Thomas Eaton v. City of Gary ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
Mar 20 2012, 9:08 am
collateral estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
DOUGLAS M. GRIMES ALGER V. BOSWELL
Douglas M. Grimes, P.C. City Attorney, City of Gary Law Department
Gary, Indiana Gary, Indiana
IN THE
COURT OF APPEALS OF INDIANA
THOMAS EATON, et al., )
)
Appellants-Plaintiffs, )
)
vs. ) No. 45A04-1106-MI-312
)
CITY OF GARY, et al., )
)
Appellees-Defendants. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Thomas W. Webber, Sr., Special Judge
Cause No. 45D01-0810-MI-31
March 20, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
Appellants-Plaintiffs Thomas Eaton, et al. (collectively “Appellants”) appeal the trial
court‟s order denying their motion to correct error. On appeal, Appellants claim that the trial
court abused its discretion in denying their motion to correct error because the trial court
improperly denied their motion for summary judgment and granted summary judgment in
favor of Appellees-Defendants City of Gary et al. (collectively “Appellees”). Concluding
that the trial court properly denied Appellants‟ motion for summary judgment, and as such
acted within its discretion in denying Appellants‟ motion to correct error, we affirm.
FACTS AND PROCEDURAL HISTORY
This appeal arises out of Appellants‟ challenge to the passage of an ordinance by the
City of Gary Common Council (“Common Council”) allowing for the imposition of a
monthly trash collection fee on City residents.
On October 14, 2008, the Gary Sanitation District, through the members of its Board
of Commissioners and its Special Administrator, passed a resolution (“October 14, 2008
resolution”) that obligated the Sanitation District to “remunerate a private waste hauler with
rate payer/tax payer monies for performing certain residential waste collection services
within the City.” Appellants‟ App. p. 29. On October 17, 2008, Appellants filed suit
challenging the Sanitation Department‟s October 14, 2008 resolution. Appellees moved to
dismiss Appellants‟ legal challenge to the Sanitation Department‟s October 14, 2008
resolution and stipulated that no fee would be collected until an ordinance allowing for a
monthly trash collection fee was passed by the Common Council. On February 3, 2009, the
trial court issued an order in which it denied Appellees‟ motion to dismiss and determined
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that a trash collection fee could be collected by Appellees if the Common Council passed an
ordinance allowing for such.
On July 7, 2009, the Common Council defeated Council Pending Ordinance 2009-22
(“C.P.O. 09-22”) which would have allowed for the imposition of the monthly trash
collection fee by a vote of three ayes to six nays. By a vote of seven ayes to two nays, the
Common Council voted to reconsider C.P.O. 09-22 at its next scheduled meeting on July 21,
2009. During the July 21, 2009 meeting, the Common Council approved C.P.O. 09-22 by a
vote of five ayes to four nays. C.P.O. 09-22 became Ordinance No. 8276, which
retroactively allowed for the imposition of a monthly trash collection fee.
On September 1, 2009, Appellants sought permission to file their first amended
complaint. On September 23, 2009, the trial court determined that the validity of Ordinance
No. 8276 was ripe for challenge and allowed Appellants to file their first amended complaint.
On May 11, 2010, Appellants filed a motion for summary judgment alleging that they
were entitled to judgment as a matter of law because the Appellees did not follow the proper
procedures in retroactively adopting a trash collection fee. On June 7, 2010, Appellees filed
their brief and designation of evidence in opposition to Appellants‟ motion for summary
judgment. On June 14, 2010, Intervenor Illiana Disposal Partnership filed its response to
Appellants‟ motion for summary judgment. On December 16, 2010, the trial court entered an
order granting Appellees‟ motion for summary judgment and denying Appellants‟ motion for
summary judgment.1 On January 18, 2011, Appellants filed a motion to correct error alleging
that the trial court erroneously denied their motion for summary judgment. Following a
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hearing on May 11, 2011, the trial court denied Appellants‟ motion to correct error on May
13, 2011. This appeal follows.
DISCUSSION AND DECISION
I. Standard of Review
Appellants argue that the trial court abused its discretion in denying their motion to
correct error which was filed after the trial court denied their motion for summary judgment.
We generally review the denial of a motion to correct error for an abuse of
discretion. Hawkins v. Cannon, 826 N.E.2d 658, 661 (Ind. Ct. App. 2005).
However, where the issues raised in the motion are questions of law, the
standard of review is de novo. City of Indianapolis v. Hicks, 932 N.E.2d 227,
230 (Ind. Ct. App .2010), trans. denied.
Kornelik v. Mittal Steel USA, Inc., 952 N.E.2d 320, 324 (Ind. Ct. App. 2011). In support,
Appellants claim that the trial court‟s denial of their motion for summary judgment is
erroneous because the trial court must not have considered all of their designated evidence.
Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary judgment is
appropriate when there are no genuine issues of material fact and when the moving party is
entitled to judgment as a matter of law. Heritage Dev. Of Ind., Inc. v. Opportunity Options,
Inc., 773 N.E.2d 881, 887-88 (Ind. Ct. App. 2002).
When reviewing the grant or denial of a motion for summary judgment our
standard of review is the same as that used by the trial court: whether there is a
genuine issue of material fact and whether the moving part is entitled to
judgment as a matter of law. On review, we may not search the entire record
to support the judgment, but may only consider that evidence which has been
specifically designated to the trial court. The party appealing the trial court‟s
grant or denial of summary judgment has the burden of persuading this court
that the trial court‟s decision was erroneous. A summary judgment
determination shall be made from any theory or basis found in the evidentiary
1
It is unclear from the record when Appellees filed their motion for summary judgment.
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matter designated to the trial court.
J.C. Spence & Associates, Inc. v. Geary, 712 N.E.2d 1099, 1102 (Ind. Ct. App. 1999)
(quoting City of New Haven v. Chemical Waste Mgmt. of Ind., L.L.C., 701 N.E.2d 912, 922
(Ind. Ct. App. 1998), trans. denied). “„We give careful scrutiny to the pleadings and
designated materials, construing them in a light most favorable to the non-movant.‟” Id.(quoting Diversified Fin. Sys., Inc. v. Miner, 713 N.E.2d 293, 297 (Ind. Ct. App. 1999)).
II. Whether the Trial Court Erred in Denying
Appellants’ Motion for Summary Judgment
Appellants argue that the trial court erred in denying their motion for summary
judgment. In making this argument, Appellants claim that the trial court must not have
considered their designated evidence because it conclusively established “that the City did
not properly follow its rules and procedures in the alleged adoption of the trash fee
ordinance.” Appellants‟ Br. p. 9. Thus, Appellants claim that they carried their “burden by
making a prima facie showing that there were no genuine issues of material fact as to
whether the City properly followed its rules and procedures and properly adopted Ordinance
[No.] 8276 on July 21, 2009.” Appellants‟ Br. p. 9. Appellants, however, do not make it
clear which rule or procedure they believe the Common Council did not comply with.
Further, in making this claim, Appellants fail to recognize that to the extent that the Common
Council did not follow its rules and procedures in adopting Ordinance No. 8276, the
Common Council voted to suspend its rules and procedures pursuant to Section 32.37(A) of
the Municipal Code of Ordinances (“Code”) to allow for the procedure used in passing
Ordinance No. 8276.
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It is undisputed that the Common Council voted on two motions concerning C.P.O.
09-22 rather than the three that Appellants apparently claim were required by the Common
Council‟s rules and procedures. Section 32.37(A) of the Code provides that “[t]he rules may
be temporarily suspended by the consent of six of the nine members of the Common Council
or by the two-thirds of any quorum.”2 Appellants‟ App. p. 127. The minutes from the July
21, 2009 Common Council meeting, which were designated by both Appellants and
Appellees, provide as follows:
Councilman Pratt moved to Suspend the Rules to reconsider C.P.O. 09-22. It
was seconded by Councilwoman Robinson. Roll Call showed a vote of 7 ayes
2 nays (Allen, Hatcher). The Chair declared this motion duly passed.
Councilwoman Pratt moved to reconsider the vote on the matter of C.P.O. 09-
22. It was seconded by Councilwoman Brown. Councilman Pratt stated the
justification to reconsider the vote of an ordinance previously voted upon as
stated in Roberts Rules of Order and stated in the Gary Municipal Code
Section 32.28 of the Council Rules & Regulations. Councilpersons Pratt,
Krusas, Robinson, Hatcher, Brown, Rogers, Stanford & the Chair spoke in
regards to C.P.O. 09-22. Roll Call showed a vote of 5 ayes 4 nays (Allen,
Hatcher, Krusas, Rogers). The Chair declared this Council Pending Ordinance
duly PASSED.
Appellants‟ App. pp. 118-19 (emphases in original). Section 32.28 of the Code provides
that:
A vote upon any question or proposition may be reconsidered at any regular
meeting of the Common Council held thereafter, whether the reconsideration
of the question or proposition is proposed by a member of the Common
Council who voted with the prevailing side or not, provided it is carried by a
majority vote of all the members-elect of the Common Council, but not
2
Section 32.37(A) of the Code further provides that “Any suspension of the rules to consider the
passage of an ordinance on three readings at the same meeting in which the ordinance is introduced shall
require the unanimous consent of all members.” Appellants‟ App. p. 127. This portion of Section 32.37(B),
however, does not appear to be applicable to the instant matter as C.P.O 09-22 was clearly introduced at some
point before the July 21, 2009 meeting, and neither Appellants nor Appellees argue on appeal that it applies to
the instant matter.
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otherwise.
Appellants‟ App. p. 129.
Appellants argued before the trial court that there should have been two separate votes
for the motion to reconsider and the passage of C.P.O. 09-22 and that because there was not
two separate votes, C.P.O. 09-22 was never actually reconsidered or passed by the Common
Council. However, as the trial court determined, the undisputed designated evidence
indicates that the Common Council followed the proper procedures to suspend its normal
rules and procedures for the purpose of reconsidering and passing C.P.O. 09-22 during its
July 21, 2009 meeting. In addition, Appellants did not designate any contradictory evidence
that would raise an issue of material fact as to whether the Common Council acted properly
in passing C.P.O. 09-22.
Because we may affirm the grant or denial of a motion for summary judgment on any
basis found in the designated evidence, see Geary, 712 N.E.2d at 1102, we conclude that the
trial court properly denied Appellants‟ motion for summary judgment. The designated
evidence, including that tendered by Appellants, establishes that the Common Council
suspended the rules to allow for the procedure it followed in passing C.P.O. 09-22, which
again became Ordinance No. 8276 after being passed by the Common Council, and there is
no designated evidence to support the conclusion that Ordinance No. 8276 is not valid and
enforceable. Having concluded that the trial court properly denied Appellants‟ motion for
summary judgment, we further conclude that the trial court acted within its discretion in
denying Appellants‟ motion to correct error.
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The judgment of the trial court is affirmed.
VAIDIK, J., and CRONE, J., concur.
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