Herdt v. City of Jeffersonville

891 N.E.2d 1157, 2008 Ind. App. LEXIS 1787
CourtIndiana Court of Appeals
DecidedAugust 15, 2008
DocketNo. 10A01-0804-CV-167
StatusPublished
Cited by7 cases

This text of 891 N.E.2d 1157 (Herdt v. City of Jeffersonville) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Herdt v. City of Jeffersonville, 891 N.E.2d 1157, 2008 Ind. App. LEXIS 1787 (Ind. Ct. App. 2008).

Opinion

OPINION

BROWN, Judge.

Bruce Herdt, Louis Evans, and Charlie Milburn (collectively “Remonstrators”) appeal the trial court’s dismissal of their complaint against the City of Jeffersonville (“City”) and the Common Council of the City of Jeffersonville. The Remonstrators raise three issues, which we revise and restate as whether the trial court erred when it dismissed their complaint for lack of jurisdiction. We affirm.

The relevant facts follow. On August 6, 2007, the City’s Common Council adopted Ordinance No.2007-OR-10, which proposed to annex to the City six tracts of contiguous real estate in Clark County comprising approximately 7,806 acres and including, according to the City, 3,660 households.1 The City published the ordinance in a local newspaper on August 28, 2007. On November 26, 2007, ninety days after publication of the ordinance, the Re-monstrators filed a “complaint for remonstrance” on behalf of the landowners of Tract B, one of the six tracts to be annexed by the City.2 Appellant’s Appendix at 1. The complaint, which was signed only by the Remonstrators’ attorneys, recited that, in conformance with Ind.Code § 36-4-3-ll(a), the Remonstrators represented “no less than sixty-five percent (65%) of the landowners within [Tract] B or seventy-five percent (75%) of the assessed valuation of the land” that the City was attempting to annex. Id. The complaint also recited that the Remonstrators were “in possession of the original signature list containing the signatures of 2,632 landowners, which will be submitted to the Court and opposing counsel after copying as Petitioners’ Exhibit 1.” Id. at 1-2.

On November 28, 2007, the Remon-strators filed the signature lists as an exhibit to their complaint for remonstrance. On November 29, 2007, the Remonstrators filed an amended complaint for remonstrance along with the signature lists as an exhibit. That same day, the City filed a motion to set a hearing to determine the sufficiency of the signatories and a motion to dismiss the remonstrance on the grounds that the trial court “lack[ed] sub[1160]*1160ject matter jurisdiction as the result of the Remonstrators’ failure to timely comply with the jurisdictional filing requirements established by IC § 36-4-3-11(a).” Id. at 572.

After a hearing, on March 10, 2008, the trial court granted the City’s motion to dismiss for lack of jurisdiction, holding that the “original complaint was filed without signatures and the court will not permit the belated addition of signatures in an effort to satisfy the statutory requirements.” Id. at 689. The trial court also denied the Remonstrators’ “request to include the [landowners’] signatures as a part of the amended complaint” because “the signatures are not a part of the complaint.” Id. The Remonstrators later filed a motion to correct errors, which the trial court denied. The trial court granted, however, the Remonstrators’ motion for stay and held that the City “shall not pursue any efforts to annex Tract B while the appeal of this Court’s prior ruling is pending.” Id. at 690.

The issue is whether the trial court erred when it dismissed the Remon-strators’ complaint for remonstrance for lack of jurisdiction. The Indiana Supreme Court clarified jurisdiction concepts in K.S. v. State, 849 N.E.2d 538 (Ind.2006). The Court held:

Like the rest of the nation’s courts, Indiana trial courts possess two kinds of “jurisdiction.” Subject matter jurisdiction is the power to hear and determine cases of the general class to which any particular proceeding belongs. Personal jurisdiction requires that appropriate process be effected over the parties.
Where these two exist, a court’s decision may be set aside for legal error only through direct appeal and not through collateral attack. Other phrases recently common to Indiana practice, like “jurisdiction over a particular case,” confuse actual jurisdiction with legal error, and we will be better off ceasing such characterizations.

Id. at 540. “Jurisdiction over the case” refers rather to various procedural prerequisites to the exercise of subject matter jurisdiction. Packard v. Shoopman, 852 N.E.2d 927, 930 (Ind.2006). The issue of a party’s failure to satisfy such procedural prerequisites is properly raised by means of a motion under Ind. Trial Rule 12(B)(1) for lack of jurisdiction or 12(B)(6) for failure to state a claim, depending on whether the claimed defect is apparent on the face of the complaint. See id. at 930-931 (quoting Wayne County Property Tax Assessment Bd. of Appeals v. United Ancient Order of Druids-Grove # 29, 847 N.E.2d 924, 926 (Ind.2006)). Thus, the City properly raised this issue by way of a motion to dismiss.

The standard of appellate review for a motion to dismiss for lack of jurisdiction is a function of what occurred in the trial court. GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind.2001). The standard of review is dependent upon “(i) whether the trial court resolved disputed facts; and (n) if the trial court resolved disputed facts, whether it conducted an evidentiary hearing or ruled on a ‘paper record.’ ” Id. Here, the relevant facts before the trial court were not in dispute, and the question of jurisdiction is purely one of law. See id. Consequently, our review is de novo. Id.; see also M-Plan, Inc. v. Ind. Comprehensive Health Ins. Ass’n, 809 N.E.2d 834, 837 (Ind.2004).

Annexation is an essentially legislative function. Bradley v. City of New Castle, 764 N.E.2d 212, 215 (Ind.2002) (citing Rogers v. Mun. City of Elkhart, 688 N.E.2d 1238, 1239 (Ind.1997)). It is subject to judicial review only as provided by statute, and “[t]he larger object of the [1161]*1161annexation statute is, as it always has been, to permit annexation of adjacent urban territory.” Id. (quoting Rogers, 688 N.E.2d at 1242). Therefore, a landowner’s challenge to annexation is not a regular lawsuit, but rather a special proceeding the General Assembly may control. Id. (citing Thorn v. Silver, 174 Ind. 504, 510, 89 N.E. 943, 946 (1909)).

We have previously stated that “Ind.Code § 36-4-3-ll(a) provides the specific averments necessary for a remonstrance to be valid and confer jurisdiction on the court” and that, “[sjhould the remonstrance be found insufficient, the trial court is without subject matter jurisdiction over the action and cannot proceed further.” Sons v. City of Crown Point, 691 N.E.2d 1237, 1239 (Ind.Ct.App.1998). However, in light of

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