ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEES:
MATTHEW JON McGOVERN ANNE MARIE GALLIGAN
GORDON D. INGLE Jeffersonville, Indiana
IN THE COURT OF APPEALS OF INDIANA
RONALD JACKSON, ) ) Appellant-Plaintiff, ) ) vs. ) No. 10A01-0112-CV-456 ) CITY OF JEFFERSONVILLE; MAYOR ) TOM GALLIGAN, individually and in his ) official capacity; COMMON COUNCIL OF ) THE CITY OF JEFFERSONVILLE; ) RONALD ELLIS, individually and in his ) official capacity; LESLIE MERKLEY, ) individually and in his official capacity; ) RONALD GROOMS, individually and in his ) official capacity; VICKI CONLIN, individually ) and in her official capacity; BOB WAIZ, ) individually and in his official capacity; ) BARBARA WILSON, individually and in her ) official capacity; DENNIS FRANTZ, ) individually and in his official capacity, ) ) Appellees-Defendants. )
APPEAL FROM THE CLARK CIRCUIT COURT
The Honorable Daniel F. Donahue, Judge
Cause No. 10C01-0101-CP-011
July 18, 2002
OPINION - FOR PUBLICATION
Ronald Jackson appeals the trial courts denial of his motion for default judgment
and the denial of his appeal against the City of Jeffersonville (Jeffersonville), the
Common Council of the City of Jeffersonville (Council), and members of the Council
(Members) (collectively, the Appellees). Jackson raises two issues, which we restate as:
Whether the trial court abused its discretion when it denied his motion for default judgment; and
Whether the trial court erroneously denied his annexation appeal because it misinterpreted Ind.
Code §§ 36-4-3-15.5.
The relevant facts follow. On August 7, 2000, the Council adopted Resolution 2000-R-30, which established a written fiscal policy for services to Annexation Area 7. The Council also adopted Ordinance 2000-OR-46, which annexed Area 7. The total boundary of Area 7 measures 110,888.85 feet, and 15,782.85 feet of that boundary is contiguous to the boundary of Jeffersonvilles existing municipal limits. Consequently, Area 7 shares 14.23% of its total boundary with Jeffersonville.
Jackson owns property within one-half of a mile outside the boundary of Area 7. On January 8, 2001, he filed an appeal against Jeffersonvilles annexation of Area 7 pursuant to Ind. Code § 36-4-3-15.5. On March 26, 2001, the trial court held a pre-trial conference wherein the Appellees agreed to stipulate that Jacksons complaint was sufficient. Jackson did not issue a summons to the Appellees after his complaint was deemed sufficient. Rather, two days after the pre-trial conference, Jackson filed a motion for default judgment alleging that the Appellees had failed to file an answer to his complaint within twenty days from the date of service as required by Ind. Trial Rule 6. On April 23, 2001, the Appellees filed an answer to Jacksons complaint. Subsequently, the trial court conducted a hearing on both Jacksons motion for default judgment and on the merits of his annexation appeal. On November 5, 2001, the trial court denied Jacksons motion for default judgment and denied his annexation appeal.
(Emphasis added). The procedure outlined in Ind. Code § 36-4-3-15.5(c) establishes a
certain sequence of events. First, the trial court must determine that the
petitioners complaint is sufficient. Id. Second, the trial court shall schedule
a hearing within sixty days of its determination that the complaint is sufficient.
Id. Then, the petitioner shall serve notice of the proceedings by
summons upon the proper officers of the annexing municipality. Id. Finally,
the municipality shall become a defendant and is required to appear and answer.
Thus, under Ind. Code § 36-4-3-15.5, the petitioners annexation appeal becomes a complaint or its equivalent, as contemplated by Ind. Trial Rules 3 and 6, only after the trial court determines that it is sufficient and a petitioner serves summons on each defendant. As such, Ind. Trial Rules 3 and 6 are harmonious with Ind. Code § 36-4-3-15.5, in that the annexation petitioners civil action is not commenced, under Ind. Trial Rule 3, until the trial court determines that his or her complaint is sufficient. After such determination, the petitioner is required to serve a copy of the complaint and summons upon each defendant and each defendant, in turn, has twenty days after service in which to answer the complaint. See Ind. Trial Rule 6(C).
In the present case, our review of the Record reveals that the trial court deemed Jacksons complaint sufficient on March 26, 2001 and, at that time, it scheduled the matter for hearing within sixty days. However, Jackson never served summonses upon the Appellees. See footnote By the plain language of Ind. Code § 36-4-3-15.5, the Appellees were not required to appear and answer Jacksons complaint until Jackson followed statutory procedure and served them with a summons. Because the Appellees were never served with a summons of Jacksons complaint as required by Ind. Code § 36-4-3-15.5 and Ind. Trial Rule 3, the Appellees answer could not have been late. The trial court properly denied Jacksons motion for default judgment. See, e.g., R.R. Donnelley, 752 N.E.2d at 126 (affirming the trial courts denial of default judgment where plaintiff filed motion for default judgment four days after defendant sought a stay of proceedings pending interlocutory appeal).
The pertinent portion of Ind. Code § 36-4-3-13 that Jackson contends is applicable
here and which the subject annexation fails to satisfy follow:
That the territory sought to be annexed is contiguous to the municipality as required by section 1.5 of this chapter, except that at least one-fourth (1/4), instead of one-eighth (1/8), of the aggregate external boundaries of the territory sought to be annexed must coincide with the boundaries of the municipality.
That the territory sought to be annexed is needed and can be used
by the municipality for its development in the reasonably near future.
Thus, the question becomes whether the contiguity requirements to survive a remonstrance pursuant
to Ind. Code §§ 36-4-3-11, -12, and -13 apply to an appeal pursuant
to Ind. Code § 36-4-3-15.5 or whether the contiguity requirements to survive an
appeal pursuant to Ind. Code § 36-4-3-15.5 are those stated in Ind. Code
Our purpose in construing a statute is to ascertain and give effect to the intention of the legislature as expressed in the statute. See footnote City of Muncie v. Lowe, 705 N.E.2d 528, 531 (Ind. Ct. App. 1999), trans. denied. The objects and purposes of the statute in question must be considered as well as the effect and consequences of such interpretation. State v. Windy City Fireworks, Inc., 600 N.E.2d 555, 558 (Ind. Ct. App. 1992), adopted on trans., 608 N.E.2d 699 (Ind. 1993). When interpreting the words of a single section of a statute, we must construe them with due regard for all other sections of the act and with regard for the legislative intent to carry out the spirit and purpose of the act. Lowe, 705 N.E.2d at 531. Indeed, statutory provisions cannot be read standing alone; rather, they must be construed in light of the entire act of which they are a part. Deaton v. City of Greenwood, 582 N.E.2d 882, 885 (Ind. Ct. App. 1991). We presume that the legislature intended its language to be applied in a logical manner consistent with the statutes underlying policy and goals. Id. We further presume that words appearing in the statute were intended to have meaning, and we endeavor to give those words their plain and ordinary meaning absent a clearly manifested purpose to do otherwise. Ind. Dept of Human Serv. v. Firth, 590 N.E.2d 154, 157 (Ind. Ct. App. 1992), trans. denied.
Jackson acknowledges that he, as an owner of property located within one half of a mile outside the boundary of Area 7, filed his annexation appeal pursuant to Ind. Code § 36-4-3-15.5. As such, Jackson recognizes that he may only challenge the annexation [of Area 7] on the ground that the [Area 7] is not contiguous with the annexing municipality. Appellants Brief at 8; see also Ind. Code § 36-4-3-15.5. However, Jackson argues that, in determining whether Area 7 is contiguous to Jeffersonville, the trial court should have applied Ind. Code § 36-4-3-13.
The problem with Jacksons argument is that Ind. Code § 36-4-3-13, by its plain and unambiguous language, refers specifically to the hearing under Ind. Code § 36-4-3-12. Ind. Code § 36-4-3-12, in turn, refers specifically to the hearing held under Ind. Code § 36-4-3-11. See footnote Accordingly, the so-called additional factors for a determination of contiguity enumerated in Ind. Code § 36-4-3-13 are only applicable to annexation appeals by remonstrance filed pursuant to Ind. Code § 36-4-3-11. As such, the additional factors do not apply to Jacksons appeal, which was filed pursuant to Ind. Code § 36-4-3-15.5. As a result, the trial court did not need to follow the definition of contiguity provided in Ind. Code § 36-4-3-13.
Moreover, viewing the Annexation Act as a whole, the existence of Ind. Code § 36-4-3-1.5 would appear to preclude Jacksons interpretation that the legislature intended for the more stringent definition of contiguity, under Ind. Code § 36-4-3-13, to apply to an appeal pursuant to Ind. Code § 36-4-3-15.5. If the legislature had intended the additional requirements of contiguity, provided in Ind. Code § 36-4-3-13, to apply to both a remonstrance under Ind. Code § 36-4-3-11 and an appeal under Ind. Code § 36-4-3-15.5, Ind. Code § 29-1-2-2 would have no apparent purpose. Again, Ind. Code § 36-4-3-1.5 provides, in pertinent part, that: For purposes of this chapter, territory sought to be annexed may be considered contiguous only if at least one-eighth (1/8) of the aggregate external boundaries of the territory coincides with the boundaries of the annexing municipality. (Emphasis added). The definition of contiguity is only pertinent to two sections in chapter 36: (1) a remonstrance under Ind. Code § 36-4-3-11; and (2) an appeal under Ind. Code § 36-4-3-15.5. However, as discussed above, the legislature intended a more stringent definition of contiguity to apply to a remonstrance by residents of the annexed territory as evidenced by the express language of Ind. Code §§ 36-4-3-11 and -13(c), which provides, in part: the territory sought to be annexed is contiguous to the municipality as required by section 1.5 of this chapter, except that at least one-fourth (1/4), instead of one-eighth (1/8), of the aggregate external boundaries of the territory sought to be annexed must coincide with the boundaries of the municipality. The language of Ind. Code § 36-4-3-15.5 does not contain any such exception. Thus, assuming that the legislature intended Ind. Code § 36-4-3-1.5 to be meaningful, we hold that the definition of contiguity found in Ind. Code § 36-4-3-1.5 applies to an appeal under Ind. Code § 36-4-3-15.5.
Here, the Record reveals that the boundary shared between Area 7 and Jeffersonville equals 14.23% of Area 7s total boundary. As such, Area 7 is contiguous to the municipal boundary of Jeffersonville. Accordingly, the trial court did not err by denying Jacksons annexation appeal. See Ind. Code § 36-4-3-15.5; see, e.g., Delph v. Town Council of Town of Fishers, 596 N.E.2d 294, 297-298 (Ind. Ct. App. 1992).
For the foregoing reasons, we affirm the trial courts denial of Jacksons motion for default judgment and its denial of Jacksons appeal.
BROOK, C. J., and FRIEDLANDER, J., concur
(1) on the date fixed under section 11 of this chapter, hear and
determine the remonstrance without a jury; and
(2) without delay, enter judgment on the question of the annexation according to the evidence that either party may introduce.