Northern Indiana Public Service Co. v. Dozier

• Decision Date: 20 December 1996
• Docket Number: No. 71A03-9601-CV-9,71A03-9601-CV-9
• Parties: NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellant-Defendant, v. Alex DOZIER, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 977

674 N.E.2d 977

NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellant-Defendant, v. Alex DOZIER, Appellee-Plaintiff.

No. 71A03-9601-CV-9.

Court of Appeals of Indiana.

Dec. 20, 1996.

Paul A. Rake, Robert J. Feldt, David J. Beach, Eichhorn & Eichhorn, Hammond, for Appellant-Defendant.

Thomas L. Schaffer, Notre Dame Legal Aid Clinic, South Bend, for Appellee-Plaintiff.

Dawn M. Dawkins, Legal Services of Northwest Indiana, Inc., Gary, for Amicus Curiae.

OPINION

GARRARD, Judge.

Northern Indiana Public Service Company ("NIPSCO") brings this interlocutory appeal from the trial court's order granting a preliminary injunction to Alan Dozier ("Dozier") which in effect denied NIPSCO's motion to dismiss for lack of subject matter jurisdiction and failure to state a claim.

FACTS AND PROCEDURAL HISTORY

In April of 1989, NIPSCO terminated residential gas service to Dozier's South Bend residence for non-payment. In July of 1995, Dozier applied for or inquired about receiving residential natural gas at a different address in South Bend. A representative of NIPSCO's South Bend office denied him service or dissuaded him from applying for service because he had a prior outstanding bill.¹ Dozier failed to file a complaint or an objection with NIPSCO or the Indiana Utility Regulatory Commission ("IURC").

On October 24, 1995, Dozier filed a verified complaint alleging that NIPSCO denied him gas service, that any debt owed by him to NIPSCO was barred by all applicable statutes of limitation, that the denial of gas service was unlawful, and that because Dozier and his family depended on gas service to heat and cook, the continued denial of gas service would cause irreparable harm to the health and welfare of his family. Dozier requested a preliminary injunction ordering NIPSCO to provide gas service immediately and a permanent injunction ordering NIPSCO not to refuse or disconnect gas service. Additionally, Dozier filed a motion for preliminary injunction and an affidavit of poverty indicating he was unable to pay filing costs or give security by way of deposit. The trial court approved commencement of the action without filing fees, advance costs or security by way of deposit.

The chronological case summary indicates that both parties were present by counsel on October 26, 1995 at which time the trial court set a hearing for November 3, 1995 on Dozier's application for temporary injunction. On November 3, 1995, a conference call was held with counsel at which time Dozier moved for a continuance which was granted by agreement. The chronological case summary indicated that the "parties will endeavor to submit this matter on an agreed statement." (R. 2).

On November 14, 1995, NIPSCO filed a motion asking the trial court to deny Dozier's motion for preliminary injunction and moved to dismiss Dozier's claim for lack of subject matter jurisdiction and failure to state a claim pursuant to Ind.Trial Rule 12(B)(1) and 12(B)(6). NIPSCO contended that it was entitled to a dismissal due to Dozier's failure to first submit his complaint to the IURC as required by Ind.Admin.Code title 170, r. 5-1-17 and filed a supporting memorandum. On the same day, Dozier filed an affidavit in support of his motion for preliminary injunction. On November 15, 1995, Dozier filed a memorandum in support of said motion. On November 21, 1995, Dozier filed a supplementary memorandum and a letter stipulating to certain facts. The letter was not signed by NIPSCO's counsel but indicated that "Mr. Rake [NIPSCO's counsel] and I [Dozier's counsel] have agreed" to stipulate that NIPSCO was a regulated utility subject to Indiana law, that NIPSCO held an outstanding utility bill against Dozier, and that if Dozier were to submit an application for gas service, it would be denied due to his outstanding bill. (R. 52).

On December 1, 1995, without a hearing on the matter, the trial court issued a preliminary injunction which contained the following:

This matter having been submitted for the Court's determination, upon a stipulation and upon affidavit of the plaintiff and the Court having received and considered the party's competing memoranda, this Court does now find that the plaintiff's old debt to the defendant from April, 1989 is time-barred by the applicable Indiana statute of limitations.

The Court further finds that irreparable harm will result to the plaintiff if he is without gas utility service and thus without heat through the winter months in South Bend, Indiana. It is accordingly ordered and decreed that the defendant provide gas utility service to the plaintiff without requiring the plaintiff to pay or give security for payment of the former account from 1989.

(R. 53).

NIPSCO appealed. Dozier failed to file a timely appellee brief and his petition for an extension was denied. On August 1, 1996 this court granted Legal Services of Northwest Indiana's motion for leave to file amicus curiae brief which was timely filed on August 12, 1996.

ISSUES

NIPSCO presents four issues on appeal. We restate and address two issues which we find dispositive.

I. Whether the trial court had subject matter jurisdiction to address Dozier's complaint that he was improperly denied utility service when Dozier failed to exhaust his administrative remedies.

II. Whether the trial court improperly issued a preliminary injunction in finding that Dozier had proven irreparable harm.

We reverse and remand with instructions.

DISCUSSION AND DECISION

We note at the onset that since appellee Dozier failed to file a timely brief, if NIPSCO shows prima facie error, we may reverse the trial court's ruling. Kirk v. Monroe County Tire, 585 N.E.2d 1366, 1368 (Ind.Ct.App.1992). This rule relieves this court from the burden of controverting the arguments advanced for a reversal where such a burden rests with the appellee. Olive v. Olive, 650 N.E.2d 766, 767 (Ind.Ct.App.1995).

ISSUE I

In Indiana, if the Administrative Adjudication Act² requires a party to exhaust its administrative remedies before obtaining judicial review, a court has no subject matter jurisdiction to hear the case. Austin Lakes Joint Venture v. Avon Utilities, 648 N.E.2d 641 (Ind.1995); IND.CODE § 4-21.5-5-4. In Austin Lakes Joint Venture, our supreme court examined the administrative law doctrines of "exhaustion of remedies" and "primary jurisdiction" and their effect on a trial court's subject matter jurisdiction over complaints involving issues arguably within the jurisdiction of administrative or regulatory agencies.

Even when neither statute nor agency rule specifically mandates exhaustion as a prerequisite to judicial review, the general rule is that a party is not entitled to judicial relief for an alleged or threatened injury until the prescribed administrative remedy has been exhausted. [citation omitted]....

The exhaustion doctrine is intended to defer judicial review until controversies have been channeled through the complete administrative process. The exhaustion requirement serves to avoid collateral, dilatory action of the likes of the instant action and to ensure the efficient, uninterrupted progression of administrative proceedings and the effective application of judicial review. It provides an agency with an opportunity "to correct its own errors, to afford the parties and the courts the benefit of [the agency's] experience and expertise, and to compile a [factual] record which is adequate for judicial review." Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2467, 45 L.Ed.2d 522 (1975).

Uniroyal, Inc. v. Marshall, 579 F.2d 1060, 1064 (7th Cir.1978).

...

The doctrine of primary jurisdiction is an invention of the United States Supreme Court to deal with the problem that arises when the courts and an agency both have claims to jurisdiction of an issue in a case that has come before a court. [citation omitted]. One of the best summaries of the doctrine of true primary jurisdiction [footnote omitted] has come from the Seventh Circuit:

The doctrine [of primary jurisdiction] comes into play when a claim is cognizable in a court but adjudication of the claim "requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of [an] administrative body; in such a case, the judicial process is suspended pending referral of such issues to the administrative body for its views."

United States v. Western Pacific R.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956).

No fixed formula exists for applying the doctrine of primary jurisdiction, but "in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over." Far East Conference v. United States, 342 U.S. 570, 574, 72 S.Ct. 492, 494, 96 L.Ed. 576 (1952). [footnote omitted]

Hansen v. Norfolk & Western Ry. Co., 689 F.2d 707, 710 (7th Cir.1982).

The doctrines of primary jurisdiction and exhaustion of remedies, therefore, are related but significantly different. The doctrine of primary jurisdiction is not, in our view, jurisdictional but prudential; the doctrine of exhaustion of remedies, on the other hand, is jurisdictional and, where applicable, makes a Trial Rule 12(B)(1) motion for lack of jurisdiction over the subject matter appropriate. [footnote omitted]

Austin Lakes Joint Venture, 648 N.E.2d at 644-45.

Earlier this year, our supreme court revisited Austin Lakes Joint Venture and provided a summary of its direction to trial courts in applying the doctrines.

When a court's subject matter jurisdiction is contested on grounds of "exhaustion of remedies," "primary jurisdiction," or similar arguments alleging that the issues presented are within the exclusive jurisdiction of regulatory or administrative agencies to resolve, the court must examine each issue or claim in the case to see if any falls within the jurisdiction...