Rhoda v. Northern Indiana Public Service Co., 3--1274A200

• Decision Date: 07 December 1976
• Docket Number: No. 3--1274A200,3--1274A200
• Citation: 357 N.E.2d 287,171 Ind.App. 401
• Court: Indiana Appellate Court
• Parties: Florence RHODA et al., Appellant-Plaintiff, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee-Defendant.

Page 287

357 N.E.2d 287

171 Ind.App. 401

Florence RHODA et al., Appellant-Plaintiff, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee-Defendant.

No. 3--1274A200.

Court of Appeals of Indiana, Third District.

Dec. 7, 1976.

Robert A. Welsh, Harris & Welsh, Chesterton, for appellant.

David C. Jensen, Schroer, Eichhorn & Morrow, Hammond, Herbert K. Douglas, Douglas, Douglas & Douglas, Valparaiso, for appellee.

STATON, Presiding Judge.

Florence Rhoda (Rhoda) appeals from a Summary Judgment rendered by the trial court in favor of Northern Indiana Public Service Company (NIPSCO). Rhoda maintains that the granting of NIPSCO's Motion for Summary Judgment was error because there was fraud inherent in the original condemnation proceeding, and under Indiana Trial Rule 60(B) Rhoda should have been relieved from that judgment. After reviewing Rhoda's appeal, we conclude that there was no error, and we affirm.

I. Evidence

On December 4, 1970, a formal appropriation hearing was held; at that hearing an order for a 150 foot wide easement appropriation was granted by the court. The 150 foot wide strip belonged to Rhoda. On September 18, 1972, Rhoda's attorneys entered an appearance, and on December 5, 1973, Rhoda filed suit against NIPSCO alleging fraud in NIPSCO's procurement of the 150 foot wide electrical easement. NIPSCO, on January 14, 1974, filed a Motion to Dismiss; this motion was amended by the trial court to a Motion for Summary Judgment and was granted on June 5, 1974. The court found that Rhoda's suit was a collateral attack on the condemnation judgment, that there was no fraud perpetrated by NIPSCO, and that TR. 60(B) and the doctrine of res judicata were bars to Rhoda's complaint.

NIPSCO asserted at the original appropriation hearing that standard procedure mandated an appropriation equal to the width of the crossarm (52 feet for a 345 kv line) plus 49 feet on either side to allow for sway of lines and a safety factor. Rhoda posits that since NIPSCO appropriated the 150 foot right of way but actually constructed the crossarm 4 feet south of the center line, this amounts to a tacit admission on the part of NIPSCO that only a 45 foot sway allowance is needed. Rhoda computes, as the necessary appropriation, 142 feet (52 45 45). Since NIPSCO, under this logic, over-appropriated, Rhoda contends that such appropriation is 'capricious.' Rhoda further argues that NIPSCO's motive in locating the crossarm off center is directly related to an additional power line which is to be built in the future. Rhoda introduced evidence which she used to support her contention that NIPSCO knew of, but denied knowledge of, the additional power line at the time of her appropriation hearing; this 'fraud in the procurement' is the basis of her suit to set aside the appropriation; she appeals from a summary judgment which denied her claim as set forth above.

II. Summary Judgment

In Doe v. Barnett (1969), 145 Ind.App. 542, 552--554, 251 N.E.2d 688, 695--96, several observations about summary judgments were made:

'2. The purpose of summary judgment is to provide a procedural device for the prompt disposition of cases in which there is no genuine issue as to material fact to be determined by the court or jury.'

'. . . In ruling on motions for summary judgment, the court may not decide questions of fact, but is limited to the sole determination of whether or not a factual controversy exists. In short, summary judgment is not a procedure for trying facts and determining the proponderance of the evidence. Rather, it is a procedure for applying the law to the facts when no factual controversy exists.'

Rhoda maintains that unresolved issues of fact were before the court and that therefore summary judgment was improper. We disagree. The factual components of the cause may be summarized as follows:

(1) NIPSCO's standard appropriation for a 345 kv line is 150 feet.

(2) NIPSCO's standard policy is to center the crossarm on the easement leaving equidistant sway allowance on each side.

(3) NIPSCO asked for condemnation for the standard amount of right of way for which it could show a present need. ¹

(4) The trial court granted NIPSCO the standard easement. ²

(5) NIPSCO did not center the crossarm.

Since there is no dispute as the these facts, the trial court properly entertained a Motion for Summary Judgment. Rhoda would add one additional fact: (6) NIPSCO anticipated the possibility that another electric line would be built close to the one on Rhoda's easement. However, this fact is not material to the granting of the Motion for Summary Judgment; even if this fact were conceded by both parties, this would not amount to 'fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party' which would allow Rhoda relief under Indiana Trial Rule 60(B). Rhoda must have been able to show fraud in order that her suit would not be barred under Trial Rule 60(B) or res judicata.

III. Fraud

In order to recover in a fraud suit Rhoda must allege and prove material misrepresentation, scienter, reliance, and injury. Coffey v. Wininger (1973), Ind.App., 296 N.E.2d 154. From the facts set out above, and after viewing the entire record, we find that Rhoda has shown no material misrepresentation or scienter. She reasoned that since NIPSCO's standard practice was one thing and its actions as to her appropriated land was another, fraud was inherent. However, there was no promise given to either Rhoda or the trial court that the crossarm would be centrally located. ³

Furthermore, Rhoda does not show reliance; nor can she. '. . . (O)ne is not entitled to rely upon representations of subjective future intention or probability . . ..' Fairwood Bluffs Conservancy District v. Imel (1970), 146 Ind.App. 352, 363, 255 N.E.2d 674, 681.

Finally, we cannot see what injury Rhoda has sustained. To constitute actionable fraud, it must appear that the complaining party has been damaged. Windle v. City of Valparaiso (1916), 62 Ind.App. 342, 113 N.E. 429; and that the damage is a proximate result of the fraud, Kosmos Portland Cement Co. v. D.A.Y. Construction Co. (1939 7th Cir.), 101 F.2d 893. Fraud without injury does not give rise to a cause of action. Miller Jewelry Co. v. Dickson (1942), 111 Ind.App. 676, 42 N.E.2d 398. Provision was made to compensate Rhoda for the land which was appropriated. Moreover, the landowner may make any use of the property burdened with the easement not inconsistent with the servitude, and since, by Rhoda's own admission, 8 feet of the servitude is not being used for utility purposes, it is difficult to discern exactly what Rhoda's injury is. No fraud has been shown.

IV. Conclusion

Since Rhoda has not demonstrated an independent cause of action sufficient to release her from the time restraints of Indiana Trial Rule 60(B), ⁴ and since Rhoda's complaint and this appeal essentially ask us to set aside the condemnation (an issue which has been fully litigated), we find that the trial court's granting...