Chandler Natural Gas Corp. v. Barr, EV 97-9-C-Y/H.

• Decision Date: 31 July 2000
• Docket Number: No. EV 97-9-C-Y/H.,EV 97-9-C-Y/H.
• Parties: CHANDLER NATURAL GAS CORPORATION, Olive Lewellyn and John Lewellyn, Plaintiffs v. Larry BARR, Jack Pike and W. David Rector, as Commissioners of Warrick County, State of Indiana, Bruce Hargrave, as Sheriff of Warrick County, Indiana, and Shawn Weiss, Individually and as Deputy Sheriff of Warrick County, Indiana, and John Does 1-10, et al., Defendants.
• Court: U.S. District Court — Southern District of Indiana

110 F.Supp.2d 859

CHANDLER NATURAL GAS CORPORATION, Olive Lewellyn and John Lewellyn, Plaintiffs v. Larry BARR, Jack Pike and W. David Rector, as Commissioners of Warrick County, State of Indiana, Bruce Hargrave, as Sheriff of Warrick County, Indiana, and Shawn Weiss, Individually and as Deputy Sheriff of Warrick County, Indiana, and John Does 1-10, et al., Defendants.

No. EV 97-9-C-Y/H.

United States District Court, S.D. Indiana, Evansville Division.

July 31, 2000.

COPYRIGHT MATERIAL OMITTED

George Brattain, Day Swango Brattain & Nattkemper, Terre Haute, IN, Jeffery L. Lantz, Lantz Law Office, Evansville, IN, J. Burley Scales, Scales Wissner & Krantz, Boonville, IN, for Chandler Natural Gas Corp., Olive Lewellyn, John Lewellyn.

Terry A. White, Olsen Labhart White & Hambidge, Evansville, IN, Brent R. Weil, David R. Sauvey, Kightlinger & Gray, Evansville, IN, for Larry Barr, Jack Pike, W. David Rector.

Terry A. White, Olsen Labhart White & Hambidge, Evansville, IN, R. Thomas Bodkin, Bamberger Foreman Oswald & Hahn, Evansville, IN, David R Sauvey, Kightlinger & Gray, Evansville, IN, for Bruce Hargrave.

R. Thomas Bodkin, Bamberger Foreman Oswald & Hahn, Evansville, IN, David R Sauvey, Kightlinger & Gray, Evansville, IN, for Shawn Weiss.

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

YOUNG, District Judge.

I. Introduction

When the driver of a heavy truck approached a county bridge across a small creek in the summer of 1995, he was probably not aware that his decision to cross that bridge would create multiple claims of violations of federal civil rights. But, in fact, his decision to cross that bridge has engendered a very contentious lawsuit on that very subject. The third amended complaint in that suit contains ten "Counts." Many of the counts contain multiple claims. The claims are not well defined, even though this complaint is the third attempt to define them. The motions for summary judgment have not been much better than the complaint, as amended, when it comes to defining the issues. Perhaps this court's efforts will be no better than those of the parties. The court will begin by examining claims brought under 42 U.S.C. § 1983, since that is the ostensible basis for federal jurisdiction. After having concluded whether there are federal claims which survive the motion for summary judgment, this court may be faced with analysis of state law claims. As to whether this court must address those claims, the court will cross that bridge when it comes to it.

II. Statement of Material Facts

The facts, in the light most favorable to the plaintiffs, are as follows:¹

1. In the summer of 1995, a county bridge across Pigeon Creek, on Warrick County Road 50 West, also known as Heim Road, collapsed while a heavy truck was crossing it. (Third amended complaint, ¶ 16).

2. Following the collapse, Chandler National Gas ("CNG") was notified pursuant to Indiana statutes and customary operating procedures. (Id., ¶ 17). CNG sent John Lewellyn to the site of the collapsed bridge to observe the removal of the truck. (Id., ¶ 17).

3. At the site, the superintendent of the Warrick County highway department, Gerald Ray Wallace, asked John Lewellyn if CNG had a gas line in the area. (Defendants' exhibit 2, examination in chief of Gerald Ray Wallace, State v. Lewellyn, p. 299). John Lewellyn told Warrick County Commissioner Jack Pike, while the two and others, including at times Mr. Wallace, were talking or at least apparently listening, in the neighborhood of the bridge collapse, that "there were no gas lines that we had in the shoulders of the road" (plaintiffs' exhibit I (emphasis added), Lewellyn dep. of November 12, 1999, p. 16, line 21, to p. 17, line 1; Plaintiffs' exhibit K, direct examination of Gerald Ray Wallace, p. 6, lines 3-6), and that "I told them to the north, as I pointed, that ... we had a fourinch line" but that he did not know how far north of the bridge the four-inch line was (plaintiffs' exhibit I-2, Lewellyn dep. of November 12, 1999, p. 17, lines 13-24), and that he told Mr. Pike that "the only line we had in the berm of the road area or near the edge of the road was quite a ways east of there. I showed him where it stopped and it was not going to be a factor for the crane." (Plaintiffs' Exhibit I-3 (emphasis added), Lewellyn dep. of November 12, 1999, p. 18, lines 3-7).

4. John Lewellyn, at all pertinent times, thought that CNG "had an active gas distribution line in the area of the Heim Road bridge project until the contrary was discovered during work undertaken after the utility reimbursement agreement was entered into." (Plaintiffs' exhibit U, affidavit of John Lewellyn, ¶ 8.)

5. Pursuant to the provisions of Title 23 of the United States Code, Warrick County arranged for the construction of the new bridge to be 80% funded by federal money (third amended complaint, ¶ 20), and subject to certain federal regulations (defendants' exhibit 7).

6. Rick Bennitt, an engineer with Bernardin, Lochmueller, and Associates, was contacted in late 1995 and put in charge of securing the right-of-way for the construction of the new bridge. As part of an information-gathering exercise for an engineering survey, Bennitt was informed by Texas Gas Company that CNG may have a gas line in the area. (Examination in chief of Richard Bennitt, State v. Lewellyn, pp. 342-45). Bennitt then contacted John Lewellyn and "explained to him that we had information that they may have a line on the project and I needed to know where it was, if it was in the way of the project, and we needed to meet so I could give him a set of plans and begin the same process with CNG that I had begun with all the other utilities." (Id., p. 348).

7. Lewellyn told Bennitt on January 17, 1996, that they (CNG) did have a line there. (Id., p. 353).

8. On January 24, 1996, the defendant county commissioners sent a letter to CNG stating that the bridge was being replaced and that CNG "has a gas line that will need moving for the [bridge] project to proceed." The letter also stated that "this project is of an emergency nature and INDOT will administrate the project on an accelerated schedule ...." The letter also stated that "the Board of Commissioners respectfully requests your cooperation in keeping this important project moving forward." (Defendants' exhibit 5).

9. Boonville Natural Gas² then submitted a preliminary estimate to conduct a study of the cost to vacate property rights that they may have and install a new gas distribution line around the bridge repair project area. (Third amended complaint, ¶ 23). The county commissioners accepted this estimate (but never paid the estimate), and the plaintiffs proceeded to prepare and submit a project cost estimate. (Id., ¶ 24).

10. On March 4, 1996, CNG submitted an estimate for over $32,000 to relocate a four-inch gas line on Heim Road. Based on this estimate, a county utility reimbursement agreement was entered into on March 11, 1996, by Olive Lewellyn, as the president of CNG. (Defendants' exhibits 6, 7).

11. Olive Lewellyn's sole role with respect to the subject matter of this suit is her signing the utility reimbursement agreement on behalf of CNG. There is no evidence that she "negotiated" anything or made any representations to anybody.

12. The purpose of the utility reimbursement agreement was not only to locate CNG's physical gas distribution facilities or pipelines away from the bridge replacement project area, but also for the vacation of its right-of-way. (See Plaintiffs' exhibit JJ, John Lewellyn dep. of November 12, 1999, p. 35, line 20, to p. 36, line 20; defendants' exhibit 7, p. 1 (last paragraph)); 23 C.F.R. § 710.304(i)(2) ("[f]ederal funds may participate in the cost of acquisition of non-operating real property of a utility or railroad in the same manner as for other privately owned property.") The utility reimbursement agreement incorporated by reference various federal regulations pertaining to when federal funds may be used to reimburse the taking of a utility's right-of-way. (Defendants' exhibit 7, pp. 1, 2, 4, 5).

13. In September 1996, Commissioner Larry Barr received two anonymous calls from a male in the Boonville area. The unidentified caller said that he was concerned that CNG was going to be paid by the county to move a gas line that was not their own. (Barr statement at 1). Barr contacted the Warrick County sheriff's department to report what the caller had told him. (Barr statement at 2).

14. The Warrick County sheriff's department opened an investigation into the matter and Sheriff Hargrave and Chief Deputy Marlin Weisheit assigned Deputy Shawn Weis to the case. (Defendants' exhibit 9). Weis commenced an investigation by contacting employees and business relations of CNG. (Third amended complaint, ¶ 31). Weis learned from CNG employees Robert Gourley, Scott Boatwright and Bob Hildenbrand that the gas line CNG was being paid to replace was actually inactive. (Warrick County case report at 3).

15. During the course of this investigation, Deputy Weis used prosecutor's subpoenas to access certain documents that were relevant to CNG's property holdings near the project area. (Third amended complaint, ¶ 31). Weis obtained a service report from Texas Gas which showed that the only line in the immediate area of the project was "Abandoned in Place." (Defendants' exhibit 10). Weis also obtained documents from Ohio Valley Gas which revealed that they did not have an active line in the area. (Defendants' exhibit 11). Any line CNG had in the area of the bridge was purchased from Ohio Valley Gas in 1991. John Lewellyn was involved in the purchase of the gas line and right-of-way from Ohio Valley Gas. (Defendants' exhibit 21, p. 24).

16. On April 24, 1997, the Warrick County prosecutor's office filed grand jury indictments charging John and Olive Lewellyn with attempted theft. (Defendants' exhibit 13). Warrants were issued for the plaintiffs' arrest.

17. Sheriff...