APPEAL FROM THE ALLEN SUPERIOR COURT. The Honorable Stanley A. Levine, Judge. Cause No. 02D01-1010-PL-337.
ATTORNEYS FOR APPELLANT: KAREN T. MOSES, KEVIN J. MITCHELL, Faegre Baker Daniels LLP, Fort Wayne, Indiana.
ATTORNEYS FOR APPELLEE: JEFFREY P. SMITH, DAVID K. HAWK, MICHAEL D. HAWK, Hawk Haynie Kammeyer & Chickedantz, Fort Wayne, Indiana.
PYLE, Judge. MATHIAS, J., and BRADFORD, J., concur.
STATEMENT OF THE CASE
Carroll Creek Development Company, Inc. (" Carroll Creek" ) appeals the trial court's order granting partial summary judgment to the Town of Huntertown, Indiana (" Huntertown" ).
Whether the trial court erred by granting partial summary judgment to Huntertown on one part of Carroll Creek's breach of contract claim.
Huntertown is a municipal corporation located in Allen County, Indiana. Carroll Creek is an Indiana corporation engaged in the business of real estate development.
On October 2, 2000, Carroll Creek and Huntertown entered into an Agreement for Water Main Extension and Interconnection (" Water Agreement" ), wherein Carroll Creek agreed to construct and pay for the cost of constructing a water main that would be " connected to [Huntertown's] water service facility" and would " serve not only real estate in which [Carroll Creek] ha[d] an interest, but also other real estate[.]" (App. 87). The Water Agreement provided that the estimated cost of the water main was $617,198.00. It also provided that Carroll Creek could recoup up to $464,309.00 of its construction costs via a water connection charge from certain owners of real estate who connected to the water main.
In regard to the areas to be served by the water main and the people who would be subject to payment of the connection charge, the Water Agreement provided:
3. Area of Developer [Carroll Creek]
3.1 The Water Main, when constructed and accepted by [Huntertown], will serve the real estate of [Carroll Creek]; all as reflected in Exhibit " B" attached hereto. [Carroll Creek], and those under contract with [Carroll Creek], will pay for the cost of construction of lateral lines within area described on Exhibit " B" .
3.2 Once any improvement or facility on the real estate described in Exhibit " B" is connected to the Water Main, said improvement or facility cannot be withdrawn from the Water Main without the written consent of [Huntertown].
4. Charge Against Excess Area
4.1 The Water Main, when constructed and accepted by [Huntertown],
will also serve additional real estate in the excess area: see Exhibit " C" attached hereto. In the event any present or future owners of real estate within the excess areas shall, at any time within fifteen (15) years after the date of this Agreement, desire to connect into the Water Main, whether by direct tap or through the extension or connection of lateral lines to service the real estate situated in the excess area or adjacent to the excess area, to the extent permitted by law, [Huntertown] shall require that such owner pay an " area connection charge" to [Carroll Creek] and further pay [Huntertown] the standard tap-in, inspection and administrative fees.
4.2 [Huntertown] may refuse to approve an excess area connection if the connection would use any part of the water service capacity reserved by [Huntertown] for [Carroll Creek's] Area or if the owner in the excess area refuses to:
a) Enter into an agreement with [Huntertown] for water main extension and interconnection;
b) Waive remonstrance to annexation; and
c) Submit and have approved a plan for ...