ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES:
CORINNE R. FINNERTY MARY ANN GAY
McConnell & Finnerty Versailles, Indiana
North Vernon, Indiana
COURT OF APPEALS OF INDIANA
CITY OF NORTH VERNON, INDIANA, )
vs. ) No. 40A01-0304-CV-145
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, )
APPEAL FROM THE JENNINGS SUPERIOR COURT
The Honorable Carl H. Taul, Special Judge
Cause No. 40D01-9910-CP-296
December 5, 2003
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
In October 1999, Jennings Northwest Regional Utilities and Vance D. Funkhouser, Max A.
Wiley, Norma Teeple, Donald McCauley, Lynn H. Clark, Jolene McQueen, and Paul Michael
Irwin, in their capacities as Trustees of Jennings Northwest Regional Utilities (collectively JNRU),
filed a declaratory judgment action against the City of North Vernon, Indiana (the
City), asking the trial court to determine that JNRU is authorized to provide
sewer services to Sand Creek Elementary School (the School) and that the City
has no right to provide such services. The City moved to dismiss
JNRUs action, and the trial court treated that motion as one for summary
judgment. JNRU then filed its own summary judgment motion. In December
2002, the trial court entered judgment in favor of JNRU. The City
filed a Motion to Correct Error and, following a hearing, the trial court
issued its Modified Summary Judgment ruling reaffirming its judgment in JNRUs favor.
The City now appeals and presents the following issues for review:
1. Whether the trial court erred as a matter of law when it concluded
that JNRU is authorized to provide sewer services to the School and that,
absent JNRUs consent or agreement, the City has no right to provide sewer
services to the School.
2. Whether the trial court issued an advisory opinion.
3. Whether JNRU is judicially estopped from seeking a declaratory judgment.
FACTS AND PROCEDURAL HISTORY
The City is located in Jennings County and owns and operates a wastewater
treatment plant and collection system. By statute, the City may provide sewer
services within its corporate boundaries and to an area outside those boundaries within
a ten-mile radius. See Ind. Code § 36-9-23-16; Ind. Code § 36-9-23-36.
In 1995, the Jennings County Commissioners petitioned the Indiana Department of Environmental
Management (IDEM) for an order establishing a regional water and sewer district to
provide water and sewer services to a specific portion of Jennings County.
In November 1996, IDEM issued an order pursuant to Indiana Code Section 13-26-2-10
establishing JNRU. Specifically, the IDEM order authorized JNRU to provide sewer services
to Geneva Township, as well as portions of Sand Creek, Center, and Spencer
Townships in Jennings County. The order specifically excluded the Citys corporate boundaries
from JNRUs district. But portions of the County that the City had
been serving before JNRU was created overlapped with portions of JNRUs district.
Following IDEMs order, JNRU purchased the utility assets of CSL Utilities,
Inc. and CSL Services, Inc., entities which provided water and sewer service within
the Country Squire Lake subdivision in Jennings County. JNRU then developed a
plan to expand service out into its district, which included constructing a sewer
line to the then-proposed Sand Creek Elementary School. The School was to
be completed in 2000, and it was located within ten miles of the
Citys corporate boundaries.
In September 1998, the City filed a declaratory judgment action challenging the IDEM
order which established JNRU. The City alleged, in part, that IDEM did
not follow applicable statutes when it established JNRU and, thus, JNRU lacked authority
to prevent the City from expanding its sewer services beyond its corporate boundaries.
JNRU responded that the Citys claim should be dismissed because it failed
to follow the statutory procedures for challenging IDEMs order under the Administrative Orders
and Procedures Act. The trial court dismissed the Citys complaint, and this
court affirmed that ruling on appeal. City of North Vernon v. Funkhouser,
725 N.E.2d 898 (Ind. Ct. App. 2000).
Both JNRU and the City approached the School about connecting to their respective
sewer lines and providing sewer services. In July 1999, JNRU sent the
School a letter concerning the execution of a service contract and conveyance of
the necessary easements. The School responded that it did not intend to
connect to JNRUs service line but, instead, would enter into a service agreement
with the City. JNRU then informed both the School and the City
that JNRU would provide service to the School because it was located within
JNRUs service district. Nevertheless, the City entered into a thirty-year service contract
with the School and has provided service to the School since it opened
JNRU filed its complaint for declaratory relief in October 1999. At that
time, JNRU had begun constructing sewer lines to serve the School but was
not ready to provide service. The City moved to dismiss JNRUs complaint,
arguing, in part, that JNRU was judicially estopped from seeking a declaratory judgment
to establish its right to serve the School because of arguments JNRU had
raised previously in litigation. The trial court treated the Citys motion as
a motion for summary judgment because the City had attached various exhibits to
its motion. See Ind. Trial Rule 12(B)(8). JNRU then filed its
motion for summary judgment. The trial court entered judgment in JNRUs favor
and later issued a modified order affirming that judgment, which provides in relevant
CONCLUSIONS OF LAW
* * *
2. This lawsuit deals only with the provision of sewer services from the date
of JNRUs creation.
3. JNRU is a regional water and sewer district organized and operating under and
deriving its powers from Title 13, Article 26 of the Indiana Code.
4. JNRU is an independent political entity of the State of Indiana, a body
corporate and political.
5. JNRU is an independent municipal corporation under I.C. 13-26-2-10(a) whose purpose is the
collection, treatment and disposal of sewage from within the District.
6. The State of Indiana, through [IDEM], expressly granted JNRU the power to provide
sewage collection, treatment and disposal services within its territorial jurisdiction.* * *
9. [The City] has exclusive jurisdiction over the sewers and drains inside its corporate
boundaries under I.C. 36-1-3-9.
10. [The City] has the power to construct, operate and maintain sewage works under
I.C. 36-9-23-2 and 36-9-2-17.
11. [The City] has the discretionary power to provide sewer service in areas within
ten (10) miles outside its corporate boundaries under I.C. 36-9-23-36.
12. [The City], under Indianas Home Rule Statute, I.C. 36-1-3-5 may exercise its power
to provide sewer service to the extent that the power is not expressly
granted to another entity.
13. [The City] may exercise its power to provide sewer service extraterritorially if the
exercise of that power does not conflict with the grant of the same
power to another municipal corporation.
14. [The Citys] right to exercise its power extraterritorially is not absolute.
15. [The City] and JNRU do not have concurrent territorial jurisdiction within JNRUs district.
16. JNRU has primary territorial jurisdiction over the provision of sewer service within its
district since its creation.
17. JNRU has primary territorial jurisdiction over the provision of sewer service to Sand
Creek Elementary School.
18. [The City] may legally exercise its power to provide sewer service in areas
outside its corporate boundaries only if both the municipality and the municipal corporation
enter into an interlocal cooperation agreement under I.C. 36-1-7, et seq.
19. [The Citys] right to provide sewer service extraterritorially to Sand Creek Elementary School
is contingent upon JNRUs consent and agreement thereto.
20. JNRU has never agreed or consented to or acquiesced in [the Citys] exercise
of its power to provide sewer service extraterritorially to Sand Creek Elementary School.* * *
22. Without JNRUs consent or agreement, [the City] has no right to provide sewer
service to Sand Creek Elementary School.
23. [The Citys] act of providing sewer service to Sand Creek Elementary School is
ultra vires and without legal basis.
24. There is no genuine issue of material fact.
25. JNRU is entitled to judgment as a matter of law.
This appeal ensued. DISCUSSION AND DECISION
Standard of Review
When reviewing the grant or denial of summary judgment, we use the same
standard used by the trial court. Allstate Ins. Co. v. Smith, 656
N.E.2d 1156, 1157 (Ind. Ct. App. 1995). Summary judgment is appropriate only
when the evidentiary matter designated by the parties shows that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. Id.; Ind. Trial
Rule 56(C). In the context of cross-motions for summary judgment, the trial
court must deal with each motion separately, construing the facts and inferences to
be drawn therefrom in a light most favorable to the non-moving party.
Allstate, 656 N.E.2d at 1157. If the facts are undisputed, our task
is to determine the law applicable to those facts, and whether the trial
court correctly applied it. Id.
Here, the trial court issued findings and conclusions in support of its summary
judgment entry. Although we are not bound by those findings and conclusions,
they aid our review by providing reasons for the trial courts decision.
Ebersol v. Mishler, 775 N.E.2d 373, 378 (Ind. Ct. App. 2002). If
the trial courts summary judgment can be sustained on any theory or basis
in the record, we must affirm. Id.
Indiana Code Section 13-26-2-1 et seq. governs the establishment of regional water and
sewage districts. A regional district, once established, is an independent municipal corporation.
I.C. § 13-26-2-10. Indiana Code Section 13-26-5-2 sets forth the powers
of a regional district, which includes the districts authority to exercise its powers
without obtaining the consent of other entities. JNRU is a regional district
with those powers enumerated at Indiana Code Section 13-26-5-2.
The City, however, is a municipality, as defined by Indiana Code Section 36-1-2-11.
As a municipality, the City has the authority to establish, operate, maintain,
and regulate sewers, sewage disposal systems, and systems to collect and dispose of
waste substances. See Ind. Code § 36-9-23-16 and 17. As we
explained in Town of Plainfield v. Town of Avon, 757 N.E.2d 705, 711
(Ind. Ct. App. 2001):
Such general powers [of a municipality] typically may be exercised only within the
corporate boundaries of the municipality. A municipality has exclusive jurisdiction over sewers
within its corporate boundaries. Indiana Code [S]ection 36-1-3-9 provides in pertinent part
(a) The area inside the boundaries of a county comprises its territorial jurisdiction.
However, a municipality has exclusive jurisdiction over bridges (subject to IC 8-16-3-1),
streets, alleys, sidewalks, watercourses, sewers, drains, and public grounds inside its corporate boundaries,
unless a statute provides otherwise.
(b) The area inside the corporate boundaries of a municipality comprises its territorial
jurisdiction, except to the extent that a statute expressly authorizes the municipality to
exercise a power in areas outside its corporate boundaries.
Indiana statute expressly authorizes a municipality to exercise the powers granted by Indiana
Code [S]ections 36-9-2-17 and 36-9-2-17 in areas four miles outside its corporate boundaries.
See Ind. Code § 36-9-2-18. Furthermore, Indiana Code [S]ection 36-9-23-36 provides
that a municipality may exercise jurisdiction to provide sewage works within ten (10)
miles outside its corporate boundaries. The power of a municipality to extend
its sewer system from its corporate boundaries is generally a discretionary one.
Additionally, under Indianas Home Rule Act, the City may exercise any power it
has to the extent that the power is not expressly granted to another
entity. Ind. Code § 36-1-3-5. The Home Rule Act applies only
to units, Ind. Code § 36-1-3-1, which are counties, municipalities, and townships.
Ind. Code § 36-1-2-23. Thus, JNRU, a municipal corporation, is not a
unit for purposes of the Home Rule Act.
Issue One: JNRUs Authority to Serve the School
The City asserts that the trial court erred on multiple legal grounds when
it concluded that JNRU, and not the City, is authorized to provide sewer
services to the School. First, the City contends that the courts conclusions
follow the analysis of this courts opinion in Town of Plainfield. The
City further asserts that the court erred when it applied Town of Plainfield
here because that case is distinguishable. We agree with the City on
In Town of Plainfield, 757 N.E.2d at 708-09, there was a dispute over
which municipality would provide sewer service to a development located within Avons corporate
boundaries and two miles north of the corporate boundaries of Plainfield.
the development had contacted both municipalities regarding service and determined that connection to
Plainfields sewer system would be cheaper, Plainfield asked Avon to enter into an
interlocal cooperation agreement, wherein Avon would permit Plainfield to provide sewer service to
the development. Id. at 709. When Avon refused to enter into
the agreement, Plainfield filed suit requesting that the trial court resolve disputes regarding
the agreement and require the parties to finalize the agreement. Stated differently,
Plainfield asked the court to force Avon to enter into the interlocal cooperation
agreement. Avon moved to dismiss the complaint, and the trial court granted
that motion. Id.
On appeal, we analyzed Indianas Home Rule Act, the statutes which allow municipalities
to operate sewer systems, and the statutes governing interlocal cooperation agreements, and determined
that neither Plainfield nor a court could force Avon to enter into such
an agreement. See generally I.C. § 36-1-3-1 et seq. (Home Rule Act);
I.C. § 36-9-2-16 and 17 (concerning units power to establish sewer systems); I.C.
§ 36-1-3-9 (concerning boundaries of municipality); Ind. Code § § 36-1-7-2, 36-1-7-3, 36-1-3-9
(concerning interlocal cooperation agreements). Specifically, we determined in part:
We do not believe that Indiana Code [S]ection 36-1-3-9(d) grants a trial court
the authority to compel a municipality to enter into an interlocal cooperation agreement
with a neighboring municipality against its express wishes. To do so otherwise
would effectively impinge on the territorial jurisdiction of the municipality and render corporate
boundaries meaningless. Here, Avons compulsion to enter into the proposed interlocal cooperation
agreement would violate Avons broad territorial jurisdiction and force Avon to relinquish its
exclusive jurisdiction over the sewers within its corporate boundaries, all of which is
contrary to Indiana Code [S]ection 36-1-3-9(a) and (b).
Although Indiana statute permits a municipality to exercise its powers to provide sewer
service extraterritorially, it may do so only with the consent and agreement of
the municipality whose territorial jurisdiction has been impinged or where there is not
a municipality or other unit to provide sewer service. Plainfield and Avon
do not have concurrent territorial jurisdiction over the area upon which the Development
resides. Avon has primary territorial jurisdiction over the subject area and exclusive
jurisdiction over sewers within its corporate boundaries. Plainfields right to provide sewer
service to the Development is contingent on Avons acquiescence to Plainfields exercise of
its powers extraterritorially.
Id. at 713.
The trial courts conclusions in this case are similar to the analysis in
Town of Plainfield in that the court determined that, like two municipalities, the
City and JNRU do not have concurrent territorial jurisdiction within JNRUs district.
Rather, the court concluded that JNRU has primary territorial jurisdiction over the provision
of sewer service within its district and that the Citys right to provide
sewer service extraterritorially to the School, which is located within JNRUs district, is
subject to JNRUs consent or agreement. In particular, the court concluded that
the City may exercise its power to provide sewer services extraterritorially only if
it and JNRU, a municipal corporation, enter into an interlocal cooperation agreement under
Indiana Code § 36-1-7 et seq.
The reasoning of Town of Plainfield does not apply to this case because
Town of Plainfield involved two municipalities and this case does not. Indeed,
JNRU, as a regional sewage district, is a municipal corporation not subject to
the same statutes applicable to municipalities. In particular, JNRUs territorial boundaries are
not defined by Indiana Code Section 36-1-3-9. Further, JNRU is not subject
to Indiana Code Section 36-9-23-36, which allows a municipality to exercise jurisdiction to
provide sewage works within ten miles outside its corporate boundaries. In other
words, in Town of Plainfield we were faced with a dispute over sewage
service between two municipalities with the same powers and which were subject to
the same territorial jurisdiction laws. Here, however, we are asked to determine
what happens when there is an overlap between the sewage service area of
a regional sewage district and the sewage service area of a municipality.
Thus, the trial court erred to the extent that it relied on Town
of Plainfield to resolve the dispute between JNRU and the City.
Still, we are not bound by the trial courts findings and conclusions on
summary judgment and may sustain the courts judgment on any theory or basis
in the record. Ebersol, 775 N.E.2d at 378. While Town of
Plainfield is helpful in defining the Citys powers and territorial jurisdiction to provide
sewer services to the School, we must also look to the statutes governing
regional sewage districts to determine JNRUs authority to serve the School. Despite
error in the trial courts reasoning, our review of the relevant statutes supports
the courts ultimate conclusion that JNRU is authorized to provide sewer service to
the School and that the City may only provide such service with JNRUs
consent and agreement.
Again, the City is subject to the Home Rule Act, which provides that
it may exercise any power it has to the extent that the power
. . . is not expressly granted to another entity. See I.C.
§ 36-1-3-5 (emphasis added). And there is no dispute that JNRU is
a valid regional sewage district granted specific powers under Indiana Code Section 13-26-1
to provide for the collection, treatment and disposal of sewage within the territorial
limits of the district. In Town of Merrillville v. Merrillville Conservancy Dist.,
649 N.E.2d 645, 652 (Ind. Ct. App. 1995), we held that Merrillville, a
municipality, was precluded under the Home Rule Statute, I.C. § 36-1-3-5, from exercising
powers granted to a sewage conversancy district under Indiana Code Section 13-3-3.
In particular, we determined that where a conservancy district had been granted powers
to provide for the collection, treatment, and disposal of sewage, Merrillville could not
exercise conflicting powers under the Home Rule Statute. Id. Although Town
of Merrillville involved a sewage conservancy district and not a regional sewage district,
the same rationale and application of the Home Rule Statute applies here.
Therefore, under Indiana Code Section 36-1-3-5, the City is precluded from exercising its
discretionary powers to provide sewer service to an area within ten miles of
its corporate boundaries where other statutes expressly authorize JNRU to exercise those same
powers within its district.
Still, the City argues that nothing in the relevant statutes or IDEMs order
provides that a regional districts authority to provide sewer services within its district
is exclusive. JNRU concedes, and we agree, that a regional district may
allow other entities to provide services within its district. To that end,
Indiana Code Section 13-26-5-7(b) provides:
A governmental or private body owning and operating facilities for water supply, sewage,
or solid waste disposal, recovery, or treatment may contract to supply water or
treat all or part of the sewage and solid waste of a district.
(1) must be authorized by ordinance; and
(2) are subject to approval by [IDEM].
This statute unambiguously provides that a municipality and a regional sewage district may
enter into a contract when the municipality wishes to provide sewer services to
all or part of the regional districts service area. Thus, JNRUs authority
to provide services within its district is not necessarily exclusive.
authority to enter into contracts with other sewage works providers does not conflict,
nor does it alter, the plain language of the Home Rule Statute, I.C.
§ 36-1-3-5, which precludes the City from exercising powers granted to JNRU under
Indiana Code Section 13-26-1. See Town of Merrillville, 649 N.E.2d at 652.
Issue Two: Advisory Opinion
In sum, although the trial court erred when it relied on Town of
Plainfield, its ultimate conclusion that the City needed JNRUs permission to exercise its
powers to provide sewer services within JNRUs district is correct. We conclude
that before the City could have lawfully provided services to the School, it
was required to enter into a contract with JNRU under Indiana Code Section
In addition, because the City provided such services despite JNRUs objection
and without its agreement, the trial court correctly determined that its provision of
services to the School was not legally authorized.
Still, the City complains that the courts summary judgment order only addresses the
provision of sewer services to the School and not to other customers in
JNRUs district that the City had been serving before JNRUs creation. But
our review of the record shows that JNRU has made clear that the
only customer in dispute was the School, which was built and required sewer
service only after JNRUs creation. Thus, the trial court was not required
to address the status of customers other than the School.
In addition, the City contends that if we affirm the trial courts judgment,
the City will have to stop serving the School, the School will be
without sewer service, and it will be forced to close. As JNRU
points out, however, it did not request, nor did the trial court order,
that the City stop serving the School. JNRUs complaint was one for
declaratory relief in which JNRU asked the court only to determine that JNRU
has legal authority to serve the School and that the City does not.
See Ind. Code § 34-14-1-12 (stating purpose of Declaratory Judgment Act is
to settle insecurity with respect to rights, status, and other legal relations).
Contrary to the Citys contentions, the trial courts judgment does not and will
not require the School to be without necessary sewer service.
Next, the City asserts that the trial courts judgment amounts to an
advisory opinion because it is undisputed that JNRU is not currently capable of
providing sewer services to the School. In support of its argument, the
City directs us to Town of Cumberland v. Indiana Dept. of Envtl. Mgmt.,
691 N.E.2d 206 (Ind. Ct. App. 1998). In that case, Cumberland sought
judicial review of an IDEM order that created the Hancock County Regional Water
and Sewage District. Cumberland raised three challenges to the order, namely, that
there was insufficient evidence to supports IDEMs decision to create the district, that
IDEM exceeded its statutory authority in creating the district, and that it was
denied due process during the administrative proceedings. Id. at 208. But
on appeal, Cumberland also asked this court to issue a judicial determination that
its rights under Indiana law have not been affected by the creation of
the District. Id. at 210. We declined that invitation because to
do so would have been advisory and not dispositive of anything. Id.
(quoting Indiana Bureau of Motor Vehicles v. Zimmerman, 476 N.E.2d 114, 118 (Ind.
The Citys reliance on Town of Cumberland is misplaced. In that case,
we refused to provide a judicial determination that Cumberlands legal rights had not
been affected by the creation of the regional district because Cumberland raised that
issue for the first time on appeal. It is well established that
we will not address claims that a party did not litigate in the
trial court because to do so would amount to an advisory opinion.
See Armstrong v. Federated Mut. Ins. Co., 785 N.E.2d 284, 294 (Ind. Ct.
App. 2003) (Brook, C.J., concurring in result). Rather, we must decline a
partys request to address on the merits a claim not raised and wait
until the claim is properly before us. Id. In addition, at
that procedural juncture, where Cumberland was appealing from an adverse decision on its
petition for judicial review, a judicial determination from this court that Cumberlands rights
had not been affected would not have resolved any matter in dispute.
Here, unlike Town of Cumberland, JNRU sought a declaratory judgment based on a
present dispute over which entity has the right to provide sewer service to
the School. The Uniform Declaratory Judgment Act, Indiana Code Section
34-14-1-1 et seq., provides that its purpose is to settle and to afford
relief from uncertainty and insecurity with respect to rights, status, and other legal
relations; and is to be liberally construed and administered. Ind. Code
§ 34-14-1-12. Thus, the purpose of a declaratory judgment action is to
quiet and stabilize legal relations and thereby provide a remedy in a case
or controversy when there is still an opportunity for peaceable judicial settlement.
Ferrell v. Dunescape Beach Club Condominiums, 751 N.E.2d 702, 707 (Ind. Ct. App.
2001). Given that the City has been providing services to the School
despite communications from JNRU that it lacked authority to do so, it was
proper for JNRU to seek a declaratory judgment before taking any other action.
In other words, having a court settle the legal rights of the
parties was proper under the circumstances and does not amount to an advisory
Issue Three: Judicial Estoppel
Finally, the City asserts that JNRU should be judicially estopped from seeking a
declaratory judgment from the court because it raised an inconsistent legal claim in
previous litigation. We disagree.
It is the general rule that allegations or admissions in pleadings in a
former action or proceeding will ordinarily estop the party making them from denying
their truth in a subsequent action or proceeding in which he is a
party to the prejudice of his opponent where the usual elements of estoppel
by conduct are present. Also, there must have been a determination of
the prior action, or, at least, the allegations or admissions must have been
acted on by the court in which the pleadings were filed or by
the parties claiming the estoppel.
Unlike equitable estoppel, which focuses on the relationship between the parties, judicial estoppel
focuses on the relationship between a litigant and the judicial system. Judicial
estoppel is intended to protect the integrity of the judicial system rather than
to protect litigants from allegedly improper action by their opponents. It does
so by preventing a party and its counsel from playing fast and loose
with the courts.
Turner v. Stuck, 778 N.E.2d 429, 432 (Ind. Ct. App. 2002) (citations and
Here, the City contends that because JNRU argued that declaratory relief was improper
in previous litigation, it should be judicially estopped from seeking such relief in
this case. However, contrary to the Citys contentions, JNRU has not taken
inconsistent positions regarding the propriety of a declaratory judgment. As we explained
in our opinion in City of North Vernon, 725 N.E.2d at 900, in
the previous action, the City sought a declaratory judgment against JNRU and IDEM
. . . requested that the trial court determine that the JNRU
was not validly formed as a regional utility because it had failed to
comply with proper statutory and regulatory procedures concerning its formation and operation, and,
therefore, the JNRU had no right, title, claim, or interest which would prevent
the City from annexing property contiguous to the Citys corporate boundaries and to
provide wastewater treatment in these areas.
In response, JNRU filed a motion to dismiss and argued that because the
City had failed to follow the proper administrative procedures for seeking judicial review
of IDEMs order, the trial court lacked subject matter jurisdiction over the Citys
complaint. JNRUs position that declaratory relief was not proper in that case
was based solely on the trial courts lack of subject matter jurisdiction.
JNRUs current claim that declaratory relief is proper based on the parties dispute
over who may serve the School is not inconsistent with its position in
the previous action. Thus, judicial estoppel does not apply here.
ROBB, J., and MATHIAS, J., concur.
Specifically, the West Central Conservancy District, located in Avon, provided sewer
service to Avon and in Hendricks County. Plainfield had its own sewer
Footnote: The City repeatedly refers to a letter sent by IDEM
to the Citys legal counsel in which IDEM stated in part: The
Indiana Department of Environmental Managements review of Indiana Code [Section] 13-26, the statute
under which regional sewer/water districts are formed, reveals no provision specifically requiring the
districts territory to be exclusively served by the district. The City asserts
that we should defer to IDEMs interpretation of the statute and, more significantly,
suggests that IDEMs statement that a districts service need not be exclusive within
its territory supports the Citys actions in providing services to the School.
Contrary to the Citys contention, IDEMs letter did not authorize the City to
provide services to the School without JNRUs permission. Rather, IDEMs letter is
consistent with our reading of Indiana Code Section 13-26-5-7(b), namely, that a regional
districts authority to provide service within its district is not necessarily exclusive because
the regional district may contract to allow other entities to treat all or
part of the sewage within the district. Still, a governmental or private
body that wishes to provide such services within a regional district must have
that districts permission.
Footnote: Notwithstanding JNRUs ability to make contracts under Indiana Code Section
13-26-5-7, JNRU contends, and the trial court agreed, that a regional district and
a municipality may enter into an interlocal cooperation agreement under Indiana Code Section
36-1-7-2. Political subdivisions may enter into interlocal cooperation agreements with other governmental
entities, and JNRU, as a municipal corporation, is a political subdivision.
Ind. Code § 36-1-2-13. However, [o]ur supreme court has held that [i]n
the construction of statutes, specific provisions will prevail over general provisions with relation
to the same subject-matter. Indiana Dept. of Envtl. Mgmt. v. Schnippel Constr.,
Inc., 778 N.E.2d 407, 417 (Ind. Ct. App. 2002) (quoting State v. Larues,
239 Ind. 56, 154 N.E.2d 708, 710 (1958)) (holding that statute which specifically
allows for costs against non-prevailing party where State initiates action applies, not general
statute concerning costs awarded against non-prevailing party). Accordingly, we conclude that Indiana
Code Section 13-26-5-7, which specifically addresses a regional districts ability to make contracts
with governmental entities for the provision of sewer services within its district, applies
here, not the interlocal cooperation agreement statutes.