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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEYS FOR APPELLANT: JAMES N. CLEVENGER RONALD D. GIFFORD Kizer & Neu, LLP Plymouth, Indiana ATTORNEY FOR APPELLEES: T. EDWARD UMMEL Easterday & Ummel Plymouth, Indiana

IN THE COURT OF APPEALS OF INDIANA
TOWN OF ARGOS, Appellant-Defendant, vs. HAROLD D. STEVENS and VERNA L. STEVENS, Appellees-Plaintiffs. ) ) ) ) ) ) ) ) ) )

No. 50A03-0604-CV-166

APPEAL FROM THE MARSHALL SUPERIOR COURT NO. 1 The Honorable Robert O. Bowen, Judge Cause No. 50D01-0509-PL-22

April 4, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION

SULLIVAN, Judge

Appellant-Defendant, Town of Argos ("Argos"), appeals from a judgment entered in favor or Appellees-Plaintiffs, Harold and Verna Stevens, upon their complaint seeking enforcement of an ordinance with respect to installation by Argos of certain capital improvements to parcels of land owned by the Stevenses. Upon appeal, Argos presents two issues for our review: (1) whether the trial court erred in concluding that Argos was obligated to provide certain capital improvements to parcels of land owned by the Stevenses; and (2) whether the trial court overstepped its authority in granting relief to the Stevenses. We affirm. The stipulated evidence reveals that on October 3, 2000, the Town Council of Argos ("Town Council"), located in Marshall County, Indiana, passed and adopted Resolution No. 2000-11 titled "The Annexation Plan of the Argos Town Council Annexing Certain Contiguous Territories" (the "Annexation Plan"). Stipulated Exhibit 2. 1 The Annexation Plan provided that the Town Council found it desirable to annex an area northwest of Argos which was bounded on the east by the western town boundary line and to the west by U.S. Highway 31. The southern boundary of the area to be annexed was marked by a set of railroad tracks, and the northern boundary extended north of 16th Road. Attached to the Annexation Plan was a map showing generally the area to be annexed and specifically numbering fifty-nine parcels of land ("the Territory").

Prior to the bench trial, counsel for Argos stipulated to the foundation and admissibility of Exhibits 1 through 7.

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The Territory included the Colonial Estates subdivision in which Harold and Verna Stevens own ten parcels of land. 2 The Annexation Plan established a policy to provide services of a capital and noncapital nature to "the parcels of real estate" described as part of the Territory and shown on the map attached thereto. Stipulated Exhibit 2. With regard to capital improvements, the Annexation Plan provided as follows: "Sanitary Sewer: A part of the Territory to be annexed is already served by the Town of Argos Sanitary Sewer System. The following parcels have sanitary sewer service at the present time: Parcels 4 through 7, 12 through 17, 54, and 57 through 59. Those parcels not specifically listed above will be serviced with Town sanitary sewer service within three (3) years of the date of passage of the ordinance annexing this Territory. Town Water System: Part of the Territory is already served by the Town of Argos Water System. The following is a list of parcels which already have Town water service: Parcels 4 through 8, 12 through 16, 54, and 57 through 59. The remaining parcels not specifically listed above will be provided with Town water service within three (3) years of the date of the passage of this ordinance annexing these parcels. The cost to provide both sanitary sewer and water service to the parcels which do not yet have said services is estimated to be Five Hundred Thousand Dollars ($500,000.00). Electric Service: Part of the Territory is already served by the Town of Argos Electric Utility Service. The following parcels are currently serviced by Town electric: Parcels 1 through 25, 46 and 49 through 59. The remaining parcels not specifically listed above shall be serviced by Town electric service within three (3) years of the date of passage of the ordinance annexing this Territory. The cost to bring electric service to these parcels
The Colonial Estates subdivision was platted and partially developed before the Annexation Plan was adopted by the Town Council. The Stevenses are apparently the developers of the subdivision. As numerically identified on the map of the Territory, the Stevenses own parcels 20, 22, 23, 32, 33, 34, 35, 36, 37, and 40, all within the Colonial Estates subdivision.
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has been estimated to be Sixty Thousand Dollars ($60,000.00)." Stipulated Exhibit 2. The Stevenses did not object to nor remonstrate against the stated policy regarding the Services, believing that the Annexation Plan provided for the extension of the services to each parcel of land identified on the map of the Territory to be annexed, including the ten individual parcels located within the Colonial Estates subdivision which they own. On January 2, 2002, the Town Council annexed the Territory by passing Ordinance No. 2001-01 ("the Ordinance"), which adopted the Annexation Plan. Attached to the Ordinance was a map showing generally the area to be annexed, which was consistent with the map attached to the Annexation Plan. With respect to the services provided for in the Annexation Plan, the Ordinance provided as follows: "Services of a capital improvement nature, including sewer facilities and electric service to be extended to the boundaries of the annexed Territory as per the Plan to the annexed Territory within three (3) years of the effective date of the annexation in the same manner as those services provided to areas within the Town of Argos which have similar topography, patterns of land utilization, and population density, and in a manner consistent with Federal, State and local office procedures in filing criteria." Stipulated Exhibit 1 (emphasis supplied). Thereafter, Argos extended the services to the area between the old town limit and U.S. Highway 31 and along 16th Road to a point touching upon the Colonial Estates subdivision. Argos did not extend the services to each individual parcel located within the Colonial Estates subdivision, believing that it had met its obligation by extending the services such that they were available for the developer of the subdivision to access if the developer chose to extend the services to the individual lots within the subdivision.

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In July of 2005, after the three-year time period within which Argos had to provide the services, 3 the Stevenses requested that Argos make the sewer connections and extend the services to all of their individual parcels of land located within the Colonial Estates subdivision. At the Town Council meeting on September 7, 2005, the Town Council denied the Stevenses' request. Thereafter, on September 16, 2005, the Stevenses filed a complaint seeking enforcement of the Ordinance as it specifically related to provision of the services to their parcels of land within the Colonial Estates subdivision. A bench trial was held on November 14, 2005. On January 19, 2006, the trial court entered an order finding that Argos had failed to show a valid, justifiable reason for not following the Annexation Plan and subsequent Ordinance with regard to the services to be provided to the "parcels of real estate." Appellee's Appendix at 21-22. The trial court ordered that Argos "implement the fiscal plan and provide the services as set out in [the Annexation Plan] prior to December 1, 2006." Appellee's Appendix at 22. Argos filed a motion to correct error, which the trial court denied after a hearing. It is clear from the trial court's order that it accepted the Stevenses' claims insofar as the Stevenses argue that the Annexation Plan and Ordinance adopting it clearly provide that Argos was obligated to provide the services to each individual "parcel of land" identified on the map as part of the Territory to be annexed, including each individual parcel of land located within the Colonial Estates subdivision. The Stevenses support their argument by noting the fact that each individual parcel of land within the
The Ordinance annexing the Territory was effective as of January 2, 2002. Per the Annexation Plan and the Ordinance, Argos was to provide the services to the Territory within three years of such date, i.e. January 2, 2005.
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Colonial Estates subdivision is enumerated as a separate parcel on the map attached to the Annexation Plan. Further, the Annexation Plan specifically identified which parcels of land, as separately enumerated on the map attached to the Annexation Plan, have already been provided with the services and then provides that the "parcels not specifically listed . . . will/shall be serviced/provided with" sanitary sewers, water service, and electric service. Finally, the Stevenses point out that the Colonial Estates subdivision was platted and partially developed prior to the Annexation Plan and that each parcel of land is separately taxed. Upon appeal, Argos contends that the trial court wrongly determined that the Annexation Plan and Ordinance required Argos to provide the services to each individual parcel of land within the Colonial Estates subdivision. Argos first directs us to Indiana Code

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