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ATTORNEY FOR APPELLANT
Corinne R. Finnerty McConnell & Finnerty North Vernon, Indiana

ATTORNEY FOR APPELLEES
Mary Ann Gay Versailles, Indiana Adam Arceneaux Brian Bailey Ice Miller Indianapolis, Indiana

ATTORNEYS FOR AMICI CURIAE
Bette J. Dodd Lewis & Kappes, P.C. Indianapolis, Indiana Jo Angela Woods Indiana Association of Cities & Towns Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 40S01-0404-CV-184 CITY OF NORTH VERNON, INDIANA, Appellant (Defendant below), v. JENNINGS NORTHWEST REGIONAL UTILITIES; VANCE D. FUNKHOUSER, MAX A. WILEY, NORMA TEEPLE, DONALD MCCAULEY, LYNN H. CLARK, JOLENE MCQUEEN AND PAUL MICHAEL IRWIN, IN THEIR CAPACITY AS TRUSTEES OF THE JENNINGS NORTHWEST REGIONAL UTILITIES, Appellees (Plaintiffs below). _________________________________ Appeal from the Jennings Superior Court, No. 40D01-9910-CP-296 The Honorable Carl H. Taul, Special Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 40A01-0304-CV-145 _________________________________ June 14, 2005 Rucker, Justice.

This case requires us to determine what happens when there is an overlap between the sewage service area of a regional sewer district and the sewage service area of a municipality. Under the facts presented we conclude the municipality prevails.

Facts and Procedural History

Located in Jennings County, the City of North Vernon ("the City") operates a wastewater treatment and collection facility. The City has the statutory authority to provide wastewater services inside its corporate boundaries as well as within a ten-mile radius outside its corporate boundaries. In 1996, the Jennings County Commissioners filed a petition with the Indiana Department of Environmental Management ("IDEM") requesting IDEM to form a regional water and sewer district for the northwest portion of Jennings County. IDEM granted the petition and entered an order establishing Jennings Northwest Regional Utilities ("JNRU"). Among other things the order authorized JNRU to provide sewer services to Geneva Township, Center Township, Spencer Township, and portions of Sand Creek Township.

The order excluded the City's corporate boundaries from JNRU's service area. But at the time the order was entered, the City was already providing sewer services to areas of the county that IDEM identified as JNRU's service district. Those areas are within ten miles outside of the City's corporate boundaries. Sand Creek Elementary School ("the School"), which was then in the planning stages for construction, is located within that ten-mile radius.

Both JNRU and the City approached the School about connecting to their respective sewer lines and providing sewer services. Over JNRU's objection, School officials entered into a thirty-year service agreement with the City. The City is currently servicing the School and has done so since the School opened in the year 2000. Although JNRU eventually plans to do so, it had not constructed sewer facilities for the School as late as May 2004.

JNRU filed a complaint against the City seeking a declaratory judgment that JNRU had the exclusive right to serve the School and that the City did not. The City moved to dismiss JNRU's complaint and attached various exhibits in support. As a result, the trial court treated the

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City's motion as a motion for summary judgment.

See Ind. Trial Rule 12(B)(8).

JNRU

responded with its own motion for summary judgment. After conducting a hearing, the trial court entered summary judgment in JNRU's favor. Among other things the trial court

concluded: (i) the City's right to provide sewer services to Sand Creek Elementary School is contingent upon JNRU's consent and agreement, (ii) JNRU has never agreed or consented to the City's exercise of power to provide sewer services to the School, and (iii) without JNRU's consent or agreement, the City has no right to provide sewer services to the School. On review the Court of Appeals affirmed the judgment of the trial court. See North Vernon v. Jennings Northwest Regional Utilities, 799 N.E.2d 1068 (Ind. Ct. App. 2003). Having previously granted transfer, we now reverse the trial court's judgment.

When reviewing a grant or denial of summary judgment our well-settled standard of review is the same as it is for the trial court: we examine whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Indiana Univ. Med. Ctr., Riley Hosp. for Children v. Logan, 728 N.E.2d 855, 858 (Ind. 2000). Summary judgment should be granted only if the evidence sanctioned by Indiana Trial Rule 56(C) shows that there is no genuine issue of material fact and the moving party deserves judgment as a matter of law. Gunkel v. Renovations, Inc., 822 N.E.2d 150, 152 (Ind. 2005). All evidence must be construed in favor of the opposing party, and all doubts as to the existence of a material issue must be resolved against the moving party. Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind. 1996).

Discussion

JNRU was created under the auspices of Indiana Code section 13-26-1-1 et seq., which governs the establishment of regional water and sewer districts. The statute provides in relevant part, "Any area may be established as a regional water, sewage, or solid waste district under this article for one (1) or more of the following purposes: . . . (2) To provide for the collection, treatment, and disposal of sewage inside and outside the district." Ind. Code

Download City of North Vernon v. Jennings Northwest Regional Utilities.pdf

Indiana Law