                                                                                       FILED
                                                                                 Apr 12 2017, 11:26 am

                                                                                       CLERK
                                                                                   Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Michael A. Wukmer                                          Steven C. Shockley
Sean T. Dewey                                              Blake J. Burgan
Ice Miller, LLP                                            Chou-il Lee
Indianapolis, Indiana                                      Taft Stettinius & Hollister, LLP
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Tipton County Board of                                     April 12, 2017
Commissioners,                                             Court of Appeals Case No.
Appellant-Intervening Respondent Below,                    80A02-1611-MI-2533

                and,                                       Appeal from the Tipton Circuit
                                                           Court
City of Tipton Board of Zoning
                                                           The Honorable Steven R. Nation,
Appeals,                                                   Special Judge
                                                           Trial Court Cause No.
Respondent below,                                          80C01-1607-MI-220

                v.

Robert and Gayle Prather,
Appellees-Petitioners.




Barnes, Judge.




Court of Appeals of Indiana | Opinion 80A02-1611-MI-2533| April 12, 2017                      Page 1 of 9
                                              Case Summary
[1]   The Tipton County Board of Commissioners and the City of Tipton

      (collectively, “Commissioners”) appeal the trial court’s denial of their motion

      for a bond in a judicial review action brought by Robert and Gayle Prather. We

      affirm and remand.


                                                       Issue
[2]   The Commissioners raise several issues, which we consolidate and restate as

      whether the trial court properly found that the Indiana Public Lawsuit Statute

      was inapplicable to the Prather’s petition for judicial review.


                                                       Facts
[3]   The Prathers reside in Tipton. The Commissioners determined that 886 West

      Jefferson Street in Tipton would be the location of a newly-constructed Tipton

      County Law Enforcement Center, which would house the Tipton County

      Sheriff’s governmental and administrative offices, training facilities, and the

      Tipton County Jail. According to the Prathers, their property is eighty-nine feet

      from the property line of the proposed facility.


[4]   In May 2016, the Commissioners sought a special exception from the Tipton

      County Board of Zoning Appeals (“BZA”) to construct the facility on the

      Jefferson Street property. The Prathers remonstrated against the special

      exception, but the BZA granted the Commissioners’ request for a special

      exception. The Prathers then filed a petition for judicial review in July 2016.

      They argued that construction of the facility on the Jefferson Street property
      Court of Appeals of Indiana | Opinion 80A02-1611-MI-2533| April 12, 2017   Page 2 of 9
      would reduce the value of their real estate by up to twenty percent, that the

      intersection was dangerous and additional traffic would be problematic, that the

      BZA’s written findings failed to include a condition that the structure be placed

      no closer than 245 feet from the nearest neighbor’s property line, and that a fair

      hearing was not conducted because one person was improperly allowed to

      deliberate and vote on the petition. The trial court granted the Commissioners’

      request to intervene in the petition for judicial review.


[5]   In August 2016, the Commissioners filed a Motion to Set Bond pursuant to the

      Indiana Public Lawsuit Statute, Indiana Code Chapter 34-13-5, and requested

      an expedited hearing. The Commissioners argued that the petition for judicial

      review qualified as a public lawsuit and that the Prathers were required to post a

      bond. After a hearing, the trial court denied the Commissioners’ request to set

      a bond. The trial court found that, “based on this factual situation, the

      additional statutory requirements of a Public Lawsuit as set forth in Title 34

      should not apply.” Appellant’s App. Vol. II p. 200. The Commissioners filed a

      motion to reconsider, which the trial court also denied. The Commissioners

      now appeal.


                                                    Analysis
[6]   The Commissioners argue that the trial court erred when it found that the

      Public Lawsuit Statute was inapplicable to the Prathers’ petition for judicial

      review of the BZA’s decision. The Public Lawsuit Statute requires a plaintiff to

      post a bond or face dismissal of the lawsuit, see Indiana Code Section 34-13-5-7,

      but a general judicial review of a BZA action does not require such a bond.
      Court of Appeals of Indiana | Opinion 80A02-1611-MI-2533| April 12, 2017    Page 3 of 9
[7]   This argument requires that we interpret the Public Lawsuit Statute. “The

      meaning of a statute is a question of law and is subject to de novo review.”

      ESPN, Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1195 (Ind. 2016).

      When interpreting a statute, we give its words their plain meaning and consider

      the structure of the statute as a whole. Id. We “avoid interpretations that

      depend on selective reading of individual words that lead to irrational and

      disharmonizing results.” Id. “As we interpret the statute, we are mindful of

      both ‘what it does say and what it does not say.’” Id. (quoting Day v. State, 57

      N.E.3d 809, 812 (Ind. 2016)) (internal quotations omitted). “To the extent

      there is an ambiguity, we determine and give effect to the intent of the

      legislature as best it can be ascertained.” Id. (citing Moryl v. Ransone, 4 N.E.3d

      1133, 1137 (Ind. 2014)). “‘[W]e do not presume that the Legislature intended

      language used in a statute to be applied illogically or to bring about an unjust or

      absurd result.’” Id. (quoting Anderson v. Gaudin, 42 N.E.3d 82, 85 (Ind. 2015)).


[8]   The purpose of the Public Lawsuit Statute is “to protect municipalities from a

      flood of harassing litigation [that] obstructs and delays public improvement.”

      Dible v. City of Lafayette, 713 N.E.2d 269, 274 (Ind. 1999) (internal quotations

      omitted). “The goal of the public lawsuit statute is to end costly serial

      litigation.” Id. at 275.


              The public lawsuit statutes provide for a vehicle for the citizens
              and taxpayers of the community to be represented in a suit that
              questions the validity of the actions taken by the local
              government unit for public construction, but at the same time
              provide for a means to limit the delay and frustration of the
              public project by those citizens who would bring an action or a
      Court of Appeals of Indiana | Opinion 80A02-1611-MI-2533| April 12, 2017     Page 4 of 9
               series of actions for the sole purpose of delaying or changing the
               financing and construction of the proposed project.


       Pepinsky v. Monroe Cty. Council, 461 N.E.2d 128, 132 (Ind. 1984).


[9]    A public lawsuit is defined by Indiana Code Section 34-6-2-124(a) as:

                    (1)      any action in which the validity, location, wisdom,
                             feasibility, extent, or character of construction,
                             financing, or leasing of a public improvement by a
                             municipal corporation is questioned directly or
                             indirectly, including but not limited to suits for
                             declaratory judgments or injunctions to declare invalid
                             or to enjoin the construction, financing, or leasing; and


                    (2)      any action to declare invalid or enjoin the creation,
                             organization, or formation of any municipal
                             corporation.


       Plaintiffs in a public lawsuit “may sue in their capacity either as citizens or

       taxpayers of the municipal corporation.” Ind. Code § 34-13-5-2(a). However, a

       public lawsuit is “a class suit (whether captioned as such or not), subject to the

       rights of intervention, the addition of parties, and the addition of other

       representatives of the same class, as is provided by law in other civil actions.”

       I.C. § 34-13-5-2(b).


[10]   In interpreting the Public Lawsuit Statute, our supreme court has held that “an

       action by an individual landowner seeking to protect his or her private interest

       in property does not constitute the basis for a public lawsuit.” Dible, 713

       N.E.2d at 275. The “controlling factor” is whether the plaintiff seeks “to

       Court of Appeals of Indiana | Opinion 80A02-1611-MI-2533| April 12, 2017          Page 5 of 9
       protect public or private interests.” Buse v. Trustees of Luce Twp. Reg’l Sewer Dist.,

       953 N.E.2d 519, 525 (Ind. Ct. App. 2011).


[11]   The Commissioners argue that the Prathers “have not—and cannot—allege

       that they are seeking to vindicate private interests or ‘particularized harm’ that

       is not being suffered by others.” Appellant’s Br. p. 15. The Commissioners rely

       on Pepinsky v. Monroe County Council, 461 N.E.2d 128 (Ind. 1984). In Pepinsky,

       the plaintiffs filed a complaint alleging that the county council had violated the

       Open Door Law Act regarding the construction of a new building to house the

       county jail, courts, and law enforcement officials. The trial court found that the

       matter qualified as a public lawsuit and ordered the plaintiffs to file a bond.

       The trial court dismissed the lawsuit when the plaintiffs failed to do so. On

       appeal, our supreme court agreed and noted that the lawsuit was “not an action

       where the appellant[s’] complaint seeks remedies regarding their personal or

       property rights.” Pepinsky, 461 N.E.2d at 134. Rather, the action went “to the

       heart of the question concerning whether or not in the public interest the

       County Council should proceed” with the project, which is the “type of action

       contemplated by the public lawsuit statutes.” Id.


               This cause could have as well been brought on a myriad of
               statutes attacking the procedures or compliances with these
               statutes and laws such as, but not limited to, manner in which
               meetings were conducted, procedure in letting and accepting
               bids, letting of the contracts of construction providing for the
               certification of the contractor to do the actual work, requiring the
               contractor to post the proper performance bonds and a number of
               other procedures required to reach the ultimate goal of having the
               building constructed. The manner in which this action was
       Court of Appeals of Indiana | Opinion 80A02-1611-MI-2533| April 12, 2017     Page 6 of 9
               brought by these parties and the subject of the complaint justified
               the trial court’s decision that this was a public lawsuit.


       Id. at 134-35.


[12]   The Prathers argue that Dible, 713 N.E.2d 269, is more comparable to this

       situation. In Dible, the plaintiffs sought declaratory and injunctive relief to force

       the city to remove sewage and drainage structures built on its easement on the

       plaintiffs’ property. The plaintiffs alleged that the construction “exceeded the

       City’s easement, violated restrictive covenants, and constituted an unlawful

       taking of the [plaintiffs’] property.” Dible, 713 N.E.2d at 271. The trial court

       granted the city’s motion for summary judgment, and on appeal, this court sua

       sponte directed that the action proceed as a public lawsuit. Our supreme court

       rejected this approach.

               First, the Dibles have not brought suit in their capacity as
               taxpayers. Rather, they seek a mandatory injunction to protect
               their private property rights as created by a restrictive covenant.
               And as we have held previously, an action by an individual
               landowner seeking to protect his or her private interest in
               property does not constitute the basis for a public lawsuit.
               Second, we believe it unfair to impose the requirements of the
               public lawsuit statute upon the Dibles where an adequate and
               less onerous remedy at law is available. We hold the Court of
               Appeals’s directive to the trial court that the Dibles’ action
               proceed as a public lawsuit erroneous.


       Id. at 275 (internal citations omitted).




       Court of Appeals of Indiana | Opinion 80A02-1611-MI-2533| April 12, 2017      Page 7 of 9
[13]   We reached a similar result in Buse, 953 N.E.2d 519. There, property owners

       filed a complaint seeking declaratory relief against a municipal sewer district

       concerning the sewer district’s plans to place a sewer line parallel and adjacent

       to the plaintiffs’ properties. The sewer district was requiring the property

       owners to connect to the sewer line even though they had “operational septic

       tank soil absorption systems.” Buse, 953 N.E.2d at 521. The sewer district was

       also requiring the property owners to grant easements over their properties.

       The trial court found that the action qualified as a public lawsuit and required

       the plaintiffs to post a bond.


[14]   We held that the trial court’s order was clearly erroneous. We noted that the

       “plain language of the complaint demonstrates that the Property Owners ‘have

       not brought suit in their capacity as taxpayers.’” Id. at 525. Although the

       plaintiffs’ claims had “implications of public importance,” that was “not

       enough.” Id. at 526. “The critical factor is not whether the claims have some

       public importance but what the interests are that the plaintiffs seek to protect.”

       Id. We held that, “[a]lthough the complaint is perhaps more broadly written

       than it needs be, it is nonetheless clear from each of the allegations as well as

       the totality of the complaint that the Property Owners are seeking to protect

       only their individual interests in their own real property.” Id. “[T]he

       convergence of private interests with public interests is not enough in itself to

       convert an action that does not otherwise qualify into a public lawsuit.” Id.

       Consequently, we concluded that the action was not a public lawsuit.




       Court of Appeals of Indiana | Opinion 80A02-1611-MI-2533| April 12, 2017    Page 8 of 9
[15]   Similarly, here, the Prathers are clearly challenging the BZA’s decision because

       the granting of the special exception will, according to the Prathers, severely

       impact the value of their property. The Prathers’ property is only eighty-nine

       feet from the property line of the proposed facility. As in Buse, although some

       of the Prathers’ claims, such as the traffic issues, have public importance, the

       main basis of the Prathers’ action is the protection of their own private interests.

       We conclude that this action is more like the circumstances in Dible and Buse

       than those in Pepinsky. Consequently, the Public Lawsuit Statute is

       inapplicable, and the trial court properly denied the Commissioners’ motion for

       a bond.


                                                   Conclusion
[16]   The trial court properly denied the motion for a bond. We affirm and remand

       for further proceedings.


[17]   Affirmed and remanded.


       Kirsch, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 80A02-1611-MI-2533| April 12, 2017   Page 9 of 9
