Indiana & Michigan Elec. Co. v. City of Anderson
| Decision Date | 17 May 1978 |
| Docket Number | No. 2-1176A418,2-1176A418 |
| Citation | 176 Ind.App. 410,376 N.E.2d 114 |
| Parties | INDIANA & MICHIGAN ELECTRIC COMPANY, an Indiana Corporation, Appellant (Plaintiff below), v. The CITY OF ANDERSON, Indiana, Robert L. Rock, Mayor of the City of Anderson, Indiana, Chester T. Lawrence, Lloyd R. Mellenthin and Raymond H. Nuce, Members of the Board of Public Works, of the City of Anderson, Indiana, William E. Zuck, Executive Secretary of the Board of Public Works of the City of Anderson, Indiana, Maris D. Hall, Superintendent of the City Light & Power Department of the City of Anderson, Indiana, Emerald Glen, Inc., an Indiana Corporation and Gene Bauer, Appellees (Defendants below). |
| Court | Indiana Appellate Court |
Parr, Richey, Obremskey & Morton, Lebanon, Marvin E. Clanin, Anderson, for appellees.
Plaintiff-Appellant Indiana & Michigan Electric Company (I & M) appeals from an adverse decision by the trial court in its suit for injunctive relief and damages against Defendants-Appellees Emerald Glen, Inc., Gene Bauer (Bauer) and the City of Anderson (Anderson), claiming it has a territorial service right entitled to protection.
We reverse.
This is a dispute over who will reap the benefit of providing electrical service to a previously unpopulated area, transformed by urbanization into a modern residential and commercial development.
Emerald Glen Development is located in Union Township, Madison County, Indiana, and within six miles of the corporate limits of the City of Anderson, Indiana. A formal request for electrical service to Emerald Glen Development was made to Anderson's municipally-owned utility by Emerald Glen, Inc. and Bauer on May 7, 1975.
On September 17, 1975, Anderson installed an electrical distribution line into the Emerald Glen Development and began providing electrical service.
I & M claims the right to serve Emerald Glen Development through a certificate of public convenience and necessity. The certificate was granted on September 15, 1937, to Indiana General Service Company, I & M's predecessor, by the Public Service Commission of Indiana after a public hearing on the matter.
On October 2, 1975, I & M filed a complaint for preliminary and permanent injunction and for damages in the Madison Superior Court Two. Anderson filed a Motion to Dismiss on December 12, 1975, claiming that the trial court lacked jurisdiction and that the complaint failed to state a claim for relief. A similar Motion to Dismiss was filed on January 7, 1976, by Emerald Glen, Inc. and Bauer.
A hearing on I & M's application for preliminary injunction was held on January 7. Both sides presented testimony and documentary evidence. Following submission of briefs and oral argument, the trial court sustained the Motion to Dismiss by issuing the following:
Comes now the Court, and being duly advised, now sustains motions to dismiss of respective defendants, pursuant to Trial Rule 12(b)6 (12(B)(6)), upon the following Court findings: That I.C. 8-1-2-90 That the territory subject of this cause is within such six mile radius;
provides that defendant City of Anderson may operate within a radius of six miles from its corporate limits without Public Service Commission approval;
That both defendant City of Anderson and plaintiff and its predecessors provide service to the territory in question, both prior to and after September 15, 1937;
That there is no evidence that plaintiff's assignors had rights within the six mile radius prior to 1937;
That even if plaintiff's assignors had such rights, or if the 1937 Public Service Commission order created such rights in plaintiff, defendant would not be bound by such determination because defendant did not receive notice as required by Indiana Code 8-1-13-18(b). Defendant City of Anderson's counter-claim for preliminary injunction is denied.
I & M appeals.
ISSUE ONE Was Anderson entitled to provide electrical service anywhere within a six-mile radius of its corporate limits without a Certificate of Public Convenience and Necessity from the Public Service Commission of Indiana?
ISSUE TWO Did the service rights awarded by the 1937 Certificate include the Emerald Glen Development area?
ISSUE THREE Was Anderson not bound by the 1937 Certificate of Public Convenience and Necessity because it was not a party to nor received written notice of the PSC hearing granting the Certificate?
As to Issue One, Anderson contends the trial court correctly held a municipality has statutory authority to operate its electric utility within a six mile radius of the municipality's corporate limits without PSC approval. I & M disputes this on two grounds. First, that the language of Ind.Code 8-1-2-86 limits its operation to a situation not present here. Second, protection provided Rural Electric Membership Corporations by Ind.Code 8-1-13-18(b) must be read to also protect private investor owned utilities or it violates the equal protection clause of the Indiana Constitution.
As to Issue Two, Anderson contends that the 1937 Certificate did not include any territory in Madison County. On the other hand, I & M asserts "uncontradicted evidence" shows Emerald Glen lies within that territory.
As to Issue Three, Anderson asserts the trial court correctly determined Anderson could not be bound by the 1937 PSC hearing because it was not a party to the proceedings and did not receive written notice as required by Ind.Code 8-1-13-18(b). I & M argues that notice "published as required by law" was sufficient to bind Anderson to the PSC hearing results.
Because of our decision on these issues, other arguments raised by I & M need not be considered.
Before turning to these three issues, we preliminarily address the trial court's treatment of the Motions to Dismiss.
When matters outside the pleadings are presented and not excluded by the court, a Motion to Dismiss must be treated as a motion for a summary judgment. 1 Salem Bank & Trust Co. v. Whitcomb (1974), 261 Ind. 614, 308 N.E.2d 707; Middleton Motors, Inc. v. Ind. Dept. of State Revenue (1977), Ind.App., 366 N.E.2d 226; Middelkamp v. Hanewich (1977), Ind.App., 364 N.E.2d 1024. Failure to do so constitutes grounds for reversal. Salem Bank & Trust Co. v. Whitcomb, supra.
In this case admissions and interrogatories were filed, and testimony was heard prior to the trial court's ruling on the Motions to Dismiss.
Despite a specific statement that its ruling was "pursuant to Trial Rule 12(b)6 (12(B)(6))," the trial court designated the issues upon which it found no genuine issue as to any material fact . . . as required by TR 56(C). The adequacy of the ruling to serve as a summary judgment was not challenged in the Motion to Correct Errors. Therefore, we will treat the trial court's judgment as a summary judgment.
CONCLUSION Anderson has statutory authority to extend its electrical service within a six-mile radius of its corporate limits without PSC approval.
The "six-mile" authority on which Anderson relies is clearly established by two statutes. Ind.Code 8-1-2-86 states:
No license, permit or franchise shall be granted to any person, copartnership or corporation to own, operate, manage or control any plant or equipment of any public utility in any municipality where there is in operation a public utility engaged in similar service under a license, franchise or permit without first securing from the commission a declaration, after a public hearing, of all parties interested, that public convenience and necessity require such second public utility; Provided, That any municipality may purchase, condemn, and operate, or construct and operate, a utility in such municipality for the purpose of transportation, production, transmission, delivery, sale and furnishing of heat, light, water and/or power to such municipality, and/or the public in and within six (6) miles of the limits of such municipality, without the consent of said commission, although there is operating in said municipality a public utility engaged in a similar service under a license, franchise or indeterminate permit.
Any existing permit, license or franchise which shall contain any term whatsoever interfering with the existence of a second public utility is hereby declared to be against public policy and is hereby amended in such manner as to permit a municipality to grant a license, franchise or permit for the operation of such second public utility pursuant to the provision of this act. (Emphasis added)
Additionally, the appropriate part of Ind.Code 8-1-2-90 restates a municipality's power within a six-mile radius of its corporate limits:
Any municipality in the state of Indiana is hereby empowered, subject to the provisions of this act applicable thereto, to own, lease, erect, establish, purchase, condemn, construct, acquire, hold and operate any utility within the boundaries of such municipality, and within a radius of six (6) miles from the corporate limits of such municipality, without the consent or control of any department, bureau or commission other than the municipal council of the municipality in which such utility may be operated. No certificate of public convenience and necessity from any commission or other department of the state, except as in this section provided, shall be required as a condition precedent to the constructing, acquiring, leasing, purchasing, condemning, owning or operating by any municipality of any utility where one engaged in the same service already exists. (Emphasis added)
The plain and unambiguous language of the statutes eliminates the need for PSC approval when a municipality extends its electrical service within a six-mile radius of its corporate limits.
I & M's contention that Ind.Code 8-1-2-86 is limited in its application to...
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