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 th e defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT : ATTORNEY FOR APPELLEE : DOUGLAS M. GRIMES ALGER V. BOSWELL Douglas M. Grimes, P.C. City Attorney, City of Gary Law Department Gary , Indiana G ary , Indiana


## IN THE COURT OF APPEALS OF INDIANA

THOMAS E ATON, et al. , ) ) Appellant s - Plaintiff

s , ) ) vs. ) No. 45A04

- 1106

- MI

- 312 ) CITY OF GARY, et al. , ) ) Appellee s - Defendant s . )

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Thomas W. Webber , Sr. , Speci al Judge

Cause No. 45D01

- 0810

- MI

- 31

March 20, 2012

MEMORANDUM DECISION
- NOT FOR PUBLICATION

BRADFORD , Judge2

Appellant s - Plaintiffs Thomas Eaton, et al. ( collectively “ Appellants ”) appeal the trial court‟s order denying their motion to correct e rror. On appeal, Appellants claim that the trial court abused its discretion in denying t h eir motion to correct error because the trial court improperly denied their motion for summary judgment and granted summary judgment in
favor of Appellees

- Defendants City of Gary et al. ( collectively “Appellees” )

. Concluding that the trial court properly denied Appellants ‟ motion for summary judgment, and as such acted within its discretion in denying Appellants ‟ motion to correct error, we affirm.

FACTS AND PROC EDURAL HISTORY This appeal arises out of Appellant s ‟ challenge to the passage of an ordinance by the City of Gary Common Council (“Common Council”) allowing for the imposition of a monthly trash collection fee on City residents. On October 14, 2008, the Gary Sanitation District, through the members of its Board of Commissioners and its Special Administrator, passed a resolution (“October 14, 2008 resolution”) that obligated the Sanitation District to “remunerate a private waste hauler with rate payer/ tax payer monies for performing certain residential waste collection services within the City.” Appellants‟ App. p. 29. On October 17, 2008, Appellants filed suit challenging the Sanitation Department‟s October 14, 2008 resolution. Appellees moved to
di smiss Appellants ‟ legal challenge to the Sanitation Department‟s October 14, 2008 resolution and stipulated that no fee would be collected until an ordinance allowing for a monthly trash collection fee was passed by the Common Council. On February 3, 2009 , the
trial court issued an order in which it denied Appellees ‟ motion to dismiss and determined3

that a trash collection fee could be collected by Appellees if the Common Council passed an ordinance allowing for such. On July 7, 2009, the Common Council defeated Council Pending Ordinance 2009

- 22 (“C.P.O. 09

- 22”) which would have allowed for the imposition of the monthly trash collection fee by a vote of three a yes to six nays. By a vote of seven a yes to two nays, the
Common Council voted to reconsider C .P.O. 09

- 22 at its next scheduled meeting on July 21, 2009. During the July 21, 2009 meeting, the Common Council approved C.P.O. 09

- 22 by a
vote of five a yes to four nays. C.P.O. 09

- 22 became Ordinance No. 8276, which retroactively allowed for the imposi tion of a monthly trash collection fee. On September 1, 2009, Appellants sought permission to file their first amended complaint. On September 23, 2009, the trial court determined that the validity of Ordinance No. 8276 was ripe for challenge and allow ed Appellants to file t h e i r first amended complaint. On May 11, 2010, Appellants filed a motion for summary judgment alleging that t he y

w ere entitled to judgment as a matter of law because the Appellees did not follow the proper procedure s in retroactivel y adopting a trash collection fee. On June 7, 2010, Appellees filed
their brief and designation of evidence in opposition to Appellants ‟ motion for summary judgment. On June 14, 2010, Intervenor Illiana Disposal Partnership filed its response to Appellan ts ‟ motion for summary judgment. On December 16, 2010, the trial court entered an order granting Appellees ‟ motion for summary judgment and denying Appellants ‟ motion for summary judgment. 1 On January 18, 2011, Appellants filed a motion to correct error alleging that the trial court erroneously denied t h e i r motion for summary judgment. Following a4

hearing on May 11, 2011, the trial court denied Appellants ‟ motion to c orrect error on May 13, 2011. This appeal follows.
DISCUSSION AND DECISION I. Standard of Review Appellants argue that the trial court abused its discretion in denying their motion to
correct error which was filed after the trial court denied t h e i r motion for summary judgment. We generally review the denial of a motion to correct error f or an abuse of discretion. Hawkins v. Cannon , 826 N.E.2d 658, 661 (Ind. Ct. App. 2005). However, where the issues raised in the motion are questions of law, the standard of review is de novo. City of Indianapolis v. Hicks , 932 N.E.2d 227, 230 (Ind. Ct. App .2010), trans. denied

. Kornelik v. Mittal Steel USA, Inc. , 952 N.E.2d 320, 324 (Ind. Ct. App. 2011)

. In support, Appellants claim that the trial court‟s denial of t h e i r motion for summary judgment is
erroneous because the trial court must not have consider ed all of t h e i r designated evidence. Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary judgment is appropriate when there are no genuine issues of material fact and when the moving party is entitled to judgment as a matter of law. Heritage Dev. Of Ind., Inc. v. Opportunity Options,
Inc. , 773 N.E.2d 881, 887

- 88 (Ind. Ct. App. 2002). When reviewing the grant or denial of a motion for summary judgment our standard of review is the same as that used by the trial court: whether th ere is a genuine issue of material fact and whether the moving part is entitled to judgment as a matter of law. On review, we may not search the entire record to support the judgment, but may only consider that evidence which has been specifically designa ted to the trial court. The party appealing the trial court‟s grant or denial of summary judgment has the burden of persuading this court that the trial court‟s decision was erroneous. A summary judgment determination shall be made from any theory or bas is found in the evidentiary

1 It is unclear from the record when Appellees filed their motion for su mmary judgment.5

matter designated to the trial court. J.C. Spence & Associates, Inc. v. Geary , 712 N.E.2d 1099, 1102 (Ind. Ct. App. 1999) (quoting City of New Haven v. Chemical Waste Mgmt

. of Ind

. , L.L.C. , 701 N.E.2d 912, 922 (Ind. Ct. App. 19 98), trans. denied ). “„We give careful scrutiny to the pleadings and designated materials, construing them in a light most favorable to the non

- movant.‟” Id

. (quoting Diversified Fin. Sys., Inc. v. Miner , 713 N.E.2d 293, 297 (Ind. Ct. App. 1999)).

II. Wh ether the Trial Court Erred in Denying Appellants ’ Motion for Summary Judgment Appellants argue that t he tr i a l court erred in denying t h e i r motion for summary judgment. In making this argument, Appellants claim that the tri a l court must not have
consid ered t h e i r designated evidence because it conclusively establishe d “that the City did not properly follow its rules and procedures in the alleged adoption of the t rash fee ordinance.” Appellant s ‟ Br. p. 9. Thus, Appellants claim that t he y carried t h e i r “ burden by making a prima facie showing that there were no genuine issues of material fact as to whether the City properly followed its rules and procedur es and properly adopted Ordinance [No.] 827 6 on July 21, 2009.” Appellant s ‟ Br. p. 9. Appellants, how ever, do not make it
clear wh ich rule or procedure they believe the Common Council did not comply with. Further, i n making this claim, Appellants fail to recognize that to the extent that the Common Council did not follow its rules and procedures in adopt ing Ordinance No. 8276, the
Common Council voted to suspend its rules and procedures pursuant to Section 32.37(A) of the Municipal Code of Ordinances (“Code”) to allow for the pr ocedure used in passing
Ordinance No. 8276.6

It is undisputed that the Common Council voted on two motions concerning C.P.O.
09

- 22 rather than the three that Appellants apparently claim w ere required by the C ommon Council ‟ s rules and procedures. Section 32.37(A) of the Code provides that “[t]he rules may be temporarily suspended by the consent of six of the nine members of the Common Council or by the two

- thirds of any quorum.” 2 Appellants‟ App. p. 127. The minutes from the July 21, 2009 Common Council meeting, which were designated by both Appellants and Appellees , provide as fol lows: Councilman Pratt moved to Suspend the Rules to reconsider C.P.O. 09
- 22 . It was seconded by Councilwoman Robinson. Roll Call showed a vote of 7 ayes 2 nays (Allen, Hatcher). The Chair declared this motion duly passed. Councilwoman Pratt moved to reconsider the vote on the matter of C.P.O. 09
- 22 . It was seconded by Councilwoman Brown. Councilman Pratt stated the justification to reconsider the vote of an ordinance previously voted upon as stated in Roberts Rules of Order and stated in the Gary M unicipal Code Section 32.28 of the Council Rules & Regulations. Councilpersons Pratt, Krusas, Robinson, Hatcher, Brown, Rogers, Stanford & the Chair spoke in regards to C.P.O. 09
- 22 . Roll Call showed a vote of 5 ayes 4 nays (Allen, Hatcher, Krusas, Roger s). The Chair declared this Council Pending Ordinance duly PASSED

. Appellants‟ App. pp. 118

- 19 (emphases in original). Section 32.28 of the Code provides
that: A vote upon any question or proposition may be reconsidered at any regular meeting of the Co mmon Council held thereafter, whether the reconsideration of the question or proposition is proposed by a member of the Common Council who voted with the prevailing side or not, provided it is carried by a majority vote of all the members

- elect of the Comm on Council, but not

2 Section 32.37(A) of the Code further provides that “Any suspension of the rules to consider the passage of an ordinance on three readings at the same meeting in which the ordinance is introduced shall require the unanimous consent of al l members.” Appellants‟ App. p. 127. This portion of Section 32.37(B), however, does not appear to be applicable to the instant matter as C.P.O 09

- 22 was clearly introduced at some point before the July 21, 2009 meeting, and neither Appellants nor Appel lees argue on appeal that it applies to the instant matter.7

otherwise. Appellants‟ App. p. 129. Appellants argued before the trial court that there should have been two separate votes for the motion to reconsider and the passage of C.P.O. 09

- 22 and that because there was not two separate votes , C.P.O. 09

- 22 was never actually reconsidered or passed by the Common
Council

. However, as the trial court determined, the undisputed designated evidence indicates that the Common Council followed the proper procedures to suspend its normal rules and pro cedures for the purpose of reconsidering and passing C.P.O. 09

- 22 during its July 21, 2009 meeting. In addition, Appellants did not designate any contradictory evidence
that would raise an issue of material fact as to whether the Common Council acted prop erly in passing C.P.O. 09

- 22

. Because we may affirm the grant or denial of a motion for summary judgment on any basis found in the designated evidence, see Geary , 712 N.E.2d at 1102, we conclude that the trial court properly denied Appellants ‟ motion for summary judgment. The designated evidence, including that tendered by Appellants , establishes that the Common Council suspended the rules to allow for the procedure it followed in passing C.P.O. 09

- 22, which again became Ordinance No . 8276 after being pas sed by the Common Council, and there is no designated evidence to support the conclusion that Ordinance No. 8276 is not valid and
enforceable. Having concluded that the trial court properly denied Appellants ‟ motion for summary judgment, we further conclu de that the trial court acted within its discretion in denying Appellants ‟ motion to correct error.8

The judgment of the trial court is affirmed. VAIDIK, J., and CRONE, J., concur.