Town of Brownsburg, Indiana, et al., Appellants/Cross-Appellees,
Fight Against Brownsburg Annexation, et al., Appellees/Cross-Appellants.
Argued: September 20, 2018
from the Hendricks Superior Court, No. 32D02-1310-PL-109 The
Honorable Heather Welch, Special Judge
Petition to Transfer from the Indiana Court of Appeals, No.
ATTORNEYS FOR APPELLANTS/CROSS-APPELLEES Thomas F. Bedsole
Maggie L. Smith Frost Brown Todd LLC Indianapolis, Indiana
ATTORNEYS FOR AMICI CURIAE ACCELERATE INDIANA MUNICIPALITIES
AND INDIANA MUNICIPAL LAWYERS ASSOCIATION, INC. Kevin S.
Smith Brent R. Borg Church Church Hittle & Antrim
ATTORNEY FOR APPELLEES/CROSS-APPELLANTS Gregory W. Black
Gregory W. Black, P.C. Plainfield, Indiana
municipal-annexation case, we hold that a trial court hearing
a remonstrance proceeding on judicial review must consider
the evidence submitted by both the municipality and the
remonstrators. The trial court need not defer to either the
municipality's own evidence supporting the annexation or
its determination that it met the statutory requirements.
Whether the annexation was lawful is a legal question for the
trial court. If the court enters special findings of fact and
conclusions of law, appellate courts are to apply the
standard of review provided in Trial Rule 52. We provide
guidance for applying the undefined statutory terms
"subdivided" and "reasonably near future"
and, on this record, affirm the trial court's judgment
for the Remonstrators and against the Town of Brownsburg.
and Procedural History
2013, Brownsburg adopted an ordinance to annex 4, 462 acres
of property adjacent to the Town. A group of affected
landowners, acting through a political action committee,
Fight Against Brownsburg Annexation, remonstrated and sought
a declaration that the Town did not meet the statutory
the statute, a municipality wanting to annex land must prove
several things. Ind. Code § 36-4-3-13(a) (2013 Repl.).
Among them are, first, that the municipality has adopted a
written fiscal plan to ensure the municipality can afford to
provide services to those living in the proposed annexation
territory, id. § 36-4-3-13(d); second, that the
proposed territory is sufficiently contiguous to the
municipality's current boundaries, id.
§§ 36-4-3-13(b)(1), 36-4-3-13(c)(1); and, third,
that either the proposed territory is
sufficiently urban under criteria recited in the statute,
id. § 36-4-3-13(b)(2), or the
municipality will use the territory for development in the
"reasonably near future", id. §
three-day bench trial, the court entered extensive findings
of fact and conclusions of law and determined that the Town
had not met all statutory requirements for annexing the
proposed territory. The court thus entered judgment for the
Remonstrators and against the Town. The Town then appealed,
the Remonstrators cross-appealed, and the court of appeals
affirmed. Town of Brownsburg v. Fight Against Brownsburg
Annexation, 98 N.E.3d 114 (Ind.Ct.App. 2018). The Town
sought transfer, which we now grant, thus vacating the
Standards of Review
issue here are two standards of review. The first deals with
the nature and extent of an appellate court's review of a
trial court's findings of fact, conclusions of law, and
entry of judgment in an annexation case. The second is the
degree to which a trial court must defer to a
municipality's determination that it has met the
applicable criteria under the annexation statute. The Town
argues that the trial court paid insufficient deference to
the Town's determination to annex the proposed territory
in a manner consistent with the governing statute.
Appellate review of trial-court's judgment
standard of appellate review in annexation cases is
well-settled. When a trial court enters special findings of
fact and conclusions of law, as the court below did here, we
apply the standard of review set forth in Trial Rule 52.
Town of Fortville v. Certain Fortville Annexation
Territory Landowners, 51 N.E.3d 1195, 1198 (Ind. 2016).
For purposes of appellate review, that means we review what
the trial court found and concluded, not what the
municipality did. In other words, we ask not whether the
record supports the municipality's decision to enact the
annexation ordinance, but whether it supports the trial
court's decision to uphold or reject the annexation.
we consider whether the evidence supports the trial
court's findings. We will not set aside findings unless
they are clearly erroneous-i.e., the record contains
no facts supporting them either directly or inferentially.
Id. This standard is highly deferential. If a
factual finding is plausible given the entire record, we will
not reverse it even if we would have decided the matter
differently were we sitting as finders of fact. We give great
deference to a court's findings because of its capacity
to judge witness credibility. This standard applies equally
to expert testimony. "The weight to be accorded expert
testimony as well as lay testimony is the exclusive
province of the trier of fact which is at liberty to discount
it or to reject it in the face of lay testimony, which it
finds more persuasive." Fordyce v. State, 425
N.E.2d 108, 110 (Ind. 1981) (citation omitted). Thus, the
trier of fact-not a reviewing court-decides the weight and
credibility to give the testimony of dueling experts. We will
reject a finding as clearly erroneous only if we are left
with the definite and firm conviction, based on all the
evidence, that the court erred. Fortville, 51 N.E.3d
at 1198 (citing Yanoff v. Muncy, 688 N.E.2d 1259,
1262 (Ind. 1997)).
we ask whether the findings support the court's legal
conclusions. We give no deference to conclusions of law but
review them de novo. In re Marriage of Gertiser, 45
N.E.3d 363, 369 (Ind. 2015). The court's ultimate
judgment-who wins on which counts or claims, and who
loses-must follow from the conclusions of law and is clearly
erroneous if the court applied the "wrong legal standard
to properly found facts." Fortville, 51 N.E.3d
at 1198 (citing Yanoff, 688 N.E.2d at 1262).
the Town appeals from a negative judgment-one adverse to the
party with the burden of proof at trial. Under our case law,
the party challenging a negative judgment generally must show
on appeal that "the evidence as a whole … leads
unerringly and unmistakably to a decision opposite that
reached by the trial court." Spranger v. State,
650 N.E.2d 1117, 1119 (Ind. 1995) (citations omitted). The
Town argues that the court of appeals erred by referencing
the negative-judgment standard, 98 N.E.3d at 118-19, and
emphasizes that Fortville, which also involved a
municipality appealing from a negative judgment, applied only
the Rule 52 standard.
our analysis and holding in Fortville, we agree with
the Town that the negative-judgment standard does not apply
in annexation cases. Although the court of appeals mentioned
this standard, it does not seem to have applied it.
Throughout its opinion, the court assessed the trial
court's decision under Rule 52's "clearly
erroneous" standard, id. at 125,
130, which is the correct standard. We note
that commentators have questioned whether there is any
appreciable, discernible difference between these two
standards of appellate review-the negative-judgment standard
and the Rule 52 standard. As Professor Stroud observed in his
influential treatise on Indiana practice, "there is no
apparent reason to conceive of a negative judgment review in
terms different than sufficiency review."
Spranger, 650 N.E.2d at 1120 n.1 (quoting Kenneth M.
Stroud, 4A Indiana Practice, § 12.7 at 144
(1990)). He continued: "the burden imposed upon either
losing party on appeal in order to realize reversal, and the
standards by which the judgment will be evaluated, are in the
final analysis, functionally indistinguishable."
is much practical wisdom in Professor Stroud's
observation. It is hard to conceive of a situation where an
appellant would satisfy the sufficiency-based "clearly
erroneous" standard of Rule 52 yet would fail to meet
the supposedly more onerous negative-judgment standard. We
yielded to Professor Stroud, in part, in Spranger
when we "distinguished" the two standards this way:
"In one, the inquiry is essentially whether there is
any way the trial court could have reached
its decision. In the other, it is whether there is
no way the court could have" done so.
650 N.E.2d at 1120 (emphasis in original). Then, we
concluded, "Arguably, this is a distinction without a
difference." Id. (footnote omitted).
the practical difference, if any, between these two standards
of appellate review is far from clear. But for now, we need
not explore further the scope or extent of any such
distinction because the parties did not ask us to reconsider
prevailing law or to merge these two standards. Cf.
United States v. Boyd, 55 F.3d 239, 242 (7th Cir.
1995) (Posner, J.) ("as we have sometimes heretically
suggested, there are operationally only two degrees of
review, plenary (that is, no deference given to the tribunal
being reviewed) and deferential") (citations omitted).
Trial-court review of municipality's annexation
is the statutory process by which municipalities acquire
additional territory outside their existing corporate
boundaries. Annexation cases today involve two
"legislative" choices, by which we mean policy
choices for the political branches and not legal questions
for the courts.
the General Assembly determines whether to permit a
municipality to annex additional territory at all and, if so,
under what conditions. Over the past two centuries, the
legislature has answered this policy question differently, as
is its prerogative. For example, on whether to subject
municipal annexations to judicial review, this requirement
has, at various times, been expressly conferred, expressly
withheld, and completely unmentioned.
when the General Assembly allows it, the other
"legislative" choice is the municipality's to
decide which specific territory to annex, subject to the
power of remonstrators to challenge the annexation and of
courts to pass on the annexation's legality. "The
framework of Indiana's annexation laws has long featured
three basic stages: (1) legislative adoption of an ordinance
annexing certain territory and pledging to deliver certain
services within a fixed period of time; (2) an opportunity
for remonstrance by affected landowners; and (3) judicial
review." Fortville, 51 N.E.3d at 1197 (quoting
City of Carmel v. Steele, 865 N.E.2d 612, 615 (Ind.
from the current scheme, one can imagine a wide array of
legislative options concerning whether to allow annexations
at all; whether annexations can be challenged; and whether
courts are to assess their legality. Regardless of which
annexation protocols the General Assembly enacts, it has
considerable leeway to subject its own (or
municipalities') annexation decisions to varying degrees
of judicial review-plenary, limited, or none.
current law, remonstrators cannot oppose annexation merely
because they do not want to live in the municipality or
because they believe annexation will affect them adversely,
such as by raising their taxes or altering their way of life.
The General Assembly has created statutory requirements for
valid remonstration. These requirements place the burden of
pleading on the remonstrators challenging the annexation.
Rogers v. Municipal City of Elkhart, 688 N.E.2d
1238, 1240 (Ind. 1997). But "the burden of proof is on
the municipality to demonstrate compliance with the
statute." Fortville, 51 N.E.3d at 1198
those objecting to the annexation satisfy the remonstrance
procedures, a court must determine whether the municipality
satisfied the statutory requirements for annexation. The
trial court sits as finder of fact and, after receiving
evidence and hearing argument, assesses whether the legal
requirements were met. The court does not weigh competing
views about the wisdom or desirability of the proposed
annexation. Instead, it plays a "limited role" in
annexations and must afford "substantial deference"
to the municipality's legislative judgment-i.e.,
to its policy choice to annex the disputed territory.
Id. (citation omitted). The court's role,
however, is not to "sustain blindly" an exercise of
such judgment, but to ensure that the municipality did
"not exceed its authority", and that the
"statutory conditions for annexation [were]
satisfied." Id. (quoting Chidester v. City
of Hobart, 631 N.E.2d 908, 910 (Ind. 1994)). Stated
differently, whether and what to annex are policy choices for
the municipality; whether the annexation was lawful is a
legal question for the courts.
the governing annexation statute nor separation-of-powers
principles compel a different result, despite the Town's
contrary argument. In its transfer petition, the Town argues
that the "substantial deference" courts owe
municipalities' policy choices also applies to legal
questions: "If substantial deference is to mean
anything, it has to mean that a municipality's reasoned
and factually informed understanding of the statutory
criteria and the evidence supporting that [sic] criteria must
be given priority over the remonstrator's and the trial
court's contrary conclusions." What the Town seeks,
in effect, is an interpretation that renders the
Remonstrators' evidence superfluous-i.e., either
the Town ...