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.

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 Gary, Indiana

IN THE

COURT OF APPEALS OF INDIANA

THOMAS EATON, et al., )

)

Appellants-Plaintiffs, )

)

vs. ) No. 45A04-1106-MI-312

)

CITY OF GARY, et al., )

) 

Appellees-Defendants. )

APPEAL FROM THE LAKE SUPERIOR COURT

The Honorable Thomas W. Webber, Sr., Special Judge

Cause No. 45D01-0810-MI-31

March 20, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge
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Appellants-Plaintiffs Thomas Eaton, et al. (collectively “Appellants”) appeal the trial 

court‟s order denying their motion to correct error. On appeal, Appellants claim that the trial 

court abused its discretion in denying their 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 PROCEDURAL HISTORY

This appeal arises out of Appellants‟ 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 

dismiss 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 determined 
3

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 ayes to six nays. By a vote of seven ayes 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 ayes to four nays. C.P.O. 09-22 became Ordinance No. 8276, which 

retroactively allowed for the imposition 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 allowed Appellantsto file their first amended complaint.

On May 11, 2010, Appellantsfiled a motion for summary judgment alleging that they

were entitled to judgment as a matter of law because the Appellees did not follow the proper 

proceduresin retroactively 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 

Appellants‟ 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, Appellantsfiled a motion to correct error alleging 

that the trial court erroneously denied their motion for summary judgment. Following a 
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hearing on May 11, 2011, the trial court denied Appellants‟ motion to correct 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 their motion for summary judgment. 

We generally review the denial of a motion to correct error for 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 their motion for summary judgment is 

erroneous because the trial court must not have considered all of their 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 there 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 designated 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 basis found in the evidentiary 

 

1

 It is unclear from the record when Appellees filed their motion for summary 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. 1998), 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. Whether the Trial Court Erred in Denying 

Appellants’ Motion for Summary Judgment

Appellants argue that the trial court erred in denying their motion for summary 

judgment. In making this argument, Appellants claim that the trial court must not have 

considered their designated evidence because it conclusively established “that the City did 

not properly follow its rules and procedures in the alleged adoption of the trash fee 

ordinance.” Appellants‟ Br. p. 9. Thus, Appellants claim that they carried their “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 procedures and properly adopted Ordinance 

[No.] 8276 on July 21, 2009.” Appellants‟ Br. p. 9. Appellants, however, do not make it 

clear which rule or procedure they believe the Common Council did not comply with. 

Further, in making this claim, Appellantsfail to recognize that to the extent that the Common 

Council did not follow its rules and procedures in adopting 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 procedure used in passing 

Ordinance No. 8276.
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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 were required by the Common 

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 follows: 

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 Municipal 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, Rogers). 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 Common 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 Common 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 all 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 Appellees 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 procedures 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 properly 

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 passed 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 conclude that the trial court acted within its discretion in 

denying Appellants‟ motion to correct error.
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The judgment of the trial court is affirmed.

VAIDIK, J., and CRONE, J., concur.