Apr 21 2014, 9:59 am
FOR PUBLICATION
ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
DUSTIN T. WHITE A. DAVID HUTSON
White Law Practice Hutson Legal
Jeffersonville, Indiana Jeffersonville, Indiana
DAVID A. LEWIS
Jeffersonville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
OLD UTICA SCHOOL PRESERVATION, INC., )
KENNETH MORRISON, SCOTT SANDEFUR, )
and PAMELA SANDEFUR, )
)
Appellants-Plaintiffs, )
)
vs. ) No. 10A05-1308-PL-388
)
UTICA TOWNSHIP, JOHN DURBIN, Utica )
Township Trustee, JACOBS WELL, INC., KEVIN )
WILLIAR, JOHN POSEY, ANTHONY )
GLOTZBACK, and BARBARA WILLIAR, )
)
Appellees-Defendants. )
APPEAL FROM THE CLARK CIRCUIT COURT
The Honorable Glenn G. Hancock, Special Judge
Cause No. 10C04-1210-PL-123
April 21, 2014
OPINION - FOR PUBLICATION
KIRSCH, Judge
Old Utica School Preservation, Inc. (“Old Utica”), Kenneth Morrison, Scott
Sandefur, and Pamela Sandefur (collectively, “the Citizens”) appeal the trial court’s order
granting summary judgment in favor of Utica Township, John Durbin as Utica Township
Trustee, Jacobs Well, Inc., Kevin Williar, John Posey, Anthony Glotzback, and Barbara
Williar (collectively, “Jacobs Well”). The Citizens raise the following restated issue for
our review: whether the trial court erred when it found that the Citizens did not have
standing to seek declaratory judgment and granted summary judgment, dismissing the
Citizens’ action.
We reverse and remand.
FACTS AND PROCEDURAL HISTORY
On February 12, 2002, the Greater Clark County Schools Corporation (“GCCSC”)
conveyed the former Utica Elementary School (“the School”), located in Jeffersonville,
Indiana, to Utica Township via quitclaim deed, which was recorded by the Clark County
Recorder on February 15, 2002. The quitclaim deed contained language stating that the
School “shall be used by Utica Township solely1 for park and recreation purposes,” which
was written to comply with Indiana Code section 20-4-5-8, now re-codified to Indiana
Code section 20-23-6-9. Appellants’ App. at 71.
After Utica Township took ownership of the School, it was open to the public to use
and was available for basketball and community gatherings. Utica Township attempted to
maintain the School for park and recreation purposes, but it did not have sufficient funds
1
An affidavit was included in the designated evidence in which GCCSC stated that the inclusion
of the word “solely” in the deed language was a scrivener’s error.
2
to continue to do so, and the School fell into a state of disrepair. Id. at 82-83. Windows
and doors were broken, vandals broke into the building, and damage was done to the
interior of the building. Id. at 83. To try to protect the School from further damage, the
building was boarded up, but this did not prevent further vandalism and damage. Id. Utica
Township was paying approximately $20,000 per year to insure, secure, and maintain the
School in a minimal way. Id.
On June 17, 2011, Jacobs Well, Inc., an Indiana non-profit corporation, organized
for educational, literary, scientific, religious, or charitable purposes, leased the School from
Utica Township. It thereafter invested approximately $300,000 in renovations on the
School. The lease required Jacobs Well, Inc. to allow Utica Township access to the gym
and cafeteria for the purposes of having community events in the School with fifteen days’
notice. Id. at 74. Jacobs Well, Inc. made a commitment to Utica Township that it would
open the building for organized, supervised, recreational activities, and for community
functions. Id. at 78, 81, 83. GCCSC was aware of the manner in which Jacobs Well, Inc.
intended to use the School, had no objection to such uses, and had not made any effort to
reclaim or enforce any interest it has in the property. Id. at 59-60, 62, 84.
Kenneth Morrison, Scott Sandefur, and Pamela Sandefur own land adjacent to the
School. Old Utica School Preservation, Inc. is a non-profit corporation with the stated
purpose “to preserve the [School’s] historic nature and to find ways in which to use the
[S]chool for the benefit of the public.” Id. at 126. On October 25, 2012, the Citizens filed
a complaint for declaratory judgment and injunctive relief, contending that Jacobs Well
was planning to use the School for purposes other than park and recreation purposes,
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namely for a residence and “temporary housing or a halfway house for criminal offenders.”
Id. at 12. On December 7, 2012, Jacobs Well filed a motion for summary judgment,
contending that the Citizens did not have standing to bring the complaint against Jacobs
Well. Finding that the Citizens did not have standing, the trial court granted the motion for
summary judgment and dismissed the complaint. The Citizens filed a motion to correct
error, which was denied by the trial court. The Citizens now appeal.
DISCUSSION AND DECISION
The Citizens appeal from the trial court’s denial of their motion to correct error.
Our standard of review in such cases is well established. We review a trial court’s ruling
on a motion to correct error for an abuse of discretion. McEntee v. Wells Fargo Bank, N.A.,
970 N.E.2d 178, 181 (Ind. Ct. App. 2012) (citing Town of Plainfield v. Paden Eng’g Co.,
943 N.E.2d 904, 908 (Ind. Ct. App. 2011), trans. denied). An abuse of discretion occurs
when the trial court’s decision is contrary to the logic and effect of the facts and
circumstances before it or the reasonable inferences therefrom. Id.
Here, the motion to correct error sought to set aside the entry of summary judgment.
When reviewing the denial of summary judgment, our standard of review is the same as
that of the trial court. Wellpoint, Inc. v. Nat’l Union Fire Ins. Co., 952 N.E.2d 254, 258
(Ind. Ct. App. 2011), trans. denied. We stand in the shoes of the trial court and apply a de
novo standard of review. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d 1167, 1173 (Ind.
Ct. App. 2012) (citing Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind. Ct. App.
2006)), trans. denied. Our review of a summary judgment motion is limited to those
materials designated to the trial court. Ind. Trial Rule 56(H); Robson v. Tex. E. Corp., 833
4
N.E.2d 461, 466 (Ind. Ct. App. 2005), trans. denied. Summary judgment is appropriate
only where the designated evidence shows there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law. T.R. 56(C). For summary
judgment purposes, a fact is “material” if it bears on the ultimate resolution of relevant
issues. FLM, 973 N.E.2d at 1173. We view the pleadings and designated materials in the
light most favorable to the non-moving party. Id. Additionally, all facts and reasonable
inferences from those facts are construed in favor of the nonmoving party. Id. (citing
Troxel Equip. Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct. App. 2005), trans.
denied).
A trial court’s grant of summary judgment is clothed with a presumption of validity,
and the party who lost in the trial court has the burden of demonstrating that the grant of
summary judgment was erroneous. Id. Where a trial court enters specific findings and
conclusions, they offer insight into the rationale for the trial court’s judgment and facilitate
appellate review, but are not binding upon this court. Id. We will affirm upon any theory
or basis supported by the designated materials. Id. When a trial court grants summary
judgment, we carefully scrutinize that determination to ensure that a party was not
improperly prevented from having his or her day in court. Id.
The Citizens argue that the trial court abused its discretion when it denied their
motion to correct error because it was error to grant summary judgment in favor of Jacobs
Well. They contend it was error to find that they did not have standing to file an action
based on the restrictive covenant contained in the quitclaim deed, which was included in
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the deed pursuant to Indiana Code section 20-23-6-9.2 The Citizens assert that they have
standing under the public standing doctrine, which eliminates the requirement that they
have an interest in the outcome of the litigation different from that of the general public.
They maintain that Utica Township has failed to use the School, as required by statute, for
park and recreation purposes since leasing it to Jacobs Well, Inc. and has violated its
statutory public duty by allowing its tenant to use the School for residential purposes.
The controversy in the present case is centered on the following language contained
in the quitclaim deed, in which GCCSC gifted the School to Utica Township: “the same
land being so described . . . and subject to the conditions set out in IC 20-4-5-8(b)3 that said
property being transferred shall be used by Utica Township solely for park and recreation
purposes.” Appellants’ App. at 15.4 Such language was included in the deed in compliance
with Indiana Code section 20-23-6-9, which states in relevant part:
This subsection applies when the consolidated governing body of a
consolidated school corporation decides that property acquired under
subsection (b) from a township is no longer needed for school purposes. The
governing body shall offer the property as a gift for park and recreation
purposes to the township that owned the property before the school was
consolidated. If the township board accepts the offer, the governing body
shall give the township a quitclaim deed to the property. The deed must state
that the township is required to use the property for park and recreation
purposes. If the township board refuses the offer, the governing body may
sell the property in the manner provided in subsection (e).
2
At the time the quitclaim deed was written, the pertinent statute was Indiana Code section 20-4-
5-8. However, that statute was re-codified as Indiana Code section 20-23-6-9, and we refer to the statute
at issue here as the re-codified statute.
3
Indiana Code section 20-4-5-8 was the predecessor statute to the current Indiana Code section 20-
23-6-9.
4
An affidavit was included in the designated evidence in which GCCSC stated that the inclusion
of the word “solely” in the deed language was a scrivener’s error.
6
Ind. Code § 20-23-6-9(d) (emphasis added).
In its order granting summary judgment in favor of Jacobs Well, the trial court found
the language of the deed to be a restrictive covenant that satisfied the requirements of the
Indiana Code section 20-23-6-9. Appellants’ App. at 7. It further determined that the
Citizens did not have standing to bring their action because they were not parties to, nor
were they intended third-party beneficiaries of, the contract at issue, the quitclaim deed,
and dismissed the complaint. Id. at 8.
Generally, only those persons who have a personal stake in the outcome of the
litigation and who show that they have suffered or were in immediate danger of suffering
a direct injury as a result of the complained-of conduct will be found to have standing.
State ex rel. Cittadine v. Ind. Dep’t of Transp., 790 N.E.2d 978, 979 (Ind. 2003). Absent
this showing, complainants may not invoke the jurisdiction of the court. Id. (citing Higgins
v. Hale, 476 N.E.2d 95, 101 (Ind. 1985)). It is generally insufficient that a plaintiff merely
has a general interest common to all members of the public. Id.
The Citizens seek to avoid this general rule by invoking the public standing doctrine.
The public standing doctrine has been recognized in Indiana case law for more than one
hundred and fifty years. Id. at 980. The public standing doctrine is an exception to the
general rule of standing. Id. at 979-80. “[T]he public standing doctrine eliminates the
requirement that the relator have an interest in the outcome of the litigation different from
that of the general public.” Id. at 980. It applies in cases where public rather than private
rights are at issue and in cases that involve the enforcement of a public rather than a private
7
right. Id. at 983. The public standing doctrine permits the assertion of all proper legal
challenges, including claims that government action is unconstitutional. Id. In determining
that the plaintiffs are shown to have the requisite degree of interest to enable them to
maintain an action, we rely upon their status as citizens interested in common with other
citizens in the execution of the law. Id. at 981 (citing Wampler v. State ex rel. Alexander,
148 Ind. 557, 572, 47 N.E. 1068, 1071-72 (1897)).
We note that, in determining that the Citizens did not have standing to bring this
claim, the trial court only discussed whether the Citizens had standing as parties to the
contract or as third-party beneficiaries. The trial court did not make any findings regarding
the Citizens’ standing under the public standing doctrine, which the Citizens argued both
in their response to the motion for summary judgment and in their motion to correct error.
Where a trial court enters specific findings and conclusions, they offer insight into the
rationale for the trial court’s judgment and facilitate appellate review, but are not binding
upon this court. FLM, 973 N.E.2d at 1173. We will affirm upon any theory or basis
supported by the designated materials. Id. We therefore proceed to determine if the
Citizens have standing under the public standing doctrine.
In Cittadine, a private citizen petitioned for a writ of mandamus to require the state
transportation agency to enforce a statute against the railroad and any other railroad that
violated a statute that required railroads to maintain public crossings under their control in
a certain manner. 790 N.E.2d at 979. In reversing the trial court’s determination that the
petitioner lacked standing to bring the claim, as well as this court’s decision affirming the
trial court, our Supreme Court determined that the claim involved the enforcement of a
8
public right because the plaintiff commenced the action as a member of the motoring
public, seeking to require the Indiana Department of Transportation to enforce a statute
against the railroads. Id. at 984. Therefore, the claim was cognizable under the public
standing doctrine. Id.
In State ex rel. Berkshire v. City of Logansport, 928 N.E.2d 587 (Ind. Ct. App.
2010), trans. denied, a citizen of the city filed a complaint against the city, claiming that it
was not properly operating and managing a city park in accordance with a resolution passed
by the common council. Id. at 590. The trial court found that the plaintiff had standing
under the public standing doctrine, but dismissed the case because it was barred by the
statute of limitations. Id. at 594. On appeal, the city cross-appealed, claiming that the
plaintiff did not have standing to bring the claim because he was not a real party in interest.
Id. at 597. A panel of this court disagreed and found that the plaintiff had standing under
the public standing doctrine as a citizen who had an interest in the proper administration of
a public park and that a public right was at issue, namely, the enjoyment of a public park;
however, the claim was held to be time-barred. Id. at 599, 600.
Here, the Citizens claim that Indiana Code section 20-23-6-9(d) confers a public
right upon them to have the School used for park and recreation purposes. The language
of the statute provides that the governing body of a school corporation shall offer property
no longer needed for school purposes as a gift for park and recreation purposes to the
township that owned the property before consolidation and that the deed conveying the
property shall state that the township is required to use the property for park and recreation
purposes. I.C. § 20-23-6-9(d). Applying the rulings in Cittadine and Berkshire, we
9
conclude that the Citizens, and others residents of the township, have an interest in the
proper administration of the School for park and recreation purposes. It is apparent that a
public right, the enjoyment of the School for park and recreation purposes, is at issue
because the statutory language in Indiana Code section 20-23-6-9(d) states that the school
property is to be offered to the township as a gift for park and recreation purposes and that
the deed shall state that the township is required to use the property for park and recreation
purposes. We, therefore, conclude that the Citizens have standing to proceed with their
claim under the public standing doctrine.
We note that the statutory language provides no guidance as to what townships are
to do with the school property in situations such as Utica Township faced here in which it
is no longer feasible to maintain the school property for park and recreation purposes. In
adopting Indiana Code section 20-23-6-9, the legislature did not provide what should
happen to school property when, or if, it is no longer used for park and recreation purposes
in the future. It is unclear whether the property must be used for park and recreation
purposes in perpetuity or if it reverts back to the school corporation when it is no longer
used for those purposes or if the township can lease the property for uses that may or may
not be exclusively for park and recreation purposes. We conclude only that the Citizens
have standing to bring a claim under the public standing doctrine. In reaching this
conclusion, we express no opinion on the issue whether the lease between Utica Township
and Jacobs Well, Inc. complies with the statutory restriction on the use of the property for
park and recreation purposes. We, therefore, reverse the trial court’s dismissal of the
Citizens’ complaint and remand for further proceedings on their claims.
10
Reversed and remanded.
BAILEY, J., concurs.
FRIEDLANDER, J., concurs with separate opinion.
11
IN THE
COURT OF APPEALS OF INDIANA
OLD UTICA SCHOOL PRESERVATION, INC., )
KENNETH MORRISON, SCOTT SANDEFUR, )
and PAM SANDEFUR, )
)
Appellants - Plaintiffs, )
)
vs. ) No. 10A05-1308-PL-388
)
UTICA TOWNSHIP, JOHN DURBIN, Utica )
Township Trustee, JACOBS WELL, INC., KEVIN )
WILLIAR, JOHN POSEY, ANTHONY )
GLOTZBACK, and BARBARA WILLIAR, )
)
Appellees - Defendants. )
)
FRIEDLANDER, Judge, concurring
I fully concur in the conclusion that the Citizens have standing, pursuant to the
Public standing doctrine, to pursue their claim. I write separately to express my opinion
that the final paragraph of the lead opinion constitutes dicta. For purposes of resolving the
present appeal, we need go no further than the determination that the Citizens have
standing. This is not to say, however, that I disagree with the sentiments expressed in the
final paragraph. This case illustrates that the statutes enacted by our legislature fail to
address certain situations and circumstances that might arise when disposing of school
buildings. Although it is not relevant to our holding in the present case, I agree with my
colleagues that these gaps merit the General Assembly’s attention. Subject to these comments, I
fully concur in the lead opinion.
12