author: CRONE, Judge.

text:
    COVERED BRIDGE HOMEOWNERS ASSOCIATION, INC., Clark County, Indiana Commission, et al., Appellants-Defendants, v. TOWN OF SELLERSBURG, Indiana, Appellee-Plaintiff. In the Matter of the Ordinance to Annex Approximately 1,852 Acres of Real Estate Into the Town of Sellersburg, Indiana: Covered Bridge Homeowners Association, Inc., et al., Appellants-Petitioners, v. Town Of Sellersburg, Indiana and The Town Board of Trustees of Sellersburg, Indiana, Appellees-Respondents.
    No. 10A01-1101-PL-13.
    Court of Appeals of Indiana.
    July 18, 2012.

      Andrew Wright, Andrew Wright, PC, Salem, IN, Bryan H. Babb, Stephen C. Unger, Bose McKinney & Evans LLP, Indianapolis, IN, Attorneys for Appellant, Covered Bridge Homeowners Association, Inc.
    C. Gregory Fifer, Applegate Fifer Pul-liam LLC, Jeffersonville, IN, Attorney for Appellant, Board of Clark County Commissioners.
    William P. McCall, III, Mosley, Bertrand, Jacobs & McCall, Jeffersonville, IN, Attorney for Appellees.
   OPINION

CRONE, Judge.

Case Summary

In June 2008, the Town of Sellersburg’s council (“the Council”) approved a written fiscal plan and introduced a proposed ordinance to annex over 1800 acres in Clark County, but the Council failed to use the county auditor’s current tax list to send notice of a public hearing on the proposed annexation to the affected landowners as required by statute. As a result, an unknown number of landowners did not receive notice of the hearing. The hearing was scheduled for August 2008, but Sell-ersburg subsequently cancelled it because of the defective notice. Negotiations ensued between the Council and the landowners regarding the proposed annexation, but were ultimately unsuccessful.

In August 2009, the landowners filed a petition with the Clark County Commissioners (“the Commissioners”) to incorporate the new Town of Covered Bridge. In September 2009, the Council updated the fiscal plan for annexation and scheduled a public hearing, which was properly noticed and was held in November 2009. In December 2009, the Commissioners adopted an ordinance approving the landowners’ petition to incorporate. Six days later, the Council adopted the proposed annexation ordinance.

Sellersburg filed a complaint for declaratory relief against the Commissioners, alleging that the annexation proceeding was “first in time” and therefore should take priority over the incorporation proceeding. An association of the affected landowners intervened and asked for a judgment declaring that the incorporation proceeding was “first in time” because Sellersburg had failed to comply with the statutory notice provisions and had failed to hold the public hearing in August 2008. Both Sell-ersburg and the Commissioners filed cross-motions for partial summary judgment on the issue of their respective “jurisdiction” to annex or incorporate the same territory.

Meanwhile, the landowners’ association and others filed a remonstrance against the annexation. Sellersburg filed a motion to dismiss, asserting that many of the landowners were bound by remonstrance waiver provisions that had been executed by subdivision developers as a condition for connection to Sellersburg’s sewer system and had been recorded as part of the subdivision restrictions and protective covenants, and thus the remonstrance did not have enough valid signatures. In response, the remonstrators argued that, pursuant to statute, a remonstrance waiver is valid only if it is included in a sewer contract between a developer and a municipality that is recorded in the county recorder’s office and that no such contract had been recorded here.

Sellersburg prevailed in both cases, and the landowners’ association brought this consolidated appeal. We hold that the annexation proceeding is first in time and takes priority over the incorporation proceeding because it was validly instituted in June 2008 and Sellersburg’s initial failure to comply with the statutory notice provisions and hold a public hearing did not invalidate the annexation. We also hold that the statutory remonstrance waiver requirements were substantially complied with and thus the remonstrance lacks sufficient valid signatures. Consequently, we affirm the rulings in both cases.

Facts and Procedural History

The relevant facts are largely undisputed. On June 25, 2008, pursuant to Indiana Code Section 36^4-3-3.1, the Council adopted a written fiscal plan for the proposed annexation of approximately 1852 acres in Clark County that include the subdivisions of Covered Bridge and Willows of Covered Bridge. The proposed effective date of the annexation was December 31, 2008. The Council also introduced a proposed ordinance to annex that territory. Under Indiana law, a municipality may adopt an annexation ordinance only after its “legislative body has held a public hearing concerning the proposed annexation. The municipality shall hold the public hearing not earlier than sixty (60) days after the date the ordinance is introduced. All interested parties must have the opportunity to testify as to the proposed annexation.” Ind.Code § 36-4-3-2.1(b). The public hearing was scheduled for August 28, 2008, at the Sellersburg Town Hall.

Indiana Code Section 36-4-3-2.1(b) further provides that notice of the hearing must be published in a local newspaper at least sixty days before the hearing and that notice must also be “mailed as set forth in” Indiana Code Section 36-4-3-2.2. Indiana Code Section 36-4-3-2.2(b) provides in pertinent part that “[b]efore a municipality may annex territory, the municipality shall provide written notice of the hearing,” and that, with certain exceptions not relevant here, “the notice must be sent by certified mail at least sixty (60) days before the date of the hearing to each owner of real property, as shown on the county auditor’s current tax list, whose real property is located within the territory proposed to be annexed.” Indiana Code Section 36-4-3-2.2(e) says, “If the municipality complies with this section, the notice is not invalidated if the owner does not receive the notice.”

It is important to note that the legislature has chosen not to establish a deadline for when the hearing on the proposed annexation must be held, or when notice of the hearing must be published or mailed, so long as it is at least sixty days before the hearing. The purpose of the statutory requirements that have been imposed is to ensure that interested persons are given ample time to study the relevant issues as well as a meaningful opportunity to be heard on the proposed annexation. Stated differently, the lack of a deadline for holding a hearing ensures that an annexation cannot be rushed through without significant public input but does not evidence a legislative concern regarding the pace of the process being too slow.

Here, Sellersburg published notice of the hearing in a local newspaper in accordance with Indiana Code Section 36-4-3-2.1(b)(1). However, according to the affidavit of Council President Brian Meyer, the Council “was advised by its attorney that the certified mailing to the residents of the area of proposed annexation was defective due to the failure to utilize the Clark County Auditor’s current tax list.” Appellant’s App. at 280. A newspaper article dated August 14, 2008, quoted Sellers-burg’s attorney as saying that “[a]n unknown number of residents didn’t receive the notices” regarding the hearing and that “a legal challenge based on that mistake could be hard to overcome.” Id. at 421. The same article quoted Meyer as saying that the Council would have to “start from square one” because of the notice problem but that the scheduled hearing would still be held so that the Council could “listen to residents’ views.” Id. Meyer also said that he “expected the [C]ouncil to proceed with the annexation, but because of the notice problem it [could not] take, effect until Jan. 1, 2010.” Id.; see Ind.Code § 36-4-3-7(b) (stating that an annexation ordinance “may not take effect during the year preceding a year in which a federal decennial census is conducted. An ordinance that would otherwise take effect during the year preceding a year in which a federal decennial census is conducted takes effect January 1 of the year in which a federal decennial census is conducted.”). When residents arrived at the Sellersburg Town Hall on August 28 to attend the hearing, the building was closed. A notice canceling the hearing was published in a local newspaper two days later.

Indiana Code Section 36-4-3-2.1(c) provides that a municipality may adopt an annexation ordinance not earlier than thirty days or not later than sixty days after its legislative body has held the requisite public hearing on the proposed annexation. No public hearing was held and no annexation ordinance was adopted by the Council in 2008, but the Council hired a title company to obtain the mailing addresses of affected property owners as shown by the county auditor’s current tax list. During the spring and summer of 2009, negotiations regarding the proposed annexation ensued between Council member Paul Rhodes and Larry Gupton of the Covered Bridge Homeowners Association, Inc. (“the Association”), which represents residents of Covered Bridge and Willows of Covered Bridge (collectively, “the Landowners”). The negotiations were unsuccessful.

On August 21, 2009, pursuant to Indiana Code Section 36-5-1-2, the Landowners filed with the Commissioners a petition to incorporate the new Town of Covered Bridge. The Landowners filed an amended petition on September 2, 2009. On September 17, 2009, the Commissioners passed a resolution recognizing the filing of the incorporation petition and establishing the procedures for consideration of the petition. The Commissioners referred the petition to the Clark County Planning Commission, which ultimately recommended its approval. On December 22, 2009, the Commissioners adopted an ordinance approving the Landowners’ incorporation petition.

On September 21, 2009, more than two weeks after the Landowners filed their amended incorporation petition, the Council passed a resolution to update the fiscal plan for annexation that it had adopted in June 2008. Sellersburg then scheduled a public hearing regarding the proposed annexation for November 25, 2009, and this time it complied with the notice requirements of Indiana Code Section 36-4-3-2.2(b) and held the hearing as scheduled. On December 28, 2009, six days after the Commissioners adopted the incorporation ordinance, the Council adopted the annexation ordinance.

On January 15, 2010, under cause number 10D02-1001-PL-66 (“the Incorporation Action”), Sellersburg filed a complaint for declaratory relief against the Commissioners, asking the court to determine, among other things, that its annexation proceeding was first in time and thus the Commissioners lacked “jurisdiction” to “consider the incorporation petition or incorporate the proposed Town of Covered Bridge.” Appellant’s App. at 31. In their answer, the Commissioners named Gupton as a third-party defendant in his representative capacity on behalf of the petitioners for the incorporation of the Town of Covered Bridge. The Association intervened on behalf of the Landowners and counterclaimed for a declaratory judgment stating that Sellersburg had failed to comply with the statutory notice provisions in 2008 and had “abandoned” the annexation proceeding before the Landowners filed their petition to incorporate in August 2009, and thus Sellersburg lacked “jurisdiction to initiate annexation proceedings” in September 2009. Id. at 399, 400. Pursuant to Indiana Trial Rule 56, both Sellersburg and the Commissioners filed cross-motions for partial summary judgment on the issue of their respective “jurisdiction” to annex or incorporate the same territory. Id. at 893, 407. The Association filed a memorandum and designated evidence in opposition to Sellersburg’s cross-motion for partial summary judgment.

Meanwhile, on March 29, 2010, under cause number 10D02-1003-MI-658 (“the Remonstrance Action”), the Association, Gupton, and others filed a remonstrance against the annexation, naming Sellers-burg and its board of trustees as respondents. The remonstrators asserted that at least 65% of the landowners in the territory to be annexed had signed the remonstrance, as required by Indiana Code Section 36-4-3-11. The territory contains 775 parcels, and the owners of 632 of those parcels (nearly 82%) had signed the remonstrance. Sellersburg filed a motion to dismiss, asserting that the 496 Landowners in Covered Bridge and Willows of Covered Bridge who had signed the remonstrance were bound by “waiver of remonstrance agreement^]” that were executed by the subdivisions’ developers “as a condition for connection to [Sellers-burg’s] sewer system” and recorded as part of the subdivisions’ restrictions and protective covenants in the county recorder’s office, and thus the remonstrance did not have enough valid signatures. Id. at 977. In response, the remonstrators asserted that, pursuant to Indiana Code Section 36-9-22-2, a remonstrance waiver is valid only if it is included in a sewer contract between a developer and a municipality that is recorded in the county recorder’s office and that no such contract had been recorded for either subdivision.

In September 2010, Special Judge Roger D. Davis held a hearing on all pending motions in the Remonstrance Action. On December 3, 2010, Judge Davis issued a final appealable order that reads in pertinent part as follows:

[T]he court finds and concludes that purchasers of lots in the Covered Bridge and Willows subdivisions were on notice of the waiver of remonstrance provision in their restrictions recorded in the public records of Clark County, Indiana. Further, there was an agreement between [Sellersburg] and the subdivision developers as evidenced by the waiver provision in the restrictions, town board minutes, and testimony of witnesses before the court. Finally, the legislature has expressed a policy not only in favor of waiver of remonstrance rights concerning sewer works, but a mandatory requirement for such a waiver in a contract for the provision of sewer service in certain circumstances. Because of the waiver provisions petitioners lack the required percentage of total landowner signatures and the case should be dismissed.

Id. at 15.

In November 2010, Judge Jerome F. Jacobi held a summary judgment hearing in the Incorporation Action. On December 17, 2010, Judge Jacobi issued a final appealable order granting Sellersburg’s motion for partial summary judgment on the basis that the incorporation ordinance was “void for lack of subject matter jurisdiction” because Sellersburg “acquired exclusive subject matter [jurisdiction] over the disputed area” in July 2008 by adopting the written fiscal plan and introducing the proposed annexation ordinance “and continuing thereafter until completion [on] December 28, [2009].” Id. at 2.

The Association appealed both rulings. On the Association’s motion, and over Sell-ersburg’s objection, those appeals were consolidated under a single appellate cause number, and the Association and Sellers-burg filed consolidated appellant’s and ap-pellee’s briefs. Additional facts will be provided as necessary.

Discussion and Decision

The Association contends, and Sellers-burg does not dispute, that a reversal of the ruling in the Incorporation Action would essentially render the ruling in the Remonstrance Action moot, at least for the time being. Therefore, we address the Incorporation Action first.

I. Incorporation Action

Our standard of review in summary judgment cases is well settled:

Summary judgment is appropriate only where the designated evidentiary matter shows that there are no genuine issues as to any material fact and that the moving party is entitled to a judgment as a matter of law. When reviewing a grant of a motion for summary judgment, we stand in the shoes of the trial court. Once the moving party demonstrates, prima facie, that there are no genuine issues of material fact as to any determinative issue, the burden falls upon the non-moving party to come forward with contrary evidence. The non-moving party may not rest upon the pleadings but must instead set forth specific facts, using supporting materials contemplated under Trial Rule 56, which show the existence of a genuine issue for trial. The party appealing the grant of summary judgment bears the burden of persuading this court that the trial court erred, but we still carefully scrutinize the entry of summary judgment to ensure that the non-prevailing party was not denied its day in court. We do not weigh the evidence but rather consider the facts in the light most favorable to the nonmoving party. We may sustain the judgment upon any theory supported by the designated evidence.

Auburn Cordage, Inc. v. Revocable Trust Agreement of Treadwell, 848 N.E.2d 738, 747 (Ind.Ct.App.2006) (citations omitted).

The summary judgment order contains extensive findings of fact. Such findings “are not required in the summary judgment context, and although they offer valuable insight into the trial court’s rationale for its judgment and facilitate our review, they are not binding on this court.” Golitko v. Ind. Dep’t of Corr., 712 N.E.2d 13, 15 (Ind.Ct.App.1999), trans. denied. “The fact that the parties made cross-motions for summary judgment does not alter our standard of review. Instead, we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law.” Castetter v. Lawrence Twp., 959 N.E.2d 837, 843 (Ind.Ct.App.2011) (citation omitted). “Where, as here, the relevant facts are undisputed and the issue presented on appeal is a pure question of law, we review the matter de novo.” City Sav. Bank v. Eby Constr., LLC, 954 N.E.2d 459, 462 (Ind.Ct.App.2011), trans. denied (2012).

Both sides characterize the decisive issue as one of “jurisdiction,” as in whether the Commissioners had “jurisdiction” to consider the incorporation petition or whether they were precluded from doing so because the Council had exclusive “jurisdiction” by virtue of its annexation proceeding. The parties’ use of “jurisdiction” in this sense may be traced to Taylor v. City of Fort Wayne, 47 Ind. 274 (1874), in which Fort Wayne’s common council sought to annex land that was already the subject of an incorporation proceeding before Allen County’s board of commissioners. Our supreme court ruled in favor of the commissioners, stating,

[T]he common councils of cities are authorized to annex certain territory to the city. Under the act to organize towns, that same territory may become incorporated as a town, and thus become a municipal government, outside and independent of the city, before it is annexed. The General Assembly has authorized both proceedings.... [A]Reí-an application has been filed before the commissioners by residents of territory sought to be incorporated, it is the duty of the commissioners to hear the application and make such orders as the evidence introduced and steps taken by the petitioners entitle them to. The proceedings before the board of commissioners give that body jurisdiction over the subject-matter, and it can not be defeated by any act of the common council.
Having acquired jurisdiction, it is their duty to retain it and proceed to a final hearing and disposition of the application.
It is a clear principle of jurisprudence, that when there exist two tribunals possessing concurrent and complete jurisdiction of a subject-matter, the jurisdiction becomes exclusive in the one before which proceedings are first instituted, and which thus acquires jurisdiction of the subject.

Id. at 281-82 (citations omitted). This principle has since become known as the “first-in-time” rule. Brenwick Assocs., LLC v. Boone Cnty. Redev. Comm’n, 889 N.E.2d 289, 294 (Ind.2008).

This Court reiterated that principle in Ensweiler v. City of Gary, 169 Ind.App. 642, 350 N.E.2d 658 (1976), trans. denied. In that case, Ensweiler initiated a proceeding to incorporate land that already was the subject of an annexation proceeding by the city. The trial court issued a declaratory judgment in favor of the city. On appeal, we quoted the foregoing paragraph from Taylor and said,

The rule relates to jurisdiction to make a determination. Its purpose is to avoid the conflict and confusion which would result from separate jurisdictional authorities proceeding at the same time. Furthermore, we agree with the parties that in order to be “first, a proceeding must have been validly instituted so that the authority in question has acquired jurisdiction. Stated conversely, if the city plan to annex had not proceeded to the point of invoking the jurisdiction of the authority (here, the city council), it would not preclude determination by the other authority (the county commissioners). Similarly, even if the city had attempted to invoke the jurisdiction of the city council, if its proceedings were jurisdictionally defective, the bar would not operate since the city council would not have acquired jurisdiction to determine the proceeding.

Id. at 644, 350 N.E.2d at 659 (emphasis added).

Ensweiler argued that the city’s “annexation proceedings were jurisdictionally defective until after his petition [for incorporation] was filed because of the city’s failure to comply” with a section of its zoning ordinance which required that a zoning plan for the territory be forwarded to the common council by the plan commission prior to the annexation. Id. at 645, 350 N.E.2d at 660. We found his argument unpersuasive:

The construction urged by Ensweiler would require the initiating party to complete all proceedings necessary to secure a zoning plan for the area before the first step toward annexation was taken by the city. It would require new proceedings if, and each time, any change was made in the area proposed to be annexed. It would seek investigation and action by the plan commission prematurely. We believe such a construction would deter, rather than promote, orderly growth of the city and the utilization of comprehensive land use controls. We therefore hold that jurisdiction of the city council was not defeated by any failure to secure a zoning plan before initiating proceedings to annex.

Id. at 645, 350 N.E.2d at 660.

At this point, we note that Indiana’s appellate courts have redefined the concept of “jurisdiction” in recent years:

In K.S. v. State, 849 N.E.2d 538 (Ind.2006), our supreme court clarified that, in the judicial context, there are only-two kinds of jurisdiction: subject matter jurisdiction, which is “the power to hear and determine cases of the general class to which any particular proceeding belongs[,]” and personal jurisdiction, which “requires that appropriate process be effected over the parties.” Id. at 540. The court noted that “[ajttorneys and judges alike frequently characterize a claim of procedural error as one of jurisdictional dimension. The fact that a trial court may have erred along the course of adjudicating a dispute does not mean it lacked jurisdiction.” Id. at 541. The court further explained, “Real jurisdictional problems would be, say, a juvenile delinquency adjudication entered in a small claims court, or a judgment rendered without any service of process. Thus, characterizing other sorts of procedural defects as ‘jurisdictional’ misapprehends the concepts.” Id. at 542.

Robert Lynn Co. v. Town of Clarksville Bd. of Zoning App., 867 N.E.2d 660, 672 (Ind.Ct.App.2007), trans. denied. In Robert Lynn Co., we concluded that these jurisdictional principles are “equally applicable to administrative proceedings.” Id.; see also City of Charlestown Advisory Planning Comm’n v. KBJ, LLC, 879 N.E.2d 599, 602 (Ind.Ct.App.2008) (distinguishing legal error from lack of subject matter jurisdiction in replatting dispute involving planning commission) (citing Robert Lynn Co.).

The question then becomes how to reformulate the first-in-time rule as stated in Taylor and Ensweiler in light of the redefinition of “jurisdiction” in K.S. and Robert Lynn Co. We believe that replacing “jurisdiction” with “authority” will suffice. As stated in Taylor, the General Assembly has granted' city councils the authority to annex and county commissioners the authority to incorporate territory. Because territory may not be both annexed to a city and incorporated into a new town, annexation and incorporation are considered the same “subject matter” for purposes of the first-in-time rule. Brenwick Assocs., LLC, 889 N.E.2d at 294. This should not be confused with “subject matter jurisdiction,” however. Also, as En-sweiler suggests, certain statutory or administrative requirements must be fulfilled when a governmental entity exercises its authority over the territory to be annexed or incorporated; compliance with those requirements is a procedural precedent to the valid exercise of such authority.

For purposes of this case, then, the first-in-time rule may be restated as follows: when two governmental entities may possess “concurrent and complete” authority over a subject matter, the authority becomes exclusive in the one before which proceedings are first validly instituted, and that entity has a duty to retain its authority and “proceed to a final hearing and disposition.” Taylor, 47 Ind. at 282. This is not to say that the second entity cannot attempt to exercise its own authority (perhaps because it believes that the first entity invalidly exercised its authority), only that it risks ending up on the losing side of a declaratory judgment action.

At oral argument, the Association conceded that a municipality institutes an annexation proceeding by adopting a written fiscal plan pursuant to Indiana Code Section 36-4-3-3.1 and that Sellersburg validly instituted the annexation proceeding in this case. After a municipality adopts a written fiscal plan, it must then provide notice of and hold a public hearing on the proposed annexation pursuant to Indiana Code Sections 36-4-3-2.1 and -2.2. The Association concedes that Sell-ersburg “eventually issued notices that complied with the statutory scheme and also held the required public hearing,” but argues that this was “not until well after the incorporation had already been initiated” and thus the annexation was invalid. Appellant’s Br. at 27.

We can think of no compelling reason to invalidate Sellersburg’s annexation, given that it publicly acknowledged and then successfully cured a procedural defect. To the extent the Association argues that Sellersburg took an unreasonably long time to complete the annexation, we disagree. We reiterate that the legislature has required that a hearing on a proposed annexation be held at least sixty days after notice has been sent and has chosen not to establish a deadline for holding a hearing. After Sellersburg cancelled the August 2008 public hearing because of lack of proper notice, it hired a title company to compile a proper mailing list and spent several months negotiating with the Association regarding inducements for the annexation. Those negotiations apparently reached an impasse by August 2009, when the Landowners initiated the incorporation proceeding. Sellersburg updated its fiscal plan in September, held a properly noticed public hearing in November, and adopted the annexation ordinance in December. We cannot conclude that this was an unreasonable delay on Sellersburg’s part.

We are likewise unpersuaded by the Association’s argument that the annexation is invalid because Sellersburg allegedly failed to cancel the August 2008 public hearing in accordance with Indiana’s Open Door Law. The Association cites no specific provision of the Open Door Law regarding cancellations, and, in any event, we fail to see how the spirit of the Open Door Law was violated (or how the Landowners’ substantial rights were violated) by Sellersburg’s failure to notify the public that no official action would be taken. Cf. City of Gary v. McCrady, 851 N.E.2d 359, 366 (Ind.Ct.App.2006) (“The purpose of the Open Door Law is to ensure that the business of the State of Indiana and its political subdivisions be conducted openly so that the general public may be fully informed.”).

Based on the foregoing, we conclude that Sellersburg validly instituted the annexation proceeding in June 2008 and never lost its exclusive authority over the subject matter. As such, the annexation proceeding was first in time, and therefore we affirm the summary judgment ruling in favor of Sellersburg.

II. Remonstrance Action

A remonstrance must be signed by at least 65% “of the owners of land in the annexed territory,” and “[o]n receipt of the remonstrance, the court shall determine whether the remonstrance has the necessary signatures.” Ind.Code § 36-4-3-11. As stated above, the disputed territory contains 775 parcels, and the owners of 632 of those parcels (nearly 82%) signed the remonstrance. In its motion to dismiss, Sellersburg asserted that the 496 Landowners in Covered Bridge and Willows of Covered Bridge who had signed the remonstrance were bound by “waiver of remonstrance agreement[s]” that were executed by the subdivisions’ developers “as a condition for connection to [Sellersburg’s] sewer system” and recorded as part of the subdivisions’ restrictions and protective covenants in the county recorder’s office in 1993 and 2000, and thus far fewer than 65% of the signatures were valid. Appellant’s App. at 977. The trial court in the Remonstrance Action agreed with Sellers-burg’s assertion and dismissed the remonstrance.

Our supreme court has said that “an owner of land may not validly waive his right to remonstrate against future annexations, unless expressly authorized to do so by statute.” Doan v. City of Fort Wayne, 253 Ind. 131, 137, 252 N.E.2d 415, 418 (1969). The Association contends that Indiana Code Section 36-9-22-2 controls here. That statute reads in pertinent part as follows:

(b) The works board of a municipality may contract with owners of real property for the construction of sewage works within the municipality or within four (4) miles outside its corporate boundaries in order to provide service for the area in which the real property of the owners is located. The contract must provide, for a period of not to exceed fifteen (15) years, for the payment to the owners and their assigns by any owner of real property who:
(1) did not contribute to the original cost of the sewage works; and
(2) subsequently taps into, uses, or deposits sewage or storm waters in the sewage works or any lateral sewers connected to them;
of a fair pro rata share of the cost of the construction of the sewage works, subject to the rules of the board and notwithstanding any other law relating to the functions of local governmental entities. However, the contract does not apply to any owner of real property who is not a party to it unless it has been recorded in the office of the recorder of the county in which the real property of the owner is located before the owner taps into or connects to the sewers and facilities. The board may provide that the fair pro rata share of the cost of construction includes interest at a rate not exceeding the amount of interest allowed on judgments, and the interest shall be computed from the date the sewage works are approved until the date payment is made to the municipality-
(c) The contract must include, as part of the consideration running to the municipality, the release of the right of the parties to the contract and their successors in title to remonstrate against pending or future annexations by the municipality of the area served by the sewage works. Any person tapping into or connecting to the sewage works contracted for is considered to waive his rights to remonstrate against the annexation of the area served by the sewage works.

Ind.Code § 36-9-22-2.

In analyzing an earlier but substantially similar version of this statute, another panel of this Court said,

In our opinion, it is clear that unless he is a party to the contract to provide sewer service, a landowner’s right to remonstrate against annexation cannot be validly waived unless the contract purporting to waive that right is duly recorded. The reasons for the requirement of recordation are obvious. An owner not privy to the contract for sewer services generally has no actual notice of the remonstrance waiver contained therein. This is particularly true of one who becomes an owner after execution of the contract. Thus, the purpose of recordation is to charge the subsequent landowners with constructive notice of the waiver of the right to remonstrate. It is apparent therefore that unless the contract for sewer services is recorded in such a manner as to impart constructive notice to subsequent landowners or to landowners not a party to the contract, the spirit of the statute and the reasons for requiring recordation of the contract are violated. Unless charged with constructive notice or with actual notice of the waiver of the right to remonstrate, a subsequent landowner cannot be deemed to have released or waived that right.

Residents of Green Springs Valley Subdiv. v. Town of Newburgh, 168 Ind.App. 621, 628-29, 344 N.E.2d 312, 316 (1976).

The Association says that Indiana Code Section 36-9-22-2 is “clear and unambiguous” and that “there is no dispute that Sellersburg was unable to produce a copy of any sewer contract between it and the developers of Covered Bridge and Willows of Covered Bridge, let alone one that was recorded. In short, there is no direct evidence that such a written agreement exists.” Appellant’s Br. at 41, 42. Although it is true that Sellersburg was unable to produce a written contract, it did produce evidence indicating that the remonstrance waiver provisions in the subdivisions’ restrictions and covenants were inserted at Sellersburg’s insistence in exchange for allowing the developers to connect to its sewer system and that the waiver provisions were recorded within the Landowners’ chain of title.

The trial court’s ruling in the Remonstrance Action reads in pertinent part as follows:

The Court heard testimony that agreements were made between [Sellersburg] and the developers of both Covered Bridge and Willows and that those agreements were voted on by the town board. The essence of the agreement was that there would be no annexation for 10 years, the developers would pay for the extension of sewer lines, and owners would waive the right to remonstrate. The town maintains the lines and provides sewer service to Covered Bridge and Willows.
[Sellersburg’s] minutes of various meetings refer to the agreement between the town and the developers. The Court finds that the minutes taken together with the recorded restrictions and covenants and testimony received by the court sufficiently memorialize the agreement or contract. The minutes of January 25, 1993, September 27, 1993, and October 11,1993 discuss and refer to the agreement with the developers and specifically to not opposing or protesting annexation.[] In addition, the minutes refer to the agreement in the past tense, namely:
“the agreement was that there would be something put in place to cover if the town ever annexed that area, that there would be something stating that the town could”. See September 27, 1993 minutes.
Several references are included in the minutes concerning binding future owners. Based on the testimony provided at the hearing in this case, the minutes of [Sellersburg], and the recorded restrictions and covenants, the court concludes there was an agreement between the town and the developers regarding the provision of sewer service in exchange for a waiver of the right to remonstrate against annexation. The court concludes the waiver provision was recorded and all purchasers were put on notice with respect to the waiver provision. Covered Bridge restrictions were recorded on May 24, 1993 and Willows was recorded on October 18, 2000.

Appellant’s App. at 14-15.

Sellersburg contends that the remonstrance waiver provisions are “plain and unambiguous” and that the intent of the developers is clear: “to waive the present and future right to remonstrate against annexation by [Sellersburg] for all lot owners who accept a deed to any lot in the development in exchange for sanitary sewer connection.” Appellee’s Br. at 20. Sell-ersburg further contends that the Association has “presented no evidence that any of the 496 property owners in Covered Bridge and the Willows of Covered Bridge who signed the remonstrance petition purchased their property prior to the developer[s] recording the restrictions and protective covenants” or that the “restrictions and protective covenants do not appear in their respective chain of title. Therefore the property owners of Covered Bridge and the Willows, had at least constructive notice sufficient for the enforceability of the waiver and remonstrance provision.” Id. at 21, 23.

The Association does not specifically refute either the trial court’s findings or Sellersburg’s assertions, but instead emphasizes the absence of a written agreement and contends that “there is no way of knowing whether [the contracts between Sellersburg and the developers] were ever actually executed or whether they contained an expiration date, a provision stating they were void unless recorded, or some other provision that would void the contract.” Appellant’s Reply Br. at 22. We see no reason to speculate on such remote possibilities here. The evidence mentioned in the trial court’s ruling is sufficient for us to conclude that Indiana Code Section B6-9-22-2 was substantially complied with. Sellersburg agreed to allow the developers to connect to its sewer system in exchange for releasing their right “and their successors in title to remonstrate against pending or future annexations by the municipality of the area served by the sewage works.” Ind.Code § 36-9-22-2(c). Although the agreements between Sellersburg and the developers were not recorded, the remonstrance waiver provisions were memorialized in the subdivisions’ restrictions and protective covenants, which were “recorded in the office of the recorder of the county in which the real property” is located before the Landowners “tap[ped] or connected] to the sewers and facilities.” Ind.Code § 36-9-22-2(b). As such, the Landowners had constructive notice of the' remonstrance waiver provisions before they purchased their property and consequently are bound by those provisions. See Lewis v. Bd. of Trs. of Charles A. Beard Mem’l Sch. Corp., 657 N.E.2d 180, 183 (Ind.Ct.App.1995) (“Substantial compliance with a statutory mandate is sufficient if the act of compliance accomplishes the essential purpose of the statute.”), trans. denied (1996). Thus, the remonstrance lacks sufficient valid signatures, and therefore we affirm the dismissal of the Remonstrance Action.

Affirmed.

FRIEDLANDER, J., and BROWN, J., concur.

      . We held oral argument on May 23, 2012. We thank counsel for their presentations.

      . See Ind.Code § 36-4-3-3.1(b) ("A municipality shall develop and adopt a written fiscal plan and establish a definite policy by resolution of the legislative body that meets the requirements set forth in section 13 of this chapter."). We remind counsel that the table of authorities in an appellate brief shall list the authorities "alphabetically or numerically, as applicable." Ind. Appellate Rule 46(A)(2).

      .The notice must include the following:
      1) A legal description of the real property proposed to be annexed.
      2) The date, time, location, and subject of the hearing.
      3) A map showing the current municipal boundaries and the proposed municipal boundaries.

        4) Current zoning classifications for the area proposed to be annexed and any proposed zoning changes for the area proposed to be annexed.
      5) A detailed summary of the fiscal plan described in [Indiana Code Section 36-4-3-13].
      6) The location where the public may inspect and copy the fiscal plan.
      7) A statement that the municipality will provide a copy of the fiscal plan after the fiscal plan is adopted immediately to any landowner in the annexed territory who requests a copy.
      8) The name and telephone number of a representative of the municipality who may be contacted for further information.
      Ind.Code § 36-4-3-2.2(d).

      . Sellersburg asserts that it "published notice of the cancellation of the public hearing, which due to no fault of [Sellersburg] did not appear in the [newspaper] until August 30, 2008.” Appellee's Br. at 9 (citing Appellant’s App. at 474). The cited document appears to be a form generated by the newspaper’s publisher indicating the cost of the notice and averring that the notice had been published on August 30, 2008. The form does not indicate, however, when Sellersburg submitted the notice to the publisher.

      . See Ind.Code § 36-5-l-2(a) ("Proceedings to incorporate a town may be instituted by filing a petition in quadruplicate with the executive of each county in which a part of the territory sought to be incorporated is located. The petition must be signed by at least fifty (50) owners of land in the territory and must [contain certain statements not relevant here].”).

      . See Ind.Code § 36-5-1-4 ("(a) On receipt of a petition for incorporation, the county executive shall examine it to see that it meets the requirements of sections 2 and 3 of this chapter. If the petition is in order, die executive shall mark it with the date of filing and immediately forward one (1) copy to the plan commission, if any, having jurisdiction, (b) The commission shall investigate the proposed incorporation and report their recommendations of approval or disapproval to the county executive at least ten (10) days before the hearing required by section 5 of this chapter. In making their investigations, they may use the services of any state or local government agency, and in making their report and recommendations, they shall be guided by the requirements for incorporation set out in section 8 of this chapter.”).

      .As with an annexation ordinance, "[a]n ordinance incorporating a town ... may not take effect during the year preceding a year in which a federal decennial census is conducted. An ordinance under this section that would otherwise take effect during the year preceding a year in which a federal decennial census is conducted takes effect January 1 of the year in which a federal decennial census is conducted.” Ind.Code § 36-5-1-10.1(f).

      . A remonstrance must be filed within ninety days after the publication of the annexation ordinance, "must be accompanied by a copy of that ordinance, and must state the reason why the annexation should not take place.” Ind. Code § 36-4-3-11(a).

      . Indiana Code Section 36-4-3-11(a) provides in pertinent part that
      whenever territory is annexed by a municipality under this chapter, the annexation may be appealed by filing with the circuit or superior court of a county in which the annexed territory is located a written remonstrance signed by:
      (1) at least sixty-five percent (65%) of the owners of land in the annexed territory: or
      (2) the owners of more than seventy-five percent (75%) in assessed valuation of the land in the annexed territory.
      The assessed valuation threshold is not at issue here.

      . The Commissioners filed a joinder in partial support of the Association's reply brief as to the Incorporation Action but did not file a separate brief.

      . In its complaint for declaratory relief, Sell-ersburg alleged that the Commissioners failed to comply with numerous statutory requirements in their consideration of the incorporation petition. Sellersburg did not move for summary judgment on any of those grounds, however.

      . In its summary judgment ruling in the Incorporation Action, the court questioned sua sponte whether it was "empowered to hear a collateral challenge to the legal validity of annexation proceedings.” Appellant’s Br. at 7. Indeed it is, as both Ensweiler and Indiana's Declaratory Judgment Act make clear. See Ind.Code § 34-14-1-2 ("Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.”) (emphasis added); see also Town of Dyer v. Town of St. John, 919 N.E.2d 1196, 1199 n. 1 (Ind.Ct.App.2010) (addressing dismissal of town’s declaratory judgment complaint against another town competing for annexation of same territory) ("We recognize that this case is procedurally odd, in that normally a challenge to an annexation must be accomplished through a remonstrance by landowners objecting to the annexation. ... No party, however, contends that a declaratory judgment action is an improper method to resolve a dispute between two municipalities competing over annexation of the same land.”) (citing, inter alia, Ensweiler).

      . Coincidentally, Robert Lynn Company is the developer of Willows of Covered Bridge. Appellant's App. at 1121.

      . By contrast, the Brenwick court determined that "annexation and establishing economic development areas are not the same subject matter for purposes of the first-in-time rule.” 889 N.E.2d at 294.

      . As for whether such compliance must be strict or merely substantial, an Indiana Supreme Court opinion not cited by the parties indicates the former. See City of Peru v. Bearss, 55 Ind. 576, 581-82 (1877) (“[T]he entire proceedings for the annexation of contiguous territory to incorporated cities are statutory proceedings; and to make them operative and give them validity, it is essentially necessary that all the proceedings should be in strict conformity with the provisions and requirements of the statute."); but see Ensweiler, 169 Ind.App. at 646, 350 N.E.2d at 660 ("It is well established that minor errors or misdescriptions in a land description in an annexation ordinance, such as those occasioned by clerical or typographical error, may be disregarded where the boundaries are evident upon a fair and reasonable construction of the ordinance without resort to parol evidence.”) (citing, inter alia, Woerner v. City of Indianapolis, 242 Ind. 253, 177 N.E.2d 34 (1961)).

      . In light of K.S. and Robert Lynn Co., the Association’s characterization of the defect as "jurisdictional” is inaccurate.

      . The record establishes that Council member Rhodes and Association member Gupton corresponded via email regarding the proposed annexation from at least May 31 through July 21, 2009, and the May 31 email indicates that additional discussions had occurred prior to that date. Appellant’s App. at 284-98.

      . The October 11, 1993 minutes contain the following letter that was prepared for the Council president’s signature regarding Sell-ersburg’s conditions for allowing Covered Bridge to connect to its sewer system:
      Gentlemen:
      Concerning connection of your subdivision to the sanitary sewer system of the Town of Sellersburg. We are going to need the following items to complete this transaction to allow the flow of waste water.
      1. Sufficient language on the recorded plat to bind, legally, those who purchase lots stating [ ]that they will not fight annexation when the Town of Sellersburg decides to do so, sometime in the future.
      2. A legal document binding the owners of the Golf Course complex, and their successors and assigns to the same agreement.
      3. A copy of the subdivision plat and construction plans and specifications.

      Sincerely, Town Council, Stanley E. Tucker, President
      Appellant's App. at 1060.

      . The remonstrance waiver provisions for Covered Bridge and Willows of Covered Bridge are nearly identical. The Covered Bridge provision reads as follows:

        24. CONNECTION TO SANITARY SEWER: WAIVER OF REMONSTRANCE.

      In order to provide sanitary sewers to Covered Bridge Development, Developer, its successors and/or assigns, including all lot owners in the Development known as Covered Bridge Subdivision (Estate Homes), by acceptance of a deed to any lot, lots or parcels of real estate in Covered Bridge Subdivision (Estate Homes), waive all rights, both present and future, to remonstrate to any future annexation by the Town of Sellersburg.
      Appellant’s App. at 98.


source: Caselaw Access Project

author: KIRSCH, Judge.

license: Public Domain

text:
    Howard JUSTICE, Appellant-Plaintiff, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Appellee-Defendant.
    No. 49A02-1112-PL-1078.
    Court of Appeals of Indiana.
    July 18, 2012.

      Ryan O. Farner, Glaser & Ebbs, Indianapolis, IN, Attorney for Appellant.
    Rick D. Meils, John W. Mervilde, Meils Thompson Dietz & Berish, Indianapolis, IN, Attorneys for Appellee.
   OPINION

KIRSCH, Judge.

Howard Justice (“Justice”) appeals from the trial court’s order granting summary judgment in favor of American Family Mutual Insurance Company (“AFI”). Justice presents the following restated issue for our review: whether the trial court erred by granting summary judgment in favor of AFI.

We reverse and remand.

FACTS AND PROCEDURAL HISTORY

On March 27, 2008, at the intersection of 16th Street and Pershing Avenue in Indianapolis, Indiana, a car driven by Kathleen Wagner (“Wagner”) collided with an Indy-Go bus driven by Justice in the scope and course of his employment. Justice suffered bodily injuries as a result of the collision. Wagner was insured by Geico, with a per-person liability policy limit of $25,000.00. Geico paid its policy limits to Justice, and with AFI’s consent, Justice settled his claim with Wagner. GAB Robbins provided Justice with worker’s compensation coverage under a policy carried by his employer, IndyGo. GAB Robbins paid Justice, pursuant to that policy an aggregate amount of $77,469.56 in benefits, which represented the following: $51,829.81 paid to medical providers; $18,939.75 for lost wages/temporary disability; and, $6,700.00 for permanent partial impairment. GAB Robbins accepted $5,511.06 in satisfaction of its worker’s compensation lien relating to the collision.

Justice’s damages exceeded Wagner’s policy limits. At the time of the collision, Justice was covered by a policy issued by AFI that provided underinsured motorist coverage limits of $50,000.00 per person and $100,000.00 per accident. Justice made a claim against that policy, which was denied by AFI. Justice then filed a complaint alleging that AFI was in breach of its contract with Justice.

On August 4, 2011, AFI filed a motion for summary judgment making the argument that the worker’s compensation set-off provision reduced the limits of the liability policy such that AFI’s liability under the policy was zero. Justice made the following arguments in response: 1) that the policy excluded coverage for injuries eligible for worker’s compensation, thus the worker’s compensation setoff provision would not apply; 2) that if the setoff provision did apply, the provision applied to total damages and not the limits of liability; and 3) that the policy was ambiguous and when construed in favor of Justice, the worker’s compensation setoff provision reduced the total damages as opposed to the limits of liability of the policy. The trial court held a hearing on the motion on October 21, 2011, and later granted AFI’s motion for summary judgment without opinion. Justice now appeals.

DISCUSSION AND DECISION

Justice appeals from the trial court’s order granting summary judgment in favor of AFI. Our standard of review of a summary judgment order is well-settled: summary judgment is appropriate if the “designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Ind. Trial Rule 56(C). Relying on specifically designated evidence, the moving party bears the burden of making a prima face showing that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. I/N Tek v. Hitachi Ltd., 734 N.E.2d 584, 586 (Ind.Ct.App.2000). If the moving party meets these two requirements, the burden shifts to the nonmovant to set forth specifically designated facts showing that there is a genuine issue for trial. Id. A genuine issue of material fact exists where facts concerning an issue that would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue. Gilman v. Hohman, 725 N.E.2d 425, 428 (Ind.Ct.App.2000). Even if the facts are undisputed, summary judgment is inappropriate where the record reveals an incorrect application of the law to the facts. Id.

A trial court’s grant of summary judgment is clothed with a presumption of validity, and the party that lost in the trial court has the burden of demonstrating that the grant of summary judgment was erroneous. City of Indianapolis v. Byrns, 745 N.E.2d 312, 316 (Ind.Ct.App.2001). On appeal, we are bound by the same standard as the trial court, and we consider only those matters that were designated at the summary judgment stage. Interstate Cold Storage v. Gen. Motors Corp., 720 N.E.2d 727, 730 (Ind.Ct.App.1999). We do not reweigh the evidence, but we liberally construe all designated evidentia-ry material in the light most favorable to the nonmoving party to determine whether there is a genuine issue of material fact for trial. Estate of Hofgesang v. Hansford, 714 N.E.2d 1213, 1216 (Ind.Ct.App.1999). A grant of summary judgment may be affirmed upon any theory supported by the designated materials. Bernstein v. Glavin, 725 N.E.2d 455, 458 (Ind.Ct.App.2000).

Resolution of this appeal hinges on the interpretation and application of the insurance policy provisions relating to worker’s compensation setoffs. We review an insurance policy using the same rules of interpretation applied to other contracts, namely if the language is clear and unambiguous we will apply the plain and ordinary meaning. Cincinnati Ins. Co. v. Am. Alt. Ins. Corp., 866 N.E.2d 326, 332 (Ind.Ct.App.2007). The interpretation of an insurance policy is generally a question of law appropriate for summary judgment. Progressive Ins. Co. v. Bullock, 841 N.E.2d 238, 240 (Ind.Ct.App.2006).

Borrowing from our Supreme Court’s opinion in Beam v. Wausau, we set forth the rules of construction of insurance contracts:

Although some special rules of construction of insurance contracts have been developed due to the disparity in bargaining power between insurers and insured’s [sic], if a contract is ambiguous, the language therein must be given its plain meaning. On the other hand, where there is ambiguity, insurance policies are to be construed strictly against the insurer and the policy language is viewed from the standpoint of the insured. A contract will be found to be ambiguous only if reasonable persons would differ as to the meaning of its terms. In insurance policies, an ambiguity is not affirmatively established simply because controversy exists and one party asserts an interpretation contrary to that asserted by the opposing party.

765 N.E.2d 524, 528 (Ind.2002) (internal citations and quotations omitted).

The relevant provisions of Justice’s insurance policy with AFI are as follows:

We will pay compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle. The bodily injury must be sustained by an insured person and must be caused by accident and arise out of the use of the underinsured motor vehicle.
EXCLUSIONS
Underinsured Motorists Coverage shall not apply to the benefit of any insurer or self-insurer under any worker’s compensation or disability benefits law or any similar law.
LIMITS OF LIABILITY
The limits of liability of this coverage as shown in the declarations apply, subject to the following:
1. The limit for each person is the maximum for all damages sustained by all persons as the result of bodily injury to one person in any one accident.
2. Subject to the limit for each person, the limit for each accident is the maximum for bodily injury sustained by two or more persons in any one accident.
We will pay no more than these máxi-mums no matter how many vehicles are described in the declarations, insured persons, claims, claimants or policies or vehicles are involved in the accident. The limits of liability of this coverage will be reduced by:
1. A payment made or amount payable by or on behalf of any person or organization which may be legally liable, or under any collectible auto liability insurance, for loss caused by an accident with an underinsured motor vehicle.
2. A payment under the Liability coverage of this policy.
3. A payment made or amount payable because of bodily injury under any workers’ compensation or disability benefits law or any similar law.

Appellant’s App. at 48 (emphasis in original).

In Beam, our Supreme Court was presented with the very issue presented in this appeal, i.e., is the proper setoff against a personal injury award for payments received under worker’s compensation the liability limit or the damages recovered by insured? The Supreme Court held that the proper setoff in that case was against the amount of damages and not the liability limits. 765 N.E.2d at 526.

The policy language in Beam, which our Supreme Court found to be unambiguous, id. at 531, is strikingly similar to the policy language in the present case. We set forth the relevant underinsured motorist coverage language from that case as follows:

A. COVERAGE
1. We will pay the sums the “insured” is legally entitled to recover as compensatory damages from the owner or driver of an “uninsured motor vehicle” or an “underinsured motor vehicle.”
C. EXCLUSIONS

This insurance does not apply to: ...

2. The direct or indirect benefit of any insurer or self-insurer under any workers compensation, disability benefits or similar law.
D. LIMIT OF INSURANCE
2. The Limit of Insurance under this coverage shall be reduced by all sums paid or payable by or for anyone who is legally responsible, including all sums paid under the Coverage Form’s LIABILITY COVERAGE.
3. Any amount payable for damages under this coverage shall be reduced by all sums paid or payable under any workers’ compensation, disability benefits or similar law.

Id. at 527.

In Beam, the parties agreed that the jury would determine liability and damages, and the issue of setoffs would be determined by the trial court. The jury found Beam’s damages to be $701,371.00 and determined Beam to be 45% at fault. The trial court awarded setoffs against the jury verdict for 100% of all amounts received by Beam. We affirmed the trial court. Beam v. Wausau Ins. Co., 743 N.E.2d 1188 (Ind.Ct.App.2001), trans. granted. On petition to transfer, the Supreme Court held that the trial court correctly awarded the setoff against the damages awarded, but erred by reducing the damages award by the gross amount of worker’s compensation benefits paid. 765 N.E.2d at 533. The Supreme Court held that the exclusion called for a reduction of damages by any amount of worker’s compensation benefits received for the same element of damages insured by the policy. Id. Thus, the Supreme Court remanded the matter to the trial court to enter an order awarding damages reduced by 55% of the worker’s compensation benefits received.

In this case, the trial court’s order granting summary judgment reflects, without opinion, its agreement with AFI that the setoffs should result in a reduction from the UIM policy limits. Under the rationale of Beam, however, this is incorrect as a matter of law. After a determination of liability and damages, Justice’s damages award should be reduced by the $25,000.00 recovery from Wagner and the percentage of worker’s compensation benefits paid to Justice based upon Wagner’s percentage of comparative fault, up to a maximum of $25,000.00.

Reversed and remanded with instructions.

BAKER, J., and BROWN, J., concur.


author: BAILEY, Judge. ROBB, Chief Judge,

text:
    Jeremiah CLINE, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 06A05-1111-MI-611.
    Court of Appeals of Indiana.
    July 26, 2012.

      Deborah K. Smith, Thorntown, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

The Boone Circuit Court determined that Jeremiah Cline (“Cline”) is not required to register as a sex offender, but also determined that it lacked authority to order the. removal of Cline’s name and information from the Indiana Sex Offender Registry (“the Registry”). Cline appeals and presents the sole issue of whether the trial court has authority to expunge Cline’s information from the Registry. We affirm.

Facts and Procedural History

■ Then twenty-year-old Cline engaged in sexual intercourse with a fifteen-year-old in February of 2001 and with a fourteen-year-old on June 4, 2001. On May 31, 2002, Cline pled guilty to two counts of Sexual Misconduct with a Minor, as Class C felonies. He was sentenced to six years imprisonment, with two years suspended.

The Indiana Sex Offender Act (originally enacted in 1994) (“the Act”), was amended, effective July 1, 2001 • such that one convicted of the crime of Sexual Misconduct with a Minor, as a Class C felony, was required to register as a sex offender. Although Cline’s crimes predated the statutory change, he was required upon release from incarceration to register accordingly.

On July 26, 2011, Cline filed his “Amended Petition to Remove Petitioner From Sex Offender Registration Requirement.” (App. 20.) A hearing was conducted on July 27, 2011. On October 24, 2011, the trial court issued an order with specific findings. The trial court found that Cline had no obligation to continue to register as a sex offender, because application of the statutory change would constitute ex post facto punishment as to him. However, the trial court also found that it lacked authority to expunge Cline’s existing information from the Registry. This appeal ensued.

Discussion and Decision

I. Standard of Review

Cline petitioned for relief pursuant to the provision of the Act allowing a sex offender to petition to remove the designation or register under less restrictive conditions. Ind. Code § 11-8-8-22. Generally, a trial court’s ruling on a petition for relief filed under subsection 22 is reviewed for an abuse of discretion. Lucas v. McDonald, 954 N.E.2d 996, 998 (Ind.Ct.App.2011). Here, however, the issue presented is one of law.

The interpretation of a statute is a legal question that is reviewable de novo. Avemco Ins. Co. v. State ex rel. McCarty, 812 N.E.2d 108, 115 (Ind.Ct.App.2004). We owe no deference to a trial court’s determination. Bowling v. State, 960 N.E.2d 837, 841 (Ind.Ct.App.2012). The goal of statutory construction is to determine and implement legislative intent. Fort Wayne Patrolmen’s Benev. Ass’n v. Fort Wayne, 903 N.E.2d 493, 497 (Ind.Ct.App.2009), trans. denied. We read all sections of an act and strive to give effect to all provisions. Id. “We will not read into a statute that which is not the manifest intent of the legislature. For this reason, it is as important to recognize not only what a statute says, but also what a statute does not say.” Cox v. Cantrell, 866 N.E.2d 798, 809 (Ind.Ct.App.2007) (citation and quotation marks omitted), trans. denied.

II. Analysis

Indiana law requires persons convicted of sex or violent crimes to report to and register with local law enforcement. Ind. Code § 11-8-8-14. Sex offenders must fulfill obligations including providing personal information, registering annually, being photographed, and keeping law enforcement authority apprised of any changes in work or residence. See id. Sex offender registry information appears on an Internet website jointly established and maintained by Indiana sheriffs. Ind. Code § 36-2-13-5.5.

However, effects of the Act have been declared in violation of the ex post facto clause contained in the Indiana Constitution, as applied to persons who had committed their crimes prior to the imposition of any registration requirement. See Wallace v. State, 905 N.E.2d 371, 384 (Ind.2009) (defendant’s conviction for failing to register as a sex offender was reversed because the registration statute, as applied to him, added punishment beyond that which could have been imposed when he committed his crime), reh’g denied; see also State v. Pollard, 908 N.E.2d 1145, 1154 (Ind.2009) (trial court properly dismissed charge that Pollard violated the residency restriction provision of the Sex Offender Registration Act when he had served his sentence before the Act was enacted and application to him would add punishment beyond that possible when his crime was committed).

Subsequent to the Wallace decision, our Legislature amended the Act such that it includes a provision allowing a sex offender to petition for removal of the designation, providing in relevant part:

(c) A person to whom this section applies may petition a court to:
(1) remove the person’s designation as an offender; or
(2) require the person to register under less restrictive conditions.
(d) A petition under this section shall be filed in the circuit or superior court of the county in which the offender resides
(g) A court may grant a petition under this section if, following a hearing, the court makes the following findings:
(1) The law requiring the petitioner to register as an offender has changed since the date on which the petitioner was initially required to register.
(2) If the petitioner who was required to register as an offender before the change in law engaged in the same conduct after the change in law occurred, the petitioner would:
(A) not be required to register as an offender; or
(B) be required to register as an offender, but under less restrictive conditions.
(3)If the petitioner seeks relief under this section because a change in law makes a previously unavailable defense available to the petitioner, that the petitioner has proved the defense.

Ind.Code § ll-8-8-22(c)-(d), (g). Cline contends that the foregoing is a statutory codification of Wallace, and must be interpreted so as to not only relieve him of future obligations but also to provide for removal of his name and existing information from the Registry. According to Cline, complete expungement is required to avoid ex post facto punishment because retention of identifying information (even without a duty to provide updates) has a punitive effect upon him akin to the ex post facto punishment discussed in Wallace. He thus argues that, not only should he not have to register in the future, he should be placed in a position as if he had never reported his personal information.

In Wallace, our supreme court recognized that the Act imposes “significant affirmative obligations and a severe stigma on every person to whom it applies” and “exposes registrants to profound humiliation and community-wide ostracism.” 905 N.E.2d at 379-80. Mindful of such onerous effects, the Court highlighted a deficiency of the Act as it then existed, observing:

In this jurisdiction the Act makes information on all sex offenders available to the general public without restriction and without regard to whether the individual poses any particular future risk. Indeed we think it significant for this excessiveness inquiry that the Act provides no mechanism by which a registered sex offender can petition the court for relief from the obligation of continued registration and disclosure. Offenders cannot shorten their registration or notification period, even on the clearest proof of rehabilitation.

Wallace, 905 N.E.2d at 384. Effectively, our supreme court invited the Legislature to provide a “mechanism by which a registered sex offender can petition the court for relief from the obligation of continued registration and disclosure” or for shortening the time of obligation. Id. (emphasis added.) The Legislature responded by enacting a mechanism for relief from registration obligations and for shortening of the period of obligation. Notably, the Wallace Court did not address expungement; nor did the legislative response specifically do so.

Although Cline claims he will have to endure the stigma associated with registration even if he does not register in the future, the fact that Cline committed sex crimes is a matter of public record. We do not read the Wallace decision as broadly as does Cline; it does not insulate an offender from all punitive consequences associated with having committed his crimes. Furthermore, the statutory provision under which Cline sought relief does not include an expungement provision. We will not add such a provision. See Cox, 866 N.E.2d at 809 (observing that we will not read into a statute that which is not the manifest intent of the legislature).

Nonetheless, a panel of this Court has very recently observed: “The undisputed facts here establish that the DOC [the Indiana Department of Correction] determines whether an incarcerated individual belongs on the Registry and also handles complaints about mistaken sex offender registrations.” Myers v. Coats, 966 N.E.2d 652, 658 (Ind.Ct.App.2012) (emphasis added). We further observed that the DOC had added an administrative appeal to allow for challenges to errors on the Registry. Id. at 658, n. 4. Cline is not precluded from this avenue, although we express no opinion on the breadth of relief to be afforded, if any.

Cline has not demonstrated his entitlement to expungement as a judicial remedy; the trial court did not misapply the law. Accordingly, we affirm the trial court.

Affirmed.

MATHIAS, J., concurs.

ROBB, C.J., dissents with opinion.

ROBB, Chief Judge,

dissenting.

I respectfully dissent. I begin to explain why by briefly describing the factual and legal context. Upon Cline’s release from incarceration, a state office required Cline to add his name and information to the sex offender registry. He later took the initiative to request the court remove his name and information, alleging it was unlawful to require him to have registered at all. Following a hearing, the trial court agreed with Cline that authorities violated the Indiana Constitution by requiring he add his name and information to the registry in the first place. I agree, and the majority appears to as well.

The majority further concludes, though, that trial courts have no authority to correct this admitted constitutional violation by ordering the removal of an erroneous-registrant’s name and information from the registry. It is this latter conclusion from which I respectfully dissent.

Before going further, it is important to note what this case is not about. It is not about determining whether the registry requirement is an ex post facto law as applied to Cline. It is not about removing one’s name and information from the registry due to a change in the law that eliminates an offense for which one must register. For instance, it is not about one who initially registered pursuant to a statute requiring registry for a conviction of sexual misconduct with a minor and later seeks removal upon a statutory change so that one later convicted of that offense is not required to register. This case is also not about removal of one’s name and information from the registry or termination of the duty to register upon the passage of a period of time since he or she began registering. See Ind.Code § ll-8-8-19(a). Finally, this case is not about expungement of a conviction from one’s criminal history or record.

This is a case about whether a person who should not have had to but was erroneously required to add his name and information to the registry in the first place is entitled to relief in the form of having his name and information removed. The. backdrop is Wallace, in which our supreme court held that the sex offender registration act was unconstitutional as applied to one who committed his offense before the act was enacted. See 905 N.E.2d at 384. Specifically, the court held that it “violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed.” Id. The General Assembly responded by amending Indiana Code section 11-8-8-22 to address the supreme court’s ex post facto concern.

Thus, this case is also about interpreting and applying section 11-8-8-22. This section is poorly written and confusing. Nevertheless, a logical reading of the following subsections of section 11-8-8-22 determines the fate of Cline’s petition.

(b) Subsection (g) applies to an offender required to register under this chapter if, due to a change in federal or state law after June 30, 2007, an individual who engaged in the same conduct as the offender:
(1) would not be required to register under this chapter; or
(2) would be required to register under this chapter but under less restrictive conditions than the offender is required to meet.
(c) A person to whom this section applies may petition a court to:
(1) remove the person’s designation as an offender; ...
* * *
(g) A court may grant a petition under this section if, following a hearing, the court makes the following findings:
(1) The law requiring the petitioner to register as an offender has changed since the date on which the petitioner was initially required to register.
(2) If the petitioner who was required to register as an offender before the change in law engaged in the same conduct after the change in law occurred, the petitioner would:
(A) not be required to register as an offender; or
(B) be required to register as an offender, but under less restrictive conditions.
(3)If the petitioner seeks relief under this section because a change in law makes a previously unavailable defense available to the petitioner, that the petitioner has proved the defense.
The court has the discretion to deny a petition under this section, even if the court makes the findings under this subsection.

Ind.Code § 11-8-8-22.

Subsection (c) states that the relief Cline seeks is available so long as the section applies to Cline. Subsection (b) states that a court may grant a petition to remove one’s designation as an offender, referring to subsection (g), if “a change in federal or state law” after a certain date resulted in particular consequences for others. Subsection (g) also describes a court’s authority regarding the registry when particular changes in the law occur.

The only way the repeated references to a “change in law” in section 11-8-8-22 make sense is if the section addresses the supreme court’s concern that some applications of the registry laws lead to violations of the Indiana Constitution’s ex post facto clause. If the statute—particularly subsection (c)—does not mean that a court may remove an offender’s name and information from the registry, then it has no meaning at all. “The goal of statutory construction is to determine, give effect to, and implement the intent of the General Assembly.” Sanders v. Bd. of Comm’rs of Brown Cnty., 892 N.E.2d 1249, 1252 (Ind.Ct.App.2008), trans. denied. “[I]n seeking to give effect to the legislature’s intent, we ... strive to give effect to all of the provisions so that no part is held meaningless if it can be reconciled with the rest of the statute. We presume that our legislature intended for its language to be applied in a logical manner consistent with the statute’s underlying policy and goals.” Fort Wayne Patrolmen’s Benev. Ass’n, 903 N.E.2d at 497-98 (citations omitted).

Further, to the extent it is clear that section 11-8-8-22 is intended to address the Indiana Constitution’s prohibition of ex post facto laws, the authority to remove an offender’s name and information from the registry must rest with someone. Subsection (c) states that the authority rests with the trial court. The majority suggests Cline take up his cause with the Department of Correction. I believe the trial court is the appropriate authority, first because it is explicitly designated as such in subsection (c), and second because Cline’s allegation that his listing violates the Indiana Constitution is one which trial courts have the authority and legal training to address.

The majority also supports its decision, in part, by contending that removal of Cline’s name and information from the registry would be pointless because Cline’s convictions would remain part of the public record even if he receives the relief he seeks. This implies that the registry is not harmful or punitive, and perhaps is merely a replica of the already-public criminal history of offenders. Our supreme court concluded that the registry is punitive for its relative excessiveness, especially, as the majority points out, because as formulated at the time of Wallace, there was “no mechanism by which a registered sex offender can petition the court for relief from the obligation of continued registration and disclosure.” Op. at 1244 (quoting Wallace, 905 N.E.2d at 384). As the majority notes, section 11-8-8-22 might have partially or fully addressed this concern.

Regardless, the supreme court concluded the registry is punitive for other reasons too: because it “impose[s] substantial disabilities on registrants,” Wallace, 905 N.E.2d at 380, “resembles the punishment of shaming,” is “comparable to conditions of supervised probation or parole,” id. at 381, and it “promote[s] community condemnation of the offender,” id. at 382 (quotation omitted). Therefore, it is incorrect to suggest that removal of Cline’s name from the registry would be pointless. To the extent the majority construes Cline’s request as one to eliminate all punitive consequences associated with having committed his offenses, I believe that to be a different issue.

For these reasons, I respectfully dissent.

      . Ind.Code § 35-42-4-9(a).

      . Sexually violent predators must register every 90 days. Ind.Code § 11—8—8—14(b).

      . Article I, section 24 of the Indiana Constitution provides that "[n]o ex post facto law ... shall ever be passed.”

      . However, on the same day that it handed down Wallace, our supreme court handed down Jensen v. State, 905 N.E.2d 384, 394 (Ind.2009), a plurality decision supporting the proposition that portions of the Act requiring lifetime registration may be applied retroactively if the offender was already required to register at the time of his offense. Jensen, who had pled guilty to child molesting while the registration statute included a ten-year reporting requirement, and was subsequently adjudicated a sexually violent predator and ordered to register for life, did not demonstrate a violation of the ex post facto clause. Id. See also Lemmon v. Harris, 949 N.E.2d 803 (Ind.2011) (applying Jensen and concluding that a sexual violent predator designation with lifetime registration requirements did not violate the ex post facto clause).

      . We acknowledge that, in Brogan v. State, 925 N.E.2d 1285, 1289 (Ind.Ct.App.2010), a panel of this Court stated that Indiana Code Section 11-8-8-22, as revised in 2010, “provides for a petition by a sex offender to have his name removed from die designation as a sex offender so as to relieve him from the duty to register as a sex offender.” In determining whether Brogan’s motion for removal from the Registry was a cognizable vehicle for his ex post facto argument, the Court appeared to equate "removal of the person’s name from any sexual offender registry” with ”relie[f] from the obligation to register.” Id. at 1289-90. In holding that Noble County was not the appropriate forum in which to obtain judicial relief directing removal of Brogan’s name, the Court observed: "One thing is patently clear from the Wallace decision. Brogan is entitled to have his name removed from any sex offender registry which has resulted from his 1994 convictions in Noble County.” Id. at 1291. See also Clampitt v. State, 932 N.E.2d 1256, 1258 (Ind.Ct.App.2010) (directing the trial court to consider an amended petition “to remove [Clampitt]'s name from Indiana’s sex offender registry”).

      . The general expungement statute, Indiana Code § 35-38-5-1, affords relief only when there has been no charge following an arrest or where a charge is dismissed because of mistaken identity, no offense was in fact committed, or there is an absence of probable cause.

      . The majority and the trial court refer to Cline’s request as one of expungement. While his request for removal of his name and information from the registry does constitute "expungement” in some form, ex-pungement is a term of art which refers to complete removal of an arrest from one’s criminal history retained by a local, regional, or state entity, see Ind.Code § 35-38-5-3, and limited access to one's criminal history upon the passage of fifteen years since the date of discharge from probation, imprisonment, or parole, see Ind.Code 35-38-5-5. Expungement is similar to what Cline requests regarding the sex offender registry, but the distinction is significant enough and the similarity is potentially confusing enough that I believe it important to use different nomenclature in discussing Cline's case. I refer to Cline’s request as one to remove his name and information from the sex offender registry, and conclude his petition does not seek expungement of his arrest or conviction from his criminal record.

      . As to the principles governing our court's interpretation of a statute, I agree with the majority’s references to and reading of Avemco, Bowling, Fort Wayne Patrolmen's Benev. Ass’n, and Cox: See Op. at 1242.