October 13, 2011
In
In re Petition in Opposition to Annexation Ordinance F-2008-15, ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 82A05-1102-PL-84, the Indiana Court of Appeals held that a group of remonstrators who were challenging an annexation had mooted their appeal by not requesting that the trial court stay execution of a judgment dismissing their action. The Court's method of reasoning is interesting, because it is based on inference, rather than deduction.
less..
Evansville sought to annex some land and the remonstrators opposed that action. The trial court dismissed the remonstrator's action, allowing the annexation to proceed. The remonstrators did not seek to have the annexation stayed pending appeal.
On appeal, Evansville argued that the appeal was moot and the Court agreed, basing its decision on the Indiana Supreme Court's decision in
City of Indpls. v. Producers Realty, Inc., 240 Ind. 507, 166 N.E.2d 648 (1960). That case also involved a challenge to an annexation; however, Indianapolis lost that challenge. Indianapolis asked to be allowed to proceed further in the annexation while the appeal was pending, but the Supreme Court refused, stating that "[t]o stay the operation of the injunction pending an appeal on its merits would give the city the opportunity to proceed with the annexation and thus create a
fait accompli by the time the appeal could be determined-thus presenting issues [for review] which might be moot." The Court of Appeals applied this holding as follows:
From this holding, we infer that the Indiana Supreme Court recognized that challenges to a proposed annexation will become moot if the annexation becomes effective before a review of the matter can be completed absent an injunction or stay ordering that a municipality may not proceed with a proposed annexation pending appeal. We also infer that the Indiana Supreme Court recognized that following a favorable ruling by the trial court, a municipality may proceed with a proposed annexation unless there is an injunction or stay ordering a municipality not to. These inferences are supported by our opinion in
In re Petition to Annex Approximately 7,806 Acres of Real Estate into the City of Jeffersonville, 891 N.E.2d 1157, 1160 (Ind. Ct. App. 2008), in which we noted that the trial court granted the remonstrators' request for a stay, ordering that the municipality "shall not pursue any efforts to annex [the parcel] while the appeal of [the trial court]'s prior ruling is pending."
In light of the above-stated inferences that we gleaned from the Indiana Supreme Courts holding in Producers Realty, we conclude that the Remonstrators‟ challenges to the annexation of the parcels of land at issue are moot because the annexation has become effective. In order to preserve the instant challenge to the trial court's order, the Remonstrators should have requested a stay of the annexation pending appeal following the January 21, 2011, adverse ruling by the trial court. By failing to do so, the Remonstrators risked that the City might, and indeed did, pursue the necessary steps to make the annexation effective, thus making the issues presented in their appeal moot.
Even though it found that the appeal was moot, the Court went on to address the merits, finding that the remonstrators would have lost anyway. Therefore, attorneys who represent remonstrators who lose in trial court should counsel their clients to have the annexation enjoined during an appeal. Attorneys representing a city which wins an annexation proceeding should encourage the city to begin annexation proceedings in the hope that the annexation will become a
fair accompli.
Lesson:
- An appeal of an order dismissing a petition by remonstrators opposing an annexation will become moot if the annexation is accomplished while the appeal is pending.
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