text:
    MIDWEST MINERALS, INC., Appellant-Plaintiff, v. Fred L. WILSON, Rick Jenkins, Joseph Kenworthy, Michael Tewell, and James Clayton, in their Official Capacity as Members of the Board of Zoning Appeals of the Area Plan Department/Commission of Vigo County and its Former Executive Director, TFM Porter, and Present Executive Director, Jeremy Weir, and the Board of Commissioners of Vigo County, Appellees-Defendants.
    No. 84A04-1205-MI-258.
    Court of Appeals of Indiana.
    Feb. 27, 2013.

      Leslie C. Shively, Shively & Associates, P.C., Evansville, IN, Attorney for Appellant.
    Michael J. Wright, Wright, Shagley & Lowery, P.C., Terre Haute, IN, Attorney for Appellees.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Midwest Minerals, Inc. (“MWM”) appeals the trial court’s judgment in favor of The Board of Zoning Appeals of the Area Plan Commission of Vigo County (“BZA”) and the Board of Commissioners of Vigo County (“the Board of Commissioners”) (collectively “the Boards”) on MWM’s complaint alleging inverse condemnation and seeking damages. MWM presents two issues for our review:

1. Whether the trial court erred when it applied the doctrine of collateral estoppel to support a conclusion of law.
2. Whether a regulatory taking occurred with respect to real property owned by MWM.
We affirm.

FACTS AND PROCEDURAL HISTORY

This court has previously stated the relevant facts in this matter as follows:

Midwest owns [approximately 11.5 acres] of real estate in West Terre Haute, Indiana. This property is zoned M-2 heavy industrial and was formerly used for coal mining operations. Pursuant to Vigo County’s Unified Zoning Ordinance, (“Zoning Ordinance”), the purpose of the M-2 heavy industrial district is to provide for establishments that primarily engage in manufacturing, construction, wholesaling, warehousing and associated retail, financial and services activities with a need for outdoor storage, processing, or operation. Vigo County Zoning Ordinance, Ind., § 6-105-10.02(A) (1996). The Zoning Ordinance provides an exhaustive list of permitted uses in the M-2 heavy industrial district, which includes but is not limited to: (1) forest products processing; (2) bottled gas storage and distribution; (3) manufacturing of cement, lime or gypsum; (4) manufacturing of construction equipment and machinery; (5) power plants; and (6) rolling and extruding of metal. See Zoning Ordinance § 6-105-10.02(B)(1).
The Zoning Ordinance also provides a list of activities that require obtaining a special exception from the BZA. A special exception is a use permitted under a zoning ordinance upon the showing of certain statutory criteria. Under Vigo County’s Zoning Ordinance, such uses include, but are not limited to, battery salvage and recycling, iron and steel production, concrete mixing, and manufacturing gas or chemicals. See Zoning Ordinance § 6-105-10.02(B)(4).
In 2002, Midwest approached the Vigo County Area Planning Department (“Planning Department”) about establishing a molecular methane gas processing unit on its property in West Terre Haute. The processing unit would allow Midwest to extract coal mine methane gas and then process it by filtering out impurities to bring the methane gas to commercial grade. The executive director of the Planning Department determined that this activity constituted “manufacturing” gas, and therefore under provisions of the Zoning Ordinance, Midwest was first required to petition for and obtain a special exception from the BZA. See Zoning Ordinance § 6-105-10.02(B)(4).
Midwest did not appeal the Planning Department’s decision at that time. Instead, Midwest applied to the BZA for a special exception, which was denied. In December of 2002, Midwest filed an amended verified petition for writ of cer-tiorari, judicial review and declaratory judgment with the Vigo Superior Court, alleging that the BZA erroneously denied Midwest’s application for a special exception and further alleging that Midwest was not required to obtain a special exception. The trial court affirmed the BZA’s decision, and Midwest appealed.
On April 26, 2004, our court issued a unanimous memorandum decision, con-eluding, in part, that Midwest had failed to appeal the Planning Department’s decision that it was required to obtain a special exception to establish its processing unit. Midwest Minerals v. BZA, No. 84A01-0403-CV-145 [808 N.E.2d 772] (April 26, 2004). Therefore, we determined that Midwest had not exhausted its administrative remedies, which deprived the trial court of subject matter jurisdiction over this claim. Regarding the claim that the BZA erroneously denied Midwest’s application for a special exception, we reversed and remanded to the trial court with instructions to order the BZA to enter sufficient findings.

Midwest Minerals, Inc. v. Board of Zoning Appeals, 880 N.E.2d 1264, 1265-66 (Ind.Ct.App.2008) (quoting Midwest Minerals, Inc. v. Board of Zoning Appeals, No. 84A05-0606-CV-316, 862 N.E.2d 726 (Ind.Ct.App. March 8, 2007) (affirming the trial court’s order endorsing the BZA’s determination that Midwest’s proposed gas processing unit would engage in “manufacturing” gas, and, as such, Midwest was thereby required to apply for a special exception) (footnote omitted), trans. denied ), trans. denied.

On September 14, 2005, MWM filed a new application for a special exception, and, on February 8, 2006, following public hearings, the BZA granted the special exception subject to certain conditions. One of the conditions (“the public water condition”) provided as follows:

That the BZA finds that the issuance of said special exception shall be conditioned upon MWM providing public water to any residential use, existing and future, within ½ mile of any and all wells associated with coal mine methane processing to insure that there will be no contamination of the water supply to the surrounding residences. The BZA finds that without the provision of public water, as described above, the proposed use would be injurious to the public health, safety, comfort, morals, convenience and general welfare of the community. Further, the BZA finds that the threat of water well contamination would injure or adversely affect the use or value of other property in the immediate area in a substantially adverse manner.

Plaintiffs Exh. 8. MWM sought judicial review of the public water condition, and, on July 2, 2007, the trial court reversed the BZA’s decision, removing the public water condition. The BZA did not appeal that decision. Accordingly, MWM has been free to begin construction of the molecular gate processing unit as described in the special exception application. But no construction on the processing unit has begun to date.

On July 31, 2009, MWM filed a complaint against the Boards alleging that the public water condition constituted a taking without compensation under Article I, § 21 of the Indiana Constitution and seeking damages. In particular, MWM asserted that the BZA’s actions in imposing the public water condition constituted a “complete deprivation of [MWM’s] property interest” from the time that the public water condition was issued, February 8, 2006, until the trial court ruled that the public water condition was invalid, on July 2, 2007. Following an evidentiary hearing, the trial court entered judgment for the Boards and issued the following findings of fact and conclusions of law:

84D04-0212-MI-9457 (Court Took Judicial Notice)
1. On or about October 16, 2002, the Petitioner Midwest Minerals, Inc. (hereinafter referred to as “MWM”), filed its original Application with the Vigo County Board of Zoning Appeals (hereinafter referred to as “BZA”) for a Special Exception to the Unified Zoning Ordinance of Vigo County (hereinafter referred to as “Zoning Ordinance”) to build a molecular gate natural gas processing unit (hereinafter referred to as “Unit”) to be located at 6450 West Evinger Avenue, West Terre Haute, Indiana 47885 (hereinafter referred to as the “Property”), which had a zoning classification of M-2 Heavy Industrial. The BZA denied that application.
2. MWM filed a Verified Petition for Writ of Certiorari, Judicial Review and Declaratory Judgment under Cause Number 84D04-0212-MI-9457. The Trial Court affirmed the decision of the BZA, denying the petition for a Special Exception.
3. On November 25, 2003[,] MWM initiated an appeal of the decision of the Trial Court. The issues on appeal were: (1) Whether the Trial Court committed reversible error when it determined that MWM was required to obtain a special exception for the proposed use, a molecular gate processing unit? (2) Whether the Trial Court committed reversible error in affirming the decision of the BZA, of the Area Plan Department/Commission of Vigo County, denying MWM application for a special use exception for the proposed use, a molecular gate processing unit?
9.On June 29, 2007, the Trial Court, by a new special Judge, entered an order affirming the BZA’s denial of MWM’s Application for Special Exception. On July 30, 2007, MWM initiated a third appeal in the case. On February 26, 2008, the Court of Appeals affirmed the BZA’s denial of MWM Application for Special Exception. Rehearing and Transfer were denied.
84D03-0502-M1-1208 (Court Took Judicial Notice)
10. This subheading applies to facts surrounding 84D03-0502-M1-1208.
11. On or about July 13, 2004, approximately one (1) year and nine (9) months after MWM applied for a Special Exception, MWM filed an Application for Appeal of Staff Decision with the BZA, seeking to appeal the decision of the Executive Director from 2002, that a special exception was necessary for the establishment of a Unit in a M-2 heavy industrial district.
12. On or about January 12, 2005, after a hearing before the BZA, the Executive Director’s decision was affirmed by the BZA, and MWM’s Appeal was denied. MWM sought review of that decision under Cause Number 84D03-0502-MI-1208. Once again, the Trial Court affirmed the decision of the BZA.
13. MWM appealed this decision, and on March 8, 2007, the Indiana Court of Appeals affirmed the decision of the Trial Court finding that a Special Exception was necessary for the proposed use. Rehearing and Transfer were denied.
84D05-0602-MI-00914 (Court Took Judicial Notice)
14. This subheading applies to facts surrounding 84D05-0602-MI-00914.
15. On September 14, 2005, MWM filed another application for the same use at the same location as the October 16, 2002[,] application described above. On or about February 9, 2006, MWM sought review of the decision of the BZA requiring MWM to extend municipal water service to the area. On July 2, 2007, the Trial Court reversed the BZA’s decision requiring MWM to supply municipal water service to various land owners and granted MWM the right to begin placement of the molecular gate processing unit described in MWM application. This decision was not appealed by the BZA and since this ruling MWM has had the right to begin placement of the Unit on the proposed property and has not done so.
84D05-0701-MI-00589 (Court Took Judicial Notice)
16. This subheading applies to facts surrounding 84D05-0701-MI-00589.
17. On January 19, 2007, MWM filed a Declaratory Judgment seeking to establish that Indiana Code 36-7-4-1103 prevented the Area Plan Department from regulating the complete use and alienation of the mineral resources found on MWM’s property.
18. On October 24, 2008, the Honorable Judge J. Blaine Akers conducted a hearing on the issue of the declaratory judgment.
19. On February 6, 2009, the Honorable Judge J. Blaine Akers issued Findings of Fact, Conclusions of Law and Judgment finding among other issues: Finding of Fact # 13:
“That according to Charles Lee, although not cost effective, it may be possible to remove and transport the methane gas by pumping it into a truck.” A complete certified copy of the Findings of Fact, Conclusions of Law and Judgment is included in the designated materials in support of Court’s Order, Judgment, and Findings of Fact, Conclusions of Law.
84D01-0907-MI-7142
20. This subheading applies to the facts surrounding the present case.
21. MWM contends the condition that MWM supply municipal water service to any home located within one-half (1/2) mile of any well associated with any coal mine methane processing, existing or future, effectively condemned the property of MWM.
22. Property zoned M-2, which is the same classification as the Property in this case, is permitted for the following uses: forest products processing, bottle gas storage and distribution, manufacturing of cement lime or gypsum, manufacturing of construction equipment and machinery, power plants, and rolling and extruding of metal. None of these proposed uses for property zoned M-2, which is the classification of the Property in this case, would have been subject to review by the BZA.
23. According to Charles Lee MWM was not capable of drilling wells or placing the Unit to harvest the methane gas and contracted with Mountain Petroleum Corp. out of Denver, CO for the actual work on the proposed placement of the Unit.
24. According to Charles Lee MWM was never told to not drill wells on the property by any person acting on behalf of the BZA, or any other division of Vigo County Government.
25. According to Charles Lee, the BZA, nor any other person acting on behalf of any other division of Vigo County Government, has regulated the Property, except with regards to the placement of the Unit.
26. According to Charles Lee, since the condition of providing municipal water service was struck down, there has been no impediment to harvesting the methane gas from the BZA or any other division of Vigo County Government.
27. Since July 2, 2007, MWM has not taken any action to place a unit on the Property.
28. According to Charles Lee, no person with BZA, or any other division of Vigo County Government, has physically invaded the Property.
29. According to John Newlin, the Property is not currently served by utilities.
30. According to John Newlin, the Property mainly consists of Gob Piles and is not as suitable as other properties in Vigo County for heavy industry.
31. According to Tom Hite, the methane gas is not valuable unless it is purified and is up to pipeline standards, which can occur at any point prior to placement in the pipeline.
32. According [to] Jeremy Weir, the property has all the characteristics of being compatible with Large Tract Residential land use, or any other use permitted under M-2, heavy industrial.
33. According to Jeremy Weir, the only thing that has been regulated on the Property of MWM is the placement of the Unit.
34. Vigo County has not inversely condemned the Property of MWM.
CONCLUSIONS OF LAW
A. The Court has jurisdiction of the subject matter of this action and the parties hereto.
B. All Findings of Fact are incorporated by reference as Conclusions of Law and all Conclusions of Law are incorporated by reference as Findings of Fact.
C. In General, a regulatory taking must deprive the landowner of “all or substantially all economic use or productive use of property.” Lingle v. Chevron USA. Inc., 544 U.S. 528, 538-540 [125 S.Ct. 2074, 161 L.Ed.2d 876] (2005). This doctrine, as adopted by the Supreme Court of the United States, was explicitly followed by the Indiana Supreme Court in Biddle v. BAA Indianapolis, LLC, 860 N.E.2d 570, 577 (Ind.2007).
D.The test, as developed in Biddle, focuses on several factors including: the economic impact of the regulation on the claimant, the extent to which the regulation interferes with reasonable investment backed expectations, and the character of the government action. Id. at 577-578. In the present case, MWM has lost nothing. At this moment, MWM has full authority to place a Unit on the Property and begin harvesting the coal bed methane. This has been the case since 2007 and MWM has done nothing to begin the process of utilizing this property interest, which they claim was inversely condemned for a period of seventeen (17) months. The BZA’s determination that a special exception was necessary for the placement of a Unit has never interfered with the reasonable investment backed expectations of MWM. As Mr. Lee testified, MWM is not capable of harvesting the coal bed methane and MWM’s only option was to contract with another entity, Mountain Petroleum Corp., to perform this service. Once the other entity drilled the wells, built the Unit, and started harvesting methane, the other entity would then pay MWM a certain percentage of the money generated from the sale of the coal bed methane. MWM has not expended any of its own resources, or had any other entity invest in MWM for the placement of a Unit. Lastly, the character of the government action weighs heavily in favor of the BZA. The BZA’s determination that a special exception was necessary has been upheld, the initial denial of the special exception has been upheld, and the only condition which has ever been struck down was the requirement that MWM provide municipal water service to landowners adjacent to the wells, which was only in place for a period of seventeen (17) months.
E. A landowner is not entitled to the highest and best use of his land, and a taking only occurs when the land use regulation prevents all reasonable use of the land. Dep’t of Natural Res. v. Ind. Coal Council. Inc., 542 N.E.2d 1000, 1004 (Ind.1989) cert. denied, 493 U.S. 1078 [110 S.Ct. 1130, 107 L.Ed.2d 1036] (1990). In this case, MWM has not been deprived of all reasonable use of the Property. MWM had the full ability to do anything they [sic] wanted on the Property, except the manufacture of gas which required a special exception through the BZA. The only issue that has ever even attempted to be regulated was the placement of a Unit on the Property.
F. MWM contends that a taking, even for a temporary time period, is still a taking and cites First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 [107 S.Ct. 2378, 96 L.Ed.2d 250 (1987) ], as support for this proposition. In First English, the Supreme Court was being asked to determine whether an ordinance which provided: “[a] person shall not construct, reconstruct, place or enlarge any building or structure, any portion of which is, or will be, located within the outer boundary lines of the interim flood protection area located in Mill Creek Canyon,” constituted a regulatory taking. Id. at 307 [107 S.Ct. 2378], The ordinance in the First English case placed a complete prohibition on any construction within the Mill Creek Canyon; that is not the case here. MWM was not prohibited from doing anything[;] there was a condition requiring MWM to supply municipal water service prior to harvesting the methane, which was eventually struck down and not appealed. Furthermore, in the First English case the Supreme Court held: “We merely hold that where the government’s activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.” Id. at 321 [107 S.Ct. 2378]. The BZA has not “worked a taking of all use of the property.” As established by Judge Akers’ Findings of Fact, Conclusions of Law and Judgment, of which this Court took Judicial Notice: “That MWM has failed to meet its burden of proving that the Area Plan Department of Vigo County and/or the Board of Commissioners of Vigo County have prevented the complete use of the methane gas found on its property.” (Conclusion of Law # 7 in Judge Akers’ judgment handed down February 6, 2009, included in the designated material in support of Findings of Fact and Conclusions of Law). In addition, MWM has never sought to do anything else with the Property. The placement of the Unit was the one thing MWM wanted to do on the property and for the biggest part of the procedural history of this case, all actions of the BZA have been upheld. The imposition of the condition, which was challenged and struck down, should not serve as a basis for MWM to claim the BZA removed all use of the Property.
G. In Tahoe-Sierra Preservation Council Inc., et al. v. Tahoe Regional Planning Agency, et al, 535 U.S. 302 [122 S.Ct. 1465, 152 L.Ed.2d 517] (2002), the Supreme Court of the United States was asked to determine whether a thirty-two[-] (32[-]) month moratoria on development effected unconstitutional regulatory takings of property. In Tahoe, the Supreme Court stated:
“An interest in real property is defined by the metes and bounds that describe its geographic dimensions and the term of years that describes the temporal aspect of owners’ interest. See Restatement of Property Section 7-9 (1936). Both dimensions must be considered if the interest is to be viewed in its entirety. Hence, a permanent deprivation for the owner’s use of the entire area is a taking of the parcel as a whole, whereas a temporary restriction that merely causes a diminution in value is not. Logically, a fee simple estate cannot be rendered valueless by a temporary prohibition on economic use, because the property will recover value as soon as the prohibition is lifted. Cf. Agins v. City of Tiburon, 447 U.S., at 263, n. 9 [100 S.Ct. 2138] (“even if the appellants’ ability to sell their property was limited during the pendency of the condemnation proceeding, the appellants were free to sell or develop their property when the proceedings ended. Mere fluctuations in value during the process of governmental decision-making, absent extraordinary delay, are ‘incidents of ownership. They cannot be considered a “taking” in the constitutional sense.’ ” (quoting Danforth v. United States, 308 U.S. 271, 285 [60 S.Ct. 231, 84 L.Ed. 240] (1939))).”
In Tahoe, the Supreme Court found the thirty-two[-]month moratoria was not a compensable taking. This is very comparable to the situation in this case. MWM felt the condition of providing municipal water service to affected landowners was too burdensome and challenged the condition in Court. On that point, MWM was successful and the condition was struck down in 2007. Since that time, MWM has had the full authority to exercise [its] ability to harvest the coal bed methane and locate a unit on the Property and restore whatever value MWM claims they lost. MWM has not done so and is attempting to claim this seventeen[-]month period where the “municipal water” condition was in place constitutes a taking, which is a misapplication of the law.
H. In Town of Georgetown v. Sewell, 786 N.E.2d 1132 (Ind.Ct.App.2003), the Indiana Court of Appeals stated: “There are two (2) discrete categories of regulations that violate the Takings Clause regardless of the legitimate state interest advanced. The first category encompasses regulations that require the property owner to suffer a physical ‘invasion’ of his or her property. The second category encompasses regulations that deny all economically beneficial or productive use of land.” Town of Georgetown at 1139. In the present case, MWM has not alleged a physical invasion of property, so the question becomes has the BZA denied MWM “all economically beneficial or productive use of land?” The answer to this question is no. Judge Akers’ Findings of Fact, Conclusions of Law and Judgment, should serve as Collateral Estoppel to the issues presented in the previous cases, which are relevant to the current case. Judge Akers found that MWM had failed to meet its burden of proving the Area Plan Department/Commission of Vigo County, and the Board of Commissioners of Vigo County, has prevented the complete use of the methane gas on its Property. Furthermore, Judge Akers found, although not cost effective, it may be possible to remove and transport the methane gas by pumping it into a truck. In Eichenburger [Eichenberger ] v. Eichenburger [Eichenberger ], 743 N.E.2d 370 at 375 (Ind.Ct.App.2001), the Indiana Court of Appeals listed two factors to consider on the issue of collateral estoppel: (1) whether the party against whom the prior judgment is plead [sic] had a full and fair opportunity to litigate the issue; and (2) whether it would be otherwise unfair under the circumstances to permit the use of collateral estoppel. Id. at 375. If the two conditions are fulfilled, then the Court may apply collateral estoppel to prevent the litigation of the same issue. In this case, both of the factors have been met, and Judge Akers[’] previous determination on these issues shows MWM has not been deprived of all or substantially all economic use or productive use of the Property.
I. In Georgetown, the Court went on to state:
“To support his argument, Timothy cites to Ragucci v. Metro. Dev. Comm’n of Marion County, where the owner of an apartment building claimed that he was the victim of a regulatory taking because a zoning ordinance only allowed him to operate this apartment building as a five dwelling unity as opposed to an eight dwelling unit. 702 N.E.2d at 680. Our Supreme Court disagreed and stated that, ‘it pales in comparison to the other cases in which the Supreme Court has nonetheless found no taking.’ Id. at 683; see e.g., Vill. of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 384 [47 S.Ct. 114, 71 L.Ed. 303] (1926) (upholding a zoning ordinance that created a 75% diminution in value); Penn Central Trans. Co v. City of New York, 438 U.S. 104, 130 [98 S.Ct. 2646, 57 L.Ed.2d 631] (1978) (upholding a zoning ordinance that denied property owners of a valuable property interest that significantly inhibited property owners’ ability to develop the property). Moreover, Indiana courts, like the United States Supreme Court, have failed to find a taking where the regulation significantly diminished the value of the property. See e.g., Leisz, 702 N.E.2d at 1030 (failing to find a taking where ‘[plaintiffs’] property continues to have an economically viable use even if it is somewhat diminished’); Taylor-Chalmers, Inc. v. Bd. of Comm’rs of LaPorte County, 474 N.E.2d 531, 532 (Ind.Ct.App.1985) (holding that rezoning of plaintiffs property from ‘commercial or accommodation business’ to ‘light industrial or agricultural’ did not amount to a taking, although the plaintiff may have been denied the ‘highest and best use of his land’), reh’g denied.”
J. The law is with the Respondent and against the Petitioner.
IT IS THEREFORE ORDERED, ADJUDGED and DECREED that the Board of Zoning Appeals of Vigo County and the Board of Commissioners of Vigo County have not inversely condemned the Property of Midwest Minerals, Inc.

Appellees’ App. at 39-51. This appeal ensued.

DISCUSSION AND DECISION

Standard of Review

Here, the parties requested that the trial court enter findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A). When a trial court enters findings and conclusions, we apply a two-tiered standard of review: first we determine whether the evidence supports the findings, and second we determine whether the findings support the judgment. Smith v. Smith, 938 N.E.2d 857, 860 (Ind.Ct.App.2010). “In deference to the trial court’s proximity to the issues, we disturb the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment.” Id. We do not reweigh the evidence, and we consider only the evidence favorable to the trial court’s judgment. Id. The party appealing the trial court’s judgment must establish that the findings are clearly erroneous. Id. “Findings are clearly erroneous when a review of the record leaves us firmly convinced that a mistake has been made.” Id. We do not defer to conclusions of law, which are evaluated de novo. Id.

Issue One: Collateral Estoppel

MWM first contends that the trial court erred when it concluded that the doctrine of collateral estoppel applied with respect to an issue determined in a prior declaratory judgment action. Generally, collateral estoppel operates to bar a subsequent relitigation of the same fact or issue where that fact or issue was necessarily adjudicated in a former suit and the same fact or issue is presented in the subsequent lawsuit. Sullivan v. Am. Cas. Co. of Reading, Pa., 605 N.E.2d 134, 137 (Ind.1992) (emphasis added). In that situation, the first adjudication will be held conclusive even if the second action is on a different claim. Id. As the trial court in this case correctly acknowledged, we consider two factors on the issue of collateral estoppel: (1) whether the party against whom the prior judgment is pled had a full and fair opportunity to litigate the issue; and (2) whether it would be otherwise unfair under the circumstances to permit the use of collateral estoppel. See Eichenberger v. Eichenberger, 743 N.E.2d 370, 375 (Ind.Ct.App.2001). If those two elements are fulfilled, then the court may apply collateral estoppel to prevent reliti-gation of the same issue. Id.

Here, in a prior proceeding between the same parties, MWM sought declaratory judgment on the issue of “whether MWM has proven that the Area Plan Department of Vigo County and/or the Board of Commissioners of Vigo County have prevented MWM’s ‘complete’ use of a mineral resource outside of an urban area.” Appel-lees’ App. at 34. The trial court found, in relevant part, that: MWM had not drilled any wells on the subject property “in an attempt to remove methane gas from the coal mines beneath the surface”; and, “although not cost effective, it may be possible to remove and transport the methane gas by pumping it into a truck.” Id. at 33. And the trial court concluded in relevant part that: while the Area Plan Department of Vigo County and/or the Board of Commissioners of Vigo County were “attempting to regulate the building of a methane gas processing unit,” they were not attempting to regulate “the removal, complete use, or alienation of the methane gas found on MWM’s property”; and MWM had failed to meet its burden to prove that the Area Plan Department of Vigo County and/or the Board of Commissioners of Vigo County had “prevented the complete use of the methane gas found on its property.” Id. at 35.

While the issue of whether a taking has occurred was not raised in the declaratory judgment action, the fact of whether the Boards had prevented the “complete use of the methane gas” found on MWM’s property had been fully litigated, conclusively determined, and cannot be relitigated here. Id. We hold that the trial court properly considered that fact under the doctrine of collateral estoppel. See Sullivan, 605 N.E.2d at 137.

Issue Two: Inverse Condemnation

MWM contends that the trial court erred when it concluded that the Boards’ actions did not constitute a taking. In particular, MWM maintains that, during the seventeen months from the date that the BZA granted the special exception subject to the public water condition until the date that the trial court struck down that condition, MWM was unable to begin construction of the molecular gate processing unit. MWM asserts that it was, therefore, denied all economically beneficial or productive use of the land and is entitled to damages.

In Town of Georgetown v. Sewell, 786 N.E.2d 1132, 1138-39 (Ind.Ct.App.2003), we explained:

Inverse condemnation is a process provided by statute to allow persons to be compensated for the loss of property interests taken for public purposes without use of the eminent domain process. It serves to provide a remedy for takings of property that would otherwise violate [Article I,] § 21 of our state constitution and the Fifth Amendment of the United States Constitution as made applicable to the states by the Fourteenth Amendment. Specifically, Ind. Code 32-24-1-16,[ ] which provides the statutory remedy for inverse condemnation, states that:
A person having an interest in property that has been or may be acquired for a public use without the procedures of this article or any prior law followed is entitled to have the person’s damages assessed under this article substantially in the manner provided in this article.
A taking includes any substantial interference with private property that destroys or impairs one’s free use and enjoyment of the property or one’s interest in the property. Bd. of Comm’rs of Vanderburgh County v. Joeckel, 407 N.E.2d 274, 278 (Ind.Ct.App.1980). The Fifth Amendment to the United States Constitution, applicable to the states via the Fourteenth Amendment, guarantees that private property shall not “be taken for public use, without just compensation.” Thus, “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Bd. of Zoning Appeals, Bloomington, Ind. v. Leisz, 702 N.E.2d 1026, 1028 (Ind.1998) (quoting Penn. Coal Co. v. Mahon, 260 U.S. 393, 414-415, 43 S.Ct. 158, 67 L.Ed. 322 (1922)). “Although no precise rule determines when property has been taken, the question necessarily requires a weighing of private and public interests.” Leisz, 702 N.E.2d at 1028 (quoting Agins v. City of Tiburon, 447 U.S. 255, 260-61, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980)).
In Leisz, our supreme court acknowledged that there are “two discrete categories of regulations that violate the Takings Clause regardless of the legitimate state interest advanced.” 702 N.E.2d at 1028. The first category encompasses regulations that require the property owner to suffer a physical “invasion” of his or her property. Id. at 1028-1029. The second category encompasses regulations that deny all economically beneficial or productive use of land. Id. at 1029.
... Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex set of factors, including: (1) the regulation’s economic effect on the landowner, (2) the extent to which the regulation interferes with reasonable investment-backed expectations, and (3) the character of the government action. Ragucci v. Metro. Dev. Comm’n of Marion County, 702 N.E.2d 677, 683 (Ind.1998).

Here, MWM directs us to evidence showing that the property, “though zoned M-2 industrial, had only one viable economic use, the molecular gate processing unit.” Brief of Appellant at 9. And MWM asserts that the evidence does not support the trial court’s finding No. 31, namely, that the methane gas found on the property could be purified and brought up to “pipeline standards ... at any point prior to placement in the pipeline.” Appellees’ App. at 45. MWM maintains that the undisputed evidence shows that “it was necessary to use the molecular gate processing unit at the subject site to process the methane gas.” Brief of Appellant at 10. Accordingly, MWM contends that it was “deprived of all or substantially all economic or productive use of its property[.]” Id.

First, MWM ignores the evidence that, while “not cost effective, it may be possible to remove and transport the methane gas [to be purified elsewhere] by pumping it into a truck.” Appellees’ App. at 33. Thus, had MWM decided to dig wells and begin harvesting the methane gas on its property, it may have been able to process the gas offsite. Second, the evidence shows that the property is available for uses including warehousing, recreational use, forestry, or a conservation club. Thus, the evidence supports the trial court’s determination that MWM has not been deprived of all economic or productive use of the property. See, e.g., Town of Georgetown, 786 N.E.2d at 1140 (holding property had economically viable use where evidence showed tract could be used for grazing or recreational purposes).

Next, we look at the three factors set out in Ragucci, namely: (1) the regulation’s economic effect on the landowner, (2) the extent to which the regulation interferes with reasonable investment-backed expectations, and (3) the character of the government action. 702 N.E.2d at 683. With respect to the economic effect, we first observe that MWM did not purchase the subject property for the purpose of harvesting and processing methane gas in the first instance. Charles Lee testified that MWM had purchased the property, which was not “of particular value,” in “an attempt to kind of get control of things and maybe figure out how to clean the area up [after years of coal mining, which operations had ceased].” Transcript at 11. MWM bought the property in 1981, but there is no evidence that it did anything with the property for decades. Then, in August 2000, MWM entered into a contract with Mountain Petroleum, Corp. (“Mountain Petroleum”) “to explore and develop” the “Oil and Gas Leases and/or Oil and Gas Interests in the land[.]” Plaintiffs Exh. 7. And in 2002, MWM first applied for a special exception to build a molecular gate natural gas processing unit. After that application was denied, MWM waited until 2005 to file a second application for special exception. Given the number of years that MWM has owned the subject property without using it for any purpose, and given that there appeared to be no urgency in getting the special exception approved, MWM cannot show a significant economic effect as a result of the alleged taking.

With respect to the alleged impact on reasonable investment-backed expectations, the evidence shows that any impact was insignificant. Again, there is no evidence of any contractual deadlines for beginning construction on the molecular gate processing unit, and, by the time that the public water condition was implemented in February 2006, more than five years had passed since MWM and Mountain Petroleum had executed their contract. Moreover, the condition was struck down in July 2007, yet Mountain Petroleum has yet to start construction on the processing unit, and no wells have been dug. Lee testified that there were two reasons that nothing had been done with the subject property to date: the delay while the public water condition was in place; and “a business decision” since “by then gas prices were going down[.]” Transcript at 40. Lee testified further that Mountain Petroleum “still [has] the ability to do something[.]” Id. at 43. There is no evidence that Mountain Petroleum canceled its contract with MWM as a result of the alleged taking. Indeed, there is no evidence that Mountain Petroleum would have built the processing unit had the public water condition not been implemented in the first instance.

Finally, the character of the government action in this case supports the trial court’s conclusion that there was no taking. While the public water condition was ultimately struck down, the BZA implemented it believing it to be in the best interests of the public health. As the United States Supreme Court has observed, zoning laws are generally “viewed as permissible governmental action even when prohibiting the most beneficial use of the property.” See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 125, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978).

Again, we disturb the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment. Smith, 938 N.E.2d at 860. MWM’s appeal amounts to a request that we reweigh the evidence, which we will not do. The trial court did not err when it concluded that the seventeen-month period from the time that the public water condition was implemented until it was reversed did not constitute inverse condemnation.

Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.

      . Indiana Code Section 36-7-4-1103(c) provides: "This chapter does not authorize an ordinance or action of a plan commission that would prevent, outside of urban areas, the complete use and alienation of any mineral resources or forests by the owner or alienee of them.” In bringing the declaratory judgment action, MWM sought relief from the requirement to obtain a special exception to build the molecular gate natural gas processing unit.

      . Lee testified that while natural gas prices were $8 to $12 per unit in 2006-2007, prices are now as low as $2 per unit.


source: Caselaw Access Project

author: RILEY, Judge.

license: Public Domain

text:
    In the Matter of the PATERNITY OF G.W., J.W., Appellant-Respondent, v. R.M., Appellee-Petitioner.
    No. 22A01-1205-JP-234.
    Court of Appeals of Indiana.
    Feb. 27, 2013.
    Rehearing Denied May 21, 2013.

      Rachele L. Cummins, Smith Carpenter Thompson, Fondrisi & Cummins, LLC, Jeffersonville, IN, Attorneys for Appellant.
    Joni L. Grayson, Jeffersonville, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Respondent, J.W. (Mother), appeals the trial court’s decision to deny her two motions to dismiss the paternity action commenced by Appellee-Petitioner, R.M.

We reverse.

ISSUES

Mother raises two issues on appeal, which we restate as follows:

(1) Whether the trial court erred when it denied Mother’s motion to dismiss R.M.’s paternity action; and
(2) Whether the trial court erred when it denied Mother’s motion, as G.W.’s next friend, to voluntarily dismiss the paternity action.

FACTS AND PROCEDURAL HISTORY

G.W. was born on July 27, 2010 to Mother. Prior to Mother’s pregnancy with G.W., she was in a relationship with R.M., who claims to be the minor child’s biological father. R.M. was never married to Mother, he did not sign G.W.’s birth certificate or paternity affidavit, and did not register with the putative father registry. R.M. knew about Mother’s pregnancy, he attended doctor appointments with Mother, and was present during G.W.’s birth. After G.W. was born, R.M. saw the minor child regularly until April of 2011, when Mother stopped all visitation.

Six months into her pregnancy with G.W., Mother started dating J.U., her current husband. Mother and J.U. married on July 12, 2011 and on August 22, 2011, he filed a petition to adopt G.W., to which Mother consented, in the Floyd Circuit Court. Although R.M. was named in the adoption petition as “the biological father,” and a search of the putative father registry was conducted, R.M. did not receive notice of the proceedings. (Appellant’s App. p. 9).

On August 10, 2011, twelve days prior to the filing of the adoption petition, R.M. signed a petition to establish paternity at the Clark County prosecutor’s office. It was not until four days after the adoption petition was filed, on August 26, 2011, that the State of Indiana, as G.W.’s next friend, actually filed the verified complaint to establish paternity and support in the Clark Circuit Court. On September 16, 2012, Mother filed a motion to dismiss the paternity action. On September 21, 2011, R.M. filed a response and cross-petition in the paternity action in the Clark Circuit court, as well as a motion contesting the adoption in the Floyd Circuit Court. On November 4, 2011, the paternity action and adoption proceeding were consolidated in the Floyd Circuit Court and the State withdrew its appearance in the paternity action. On January 12, 2012, Mother, as G.W.’s next friend, filed a motion to voluntarily dismiss the complaint to establish paternity and support. On April 30, 2012, after conducting an evidentiary hearing on Mother’s two motions to dismiss, the trial court stated: “[t]he [m]otions to [d]imiss the [p]etition to [establish [pjaternity which were filed by [Mother] as custodial party/oblige and as next friend of [G.W.] be and the same are hereby denied.” (Appellant’s App. p. 6). In the same decision, the trial court certified its order for interlocutory appeal, which this court accepted.

Mother now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Mother contends that the trial court erred when it denied her two motions to dismiss the paternity action — the motion to dismiss the paternity action, filed on September 16 and the motion, as G.W.’s next friend, to voluntarily dismiss the paternity action. Although the two motions are phrased differently and represent distinct legal mechanisms, they both aim to prevent R.M. from establishing his paternity to the minor child. Mother’s motion to dismiss, originally filed in Clark Circuit Court, asserts that because R.M. failed to timely register with the putative father registry, sign the birth certificate, or timely file a paternity action, he implicitly consented to the adoption and is barred from seeking paternity to the minor child as he no longer has standing to bring the claim. Subsequently, in her motion to voluntarily dismiss, Mother, as G.W.’s next friend, asserts that because R.M. has no standing to establish paternity, he is also barred to seek paternity by filing as next of friend.

I. Motion to Dismiss for Lack of Standing

Mother brought her initial motion to dismiss under the province of Indiana Trial Rule 12(B)(6), failure to state a claim, as well as pursuant to the claim that R.M. lacks standing. Motions to dismiss for lack of standing may be brought under Trial Rule 12(B)(6) for failure to state a claim on which relief can be granted. Thomas v. Blackford Co. Area Bd. of Zoning Appeals, 907 N.E.2d 988, 990 (Ind.2009). If the motion is presented under Rule 12(B)(6), the allegations of the complaint are required to be taken as true. Id. A successful 12(B)(6) motion alleging lack of standing requires that the lack of standing be apparent on the face of the complaint. Id. However, if on a 12(B)(6) motion matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Ind. T.R. 56 See T.R. 12. In this case, the trial court conducted an evi-dentiary hearing and both parties tendered briefs in support of their respective positions. As such, we shall proceed under the summary judgment standard of review.

Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). “A fact is material if its resolution would affect the outcome of the case, and an issue is genuine if a trier of fact is required to resolve the parties’ differing accounts of the truth ..., or if the undisputed facts support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009). In reviewing a trial court’s ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind.Ct.App.2008), trans. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08.

Mother’s main contention alleges that because R.M. failed to register with the putative father registry, did not sign G.W.’s birth certificate or a paternity affidavit, he is now precluded from establishing paternity and contesting the adoption. In fact, Mother asserts that because R.M. failed to take timely action, he implicitly consented to the adoption of the minor child and waived any notice of the adoption proceedings. On the other hand, acknowledging that he never registered, R.M. nevertheless argues that the provisions of the putative father registry are not applicable to him because Mother disclosed his name to her attorney and a search of the putative father registry was conducted.

Indiana established the Indiana Putative Father’s Registry in 1994, which is managed by the Indiana Department of Health. I.C. § 31-19-5-2. The statute governing the putative father’s registry imposes registration requirements on putative fathers who wish to contest their child’s adoption or those who petition for paternity while an adoption proceeding is pending. See In re Adoption of J.D.C., 751 N.E.2d 747, 749 (Ind.Ct.App.2001). Specifically, Indiana Code section 31-19-5-1 (emphasis added) provides

Application of Chapter
Sec. 1 (a) This chapter applies to a putative father whenever:
(1) an adoption under [I.C. ch.] 31-19-2 has been or may be filed regarding a child who may have been conceived by the putative father; and
(2) on or before the date the child’s mother executes a consent to the child’s adoption, the child’s mother has not disclosed the name or address, or both, of the putative father to the attorney or agency that is arranging the child’s adoption.
(b) This chapter does not apply if, on or before the date the child’s mother executes a consent to the child’s adoption, the child’s mother discloses the name and address of the putative father to the attorney or agency that is arranging the child’s adoption.

A putative father who registers within thirty days after the child’s birth or the date the adoption petition is filed, whichever occurs later, is entitled to notice of the child’s adoption. See I.C. § 31-19-5-4; -12. If, on or before the date the mother of a child executes a consent to adoption, she does not disclose to the attorney or agency that is arranging the adoption, the name or address, or both, of the putative father of the child, the putative father must register under this chapter to entitle him to notice of the child’s adoption. I.C. § 31-19-5-5. Statutorily, the repercussions of failing to register with the putative father registry are far-reaching. Not only does the putative father forego notice of the adoption proceeding, but “[t]he putative father’s waiver under this section constitutes an irrevocably implied consent to the child’s adoption.” I.C. § 31-19-5-18.

Moreover, the requirement that the putative father registers within a certain time limit, is not solely mandated in adoption proceedings but carries its mirror consequences into the paternity proceedings. In particular, “[a] man who files or is a party to a paternity action shall register with the putative father registry under [I.C. Ch] 31-19-5.” I.C. § 31-14-5-7. Likewise, “a man who is barred under [I.C] 31-19 from establishing paternity may not establish paternity by: (1) filing a paternity action as next of friend of a child; or (2) requesting a prosecuting attorney to file a paternity action.” I.C. § 31-14-5-9.

The evidence reflects that although Mother disclosed R.M.’s name to the attorney arranging the adoption of G.W. by her husband, she never divulged R.M.’s address. Because both the name and address have to be revealed to fall outside the application of the putative father registry, we find that the provisions of the registry are applicable to R.M. See I.C. § 31-19-5-1. As R.M. acknowledges that he never registered, we must necessarily conclude that he is not entitled to notice of the adoption proceeding, and has irrevocably and implicitly consented to the adoption of his minor child to J.U.

Our conclusion today is supported by Indiana’s strong interest in providing stable homes for children, as “early and permanent placement of children with adoptive families is of the utmost importance.” In re Paternity of Baby Doe, 734 N.E.2d 281, 287 (Ind.Ct.App.2000). If a father fails to register within the specified amount of time allowed under the statute, then “the State’s obligation to provide this child with a permanent, capable and loving family becomes paramount.” Id. Moreover, other jurisdictions have similarly concluded that a putative father who fails to register with the putative father’s registry has waived his right to notice of adoption proceedings and impliedly consents to the adoption. In Baby Doe, this court relied on Robert O v. Russell K., 80 N.Y.2d 254, 264, 590 N.Y.S.2d 37, 604 N.E.2d 99 (1992) where the New York Court of Appeals concluded that although the putative father was not immediately aware of the child, not only due to his lack of effort to discover the child but also because of the biological mother’s efforts to keep him from knowing about the child,

[pjromptness is measured in terms of the baby’s life not by the onset of the father’s awareness. The demand for prompt action by the father at the child’s birth is neither arbitrary nor punitive, but instead a logical and necessary outgrowth of the State’s legitimate interest in the child’s need for early permanence and stability.

Baby Doe, 734 N.E.2d at 286-87.

Thus, as R.M. failed to timely register with the putative father registry, he has impliedly consented to the adoption of his minor child and is now barred from establishing paternity. See I.C. § 31-14-5-7. Thus, the trial court erred in denying Mother’s motion to dismiss the paternity action.

II. Mother’s Motion as G.W.’s Next Friend

Repeating the argument supporting her motion to dismiss R.M.’s paternity action, Mother asserts that R.M. “cannot serve as [G.W.’s] Next Friend.” (Appellant’s Br. p. 16). We agree. Pursuant to I.C. 31-14-5-9, “a man who is barred under [I.C] 31-19 from establishing paternity may not establish paternity by: (1) filing a paternity action as next of friend of a child; or (2) requesting a prosecuting attorney to file a paternity action.” Therefore, the trial court erred in denying Mother’s motion as next of friend.

CONCLUSION

Based on the foregoing, we conclude that the trial court erred in denying Mother’s motions to dismiss R.W.’s paternity action.

Reversed.

BAKER, J. and BARNES, J. concur.

      . The Clark Circuit Court granted this motion on September 20, 2011 but vacated its order on October 12, 2011.


author: DAVID, J.,

text:
    Anthony WADE, Appellant, v. TEREX-TELELECT, INC., Appellee.
    No. 29S05-1209-CT-557.
    Supreme Court of Indiana.
    March 18, 2013.
   PUBLISHED ORDER

By order dated September 27, 2012, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, including considering the points presented by counsel at oral argument and discussion among the Justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion reported as Wade v. Terex-Telelect, Inc., 966 N.E.2d 186 (Ind.Ct.App.2012), should be reinstated as Court of Appeals precedent. Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end.

The Court DIRECTS the Clerk to certify this appeal as final and to send copies of this order to the Hon. Margret G. Robb, Chief Judge of the Court of Appeals; the Hon. William J. Hughes, Hamilton Superi- or Court; Steve Lancaster, Court of Appeals Administrator; and all counsel of record.

The Court further DIRECTS the Clerk to send a copy of this Order to LexisNexis and to Thomson/Reuters for publication on-line and in the bound volumes of this Court’s decisions.

DICKSON, C.J., and RUCKER and MASSA, JJ., concur.

DAVID, J., dissents with separate opinion.

RUSH, J., dissents without opinion.

DAVID, J.,

I respectfully dissent from the majority’s decision to vacate our original order granting transfer and to now deny transfer. I would affirm the trial court. This case was tried over six full days, involving excellent attorneys on both sides and was presided over by a stellar trial judge. Numerous witnesses testified and many facts were highly contested. The incident in this case occurred in August 1997.. The case was filed in July 1999. It was tried before a jury in June 2010. The jury returned a verdict finding the Plaintiff 100% at fault for his injuries. I do not believe any error in the jury instructions met the abuse of discretion standard necessary to reverse the trial court’s giving of the challenged instruction. All 38 final instructions were warranted and relevant. The complained of instructions regarding State of the Art and Compliance with Government Regulations were proper statements of the law and were relevant to the allegations and the defenses raised. It did not require the jury to reach any particular conclusion and permitted counsel to argue that the evidence warranted its application or that the evidence did not warrant its application.


text:
    In the Matter of Robert W. MILLER, Respondent.
    No. 48S00-1103-DI-149.
    Supreme Court of Indiana.
    March 21, 2013.
   PUBLISHED ORDER ACCEPTING RESIGNATION AND CONCLUDING PROCEEDING

A “Verified Complaint for Disciplinary Action” against Respondent was filed on March 15, 2011. Respondent has now tendered to this Court an affidavit of resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 28(17).

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately. The Clerk of this Court is directed to record Respondent’s resignation on the Roll of Attorneys. Respondent shall fulfill all the applicable duties under Admission and Discipline Rule 23(26)(d).

IT IS FURTHER ORDERED that any attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent’s resignation.

Respondent shall be ineligible to petition for reinstatement to the practice of law for five years from the date of this order. See Admis. Disc. R. 23(4)(a). If Respondent seeks reinstatement, the misconduct admitted in Respondent’s affidavit of resignation, as well as any other allegations of misconduct, may be addressed in the reinstatement process. Approval of a petition for reinstatement is discretionary and requires clear and convincing evidence of the petitioner’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The costs of this proceeding are assessed against Respondent. With the acceptance of this resignation, the hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


author: ROBB, Chief Judge.

text:
    D.L., Glen Black, Ann Black, Steven Lucas, and K.L., by her next friend, D.L., Appellants-Plaintiffs, v. Christine HUCK, Laura Zimmerman, Angela Smith Grossman, Rhonda Friend, Angyl McClaine, and Indiana Department of Child Services, Appellees-Defendants.
    No. 79A04-1202-CT-61.
    Court of Appeals of Indiana.
    Jan. 23, 2013.

      Michael A. Wilkins, Broyles Eight & Ricafort, P.C., Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Elizabeth Rogers, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION ON REHEARING

ROBB, Chief Judge.

Both D.L. (the “Family”) and the Department of Child Services (“DCS”) have petitioned for rehearing in our decision dated October 17, 2012. In our opinion, we held that DCS and its workers were not entitled to quasi-judicial immunity for their removal of a child from the home of relatives in whose care she had been placed and who were in the process of adopting her. D.L. v. Huck, 978 N.E.2d 429, 435 (Ind.Ct.App.2012). We held that the workers and DCS were, however, entitled to statutory immunity under Indiana Code section 31-25-2-2.5. Id. at 436-36. We grant DCS’s petition only to clarify the purpose of rehearing, and otherwise affirm our opinion as to DCS in all other respects. We grant the Family’s petition in order to re-examine their federal civil rights claims and claims under the Indiana Tort Claims Act.

I. DCS’s Petition

DCS argues that in denying DCS quasi-judicial immunity, we mistakenly assumed that there was no court order authorizing the removal, and DCS now attempts to supplement the record. The new document submitted with the petition for rehearing was not in the record on appeal, nor was it referred to by either of the parties, and it is inappropriate to try to add it now. DCS claims that it is not adding new evidence by adding this document, but that under the proper standard of review we should have affirmed the trial court’s dismissal because the Family failed to allege facts that defeat quasi-judicial immunity. In fact, the Family did allege that there was no court order for K.L.’s removal (both in the complaint and in the appeal), implying that there was no court order before or after the fact — even before they explicitly, at oral argument, alleged that DCS never sought retrospective approval. Moreover, the Family notes in their response that upon a motion to dismiss, the burden was on DCS to prove that it was entitled to dismissal, not on the Family to rebut the motion.

DCS knew that quasi-judicial immunity was an issue on appeal — in fact DCS itself first supplied the notion of quasi-judicial immunity in its memo in support of the motion to dismiss — and yet failed to provide or even refer to this document to the trial court, or to us in its reply on appeal, at oral argument, or by a motion to supplement the record at any time during the appeal. It seems that this is one more example of the ball being dropped by DCS in this case, and DCS may not supplement the record now. A petition for rehearing is not a pathway for re-litigating the case. See Daviess-Martin Cnty. Rural Tel. Corp. v. Pub. Serv. Comm’n, 132 Ind.App. 610, 625, 175 N.E.2d 439 (1961) (“A petition for rehearing should ask for a rehearing only on points which were originally properly presented that were overlooked or improperly decided.”). We affirm our original opinion as to DCS in all respects.

II. The Family’s Petition

A. Statutory Immunity

The Family also petitions for rehearing and first argues that our interpretation of Indiana Code section 31-25-2-2.5 was overly broad and should not have been used to provide immunity to DCS as an entity. However, we specifically noted in our opinion that the statute does not directly apply to DCS and only extended immunity to it in this case because its liability was entirely vicarious. Our opinion did not broaden the immunity granted by the statute, and we take this opportunity to clarify that under other circumstances — i.e. where DCS was directly liable — the statute would not render the entity immune.

The Family also argues that our interpretation of the above statute conflicts with the Indiana Tort Claims Act (“ITCA”), which requires an entity to pay a judgment resulting from an employee’s employment, even if the employee is not personally liable. Ind.Code § 34 — 13—3— 5(d). After examining the ITCA, we believe that our interpretation of Indiana Code section 31-25-2-2.5 is not in conflict. However, our overall disposition was not written with the ITCA in mind, and we now revise our opinion to allow the Family to move forward with the portions of their suit that are viable under the ITCA.

It appears that Indiana Code section 31-25-2-2.5 and the ITCA are two separate but related statutes. Section 31-25-2-2.5 would by extension grant immunity to DCS where its only liability was vicarious, if the employee were granted immunity; but as clarified above, it would not grant the entity immunity where the entity was directly liable. The ITCA provides certain immunities and limits as well, but it explicitly allows vicarious liability even where suit against an employee is barred. Read together, a suit against DCS as an entity should be allowed to proceed even if vicarious and even if suit against the employee is barred, but only for those claims that fall within the ITCA; all other vicarious liability against DCS would be extinguished under section 31-25-2-2.5. We therefore grant the Family’s petition to proceed with claims that fall under the ITCA.

B. Federal Civil Rights Claims

The Family next argues that their federal civil rights claims should not have been dismissed. They point to a statute that requires entities to pay for judgments resulting from the violation of civil rights by their employees, Indiana Code section 34-13-4-1. However, that statute applies to employees who are “or could be subject to personal civil liability” for the loss. Id. Because the employees here are immune from personal liability, this statute is not relevant. However, under the supremacy clause, any state-granted immunity would not provide protection for § 1983 claims, and so we grant the Family’s petition to proceed with their federal civil rights claims.

C. The Grandfather’s Standing

Finally, the Family argues that the grandfather, Steven, should have standing to assert a claim for DCS’s failure to comply with a statute that requires DCS to consider blood relatives for out of home placement before placing a child with non-relatives. Ind.Code § 31-34-15^4. We mentioned the statute in our opinion but nonetheless determined that Steven did not have standing because he did not have a liberty interest in maintaining his relationship with the child. In their petition, the Family argues that because the statute is in derogation of the common law, the legislature has given blood relatives a right they do not normally have and therefore Steven should be able to “seek redress for violation of a right created by the legislature.” Appellants’ Petition for Rehearing at 6.

While it is true that in general one should have standing to claim a violation of a right that the legislature has created, it is not clear here what either the remedy would be or the injuries are, where DCS should have considered him for placement, but was under no obligation to actually place the child with Steven. Further, the statute says that DCS “shall consider whether a child in need of services should be placed with the child’s suitable and willing blood or adoptive relative caretaker,” and so there is the question of who is suitable, and whether, assuming DCS did not consider Steven, it was because they felt he was not suitable. Ind.Code § 31-34-15-4(3) (emphasis added). Despite the “shall” language, the relevant sub-section of the statute reads more as a guideline than a concrete rule under which a relative who had no other standing could bring suit.

Additionally, in their complaint the Family alleges that, shortly after the child was removed, Steven asked DCS if he could take custody of her, and was told that he would not be considered for an adoptive placement because he was naive to believe that the uncle had not abused his daughter. That suggests that DCS did consider Steven, but did not find him to be suitable. Therefore, it appears that the grant of the motion to dismiss was appropriate for this issue because under the facts as alleged, DCS must have “considered” Steven for placement in the sense that it thought about whether it would be appropriate to place the child with him. We decline to revise our opinion with regard to Steven’s standing.

Conclusion

We grant DCS’s petition for rehearing for the limited purpose of reminding counsel that relevant documents must be made a part of the record on appeal, and the record may not be supplemented on rehearing.

We grant the Family’s petition for rehearing in order to clarify our reading of Indiana Code section 31-25-2-2.5; to allow tort claims against DCS to proceed under a theory of vicarious liability, within the ITCA; and to allow federal civil rights claims to proceed.

We affirm our original opinion as to all matters not revised here.

BRADFORD, J. and PYLE, J., concur.

      . DCS additionally argues that we mistakenly believed that J.A.W. v. State, 650 N.E.2d 1142 (Ind.Ct.App.1995), trans. granted, was vacated. Our opinion in J.A.W. was in fact vacated when the supreme court granted transfer; DCS is correct though that the supreme court affirmed our disposition as to all matters other than the one that the supreme court addressed. J.A.W. v. State, 687 N.E.2d 1202, 1203 n. 3 (Ind.1997). However, that does not change our opinion in this case, as we distinguished J.A.W. in our opinion even though transfer had been granted.


author: KIRSCH, Judge.

text:
    PEKIN INSURANCE COMPANY, Appellant-Defendant, v. Jose and Carol HANQUIER, Appellees-Plaintiffs, and Joseph Hall, Appellee-Defendant.
    No. 55A04-1208-CT-401.
    Court of Appeals of Indiana.
    Feb. 6, 2013.

      Grover B. Davis, James T. Flanigan, McClure McClure & Davis, Indianapolis, IN, Attorneys for Appellant.
    Sarah Graziano, Hensley Legal Group, PC, Indianapolis, IN, Attorney for Appel-lees.

      . Joseph Hall, who is a party of record in the case below, has not actively participated in this appeal but, pursuant to Indiana Appellate Rule 17(A), a party of record in the trial court is a party on appeal.

   OPINION

KIRSCH, Judge.

Pekin Insurance Company (“Pekin”) appeals the trial court’s order denying Pe-kin’s motion to correct error. Pekin raises the following restated issue on appeal: whether the trial court erred in failing to enforce the arbitration provision of the Pekin insurance policy as mandated by Indiana Code section 34-57-2-3.

We reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY

This case arises from a motor vehicle collision that occurred on March 19, 2008 in Morgan County, Indiana. On that date, Carol Hanquier (“Carol”) was stopped at a traffic signal when a vehicle driven by Joseph Hall (“Hall”) collided with the rear of Carol’s vehicle. As a result of the collision, Carol sustained severe injuries. On March 1, 2010, Jose and Carol Hanquier (together “the Hanquiers”) filed a complaint against Hall and Pekin. In addition to seeking damages from Hall, the Hanqui-ers sought underinsured motorist benefits from their insurer, Pekin.

The provision for underinsured motorist benefits contained in the Hanquiers’ insurance policy with Pekin included an arbitration clause that provided as follows:

ARBITRATION

If we and an “insured” do not agree:

1. Whether that person is legally entitled to recover damages under this endorsement; or
2. As to the amount of damages; either party may make a written demand for arbitration....

Appellant’s App. at 23. Pekin made its written demand for arbitration to counsel for the Hanquiers in a letter dated April 21, 2010. On April 22, 2010, Pekin filed its “Motion to Stay Pending Arbitration” with the trial court. Id. at 30. The Hanquiers filed their “Response in Opposition to [Pe-kin’s Motion to] Stay Pending Arbitration,” contending that the policy language was permissive rather than mandatory and that arbitration was not proper because the Hanquiers’ claims against Hall had not been resolved. Id. at 33-34. After a hearing on Pekin’s motion to stay, the trial court denied the motion.

On January 26, 2012, after being granted leave to file an amended complaint, the Hanquiers filed an amended complaint for damages. Pekin again filed a motion to stay the proceedings pending arbitration. The trial court initially granted the motion, but reconsidered and denied the motion after the Hanquiers filed a response. Pe-kin filed a motion to correct error and “Application for an Order to Arbitrate (with Stay).” Id. at 91. Pekin requested that the trial court compel arbitration pursuant to Indiana Code section 34-57-2-3. Id. at 92. On July 11, 2012, the trial court denied Pekin’s motion. Pekin now appeals.

DISCUSSION AND DECISION

We review a trial court’s denial of a motion to compel arbitration de novo. TWH, Inc. v. Binford, 898 N.E.2d 451, 453 (Ind.Ct.App.2008) (citing Daimler Chrysler Corp. v. Franklin, 814 N.E.2d 281, 284 (Ind.Ct.App.2004)). A party seeking to compel arbitration must satisfy a two-pronged burden of proof. Id. First, a party must demonstrate the existence of an enforceable agreement to arbitrate the dispute. Id. Second, the party must prove that the disputed matter is the type of claim that the parties agreed to arbitrate. Id. Once the court is satisfied that the parties contracted to submit their dispute to arbitration, the court is required by statute to compel arbitration. Safety Nat’l Cas. Co. v. Cinergy Corp., 829 N.E.2d 986, 1000 (Ind.Ct.App.2005) (citing Ind.Code § 34-57-2-3(a)), trans. denied.

Pekin argues that the trial court erred in failing to enforce the arbitration provision of its policy with the Hanquiers as mandated by Indiana Code section 34-57-2-3. Pekin contends that its policy provided that arbitration was mandatory when requested by either the insurer or the insured. It claims that this policy language was unambiguous and must be given its plain and ordinary meaning. Pe-kin asserts that the policy plainly provided that either party may make a written demand for arbitration, and that once such a demand is made, the policy provides the mandatory procedure for arbitration.

If the language in an insurance policy is clear and unambiguous, it should be given its plain and ordinary meaning. Newnam Mfg., Inc. v. Transcon. Ins. Co., 871 N.E.2d 396, 401 (Ind.Ct.App.2007) (citing Eli Lilly Co. v. Home Ins. Co., 482 N.E.2d 467, 470 (Ind.1985)), trans. denied. An ambiguity does not exist simply because a controversy exists between the parties, each favoring an interpretation contrary to the other. Id. (citing Linder v. Ticor Title Ins. Co. of Cal., Inc., 647 N.E.2d 37, 39 (Ind.Ct.App.1995)). Under Indiana law, an insurance policy is ambiguous if reasonable persons may honestly differ as to the meaning of the policy language. Id. Where there is ambiguity, insurance policies are to be construed strictly against the insurer. Id. (citing Am. States Ins. Co. v. Kiger, 662 N.E.2d 945, 947 (Ind.1996)).

The Pekin policy provision for underin-sured motorist coverage provides in pertinent part:

ARBITRATION
If we and an “insured” do not agree:
1. Whether that person is legally entitled to recover damages under this endorsement; or
2. As to the amount of damages;
either party may make a written demand for arbitration. In this event, each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection be made by a judge of a court having jurisdiction. Each party will:
1. Pay the expenses it incurs; and
2. Bear the expenses of the third arbitrator equally.
Unless both parties agree otherwise arbitration will take place in the county in which the “insured” lives. Local rules of law as to procedure and evidence will apply. A decision agreed to by two of the arbitrators will be binding as to:
1. Whether the “insured” is legally entitled to recover damages; and
2. The amount of damages....

Appellant’s App. at 104-05.

The Hanquiers argue that the word “may” in the policy makes arbitration permissive and not mandatory. They contend that a reasonable interpretation of the policy is that the parties are permitted to submit disagreements to arbitration, but not that arbitration is unequivocally required should either party demand it. Pe-kin acknowledges that the term “may” is permissive and that, in general, the arbitration provision in the policy is permissive, not mandatory. However, once a demand for arbitration is made, the provision becomes mandatory. We agree with Pe-kin’s assertion.

Under the policy, either Pekin or the insured “may” make a demand for arbitration, but neither is required to make such a written demand. However, once either party makes a written demand for arbitration, arbitration becomes mandatory. The policy provides that after either party submits a written request for arbitration, “each party will select an arbitrator. The two arbitrators will select a third.... Each party will ... [bjear the expenses of the third arbitrator equally. A decision agreed to by two of the arbitrators will be binding....” Id. at 104. After a written demand for arbitration is made, the language of the policy is no longer permissive. “Will” is defined as [a]n auxiliary verb commonly having the mandatory sense of “shall” or “must.” Black’s Law Dictionary 823 (5th ed. 1983).

We find no ambiguity in the policy language. Pursuant to the language, arbitration is not mandatory until either the insurer or the insured makes a written demand for arbitration. However, it is clear that once a demand is made by either party, arbitration then becomes mandatory for both of the parties. Indiana recognizes a strong policy favoring the enforcement of arbitration agreements. Koors v. Steffen, 916 N.E.2d 212, 215 (Ind.Ct.App.2009) (citing Ind. CPA Soc’y, Inc. v. GoMembers, Inc., 777 N.E.2d 747, 750 (Ind.Ct.App.2002)). Once the court is satisfied that the parties contracted to submit their disputes to arbitration, it is required by statute to compel arbitration. Id. Indiana Code section 34-57-2-3(a) states in pertinent part: On application of a party showing a written agreement to submit to arbitration, and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration. Therefore, we conclude that the trial court erred when it failed to enforce the arbitration provision of the Pekin policy as required by Indiana Code section 34-57-2-3(a).

Pekin further contends that the Hanquiers’ action against Pekin must be stayed pending arbitration. In GoMem-bers, a panel of this court concluded that “a superior resolution [when determining whether to stay or dismiss litigation pending arbitration] is to allow the courts to exercise their discretion to either stay or dismiss litigation based on the nature of the contested issues that should be first submitted to arbitration.” 777 N.E.2d at 752. “A stay, rather than a dismissal, is perhaps favorable where certain claims remain that are not subject to arbitration, but dismissal is proper where all issues raised must be submitted to arbitration.” Koors, 916 N.E.2d at 218.

In the present case, the Hanquiers’ claims against Hall are riot subject to arbitration. Therefore, a stay of the litigation as to Pekin would be the preferred procedure. This procedure would be consistent with Indiana Code section 34-57-2-3(d), which states:

Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application for an order for arbitration has been made under this section ..., or, if the issue is severable, the stay may be with respect to the issue only. When the application is made in such an action or proceeding, the order for arbitration must include such a stay.

We conclude that the trial court erred in failing to issue a stay of the proceedings as to Pekin pending arbitration. We reverse the trial court’s order and remand with instructions to enter an order compelling arbitration and staying the proceedings as to claims against Pekin until the completion of arbitration.

Reversed and remanded with instructions.

MATHIAS, J., and CRONE, J., concur.


author: SHEPARD, Senior Judge.

text:
    BAY COLONY CIVIC CORPORATION, Appellant-Defendant, v. PEARL GASPER TRUST and Bruce F. Waller, Appellees-Plaintiffs.
    No. 49A05-1207-PL-365.
    Court of Appeals of Indiana.
    March 11, 2013.
    Rehearing Denied May 3, 2013.

      Scott A. Tanner, Tanner Law Group, Indianapolis, IN, Attorney for Appellant.
    Stephen R. Buschmann, Thrasher Buschmann & Voelkel, P.C., Indianapolis, IN, Attorney for Appellee Pearl Gasper Trust.
    William Gooden, Clark, Quinn, Moses, Scott & Grahn, LLP, Indianapolis, IN, Attorney for Appellee Bruce F. Waller.
   OPINION

SHEPARD, Senior Judge.

Two homeowners in a planned subdivision on a reservoir have been seeking to prevent their neighbors from using an easement for access to the reservoir.

The two homeowners own private boat docks, and they sued when the neighborhood association spent funds to create a path down through the easement to the water so that other residents could use the reservoir without encroaching on the docks. Concluding the trial court erred by entering judgment in favor of the two homeowners, we reverse.

FACTS AND PROCEDURAL HISTORY

Bay Colony is a residential development situated next to Eagle Creek Reservoir in Marion County, Indiana. Broadly put, the neighborhood is arranged as follows. The City of Indianapolis owns the land immediately at water’s edge, all the way around the reservoir. About half of the homeowners in Bay Colony own “waterfront lots” that face the reservoir, just behind the City’s strip. The other half of the homeowners, farther away from the water, have an easement that they contend gives them access to the reservoir.

The plaintiffs in this litigation, Pearl Gasper Trust and Bruce Waller, are waterfront owners of Lots 12 and 14. According to Bay Colony’s covenants, Lots 12 and 13 are burdened by an easement:

In addition, Lots 12 and 13 are hereby subjected to a “lake front access easement” as shown on the plat which easement is established as an area over, through, and across which the owners in this subdivision, their tenants and invitees shall have access to public land adjoining Eagle Creek Lake.

Appellant’s App. p. 97. The easement runs southward from a neighborhood street, through the east edge of Lot 13 and the west edge of Lot 12 to the public land at water’s edge.

Pearl Gasper Trust owns Lot 12. Pearl Gasper is its trustee, and she lives on Lot 12. Bruce Waller owns and lives on Lot 14. Gasper and Waller have boat docks unattached to their lots that were constructed on the shore by previous owners.

When other Bay Colony residents began using the docks without permission, Gas-per and Waller erected signs declaring the docks private property. Waller installed a locked wooden gate to his dock. Gasper installed a chain-link gate to her dock as well as a chain-link fence preventing anyone from walking around her gate to get to the water.

Gasper and Waller exchanged several communications with their nonprofit neighborhood association, Bay Colony Civic Corporation (“the Association”), about the trespass on their docks and the Association’s wish to build a community dock in the area.

On July 14, 2010, the Association did some landscape work to make it safer and easier for Bay Colony residents to reach the water without using plaintiffs’ docks. It cleared brush from the easement to some washouts located east of the docks, filled the washouts with riprap, and put down mulch on the footpath of the easement and on the extension of the footpath to the riprap. In the process, it removed Gasper’s chain-link gate and fence. The Association spent $1732 to complete the work.

Gasper and Waller thereafter sued the Association, seeking injunctions to prevent the Association from entering the plaintiffs’ lots, altering or removing their docks, or blocking Gasper’s access to her dock. The complaint also requested damages for, among other things, the Association’s alleged impermissible use of funds.

The trial court later granted the plaintiffs’ motion to join the City as a defendant. The City filed a statement of its position in September 2011, declaring that it had “no concrete interest in the dispute.” Id. at 43. It also noted, “Based on the plain meaning of [the covenant creating the easement], it appears that owners of property in Bay Colony, their tenants, and invitees have the right to use the lake front access easement on Lots 12 and 13 of Bay Colony to get to the public land adjoining the Reservoir, and then to access the waters of the Reservoir from the public land.” Id. The same day, the City filed a motion to dismiss, but the court apparently never ruled on the motion.

The plaintiffs and the Association each moved for partial summary judgment. After a hearing, the court issued an order determining that the easement granted Bay Colony residents access to the public land surrounding the reservoir but not to the reservoir itself. It thus permanently enjoined Bay Colony residents who were not waterfront lot owners from using the easement to access the water.

The court further determined that the Association violated its bylaws by spending funds on public land (namely, clearing the path through the easement and across the public frontage to the reservoir). It also held that the Association violated City regulations by failing to obtain City approval to make changes on the City’s strip. It thus ordered the Association to restore the land to its original condition and otherwise permanently enjoined the Association from spending funds on the public land.

The Association now appeals.

ISSUES

The Association raises two issues: (1) whether the trial court erred by barring all but waterfront owners from using the easement to access the water, and (2) whether the trial court erred by ordering the Association to restore the City’s strip to its original condition and by otherwise barring it from using funds on the public land.

DISCUSSION AND DECISION

Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind.2009). All facts established by the designated evidence and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. Naugle v. Beech Grove City Sch., 864 N.E.2d 1058, 1062 (Ind.2007). We consider these principles on the same grounds as a trial court, with the appealing party bearing the duty of persuasion.

I. THE EASEMENT

The Association first contends the trial court erred by barring half of Bay Colony from using the easement to access the water. Easements are limited to the purpose for which they are granted. Drees Co. v. Thompson, 868 N.E.2d 32, 38 (Ind.Ct.App.2007), trans. denied. In construing an instrument granting an easement, a court must ascertain and give effect to the intention of the parties, which is determined by proper construction of the language of the instrument from an examination of all its parts. Id.

The Association says the very purpose of the easement is to give Bay Colony residents a way to reach the water. Gas-per and Waller say the easement only grants residents access to the public land surrounding the reservoir but not to the water itself.

The covenant provides for a “lake front access easement” that is shown on the plat and “is established as an area over, through, and across which the owners in this subdivision, their tenants and invitees shall have access to public land adjoining Eagle Creek Lake.” Appellant’s App. p. 97.

The plat does show that the easement ends at the public land fronting the reservoir. See id. at 10. And, the language of the covenant explicitly says the easement gives residents access to the public land. Gasper and Waller are thus correct to say that the easement grants residents only a way to reach the public land. This conclusion is altogether unsurprising; the strip of land around the reservoir at water’s edge is owned by the City, and thus Bay Colony could not grant any property rights as to that land.

On the other hand, surely the reason for the easement was not merely to give residents a way to reach the edge of Bay Colony’s grounds so that they could gaze upon the shore and the water. We thus conclude that the Association is correct that the easement was intended to give the residents a way to reach the reservoir. The City’s declared position before the trial court was to the same effect. Indeed, the City explicitly declared that it had no objection to the residents’ reasonable use of the public land to access the reservoir so long as the placement of any docks or other structures was approved by the City. Id. at 45. This posture appears consistent with the City’s own regulations and with the design of the covenant.

Gasper and Waller nonetheless argue that the Association improperly cites the City’s position statement and that the City is bound by the court’s order prohibiting residents from using the easement to access the water. We are hard-pressed to embrace this view. The City’s statement was among the Association’s designations on summary judgment, and it is uncontra-dicted evidence that the City has taken no issue with the residents’ use of the public land to reach the reservoir.

We therefore conclude that the easement grants the residents access to the public land and that the trial court erred by barring residents from using the easement to access the water.

II. THE ASSOCIATION’S FUNDS

The Association next contends the trial court erred by ordering it to restore to its original condition the public land across which it created a path and by otherwise barring it from using funds on the City’s strip. The court based these orders on its determination that the Association violated its bylaws and City regulations.

The articles of incorporation and bylaws of a nonprofit corporation constitute a contract between the corporation and its members. Heritage Lake Prop. Owners Ass’n v. York, 859 N.E.2d 763, 765 (Ind.Ct.App.2007). Issues involving construction of such contracts are matters of law for the appellate court to decide. Id.

The Association’s articles of incorporation state its general purpose: “[T]o provide the health, safety and welfare of the residents of the area known as Bay Colony.” Appellant’s App. p. 104. Its bylaws say that the annual fees paid by its members are to be used for:

(a) defending, opposing or resisting any zoning, rezoning, land use variance, annexation, tax assessment or other proposition adversely affecting, or offensive to members of Bay Colony; (b) advocating, sponsoring, or advancing any proposal, cause or proposition advantageous to members; (c) performing maintenance of roads and common grounds within Bay Colony, land [sic] (d) enforcing the Restrictive Covenants of Bay Colony.

Id. at 107.

Gasper and Waller focus only on the bylaw provision authorizing funds to perform maintenance of roads and common grounds within Bay Colony. They argue that because mulch and riprap were placed on public lands, and public lands are not “common grounds within Bay Colony,” the Association violated its bylaws.

General rules of contract interpretation, however, direct us to read articles of incorporation and bylaws together so as to give effect to all words, phrases, and terms. See Heritage, 859 N.E.2d at 765.

While the bylaws authorize funds for specific work within Bay Colony, none of its provisions actually prohibit funds for work outside the subdivision’s property lines. Moreover, as the point of the Association’s easement is to give residents a way to reach the water, clearing brush, mulching a path, and installing riprap on the washouts gives residents a safer way to do so without encroaching on Gasper’s and Waller’s docks. These expenditures therefore fell within the Association’s purpose as outlined in the articles of incorporation to provide for the residents’ health, safety, and welfare as well as the bylaw provision allowing the Association to advance any cause advantageous to its members. We find no violation of the Association’s bylaws.

As to City regulations, it appears that the Association may have been required to obtain a permit to create the path across the City’s land. The Association admits that it did not do so. Still, none of the designated evidence shows that the City has ever imposed any penalty for doing the work without approval or sought restoration of the land to its original condition. Quite the contrary is true. The City takes no offense at such a benign activity as a footpath to the reservoir. As the City’s position seems consonant with its regulations and the existing easement, there are little grounds for judicial action prompted by the private interests of the two dissenting homeowners.

We therefore, conclude that the trial court erred by ordering the Association to undo the path leading down to the shore and otherwise barring it from using funds on improving access to the reservoir for its members.

CONCLUSION

We reverse the trial court’s judgment and remand with directions to grant the Association’s motion for partial summary judgment.

RILEY, J., and MATHIAS, J., concur.