Utility Center, Inc. v. City of Fort Wayne

834 N.E.2d 686, 2005 Ind. App. LEXIS 1742, 2005 WL 2233576
CourtIndiana Court of Appeals
DecidedSeptember 15, 2005
Docket02A04-0410-CV-576
StatusPublished
Cited by9 cases

This text of 834 N.E.2d 686 (Utility Center, Inc. v. City of Fort Wayne) 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
Utility Center, Inc. v. City of Fort Wayne, 834 N.E.2d 686, 2005 Ind. App. LEXIS 1742, 2005 WL 2233576 (Ind. Ct. App. 2005).

Opinions

OPINION

BAILEY, Judge.

Case Summary

Appellant-Plaintiff Utility Center, Incorporated ("Utility Center") appeals the trial court's grant of summary judgment in favor of Appellee-Defendant, the City of Fort Wayne ("City"). We affirm in part, reverse in part, and remand.1

Issues

Utility Center raises two issues on appeal, which we restate as:

I. Whether the trial court abused its discretion by striking the affidavit of David C. Long; and
II. Whether the trial court erroneously granted summary judgment to City because City failed to adhere to the procedures enunciated in Indiana Code 8-1-8380 when it initiated the condemnation of Utility Center's property through the process of eminent domain.2

[689]*689Facts and Procedural History

Utility Center is a for-profit corporation, which operates a public utility under the assumed name of Aqua Indiana, Incorporated. In particular, Utility Center holds indeterminate permits, issued by the Indiana Utility Regulatory Commission ("Commission"), to render water and sewage disposal service to consumers in certain areas of Allen County. Utility Center's sewer and water facilities in Allen County are divided into two geographic systems: (1) the North System, which is the subject of the present condemnation proceeding; and (2) the Aboite System, which is not at issue in this case. All of the North System's assets are located within City's corporate limits or in contiguous territory not more than six miles from the corporate limits.

On June 12, 2002, City-which owns and operates municipal sewer and water utilities within Fort Wayne's corporate limits-through its Board of Public Works ("Board") adopted Resolution Number 89-183-6 ("Resolution 89-183-6"), initiating condemnation proceedings under now-Indiana Code 32-24-2 to acquire Utility Center's North System. In passing Resolution 89-183-6, the Board determined that: (1) customers of Utility Center's North System "would receive higher quality, lower cost water and wastewater utility service if they were customers of [City;]" (2) to best serve these customers, City should acquire the water and wastewater utility property of the North System; (3) City has made numerous attempts to persuade Utility Center to negotiate a purchase price for acquisition of the North System, but the latter has been unwilling to negotiate in any manner; (4) as a result of Utility Center's refusal to negotiate, it is necessary for City to condemn and appropriate the North System. Appellant's App. at 163.

Pursuant to Indiana Code 82-24-2, which sets forth the general procedures to be followed when a municipality, such as City, wishes to acquire property-ie., real or personal-for the use of the municipality, through eminent domain, City published a notice of Resolution 89-1838-6 in two Fort Wayne newspapers of general cireu-lation for two consecutive weeks. The notice, which was last published on June 21, 2002, informed the general public that the Board would receive or hear remonstrances from anyone interested in the proceeding on July 3, 2002, at 9:00 a.m. The Board held the remonstrance hearing on July 3, and Utility Center was the only entity or person to appear or remonstrate at that hearing.

On July 10, 2002, the Board adopted Resolution Number 89-211-1, which confirmed and reaffirmed Resolution 89-183-6 and provided a list of property owners affected by the condemnation, ie., Utility Center. On June 18, 2003, the Board adopted Resolution Number 90-199-6, which continued the condemnation process and authorized City officials to hire two appraisers to determine the appropriate value of the North System. Subsequently, on December 17, 2008, the Board passed Resolution Number 90-402-39, accepting [690]*690the appraiser's reports, valuing the North System at $17,202,499.50-i.e., the average of the two appraisals-and scheduling a hearing on January 14, 2004 to hear remonstrances concerning the valuation. The January 14th hearing was continued pending resolution of the present dispute.

On July 25, 2002, Utility Center filed a complaint for declaratory judgment against City, alleging that City had failed to follow the proper eminent domain or condemnation statute when it initiated the condemnation proceedings to acquire the North System. On January 23, 2004, City filed a motion for summary judgment, arguing that: (1) under Indiana Code Seetion 8-1-2-98, Utility Center waived its right to object to the present condemnation when it accepted the indeterminate permit to own and operate the utility; (2) Indiana Code 32-24-2 is a proper procedure for City to have employed for the condemnation proceedings; and (8) Indiana Code 8-1.5-2 provides optional condemnation proceedings, which City was not required to follow in acquiring the North System.

In response, on February 26, 2004, Utility Center filed a motion for summary judgment, seeking, in part, a declaration that City must follow the procedures enunciated in Indiana Code 8-1-80 to condemn the North System. To support its summary judgment motion, Utility Center designated as evidence the affidavit of David C. Long ("Long Affidavit"), the state senator who authored Senate Bill 177, which contains the language that was eventually adopted by the Indiana Legislature as Indiana Code Section 8-1-30-6. At the hearing on the cross motions for summary judgment, City orally moved to strike the Long Affidavit, which the trial court granted. At the conclusion of the hearing, the trial court entered findings of fact and conclusions thereon, denying Utility Center's motion for summary judgment and entering summary judgment in favor of City. It is from this order that Utility Center now appeals.

Discussion and Decision

I. Summary Judgment Standard of Review

On review of a trial court's decision to grant or deny summary judgment, we apply the same standard as the trial court: we must decide whether there is a genuine issue of material fact that precludes summary judgment and whether the moving party is entitled to judgment as a matter of law. Carie v. PSI Energy, Inc., 715 N.E.2d 853, 855 (Ind.1999). Once the moving party has sustained its initial burden of proving the absence of a genuine issue of material fact and the appropriateness of judgment as a matter of law, the party opposing summary judgment must respond by designating specific facts establishing a genuine issue for trial. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind.1992). We may consider only those portions of the pleadings, depositions, and any other matters specifically designated to the trial court by the parties for purposes of the motion for summary judgment. Ind. Trial Rule 56(C), (H). Any doubt as to the existence of an issue of material fact, or an inference to be drawn from the facts, must be resolved in favor of the nonmoving party. Cowe v. Forum Group, Inc., 575 N.E.2d 630, 633 (Ind.1991). Although the nonmovant has the burden of demonstrating that the grant of summary judgment was erroneous, we carefully assess the trial court's decision to ensure that the nonmovant was not improperly denied his or her day in court. Colonial Penn Ins. Co. v.

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834 N.E.2d 686, 2005 Ind. App. LEXIS 1742, 2005 WL 2233576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/utility-center-inc-v-city-of-fort-wayne-indctapp-2005.