Duke Energy of Ind., LLC v. City of Franklin

• Decision Date: 16 December 2016
• Docket Number: No. 41A01–1607–CT–1549.,41A01–1607–CT–1549.
• Citation: Duke Energy of Ind., LLC v. City of Franklin, 69 N.E.3d 471 (Ind. App. 2016)
• Parties: DUKE ENERGY OF INDIANA, LLC, Appellant–Plaintiff, v. CITY OF FRANKLIN, Indiana, Appellee–Defendant.
• Court: Indiana Appellate Court

69 N.E.3d 471

DUKE ENERGY OF INDIANA, LLC, Appellant–Plaintiff,

v.CITY OF FRANKLIN, Indiana, Appellee–Defendant.

No. 41A01–1607–CT–1549.

Court of Appeals of Indiana.

Dec. 16, 2016.

John D. Papageorge, Steven C. Shockley, Jeffrey D. Stemerick, Taft Stettinius & Hollister LLP, Indianapolis, IN, Attorneys for Appellant.

Lynnette Gray, Johnson Gray & Johnson, Franklin, IN, Brian C. Bosma, Steven E. Runyan, Keven D. Koons, Kroger, Gardis

& Regas, LLP, Indianapolis, IN, Attorneys for Appellee.

BRADFORD, Judge.

Case Summary

[1] Appellee–Defendant the City of Franklin, Indiana ("the City"), in cooperation with the State, has proposed a plan to revitalize and improve a stretch of Indiana State Road 44 ("SR 44") that serves a major east-west artery ("the Traffic Plan"). The Traffic Plan includes, inter alia, a proposal to connect the three-way intersection of County Club Lane and Longest Drive ("the Intersection") to SR 44. Appellant–Plaintiff Duke Energy of Indiana, ETC ("Duke") holds a utility easement in the land underneath the proposed Intersection expansion and requested a preliminary injunction to prevent the City from completing the expansion of the Intersection, contending the City lacks sufficient property rights to allow it to do so and that the expansion would impermissibly interfere with its easement rights. The trial court denied Duke's request for a preliminary injunction, and Duke now appeals. Because we conclude that Duke lacks standing to challenge the City's property interests in the real estate at issue and that the trial court did not abuse its discretion in concluding that Duke does not have a reasonable probability of success at trial, we affirm.

Facts and Procedural History

[2] The following excerpted diagram, submitted in un-excerpted form as Plaintiff's Exhibit 13, is helpful to understanding the issues presented by this case.

[3] For a stretch in the City, Longest Drive and SR 44 (a/k/a King Street) run generally east-west and parallel, with Longest Drive being intersected by County Club Lane at the Intersection. Duke holds the Easement, which runs north-south, encompasses the Intersection, and includes utility pole 825–4181, which is adjacent to and just northwest of the Intersection. The Easement grants Duke the right to "construct, operate, patrol, maintain, reconstruct and remove an electric line, including necessary poles, wires, and fixtures attached thereto, for the transmission of electrical energy [.]" Plaintiff's Exs. 18, 19.

[4] At issue is the Traffic Plan, by which the City intends to improve SR 44 between SR 144 on the west side and I–65 on the east. The Traffic Plan includes a proposal to provide access to SR 44 from the Intersection, as shown below:

Plaintiffs Ex. 11 (excerpt).

[5] Early in 2016, the City presented Duke with the Traffic Plan, and Duke informed the City that it believed that the expansion of the Intersection would unreasonably interfere with its easement rights. On June 7, 2016, Duke filed for a preliminary injunction to prevent the City from constructing the proposed expansion of the Intersection. The next day, the trial court entered a temporary restraining order—by which the City agreed to abide—pending resolution of the preliminary injunction issue. On July 5, 2016, the trial court denied Duke's request for a preliminary injunction, ruling that Duke had failed to establish unreasonable interference with its easement rights. On this basis, the trial court concluded that Duke had failed to show a reasonable likelihood of success at trial and so denied Duke's request for a preliminary injunction. The trial court's order provides, in part, as follows:

5. The City's project ... is designed to enhance the visual appearance of [SR 44] so as to encourage development on the east side of Franklin and to provide an attractive area for travelers on I–65 to stop for food and lodging. By [its] design, the project is meant to slow traffic on [SR 44].

6. In the area of Country Club Lane, [SR 44] is now a well traveled limited access four lane highway. [SR 44] connects Franklin to Interstate 65, which is a major north-south divided access highway....

7. As part of the roadway improvement project, the City is opening access to Country Club Fane from both lanes of travel on [SR 44].... A stop sign will be added for eastbound traffic at Longest Drive that is entering Country Club Fane. A stop sign already exists for westbound traffic at Longest Drive and Country Club Lane.

8. Mayor McGuinness opined that opening and closing of access points from [SR 44] is designed to separate the commercial and residential uses of property along [SR 44] and to remove commercial traffic from residential streets.

9. City Engineer, Travis Underhill, testified that part of the goal of the overall corridor project is to safely manage increased traffic in the area and plan for future traffic and anticipated development. Mr. Underhill testified that from an engineering standpoint and safety standpoint, it is desirable to reduce commercial traffic through residential neighborhoods and that the direct access routes as proposed will reduce conflict points for motorists.

10. A report prepared by HWC Engineering states that the change in access to [SR 44] is "to promote more efficient traffic movements along [SR 44]". Exhibit 6.

11. Country Club Lane provides access to a private country club known as Hillview Country Club. A tenant at Hillview Country Club is a public restaurant known as Scotty's Brew[house]. Scotty's Brew[house] opened in October of 2015. At all times relevant, a restaurant has been located at Hillview Country Club for the use of [its] members prior to the opening of the public restaurant. Country Club Lane is a private roadway....

12. [SR 44] has existed on the east side of the City at all times relevant. [SR 44] connects Franklin with the City of Shelbyville to the east and the City of Martinsville to the west. Prior to 1970, [SR 44] was a two lane roadway. Access to Hillview Country Club was gained directly from [SR 44]. In 1970, the State of Indiana converted [SR 44] to a four lane limited access highway from I–65 to the older residential area on the eastside of Franklin. [SR 44] was shifted to the south. A new road, Longest Drive, was created to the north of [SR 44]. Longest Drive is generally an east-west access road that is parallel to [SR 44]. Access to Longest Drive was gained to the west of Country Club Lane at a short access road known as Milford Drive. A portion of Longest Drive was constructed on the roadbed of the pre–1970 [SR 44].

13. After the 1970 redesign, traffic to Hillview Country Club was required to exit [SR 44] on the north side at Milford Drive, immediately turn right onto Longest Drive, proceed east on Longest Drive to Country Club Lane and turn left or north onto Country Club Lane. Country Club Lane could not be accessed directly from [SR 44]. Longest Drive and [SR 44] were separated by a grassy strip.

14. Under the current roadway project, traffic would be able to proceed north from [SR 44] directly to Country Club Lane. West bound traffic on [SR 44] would be able to turn right onto Country Club Lane. A break would be created in the existing median on [SR 44] so that east bound traffic on [SR 44] would be able to access Country Club Lane. Approximately forty feet after exiting [SR 44], traffic would encounter Longest Drive. Longest Drive provides access to residential areas to the east and to the west of Country Club Drive that have been constructed since the 1970 redesign of [SR 44]. A stop sign would be added for east bound traffic on Longest Drive. The result of the City's redesign would change Longest Drive–Country Club Lane to a four way intersection and would be located just north of a three way intersection at Country Club Lane and [SR 44]. Traffic would be regulated by stop signs as opposed to use of automatic traffic control devices. The City's project would also introduce a pedestrian "trail" on the north side of [SR 44].

....

26. Utility pole 825–4181 is located at the intersection of Longest Drive and Country Club Lane. The pole is located inside the Easement and just north of the fee line of property acquired by the State of Indiana.

27. The City's project would alter the traffic flow past utility pole 825–4181. Traffic flow would change in the following manner:

A. Traffic accessing Hillview Country Club and Scotty's Brew[house] would come off of [SR 44]. Currently, traffic exits [SR 44] north onto Milford Drive, immediately turns right or east onto Longest Drive, proceeds east on Longest Drive an undetermined but relatively short distance and then turns left or north onto Country Club Lane. In addition, traffic could currently access Country Club Lane from an opening from [SR 44] to the east of Country Club Lane. However, the latter option is a less direct route through a condominium community. As a result of the City's project, traffic accessing Hillview Country Club and Scott[y]'s Brew[house] would proceed onto Country Club Lane directly from [SR 44]. The Milford Drive exit from [SR 44] will remain open. Traffic could still access Hillview Country Club and Scott[y]'s Brew[house] in the same manner as before, but the assumption is that the public will prefer the more direct route. The exit from [SR 44] to the east at Franklin Cove Court would be closed. However, the public could still access Hillview Country Club and Scott[y]'s Brew[house] from the east by using a new exit further to the east onto Fairway Lakes Drive. The result of the changes would mean that traffic accessing Hillview Country Club and Scott[y]'s Brew[house] will proceed straight past pole 825–4181 as opposed to turning at the pole. Inasmuch as vehicles de[ ]ccelerate to turn, traffic would be proceeding faster past pole 825–4181 after completion of the City's project.

B. The success of Hillview Country Club is dependent upon expansion of membership. The success of Scotty's Brew[house] is dependent upon

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