Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                            FILED
                                                          Nov 08 2012, 9:49 am
any court except for the purpose of
establishing the defense of res judicata,                        CLERK
                                                               of the supreme court,
collateral estoppel, or the law of the case.                   court of appeals and
                                                                      tax court



ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEES
                                                   VEOLIA WATER INDIANAPOLIS, LLC
PETER S. KOVACS                                    AND VEOLIA WATER NORTH AMERICA
Stewart & Irwan, P.C.                              OPERATING SERVICES, LLC:
Indianapolis, Indiana
                                                   ROBERT T. MACGILL
                                                   T. JOSEPH WENDT
                                                   Barnes & Thornburg LLP
                                                   Indianapolis, Indiana

                                                   ATTORNEYS FOR APPELLEE THE CITY
                                                   OF INDIANAPOLIS, DEPARTMENT OF
                                                   WATERWORKS:

                                                   KARL L. MULVANEY
                                                   BRIAN W, WELCH
                                                   CARL A. HAYES
                                                   Bingham Greenebaum Doll LLP
                                                   Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

JASON BOND, DAVID LEAR and LESLIE                  )
BRIDGES, individually and as class                 )
representatives of all those similarly situated,   )
                                                   )
       Appellants-Plaintiffs,                      )
                                                   )
               vs.                                 )   No. 49A02-1202-CC-147
                                                   )
VEOLIA WATER INDIANAPOLIS, LLC,                    )
VEOLIA WATER NORTH AMERICA                         )
OPERATING SERVICE, LLC and THE                     )
CITY OF INDIANAPOLIS, DEPARTMENT                   )
OF WATERWORKS,                                     )
                                                   )
       Appellees-Defendants.                       )
                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Michael D. Keele, Judge
                            Cause No. 49D07-0804-CC-29304




                                       November 8, 2012



                MEMORANDUM DECISION - NOT FOR PUBLICATION




ROBB, Chief Judge

                                   Case Summary and Issue

        Jason Bond, David Lear, and Leslie Bridges, individually and as class representatives

of all those similarly situated (collectively, the “Plaintiffs”), filed a complaint against Veolia

Water North America Operating Service, LLC, and Veolia Water Indianapolis LLC

(collectively, “Veolia”), and thereafter added the City of Indianapolis Department of

Waterworks (“DOW”) as a defendant. Plaintiffs alleged breach of contract, violation of the

Deceptive Consumer Sales Act (“DCSA”), and unjust enrichment. The trial court granted

Veolia’s and DOW’s motions to dismiss for lack of subject matter jurisdiction. Plaintiffs

raise three issues for our review, one of which we find dispositive: whether the trial court

erred in dismissing the case for lack of subject matter jurisdiction. Concluding that the trial

court did not err, we affirm.




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                                Facts and Procedural History

       In 2002, DOW acquired a water system that exists to collect, purify, convey, treat,

and store water, and to distribute it to customers in Central Indiana. After acquiring the

water system, DOW entered into a twenty-year contract with Veolia’s predecessor company

to manage and operate the water treatment and distribution facilities of DOW. This includes

managing and operating meter-reading, billing, and collection functions, and handling

customer complaints and service requests. DOW agreed to be subject to the rules of the

Indiana Utility Regulatory Commission (“IURC”) related to rates and charges. The IURC

approved DOW’s rules, which are more commonly referred to as its tariff (the “Tariff”). The

Tariff governs DOW’s day-to-day operations and provision of services.

       Included in the Tariff is a provision regarding billings, meter readings, and estimates:

       All metered accounts will be billed monthly. All meters will be read
       bimonthly . . . . Customers will be billed on the basis of estimated
       consumption for the first month of the reading period, and the second month
       will be billed on the basis of actual consumption for the total reading period,
       less the estimated consumption billed in the first month. . . . Estimated
       monthly consumption for interim billings will be based on a 12-month moving
       average or a seasonal average for the premises whenever such data are
       available.

Appellant’s Appendix at 61.

       In April 2008, Plaintiffs filed their initial complaint based upon their belief that rather

than using the above quoted methodology to determine water bills, Veolia utilized a different

methodology that resulted in higher water bills throughout a nine-year period. Additionally,

they claim Veolia missed a number of meter readings, which also resulted in inflated billings.

Veolia filed a motion to dismiss, and the trial court dismissed Plaintiffs’ initial complaint.


                                                3
Plaintiffs thereafter filed a second complaint, claiming breach of contract, violation of the

DCSA, and unjust enrichment. Eventually, Veolia and DOW filed motions to dismiss the

second complaint for lack of subject matter jurisdiction, and the trial court granted the

motions. This appeal followed.

                                   Discussion and Decision

                                     I. Standard of Review

       Our standard of review for a motion to dismiss depends upon what occurred in the

trial court. Annexation Ordinance F-2008-15 v. City of Evansville, 955 N.E.2d 769, 779

(Ind. Ct. App. 2011), trans. denied. If the trial court does not resolve any disputed facts, or if

it makes factual findings based entirely on a paper record, we review the ruling de novo. Id.

If the trial court does resolve disputed facts or holds an evidentiary hearing, we will reverse

the trial court’s ruling only if it is clearly erroneous. Id. Here, the trial court did not conduct

an evidentiary hearing and ruled based upon a paper record. We therefore apply a de novo

standard of review.

                                II. Subject Matter Jurisdiction

       Subject matter jurisdiction is the power of a court to hear and determine a particular

class of cases. K.S. v. State, 849 N.E.2d 538, 540 (Ind. 2006). “Failure to exhaust

administrative remedies is a defect in subject matter jurisdiction.” State ex rel. Atty. Gen. v.

Lake Superior Court, 820 N.E.2d 1240, 1247 (Ind. 2005), cert. denied, 546 U.S. 927 (2005).

Therefore, where an administrative remedy is available, the plaintiff must pursue that remedy

before he or she will be allowed access to the courts. Sun Life Assur. Co. of Can. v. Ind.



                                                4
Comprehensive Health Ins. Ass’n, 827 N.E.2d 1206, 1209 (Ind. Ct. App. 2005), trans.

denied. The value of exhausting administrative remedies has been emphasized by our state

supreme court, and the reasons for requiring exhaustion are well established: (1) avoiding

premature litigation; (2) compiling an adequate record for judicial review; and (3) allowing

agencies to retain the opportunity and autonomy to correct their own errors. Id. Failure to

exhaust administrative remedies makes a motion to dismiss for lack of subject matter

jurisdiction appropriate. Id.

       We note at the outset that this case came to our court with a companion case involving

the same defendants, similar procedural history, and with plaintiff Bridges in common. That

case, Bridges v. Veolia Water Indianapolis, LLC, No. 49A02-1112-CC-1097 (Ind. Ct. App.,

Nov. 1, 2012), also included an issue of subject matter jurisdiction. We determined there that

the trial court did not have subject matter jurisdiction because the plaintiff had not exhausted

the available administrative remedies before filing suit. Slip op. at 17. For all of the reasons

stated in that case, we hold that the trial court here did not err in granting the motions to

dismiss for lack of subject matter jurisdiction.

                                         Conclusion

       Concluding that the trial court did not have subject matter jurisdiction over this case

because the Plaintiffs had not exhausted their administrative remedies, and thus that the trial

court did not err in granting the motions to dismiss, we affirm.

       Affirmed.

BAKER, J., and BRADFORD, J., concur.



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