Full Opinion

Pursuant to Ind. Appellate Rule 65(E), the trial court and parties shall not take any action in reliance upon this Opinion until it is certified. IN THE Court of Appeals of Indiana Lou Ann Pierce, FILED Oct 22 2026, 9:21 am Appellant-Plaintiff/Cross-Appellee CLERK Indiana Supreme Court Court of Appeals v. and Tax Court City of Elwood, Appellee-Defendant/Cross-Appellant October 22, 2026 Court of Appeals Case No. 26A-MI-693 Appeal from the Madison Circuit Court The Honorable Jason Childers, Magistrate Trial Court Cause No. 48C01-2007-MI-347 Opinion by Judge Bailey Judges Bradford and Altice concur. Court of Appeals of Indiana | Opinion 26A-MI-693 | October 22, 2026 Page 1 of 15 Bailey, Judge. Case Summary [1] Lou Ann Pierce appeals the trial court’s order denying her motion for summary judgment and granting summary judgment in favor of the City of Elwood (“the City”) on Pierce’s complaint alleging that the City lacked the authority to charge her for sewer fees. Pierce raises one issue for our review, namely, whether the court erred when it granted the City’s motion for summary judgment and denied her motion for summary judgment. The City cross- appeals and asserts that Pierce’s claims were barred under the Indiana Tort Claims Act (“ITCA”). Finding that the City lacked the authority to charge Pierce for sewer fees and that ITCA does not apply to bar Pierce’s claims, we reverse the trial court’s order and remand with instructions for it to enter summary judgment in favor of Pierce. Facts and Procedural History [2] Pierce and William Cowart have been in a “domestic partnership” since 1990. Appellant’s App. Vol. 2 at 32. In September 2007, Cowart purchased a property (“the Property”) in the City. At the time, there was an abandoned structure on the Property that had “no floors, no bathrooms, and no sewer lines to hook up to the [City] sewage line.” Id. Cowart ultimately transferred the Property to Pierce. Pierce and Cowart have not made any changes to the structure. [3] In 2002, prior to Cowart and Pierce taking ownership of the Property, the Indiana Department of Environmental Management (“IDEM”) sent a letter to Court of Appeals of Indiana | Opinion 26A-MI-693 | October 22, 2026 Page 2 of 15 the mayor of the City and informed him that the City was “in violation of” several “environmental statutes, rules[,] and provisions of” a discharge permit. Appellee’s App. Vol. 2 at 7. Specifically, IDEM informed the City that it had violated both the daily and monthly limit for E. coli bacteria in the groundwater. The City and IDEM entered into an agreed order pursuant to which the City agreed “to provide water and sanitary sewer service to two (2) presently unsewered residential areas[.]” Id. at 47. [4] On July 20, 2006, the City sent the prior owners of the Property a letter informing them that a sewer project would be completed by August and that they were “required to hook up to that new sewer within ninety (90) days of completion” because the Property “is within three hundred (300) feet of the sewer.” Appellant’s App. Vol. 2 at 47. Also in July 2006, Jerrold Bridges, the Executive Director of the Madison County Council of Governments, sent the City’s mayor a letter. In that letter, Bridges stated that, “[b]ased on state law[,] all homes within three hundred (300) feet of a public sanitary sewer line are required to connect to that line.” Id. at 57. The Property was never connected to the sewer. [5] On October 16, 2008, the City informed Cowart and Pierce that it would begin billing the Property for sewer services, with the first billing to begin on October 25. Almost six years later, on September 10, 2014, Cowart’s attorney sent a letter to the City disputing the sewer charges that had been imposed. Cowart’s attorney then sent an email to the City disputing the charges on May 15, 2020. The City continued to charge Cowart and Pierce monthly for sewer services. Court of Appeals of Indiana | Opinion 26A-MI-693 | October 22, 2026 Page 3 of 15 [6] On July 13, 2020, Cowart and Pierce filed a complaint against the City for unjust enrichment and conversion based on the City’s collection of fees related to sewer services even though “it did not provide sewage services to the Property[.]” Appellee’s Supp. App. Vol. 2 at 40. The City filed a motion for summary judgment. In that motion, the City alleged that Pierce and Cowart had failed to comply with the notice requirements of the ITCA, which “constitutes a complete bar of their claim[.]” Id. at 11. In particular, the City argued that it had informed Pierce and Cowart of the charges in a letter on October 16, 2008, and that, as of that date, Pierce and Cowart “knew they were going to be charged with the sewage bills[.]” Id. at 17. Thus, the City alleged that, even if the communications in 2014 and 2020 “could be construed as substantially complying with” ITCA’s requirements, “they were both untimely as they did not fall within 180 days of the accrual date for the Plaintiffs’ claims.” Id. The City also contended that Cowart was not a real party in interest. [7] Pierce and Cowart filed a response to the City’s motion for summary judgment. In their response, they did “not deny their claims are tort claims” or that “they are required to comply with the ITCA.” Appellee’s Supp. App. Vol. 3 at 10. However, they maintained that there “was substantial compliance” with ITCA when they sent the two communications to the City, which provided “sufficient information for it to ascertain the full nature of” the claims. Id. at 12. [8] On September 20, 2022, the trial court granted the City’s motion for summary judgment in part and found that Cowart was not a real party in interest. But the Court of Appeals of Indiana | Opinion 26A-MI-693 | October 22, 2026 Page 4 of 15 court denied the City’s motion for summary judgment regarding its claims related to the ITCA. Thereafter, on the City’s motion, the court issued an order clarifying its summary-judgment order and found that Pierce had “substantially complied with the ITCA Notice Requirement.” Id. at 80. The City filed a motion to certify that order for interlocutory appeal, which the court denied. [9] On October 23, 2024, Pierce filed an amended complaint against the City. In that complaint, Pierce requested a declaratory judgment that the City is “not permitted to bill for sewage services at the Property[.]” Appellee’s App. Vol. 2 at 73. In addition, she sought an injunction prohibiting the City from billing her for sewer services, and she reasserted her claims for unjust enrichment and conversion based on the City’s collection of fees for sewer services. [10] On July 22, 2025, Pierce filed a motion for summary judgment. In her motion, Pierce alleged that the City “lacks legal authority to require that the property owned by Pierce must connect to [the City’s] sewer system and that [the City] also lacks legal authority to bill for sewer services that were not provided in relation to [a] property that has not been connected to [the City’s] sewer system.” Appellant’s App. Vol. 2 at 13. [11] The City responded to Pierce’s motion and filed a cross-motion for summary judgment. The City alleged that the sewer expansion was “being constructed in compliance with an order of the [IDEM] to abate water pollution” and that, pursuant to its ordinances, the City required “users within 300 feet of the sewer extension and outside the City’s corporate limits to pay the debt service Court of Appeals of Indiana | Opinion 26A-MI-693 | October 22, 2026 Page 5 of 15 surcharge—regardless of usage—until the debt was paid in full.” Id. at 84-85. The City also alleged that it “has never interpreted its ordinances to limit billing to properties actively producing sewage.” Id. at 85. And the City alleged that there “is little doubt that customers can be billed for debt incurred by the City for the installation of the sewage system prior to connection.” Id. at 87. [12] Following a hearing at which the parties presented oral argument, the trial court denied Pierce’s motion for summary judgment and granted the City’s cross- motion for summary judgment. This appeal ensued. Discussion and Decision [13] Pierce appeals the trial court’s order denying her motion and granting the City’s motion for summary judgment. Our standard of review is clear. The Indiana Supreme Court has explained that [w]e review summary judgment de novo, applying the same standard as the trial court: “Drawing all reasonable inferences in favor of . . . the non-moving parties, 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.’” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 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 material facts support conflicting reasonable inferences.” Id. (internal citations omitted). Court of Appeals of Indiana | Opinion 26A-MI-693 | October 22, 2026 Page 6 of 15 Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (omission and some alterations original to Hughley). We may affirm an entry of summary judgment “if it can be sustained on any theory or basis in the record.” DiMaggio v. Rosario, 52 N.E.3d 896, 904 (Ind. Ct. App. 2016) (quoting Town of Lapel v. City of Anderson, 17 N.E.3d 330, 332 (Ind. Ct. App. 2014)), trans. denied. [14] Here, the parties filed cross-motions for summary judgment. “Parties filing cross-motions for summary judgment neither alters” our standard of review “nor changes our analysis—we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law.” G&G Oil Co. v. Cont’l W. Ins. Co., 165 N.E.3d 82, 86 (Ind. 2021) (citation modified) (quoting Erie Indem. Co. v. Estate of Harris, 99 N.E.3d 625, 629 (Ind. 2018)). Further, although the trial court’s findings and conclusions “aid our review of a summary judgment ruling[,] they are not binding on this Court,” and they do not alter our standard of review. Knighten v. E. Chicago Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015) (quoting City of Gary v. Ind. Bell Tel. Co., 732 N.E.2d 149, 152 (Ind. 2000)).1 [15] On appeal, Pierce contends that the court erred when it entered summary judgment in favor of the City and denied her motion for summary judgment because the City lacked the legal authority to charge her fees for a sewer system 1 The trial court did not enter findings and conclusions when it granted the City’s motion for summary judgment and denied Pierce’s. However, in an order clarifying its first order denying the City’s motion for summary judgment, the court made limited findings. See Appellee’s App. Vol. 2 at 103. Court of Appeals of Indiana | Opinion 26A-MI-693 | October 22, 2026 Page 7 of 15 that she is not using. The City cross-appeals and contends that Pierce’s claims are barred under the ITCA. We address each argument in turn. Pierce’s Claims [16] We first address Pierce’s argument that the City lacked the authority to charge her for sewage fees. In other words, Pierce contends that the charges for the sewage fees are void. To resolve this issue, we must interpret a statute. “Matters of statutory interpretation, which inherently present pure questions of law, are reviewed de novo.” Paquette v. State, 101 N.E.3d 234, 237 (Ind. 2018). As this Court has stated, “[t]he primary purpose of statutory interpretation is to ascertain and give effect to the intent of our legislature. The best evidence of legislative intent is the statutory language itself, and we strive to give the words in a statute their plain and ordinary meaning.” 21st Amend., Inc. v. Ind. Alcohol & Tobacco Comm’n, 84 N.E.3d 691, 696 (Ind. Ct. App. 2017) (citations and quotation marks omitted). [17] The Municipal Sewage Works Act (“the Act”) is codified at Indiana Code Chapter 36-9-23. The Act “authorizes municipalities to operate sewage works, including sewage treatment plants, sewer branches and mains, and sewage stations. The statute governs collection of sewer fees, which are set by the municipal legislative body and are payable by the owner of each piece of realty connected to the sewer system.” Pinnacle Props. Dev. Grp., LLC v. City of Jeffersonville, 893 N.E.2d 726, 727 (Ind. 2008) (quotation marks omitted). Court of Appeals of Indiana | Opinion 26A-MI-693 | October 22, 2026 Page 8 of 15 [18] Pierce first contends that the Act “does not expressly confer the authority to compel [her] to connect the Property to the [City’s] sewer system[.]” Appellant’s Br. at 11. We must agree. [19] Indiana Code Section 36-9-23-30(a) provides that a municipality that “operates sewage works under this chapter . . . may require: (1) connection to its sewer system of any property producing sewage or similar waste[.]” Here, we agree with Pierce that the undisputed evidence “establishes that the Property does not produce sewage or similar waste and is not capable of doing so.” Appellant’s Br. at 11. Indeed, the City acknowledges the “Property’s lack of working plumbing” and “inability to produce waste.” Appellee’s Br. at 15. Thus, under the plain language of the statute, because the Property did not, and indeed cannot, produce sewage or similar waste, the City did not have the authority to require that the Property be connected. [20] Pierce also alleges that the City “likewise lacks statutory authority to impose sewer charges on the Property.” Appellant’s Br. at 12. We again agree. Indiana Code Section 36-9-23-25(a) provides that the municipal legislative body shall, by ordinance, “establish just and equitable fees for the services rendered by the sewage works[.]” Further, with an exception not relevant here, the fees are payable by the owner of each lot, parcel of real property, or building “that is connected with the sewage works by or through any part of the municipal sewer system” or “uses or is served by the works.” Ind. Code § 36-9-23-25(c). “Unless the municipal legislative body finds otherwise, the works are considered to Court of Appeals of Indiana | Opinion 26A-MI-693 | October 22, 2026 Page 9 of 15 benefit every lot, parcel of real property, or building connected to or to be connected with the municipal sewer system[.]” Id. (emphasis added). [21] There is no dispute that Pierce’s property is not connected to the sewage works, and there is nothing in the record to demonstrate any intent by Pierce to connect the property to the sewer line. Further, there can be no dispute that Pierce does not currently and does not intend to “use” the sewer system. Thus, we must determine whether she is “served by” the system. The City argues that “the very nature of the project ‘served’ the Pierce Property by virtue of its existence and scope, and the Pierce Property benefitted by the project’s amelioration of unsanitary conditions in the area in which it is located.” Appellee’s Br. at 25. We cannot agree. First, there is no provision in the statute to allow the imposition of fees simply because a property tangentially benefits from the sewer system. Further, we do not agree that the Property is served by the sewer system simply because the sewer system exists. Rather, the evidence is clear that the Property does not and cannot produce sewage and, thus, it receives no service from the sewer system, and Pierce has no intent to receive services. We therefore agree that the City did not have the authority to impose fees under Indiana Code Section 36-9-23-25(c). [22] Still, the City also argues that subsection 25(d)(7) “permits municipalities, when setting fees, to consider whether the property, although vacant or unimproved, is benefitted by a local or lateral sewer because of the availability of that sewer.” Id. at 25-26 (quotation marks, brackets, and emphasis removed). The statute that the City relies on, Indiana Code Section 36-9-23-25(d), states that the Court of Appeals of Indiana | Opinion 26A-MI-693 | October 22, 2026 Page 10 of 15 “municipal legislative body may use one (1) or more of the following factors to establish the fees: . . . (7) Whether the property, although vacant or unimproved, is benefitted by a local or lateral sewer because of the availability of that sewer.” [23] Contrary to the City’s argument, the plain language of that statute expressly provides that the City can consider vacant and unimproved properties when establishing fees. Stated differently, in considering what to charge the residents of the City as a whole that use the sewer system, the City can consider whether certain properties are vacant or unimproved. That statute, either on its own or in conjunction with subsection (c), does not give the City the authority to impose fees on the Property, which is not connected to the sewer system and is not served by it. [24] The City’s ordinances further detract from the City’s argument. Indeed, Ordinance 2018, which establishes the rates for the sewer service, specifies a “schedule of rates and charges for the use and services rendered by the sewage works[.]” Appellant’s App. Vol. 2 at 59 (emphasis added). In addition, Ordinance 2025, which sets a surcharge to cover a debt incurred from installing the sewer system, provides that the surcharge is “to be paid by the ratepayers served” by the sewer. Id. at 69. As such, the ordinances themselves limit the fees to those who use or are served by the sewer, which does not include the Property. Court of Appeals of Indiana | Opinion 26A-MI-693 | October 22, 2026 Page 11 of 15 [25] In sum, the City lacked the authority to require the Property to connect to the sewer system and to charge Pierce for a service she is not receiving and has no present intention of receiving in the future. Having agreed with Pierce that the City lacked the authority to charge her for sewer fees, we turn to the City’s claim that summary judgment in its favor was proper on the alternate theory that Pierce failed to comply with the ITCA. ITCA [26] In an attempt to validate its improper collection of fees, the City cross-appeals and claims that Pierce’s claims were barred under the ITCA. Pursuant to that act, a tort claim against a governmental entity is barred unless the claimant provides the entity with timely notice of the claim. 6232 Harrison Ave. LLC v. City of Hammond, 181 N.E.3d 379, 384 (Ind. Ct. App. 2021). A claimant must provide the prescribed notice to a political subdivision within 180 days after the loss occurs. I.C. § 34-13-3-8(a). Notice “must describe in a short and plain statement the facts on which the claim is based.” I.C. § 34-13-3-10. The purpose of the notice requirement is to ensure government entities can investigate the incident giving rise to the claim and prepare a defense. Schoettmer v. Wright, 992 N.E.2d 702, 706 (Ind. 2013). [27] The City contends that summary judgment in its favor was appropriate because Pierce’s claims sound in tort and because she failed to comply with the notice requirements. In response, Pierce first argues that her claims do not fall under the ITCA because a “request for a judicial declaration of a municipality’s statutory authority is not ‘a claim or suit in tort’; rather, it is a request for a legal Court of Appeals of Indiana | Opinion 26A-MI-693 | October 22, 2026 Page 12 of 15 determination of the parties’ rights under the Municipal Sewage Works Act[.]” Appellant’s Reply Br. at 17. [28] The ITCA “applies only to a claim or suit in tort.” Ind. Code § 34-13-3-1. The ITCA does not provide a definition of a tort, but it defines loss as an “injury to or death of a person or damage to property.” I.C. § 34-6-2.1-117. Here, Pierce filed a claim seeking a judgment that the City wrongfully collected money that it had no authority to collect. That is not a claim for personal injury or property damage. Thus, Pierce’s claims do not sound in tort, and her claims were not subject to the ITCA.2 [29] Rather, Pierce’s claim is, in essence, a claim that the City’s action in collecting the fees was ultra vires. As our Supreme Court has recently explained: Ultra vires is Latin for “beyond the powers.” Ultra Vires, Black’s Law Dictionary (12th ed. 2024) at 1838. An ultra vires decision is void. A void decision is so wrong it can never be made right. It has “no legal effect at any time and cannot be confirmed or ratified by subsequent action or inaction.” Parkview Hosp., Inc. v. Am. Fam. Ins. Co., 151 N.E.3d 1218, 1228 (Ind. Ct. App. 2020) (quoting Koonce v. Finney, 68 N.E.3d 1086, 1090 (Ind. Ct. App. 2017) (citation omitted)). Importantly, a void decision can be collaterally attacked, which means a party can try to invalidate a judgment by filing a new proceeding outside of a direct appeal 2 We acknowledge that another panel of this Court held that a claim for collection of registration and rental fees sounded in tort because the plaintiff, in essence sought “an award of damages in the amount of fees and fines collected by the allegedly illegal enforcement” of an ordinance. Chariton v. City of Hammond, 146 N.E.3d 927, 934 (Ind. Ct. App. 2020), trans. denied. However, here, Pierce is not simply seeking an award of damages. She is seeking a judgment declaring that the imposition of fees is beyond the City’s statutory authority. Thus, the holding in Chariton is not applicable. Court of Appeals of Indiana | Opinion 26A-MI-693 | October 22, 2026 Page 13 of 15 (i.e. even long after the time for appeal has expired). Id. “A collateral attack is ‘a judicial proceeding pursued to avoid, defeat, evade or deny the validity and effect of a valid judgment or decree.’” Chapo v. Jefferson Cnty. Plan Comm’n, 224 N.E.3d 971, 978 (Ind. Ct. App. 2023) (quoting Earl v. State Farm Mut. Auto. Ins., 91 N.E.3d 1066, 1071-72 (Ind. Ct. App. 2018) (citation omitted)). Wike v. Grandview Solar Project, LLC, 281 N.E.3d 529, 534 (Ind. 2026) (footnote omitted). [30] In that case, our Supreme Court noted that, when a board of zoning appeals “takes an action that is contemplated by Indiana’s enabling acts, its errors are voidable not void.” Id. at 537. Here, the Act, which is the enabling act relevant to municipal sewage works, does not contemplate the City charging Pierce for sewer services that she does not and cannot receive. As outlined above, the City lacked the authority to impose the fees on Pierce. As a result, we hold that the imposition of fees was “beyond the powers” of the City and therefore ultra vires. Id. at 534. And, again, an ultra vires action is void. Because the assessment of fees was void, it had no legal effect and could be collaterally attacked at any time. Conclusion [31] The City lacked the authority to impose fees on Pierce’s Property. And, because the assessment of fees was void, Pierce could challenge it at any time. As such, the trial court erred when it denied Pierce’s motion for summary judgment and when it granted summary judgment in favor of the City. We therefore reverse Court of Appeals of Indiana | Opinion 26A-MI-693 | October 22, 2026 Page 14 of 15 the trial court and remand with instructions for it to enter summary judgment in Pierce’s favor. [32] Reversed and remanded. Bradford, J., and Altice, J., concur. ATTORNEY FOR APPELLANT Daniel K. Burke DKB Legal LLC Carmel, Indiana ATTORNEYS FOR APPELLEE Crystal G. Rowe R. Jeffrey Lowe Kightlinger & Gray, LLP New Albany, Indiana Matthew J. Goldsmith Kightlinger & Gray, LLP Indianapolis, Indiana Court of Appeals of Indiana | Opinion 26A-MI-693 | October 22, 2026 Page 15 of 15