 19
      regarding a reconstruction project. The trial court affirmed the Board’s

      decision. Landowners appeal and raise three issues for our review:


              1.       Whether the trial court erred when it found that the Board
                       was not prohibited from funding a reconstruction project
                       through a loan to be repaid with excess funds in a
                       maintenance fund.

              2.       Whether the trial court erred when it found that the Board
                       was not required to issue bonds to pay for the
                       reconstruction project.

              3.       Whether the trial court erred when it found that
                       Landowners’ claim that the Board was improperly formed
                       was barred under the doctrine of laches.


[2]   We affirm.


                                  Facts and Procedural History
[3]   Landowners own parcels of real property in Tipton and Atlanta, Indiana. Their

      parcels are located within the Big Cicero Creek watershed (“the watershed”).

      The Board, which was formed in 1991, is a “multi-county joint drainage board

      consisting of five members.” Appellants’ App. Vol. 2 at 41. On October 17,

      2014, the Board mailed a notice to all landowners in the watershed, including

      Landowners, stating in relevant part that a maintenance report and schedule of

      assessments had been filed and were available for public inspection and that a

      public hearing was scheduled for November 19. Following the public hearing,

      the Board issued written findings and an order “adopting and approving the



      Court of Appeals of Indiana | Opinion 19A-MI-1486 | November 22, 2019      Page 2 of 19
      maintenance report and schedule of assessments as reported by the County

      surveyors in their report.” Id. at 19.


[4]   In that 2014 report, surveyors from four counties in the watershed

      recommended a significant increase in annual maintenance fund assessments

      and an increase in the maintenance fund balance. In particular, the surveyors

      stated that, “[w]ith this increase in the available balance in the drain fund the

      Board would then be able to utilize maintenance funds to fully pay or partially

      pay for future reconstruction projects.” Id. at 140. The surveyors concluded

      that the plan “would reduce or eliminate assessments for future reconstructions on Big

      Cicero Creek.” Id. (emphasis added). Landowners did not seek judicial review

      of the Board’s November 2014 order.


[5]   In 2017, the Board asked the Tipton County surveyor to prepare a report

      regarding a plan for “partial reconstruction” of the Big Cicero Creek Open

      Drain System (“the drain system”). Id. at 19. In that 2017 report, the Tipton

      County surveyor proposed a partial reconstruction of the drain system projected

      to cost $4.7 million. He recommended that “no additional assessments be

      sought, that the project should be funded by an outside source, with repayment

      occurring from a portion of the current revenue stream that is captured under

      the maintenance assessment for the drain[.]” Id. at 63.


[6]   Thereafter, on September 15, the Board mailed notices to affected landowners

      that a hearing would be held regarding the proposed partial reconstruction of

      the drain system. The Board also made available to the public the Tipton


      Court of Appeals of Indiana | Opinion 19A-MI-1486 | November 22, 2019        Page 3 of 19
      County surveyor’s report and the schedule of assessments. Following the

      public hearing on the partial reconstruction plan on September 20, the Board, in

      a decision dated September 22, adopted and approved the surveyor’s

      recommendations and found in relevant part as follows:


               3. No additional assessments for Partial Reconstruction shall be
               levied against [the] public;

               4. Funding for the project shall be obtained from either private
               or public sources for the partial reconstruction, with repayment
               coming from a portion of the yearly maintenance assessment
               until the debt is paid in full; not to exceed more than 75 percent
               of the annual assessment in any given year.


      Id. at 167.


[7]   On October 10, Landowners timely filed their petition for judicial review of the

      Board’s September 22 decision. In particular, Landowners asserted that


               [t]he Big Cicero Creek Joint Drainage Board’s decision was
               wholly arbitrary, capricious, unlawful, an abuse of discretion, not
               in accordance with the law and in excess of statuary [sic]
               jurisdiction, authority, limitations, or short of statuary [sic] right.
               In addition, the Big Cicero Creek Joint Drainage Board acted
               without observance of procedure required by law and its decision
               is unsupported by substantial evidence.


      Id. at 43. Landowners also alleged that, because “the Board’s first meeting [in

      1991] took place 35 days after the meeting was required to take place” pursuant

      to statute, the Board was “improperly formed” and must be disbanded. Id. at

      24-25.

      Court of Appeals of Indiana | Opinion 19A-MI-1486 | November 22, 2019          Page 4 of 19
[8]   Following a hearing on Landowners’ petition for judicial review on February 5,

      2019, the trial court denied the petition. In its findings and conclusions, the

      trial court stated in relevant part as follows:


              INTRODUCTION

              The court’s presumption [sic] i[n] this case arose for two (2)
              primary reasons. The first is the [Landowners] disagree with the
              reconstruction plan adopted by [the Board] because they feel very
              strongly it will not address or alleviate the flooding on Big Cicero
              Creek and as a corollary to this feeling is that they should not be
              forced to pay for it. The second reason this case arose is that the
              [Landowners] feel that the Board was not fully transparent with
              its intentions. The Board’s intention, in 2014, was to fund a
              future reconstruction of Big Cicero Creek via an increased
              maintenance assessment. The Board adopted a maintenance
              assessment in 2014 knowing that it was larger than what was
              needed for annual maintenance. The Board intended to create a
              surplus over a number of years and then transfer 75% of that
              surplus to use as a down payment on a partial reconstruction of
              Big Cicero Creek. [Landowners], among others, paid the
              maintenance assessment and the Board received those payments
              fully intending to use them for reconstruction purposes at a later
              date. No one asked for judicial review or otherwise appealed the
              Board’s 2014 increased maintenance assessment and the issue of
              the propriety of that increase is not at issue today. The issue is
              whether the Board may transfer excess from the maintenance fund to its
              reconstruction fund. The established statutory scheme allows the
              collection of up to eight (8) times the estimated annual cost of
              periodic maintenance of a drain and then later transfer 75% of
              that excess to a reconstruction fund. . . .

                                                       ***

              FINDINGS OF FACT

      Court of Appeals of Indiana | Opinion 19A-MI-1486 | November 22, 2019        Page 5 of 19
                                                 ***

        3. On September 17, 2014, the surveyors of Tipton County,
        Hamilton County, Boone County and Clinton County submitted
        a report to the Board outlining their request that the Board
        increase the maintenance assessments as they had not been raised
        in twenty-one (21) years and that the solutions for solving issues
        have outstripped the current maintenance funds and were not
        adequate to keep up with the maintenance needs of the drain.
        The surveyors also requested the Board increase the limitation on the
        maintenance fund to up to 8 times the annual maintenance assessment as
        allowed in Section 43 of the Indiana Drainage Code as this would allow
        the Board to utilize maintenance funds to fully pay or partially pay for
        future reconstruction projects as Section 45.5 of the Drainage Code
        allowed a transfer of up to 75% of the maintenance fund to pay
        for reconstruction projects and eliminate assessments for future
        reconstruction projects on Big Cicero Creek.

        4. On October 17, 2014, Notice was sent to landowners stating,
        in relevant part “You are hereby notified that the maintenance
        report of the Tipton, Hamilton, Boone & Clinton County
        Surveyors and the schedule of assessments made by the Big
        Cicero Creek Drainage Board have been filed and are available
        for public inspection in the offices of the Tipton, Hamilton,
        Boone & Clinton County Surveyors.” The notice also provided a
        link to the Surveyors’ Report to the Board. The Notice also
        stated that a public hearing was scheduled for November 19,
        2014, on the maintenance report and schedule of assessments.

        5. The Board held a public hearing on November 19, 2014, and
        issued “Written Findings and Order” adopting and approving the
        maintenance report and schedule of assessments as reported by
        the County surveyors in their report.

        6. [There is no evidence] that any petition for judicial review was
        filed following the November 19, 2014 [decision] of the Board
        adopting and approving the maintenance report.
Court of Appeals of Indiana | Opinion 19A-MI-1486 | November 22, 2019         Page 6 of 19
                                                 ***

        9. On September 20, 2017, after timely notice to the public
        regarding reconstruction allocating current and future
        maintenance assessment[s], the Board held a public hearing
        regarding the surveyor’s reconstruction report and schedule of
        assessments for a reconstruction project on the Big Cicero Creek
        drain.

                                                 ***

        13. At the conclusion of the September 20, 2017, public hearing,
        the Board approved and adopted the surveyors’ reconstruction
        findings and proposed a schedule of assessments.

        14. On October 10, 2017, [Landowners] timely filed a Petition
        for Judicial Review of the Board’s September 20, 2017 decision.
        Specifically, in their Verified Petition for Judicial Review,
        [Landowners] contended:

        a. The Board should be disbanded;

                                                 ***

        i. The assessment amounts were intentionally overstated to
        accumulate funds for an ulterior use;

        j. The use of a percentage of the maintenance funds to pay for a
        reconstruction project is being deliberately misapplied in this
        case;

        k. The proposed financing of the project is not in compliance
        with Indiana Law;

                                                 ***

        CONCLUSIONS OF LAW

Court of Appeals of Indiana | Opinion 19A-MI-1486 | November 22, 2019      Page 7 of 19
                                                 ***

        Formation of the Big Cicero Creek Drainage Board

                                                 ***

        15. Even if this court ignored the procedural deficiencies [alleged
        by Landowners with respect to the Board’s formation in 1991],
        this court finds that Indiana law does not support [Landowners’]
        request to disband the Board 27 years after its creation over
        alleged defective notices. Even if true, [Landowners’] claims are
        barred by the doctrine of laches as [Landowners’] 27-year delay
        in challenging the formation of [the] Board is inexcusable and the
        Board has operated for 27 years, completing maintenance and
        reconstruction projects on the drain, collecting maintenance
        funds, and has entered into a variety of contracts and other
        obligations such that it would be prejudiced by a
        disbandment. . . .

        16. Therefore, this court concludes that [Landowners’]
        contention that the Board was improperly formed due to
        improper notice is not supported by the record before the court
        on [Landowners’] Petition for Judicial Review and this basis for
        judicial review is hereby denied.

                                                 ***

        Use of Excess Maintenance Funds for Reconstruction

        40. This court concludes that Section 43 of the Drainage Law
        does reveal the legislature’s intent to allow the Board to create an
        excess in the maintenance fund. Section 43 grants a drainage
        board discretion in collecting a maintenance assessment even if
        the assessment would increase the maintenance fund balance to
        four (4) times the annual cost of periodic maintenance or up to
        . . . eight (8) times the annual cost of periodic maintenance (as
        long as a public hearing is held).
Court of Appeals of Indiana | Opinion 19A-MI-1486 | November 22, 2019      Page 8 of 19
        41. This court concludes that Section 43 of the Indiana Drainage
        Law demonstrates the legislature’s intent to allow a Board to
        create an excess in the maintenance fund as allowing a drainage
        board to collect maintenance assessments up to eight (8) times
        the annual cost of maintenance is necessarily going to create an
        excess. [Landowners’] argument that only maintenance
        assessment excesses created in the routine collection of
        assessments were the legislature’s intent cannot be squared with
        this provision of the Drainage Law allowing the Board to
        increase the maintenance assessment up to (8) times the amount
        of routine maintenance assessments. Clearly, the legislature was
        allowing the Board to create substantial maintenance excesses.

        42. Since the Indiana legislature also drafted section 45.5 of the
        Drainage statute, these sections of the Indiana Drainage Law
        demonstrate the legislature’s intent to allow up to 75% of the
        maintenance fund excess created (by allowing up [to] 8 times of
        maintenance assessments to be collected) to be transferred to the
        reconstruction fund. Therefore, this court concludes the Board’s
        transfer of 75% of the maintenance assessments to the
        reconstruction fund was lawful under the Indiana Drainage Law
        and it does not render the Board’s September 20, 2017, decision
        as arbitrary, capricious, unlawful, or not supported by substantial
        evidence.

                                                 ***

        Financing of the Reconstruction Project

        53. Finally, [Landowners] argue that the Board’s proposed
        financing of the project is not in compliance with Indiana law.
        Specifically, [Landowners] argue that if “the Board finds that the
        amount of a reconstruction project exceeds the amount that the
        owners can pay over a five (5) year period, then the only recourse
        is for the Board to resolve to sell bonds per I[.]C[. §] 36-9-27-
        94(a).” [Landowners] contend that because this mandatory
        statutory procedure to sell bonds was not followed, the financing
Court of Appeals of Indiana | Opinion 19A-MI-1486 | November 22, 2019     Page 9 of 19
        of the project is “totally contradictory to the provisions of the
        Indiana Drainage Code.”

        54. I[.]C[. §] 36-9-27-94(a) states:

                 (a) Whenever the board determines by resolution
                 spread upon its minutes that the cost of constructing
                 or reconstructing a particular drain is in excess of that
                 amount that the owners of land to be assessed may
                 conveniently pay in installments over a five (5) year
                 period, it shall authorize the sale of bonds to finance
                 the construction or reconstruction.

        55. While Section 94 of the Drainage Statute requires the Board
        to issue bonds to finance certain reconstruction projects, this
        section only requires the Board to authorize the sale of bonds
        when the Board determines that the cost of reconstruction is in
        excess of the amount that owners of land to be assessed may
        conveniently pay in installments over a five (5) year period. This
        court concludes the legislative intent of this section is facially
        clear. Its purpose is to prevent landowners assessed for a
        reconstruction project from having outrageously high
        assessments for an expensive reconstruction project being
        amortized over a short five-year period.

        56. Here, the court concludes the landowners were properly
        assessed $0 for the proposed reconstruction due to the
        unambiguously permissible transfer of excess maintenance funds
        to the reconstruction to cover the cost of the reconstruction.
        Therefore, with a proper $0 assessment to the assessed
        landowners for the reconstruction, in this case, there was no need
        for the Board to determine that the assessment was more than the
        amount the assessed landowners can conveniently pay in
        installments over a five (5) year period. Consequently, pursuant
        to section 94 of the Drainage Statute, there was no need for the
        Board to authorize the sale of bonds to finance the
        reconstruction.

Court of Appeals of Indiana | Opinion 19A-MI-1486 | November 22, 2019        Page 10 of 19
       Id. at 15-34 (emphases added). This appeal ensued.


                                       Discussion and Decision
                                              Standard of Review

[9]    On appeal, Landowners assert that the trial court erred when it affirmed the

       Board’s decision. In Ross v. Bartholomew County Drainage Board, this Court set

       out the applicable standard of review:


               We apply a two-tiered standard of review to special findings
               entered under Trial Rule 52(A). Clouse v. Noble C[ty]. Drainage
               Bd., 809 N.E.2d 849, 857 (Ind. Ct. App. 2004), trans. denied.
               First, we determine whether the evidence supports the findings
               and second, whether the findings support the judgment. Id. We
               will set aside the trial court’s findings and conclusions only if
               they are clearly erroneous. Id. In reviewing the trial court’s entry
               of special findings, we neither reweigh the evidence nor reassess
               the credibility of the witnesses. Id. Rather, we must accept the
               ultimate facts as stated by the trial court if there is evidence to
               sustain them. Id. Findings are clearly erroneous where a review
               of the record leaves us firmly convinced that a mistake has been
               made. Id. While we defer to the trial court’s findings of fact, we
               do not defer to its conclusions of law. Schrader v. Porter C[ty].
               Drainage Bd., 880 N.E.2d 304, 307 (Ind. Ct. App. 2008), trans.
               denied.


       995 N.E.2d 1051, 1053-54 (Ind. Ct. App. 2013), trans. denied.


[10]   Further, this appeal requires us to interpret and apply Indiana’s Drainage Law.

       As our Supreme Court has explained,


               [t]he Indiana Drainage Law . . . establishes an extensive and
               detailed regulatory scheme for addressing drainage issues. It
       Court of Appeals of Indiana | Opinion 19A-MI-1486 | November 22, 2019     Page 11 of 19
               creates a drainage board in each county, I.C. § 36-9-27-4, and
               gives the board jurisdiction over all regulated drains[] in the
               respective county, except as otherwise provided by the statute,
               I.C. § 36-9-27-15. The Drainage Law vests these boards with
               comprehensive regulatory authority to construct, reconstruct, and
               maintain public drains to alleviate problems associated with
               flooding, wetlands, and other accumulated surface water. I.C. §§
               36-9-27-38 to -69. It also empowers the boards to levy special
               assessments on properties benefited by drainage projects,
               provided that the assessments are apportioned to the benefits
               accruing to the particular parcel. I.C. §§ 36-9-27-39, -50, -62,
               -84(a), -112. The county surveyor assists the drainage board in
               the exercise of its statutory authority by providing specialized
               technical expertise. I.C. §§ 36-9-27-29, -34.


       Crowel v. Marshall Cty. Drainage Bd., 971 N.E.2d 638, 639-40 (Ind. 2012).


                                       Issue One: Transfer of Funds

[11]   Landowners first contend that the trial court erred when it found that nothing in

       the Drainage Law prohibited the Board from intentionally creating a surplus in

       the maintenance fund in order to transfer up to seventy-five percent of that

       surplus to a reconstruction fund. Landowners acknowledge that the Board had

       statutory authority both to “create an excess of maintenance funds up to four

       (4) times the annual assessment and capped at eight (8) times” the assessment

       and to transfer up to seventy-five percent of the excess maintenance funds to the

       reconstruction fund. Appellants’ Br. at 15 (citing I.C. §§ 36-9-27-43 and 36-9-

       27-45.5). But Landowners maintain that the Board was not authorized to

       “commit[] future uncertain excess maintenance funds” to repay a loan for the

       anticipated reconstruction project. Id. at 13.


       Court of Appeals of Indiana | Opinion 19A-MI-1486 | November 22, 2019   Page 12 of 19
[12]   Indiana Code Section 36-9-27-45.5 (2019) provides as follows:


               (a) This section applies when a county surveyor advises the
               drainage board that in the county surveyor’s opinion a
               maintenance fund has a balance in excess of the amount
               reasonably needed in that fund for maintenance work in the
               foreseeable future.

               (b) The board may transfer an amount up to a maximum of
               seventy-five percent (75%) of the money in the maintenance fund
               to a reconstruction fund that covers the same watershed as the
               maintenance fund from which the money is transferred.


[13]   Landowners assert that the trial court misinterpreted the statute when it found

       that the Board was authorized “to obligate future anticipated excess

       maintenance funds to fund a current reconstruction project.” Appellants’ Br. at

       15. In particular, Landowners contend that


               [t]he key word which the Trial Court failed to give meaning to
               and which its conclusion of law rendered meaningless is “has.”
               Has is a word of present tense. It means that the maintenance
               fund must currently have the funds in order for the Board to
               transfer them. In this case, the Board’s decision, which was
               upheld by the Court, commits unknown future funds to make
               payments on a $4.6 million-dollar reconstruction project which
               the maintenance fund may or may not have in the future.


       Appellants’ Br. at 17.


[14]   Landowners’ contentions on this issue miss the mark. It is well settled that, if a

       statute is unambiguous, we may not interpret it but must give the statute its

       clear and plain meaning. Wallen v. Hossler, 130 N.E.3d 138, 146 (Ind. Ct. App.

       Court of Appeals of Indiana | Opinion 19A-MI-1486 | November 22, 2019    Page 13 of 19
       2019). The parties do not dispute that the statute is unambiguous, and we

       agree. The clear and plain meaning of the statute permits a drainage board to

       transfer up to seventy-five percent of the money in a maintenance fund to a

       reconstruction fund. Landowners are correct, of course, that “the maintenance

       fund must currently have the funds in order for the Board to transfer them.”

       Appellants’ Br. at 17. But that is not the issue here—the Board did not transfer

       nonexistent funds.


[15]   The crux of Landowners’ contention on appeal is that the statute cannot be read

       to authorize the Board to count on future excess funds in the maintenance fund

       to repay a loan on the reconstruction project. As the trial court noted,

       Landowners assert that a transfer of excess funds is only authorized if excess

       funds are “created by the routine collection of assessments.” Appellants’ App.

       Vol. 2 at 30. But the statute is silent whether a Board, as here, may

       intentionally create a surplus in a maintenance fund for the express purpose of

       paying for a future reconstruction project. It is well settled that we may not add

       new words to a statute which are not the expressed intent of the legislature.

       City of Lawrence Utils. Serv. Bd. v. Curry, 68 N.E.3d 581, 585 (Ind. 2017).

       Accordingly, we cannot read a prohibition into the statute where there is not

       one. Further, we note that, under the Home Rule Act, a governmental unit’s

       authority includes “not only all powers granted to it by statute, but also ‘all

       other powers necessary or desirable in the conduct of its affairs, even though not

       granted by statute.’” City of North Vernon v. Jennings Northwest Reg. Utils., 829

       N.E.2d 1, 4 (Ind. 2005) (quoting I.C. § 36-1-3-4(b)(2); emphasis added).


       Court of Appeals of Indiana | Opinion 19A-MI-1486 | November 22, 2019       Page 14 of 19
[16]   In sum, as the trial court correctly found, nothing in the statute prohibits the

       Board from intentionally creating a surplus in a maintenance fund for the

       express purpose of ultimately transferring up to seventy-five percent of the

       money in the fund to a reconstruction fund. And, because the Board can only

       transfer the funds when the maintenance fund “has” excess funds, the Board’s

       funding plan does not violate Indiana Code Section 36-9-27-45.5. Finally,

       nothing in the Drainage Law prohibits the Board from financing the

       reconstruction project and using excess maintenance funds to repay the loan.

       We hold that the trial court did not err when it found that the Board’s plan to

       pay for the reconstruction project does not violate the Drainage Law.


                                               Issue Two: Bonds

[17]   Landowners next contend that the trial court erred when it found that the Board

       was authorized by statute to fund the reconstruction project “through future

       potential maintenance excess funds” instead of through the sale of bonds.

       Appellants’ Br. at 20. In support of their contention, Landowners assert that

       the trial court misinterpreted Indiana Code Section 36-9-27-94(a), which

       provides:


               (a) Whenever the board determines by resolution spread upon its
               minutes that the cost of constructing or reconstructing a
               particular drain is in excess of that amount that the owners of
               land to be assessed may conveniently pay in installments over a
               five (5) year period, it shall authorize the sale of bonds to finance
               the construction or reconstruction.




       Court of Appeals of Indiana | Opinion 19A-MI-1486 | November 22, 2019      Page 15 of 19
       Landowners maintain that “Section 94(a) is not permissive but is mandatory

       when it states that the Board ‘shall’ authorize the sale of bonds to finance the

       reconstruction. The Trial Court’s affirmation of the Board’s plan to fund the

       reconstruction from the hoped[-]for future excess funds renders Section 94(a)

       meaningless.” Appellants’ Br. at 20.


[18]   However, Landowners ignore the clear language of the statute that makes the

       mandatory sale of bonds contingent on a determination by the Board that the

       reconstruction cost “is in excess of that amount that the owners of land to be

       assessed may conveniently pay in installments over a five (5) year period.” I.C.

       § 36-9-27-94(a). Here, there is no dispute that the Board did not make any such

       determination. Rather than pay for the reconstruction project with assessments,

       the Board adopted the Tipton County surveyor’s recommendation to levy “[n]o

       additional assessments” and to fund the project through a loan to be repaid

       using the excess funds in the maintenance fund. Appellants’ App. Vol. 2 at 167.

       Because there was no assessment 1 to be paid “in installments” by Landowners,

       the Board was not required to determine what they could “conveniently pay,”

       and it was not required to sell bonds. I.C. § 36-9-27-94(a).




       1
         We note that Landowners do not contend that the maintenance fund assessments, which were established
       in 2014, are required by the statute to be considered by the Board in determining what Landowners could
       “conveniently pay” towards a reconstruction project. I.C. § 36-9-27-94(a).

       Court of Appeals of Indiana | Opinion 19A-MI-1486 | November 22, 2019                      Page 16 of 19
                                     Issue Three: Formation of Board

[19]   Finally, Landowners contend that the trial court erred when it rejected their

       claim that the Board was not properly formed and should be disbanded. The

       trial court made two separate findings on this issue. First, the trial court found

       that Landowners’ claim was time-barred because they did not timely file their

       petition for judicial review within twenty days of October 23, 1991, when the

       Board published the order establishing the Board. Second, the trial court found

       that Landowners’ claim, brought twenty-seven years after the Board was

       formed, was also barred by the doctrine of laches.


[20]   In their brief on appeal, Landowners’ argument focuses on the alleged

       procedural deficiencies surrounding the Board’s formation. But Landowners

       do not make cogent argument on the trial court’s finding that their claim on this

       issue is barred by the doctrine of laches. “‘Independently of any statute of

       limitation, courts of equity uniformly decline to assist a person who has slept

       upon his rights and shows no excuse for his laches in asserting them.’” See

       SMDfund, Inc. v. Fort Wayne-Allen Cty. Airport Auth., 831 N.E.2d 725, 729 (Ind.

       2005) (quoting Penn Mutual Life Ins. Co. v. Austin, 168 U.S. 685, 698, (1898)).


[21]   In their brief on appeal, Landowners correctly set out the elements of laches,

       namely: “(1) [an] inexcusable delay in asserting a known right; (2) an implied

       waiver arising from knowing acquiescence in existing conditions; and (3) a

       change in circumstances causing prejudice to the adverse party.” See id. But

       Landowners then assert, without any citation to the record, that “[n]one of the


       Court of Appeals of Indiana | Opinion 19A-MI-1486 | November 22, 2019    Page 17 of 19
       required elements for the imposition of laches exists in this case.” Appellants’

       Br. at 21.


[22]   Landowners have not satisfied their burden on appeal to persuade us that the

       trial court erred when it found that their claim on this issue is barred by laches.

       Landowners baldly assert that “they had no knowledge of the defective Board

       formation until 2017.” Id. However, Landowners do not suggest that they

       could not have discovered the alleged procedural deficiencies prior to 2017.

       Indeed, Landowners acknowledge that the alleged deficiencies were discovered

       once they “scrutin[ized] . . . stored records.” Id. at 20. And Landowners’ sole

       argument to the trial court on the issue of laches was that, prior to 2017, “there

       was no reason for anyone to” suspect a problem with the Board’s formation.

       Tr. at 7. Without any allegation, let alone evidence, that the records relevant to

       the Board’s formation were not available to them until 2017, we cannot say that

       the trial court erred when it found that Landowners’ claim is barred by laches.

       See, e.g., SMDfund, Inc., 831 N.E.2d at 731 (holding plaintiffs’ claim that airport

       authority was improperly constituted brought seventeen years after its

       formation was barred by doctrine of laches).


                                                    Conclusion

[23]   Landowners apprehend that the Board’s scheme for financing the

       reconstruction project and repaying the loan using up to seventy-five percent of

       the maintenance fund annually risks a future lack of funds for maintenance

       projects. But Landowners ignore the legislature’s clear intent to grant the Board

       authority to transfer up to seventy-five percent of the maintenance fund to a
       Court of Appeals of Indiana | Opinion 19A-MI-1486 | November 22, 2019     Page 18 of 19
       reconstruction fund. As the Board points out, such a transfer can only be made

       if a surveyor advises the Board that the maintenance fund “has a balance in

       excess of the amount reasonably needed in that fund for maintenance work in

       the foreseeable future.” I.C. § 36-9-27-45.5(a). Thus, Landowners’ fear of a

       maintenance fund shortfall is unwarranted.


[24]   The trial court did not err when it found that nothing in the Drainage Law

       prohibits the Board from funding the reconstruction project through a loan to be

       repaid out of a reconstruction fund made up of excess funds transferred from

       the maintenance fund. The trial court did not err when it found that the Board

       was not required to sell bonds to finance the reconstruction project. Finally, the

       trial court did not err when it found that Landowners’ contention that the

       Board should be disbanded is barred by the doctrine of laches.


[25]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 19A-MI-1486 | November 22, 2019   Page 19 of 19
