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FOR PUBLICATION

FILED
Jan 25 2008, 9:59 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: DAVID PAUL ALLEN Hammond, Indiana

ATTORNEYS FOR APPELLEE: JOHN M. MCCRUM JUSTIN M. TREASURE Eichhorn & Eichhorn, LLP Hammond, Indiana

IN THE COURT OF APPEALS OF INDIANA
DAVID PAUL ALLEN, Appellant-Plaintiff, vs. CITY OF HAMMOND, Appellee-Defendant. ) ) ) ) ) ) ) ) )

No. 45A03-0708-CV-372

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable E. Duane Daugherty, Judge Pro Tem Cause No. 45D05-0507-PL-122

January 25, 2008 OPINION - FOR PUBLICATION

BARNES, Judge

Case Summary David Allen appeals the trial court's granting of summary judgment in favor of the City of Hammond ("the City") and the denial of his motion for summary judgment on his complaint for declaratory judgment. We affirm. Issue Allen raises four issues, which we consolidate and restate as whether Allen has established that the City's business license fee is invalid. Facts On August 23, 2004, the Common Council of the City of Hammond ("Common Council") approved an amendment to the previous business license fee ordinance. The amended ordinance, Ordinance 8590, acknowledged the need to "regulate, inspect, and license certain business establishments" within the City. App. p. 48. The ordinance stated that the $100 fee was reasonable and necessary and not intended to be burdensome or punitive. The ordinance became effective July 1, 2005, and applied to: Any business, office, plant or place within the City, whether temporary or permanent in nature, and whether within or without a permanent structure, where services or professional services; manufacturing; fabrication; construction; assembly or design occur, or where commodities or goods are sold or offered for sale to the public in general or to the ultimate consumer of commodities or goods. Id. at 49. The ordinance required the City Controller to issue a business license upon finding that no apparent danger to the health, welfare, or safety of the residents of the City existed and that the requirements of this chapter and all other laws and ordinances had been met. 2

The application for a business license required basic information including the business name, address, and phone number; the applicant's name, address, and phone number; the property owner's name, address, and phone number; and the names and addresses of officers, associates, and partners. Also required was the type of

organization, the tax identification number, and the days and hours of operation. The application also included the following language: I hereby testify that I am familiar with the ordinances of the City of Hammond, Indiana, governing the operation of the above mentioned business, and I hereby further swear that I will not myself do, or authorize or permit any act to be done in violation of the laws of the United States of America, the State of Indiana, or the ordinances of the City of Hammond, Indiana in or about my place of operation. All the answers made by me to the foregoing questions are true and are made for the sole purpose of obtaining a license from the City of Hammond to operate a lawful business. Id. at 62. Allen is an attorney licensed to practice law in Indiana and maintains a law office in the City. On July 28, 2005, Allen filed a complaint for declaratory judgment against the City seeking to invalidate the ordinance. On September 29, 2006, Allen filed a motion for partial summary judgment. On November 21, 2006, the City responded and moved for summary judgment. Allen replied and responded. On June 7, 2007, the trial court held a hearing on the cross-motions for summary judgment. On July 3, 2007, the trial court denied Allen's motion for summary judgment and granted the City's motion for summary judgment. Allen now appeals.

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Analysis Allen argues that the trial court improperly granted the City's motion for summary judgment. On review of a trial court's decision to grant or deny summary judgment, we apply the same standard as the trial court. Keaton & Keaton v. Keaton, 842 N.E.2d 816, 819 (Ind. 2006). We decide whether there are genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Id. Our review is limited to those materials designated to the trial court. Sees v. Bank One, Indiana, N.A., 839 N.E.2d 154, 160 (Ind. 2005) (citing Ind. Trial Rule 56(H)). We accept as true those facts alleged by the non-moving party, construe the evidence in favor of the non-moving party, and resolve all doubts against the moving party. Id. When considering cross motions for summary judgment, the trial court is required to consider each motion separately, construing the facts most favorably to the non-moving party in each instance. Id. The parties appear to agree that under Indiana's Home Rule Act, the City is not permitted to impose a tax. See Ind. Code

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