Bellwether Props., LLC v. Duke Energy Ind., LLC
Decision Date | 13 September 2016 |
Docket Number | No. 53A04–1511–CT–1880.,53A04–1511–CT–1880. |
Parties | BELLWETHER PROPERTIES, LLC, Appellant–Plaintiff, v. DUKE ENERGY INDIANA, LLC, Appellee–Defendant. |
Court | Indiana Appellate Court |
William N. Riley, Joseph N. Williams, James A. Piatt, Anne Medlin Lowe, Riley Williams & Piatt, LLC, Indianapolis, IN, Lonnie D. Johnson, Pamela J. Hensler, Michael J. Potraffke, Clendening Johnson & Bohrer, P.C., Bloomington, IN, Attorneys for Appellant.
Thomas L. Davis, Darren A. Craig, Maggie L. Smith, Frost Brown Todd LLC, Indianapolis, IN, Steven J. Moss, Duke Energy Business Services, LLC, Plainfield, IN, Attorneys for Appellee.
[1] Bellwether Properties, LLC ("Bellwether") appeals the trial court's order granting a motion to dismiss in favor of Duke Energy Indiana, Inc. ("Duke"). Bellwether raises one issue, which we revise and restate as whether the trial court erred in dismissing Bellwether's complaint for inverse condemnation as time-barred. We reverse and remand.1
[2] The facts as alleged in the complaint follow. On July 19, 1957, Duke's predecessor in interest, Public Services Company of Indiana, obtained a perpetual Electric Pole Line Easement (the "Easement") on land now owned by Bellwether for the installation of overhead electric lines. The Easement, memorialized in an Electric Pole Line Easement which was attached to Bellwether's complaint, states that the Easement is ten feet wide, including five feet on either side of the utility lines, and it provided the owner, currently Duke, with the
right to construct, operate, patrol, maintain, reconstruct and remove electrical line, including necessary poles, wires, anchors, guys and fixtures attached thereto, for the transmission of electrical energy over, along, or across the following described real estate situated in the County of Monroe, and State of Indiana, to wit:....
[3] In 1976, the Indiana Utility Regulatory Commission (the "IURC") promulgated 170 I.A.C. 4–1–26, adopting standards contained in the 1967 edition of the National Electrical Safety Code ("NESC") to govern the clearance needed around electrical lines. See Burns Indiana Administrative Rules and Regulations 8–1–2–4–A57 (1976). The IURC adopted newer editions of the NESC in 1986, 1987, 1990, 1993, and 1998.2 On November 1, 2002, the IURC amended 170 I.A.C. 4–1–26to provide that the 2002 edition of the NESC will govern practices involving electrical lines:
170 I.A.C. 4–1–26 (2002).
[4] Following the IURC's incorporation of the 2002 NESC, Bellwether desired to expand a structure on its property and contacted Duke about its plans. Duke indicated that Bellwether could not expand according to the plan submitted because the plan would not provide the horizontal strike clearance3 required by the 2002 NESC, explaining that, due to the type and voltage of the current lines within the Easement, a total horizontal strike clearance of approximately twenty-three feet is required and that 170 I.A.C. 4–1–26and the 2002 NESC provided Duke with control over the entire twenty-three-feet-wide strip of land in and around the Easement.
[5] On June 30, 2015, Bellwether filed a Class Action Complaint and Jury Trial Demand (the "Complaint") noting that it was bringing its claim pursuant to Ind. Trial Rule 23individually and on behalf of a class, which it defined, and alleging one count of inverse condemnation. Bellwether specifically alleged that Duke took property for a public purpose without proceeding with a condemnation action under Ind.Code §§ 32–24–1 et seq. and without providing just compensation, noting that, "[t]hroughout the State of Indiana, Duke has continued to maintain electrical transmission lines that—when considering the required horizontal strike clearance—violate the express limitations of the easements in place." Appellant's Appendix at 8. On August 21, 2015, Duke filed a motion to dismiss, arguing that Bellwether's complaint fell outside the six-year statute of limitations for inverse condemnation actions. On September 14, 2015, Bellwether filed its opposition to the motion to dismiss, and on October 5, 2015, Duke filed its reply brief in support of its motion to dismiss.
[6] On October 15, 2015, the trial court held a hearing on Duke's motion, and on October 29, 2015, it issued an order granting Duke's motion to dismiss (the "Order") which stated in part:
[7] The issue is whether the trial court erred in dismissing Bellwether's claim. A complaint may not be dismissed under Ind. Trial Rule 12(B)(6)for failure to state a claim upon which relief can be granted unless it appears to a certainty on the face of the complaint that the complaining party is not entitled to any relief. McQueen v. Fayette Cnty. Sch. Corp., 711 N.E.2d 62, 65(Ind.Ct.App.1999), trans. denied. We view motions to dismiss for failure to state a claim with disfavor because such motions undermine the policy of deciding causes of action on their merits. Id. When reviewing a trial court's grant of a motion to dismiss, we view the pleadings in a light most favorable to the nonmoving party, and we draw every reasonable inference in favor of that party. Id. We will not affirm a dismissal under Ind. Trial Rule 12(B)(6)unless it is apparent that the facts alleged in the challenged pleading are incapable of supporting relief under any set of circumstances. Id.
[8] Inverse condemnation is a process provided by statute that allows individuals to be compensated for the loss of property interests taken for public purposes without use of the eminent domain process. Sloan v. Town Council of Town...
To continue reading
Request your trial-
Bellwether Props., LLC v. Duke Energy Ind., Inc.
...here are too attenuated to conclude that the taking was ascertainable by Bellwether". Bellwether Properties, LLC v. Duke Energy Indiana, Inc., 59 N.E.3d 1037, 1046 (Ind. Ct. App. 2016) (footnote omitted). The dissent relied on our opinion in Tiplick v. State, 43 N.E.3d 1259 (Ind. 2015), in ......
-
Duke Energy Ind., LLC v. Bellwether Props., LLC
...granted the motion to dismiss, and Bellwether appealed. A panel of this Court reversed the trial court. Bellwether Props. v. Duke Energy Ind. , 59 N.E.3d 1037 (Ind. Ct. App. 2016), vacated on transfer. On transfer, the Indiana Supreme Court also reversed the trial court's dismissal of the c......
-
Duke Energy Ind., LLC v. Bellwether Props.
...the motion to dismiss, and Bellwether appealed. A panel of this Court reversed the trial court. Bellwether Props. v. Duke Energy Ind., 59 N.E.3d 1037 (Ind.Ct.App. 2016), vacated on transfer. On transfer, the Indiana Supreme Court also reversed the trial court's dismissal of the complaint, b......