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«FILED Sep 13 2016, 5:51 am CLERK Indiana Supreme Court Court of Appeals and Tax Court ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE William N. Riley ...»

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Sep 13 2016, 5:51 am


Indiana Supreme Court

Court of Appeals

and Tax Court


William N. Riley Thomas L. Davis

Joseph N. Williams Darren A. Craig

James A. Piatt Maggie L. Smith

Anne Medlin Lowe Frost Brown Todd LLC Riley Williams & Piatt, LLC Indianapolis, Indiana Indianapolis, Indiana Steven J. Moss Lonnie D. Johnson Duke Energy Business Services, Pamela J. Hensler LLC Michael J. Potraffke Plainfield, Indiana Clendening Johnson & Bohrer, P.C.

Bloomington, Indiana IN THE


Bellwether Properties, LLC, September 13, 2016 Court of Appeals Case No.

Appellant-Plaintiff, 53A04-1511-CT-1880 v. Appeal from the Monroe Circuit Court Duke Energy Indiana, LLC, The Honorable E. Michael Hoff, Judge Appellee-Defendant.

Trial Court Cause No.

53C01-1506-CT-1172 Brown, Judge.

Court of Appeals of Indiana | Opinion 53A04-1511-CT-1880 | September 13, 2016 Page 1 of 28 Bellwether Properties, LLC (“Bellwether”) appeals the trial court’s order [1] granting a motion to dismiss in favor of Duke Energy Indiana, Inc. (“Duke”).

Bellwether raises one issue, which we revise and restate as whether the trial court erred in dismissing Bellwether’s complaint for inverse condemnation as time-barred. We reverse and remand.1 Facts and Procedural History The facts as alleged in the complaint follow. On July 19, 1957, Duke’s [2] predecessor in interest, Public Services Company of Indiana, obtained a perpetual Electric Pole Line Easement (the “Easement”) on land now owned by Bellwether for the installation of overhead electric lines. The Easement, memorialized in an Electric Pole Line Easement which was attached to Bellwether’s complaint, states that the Easement is ten feet wide, including five feet on either side of the utility lines, and it provided the owner, currently Duke,

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In 1976, the Indiana Utility Regulatory Commission (the “IURC”) [3] promulgated 170 I.A.C. 4-1-26, adopting standards contained in the 1967 edition of the National Electrical Safety Code (“NESC”) to govern the clearance needed around electrical lines. See Burns Indiana Administrative Rules and Regulations 8-1-2-4-A57 (1976). The IURC adopted newer editions of the NESC in 1986, 1987, 1990, 1993, and 1998.2 On November 1, 2002, the IURC amended 170 I.A.C. 4-1-26 to provide that the 2002 edition of the NESC

will govern practices involving electrical lines:

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See 170 I.A.C. 4-1-26 (1986) (adopting 1984 edition of the NESC); 170 I.A.C. 4-1-26 (1987) (adopting 1987 edition of the NESC); 170 I.A.C. 4-1-26 (1990) (adopting 1990 edition of the NESC); 170 I.A.C. 4-1-26 (1993) (adopting 1993 edition of the NESC); and 170 I.A.C. 4-1-26 (1998) (adopting 1997 edition of the NESC).

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170 I.A.C. 4-1-26 (2002).

Following the IURC’s incorporation of the 2002 NESC, Bellwether desired to [4] expand a structure on its property and contacted Duke about its plans. Duke indicated that Bellwether could not expand according to the plan submitted because the plan would not provide the horizontal strike clearance3 required by the 2002 NESC, explaining that, due to the type and voltage of the current lines within the Easement, a total horizontal strike clearance of approximately twenty-three feet is required and that 170 I.A.C. 4-1-26 and the 2002 NESC provided Duke with control over the entire twenty-three-feet-wide strip of land

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On June 30, 2015, Bellwether filed a Class Action Complaint and Jury Trial [5] Demand (the “Complaint”) noting that it was bringing its claim pursuant to Ind. Trial Rule 23 individually and on behalf of a class, which it defined, and alleging one count of inverse condemnation. Bellwether specifically alleged that Duke took property for a public purpose without proceeding with a condemnation action under Ind. Code §§ 32-24-1 et seq. and without providing just compensation, noting that, “[t]hroughout the State of Indiana, Duke has According to Bellwether’s complaint, the term horizontal strike clearance refers to the area surrounding an electrical transmission line that must remain vacant and free of structures.

Court of Appeals of Indiana | Opinion 53A04-1511-CT-1880 | September 13, 2016 Page 4 of 28 continued to maintain electrical transmission lines that—when considering the required horizontal strike clearance—violate the express limitations of the easements in place.” Appellant’s Appendix at 8. On August 21, 2015, Duke filed a motion to dismiss, arguing that Bellwether’s complaint fell outside the six-year statute of limitations for inverse condemnation actions. On September 14, 2015, Bellwether filed its opposition to the motion to dismiss, and on October 5, 2015, Duke filed its reply brief in support of its motion to dismiss.

On October 15, 2015, the trial court held a hearing on Duke’s motion, and on [6] October 29, 2015, it issued an order granting Duke’s motion to dismiss (the “Order”) which stated in part:

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Court of Appeals of Indiana | Opinion 53A04-1511-CT-1880 | September 13, 2016 Page 5 of 28 limited in application to specialized entities or circumstances (such as utility companies), and therefore outside the notice of ordinary land owners in the conduct of their affairs. [Bellwether] claims it is particularly inequitable to expect and require Indiana landowners to have knowledge of the rules governing the National Electric Safety Code requirements for utility electrical line strike clearances.

However, it is not necessary to prove that a citizen has actual notice of a law. The general rule that ignorance of the law is not an excuse charges citizens with knowledge of the law.

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Texaco, Inc. v. Short, 454 US. 516, 531-532 (U.S. 1982) Given the Supreme Court’s approval of the two (2) year grace period in the Texaco, Inc. v. Short case, the six (6) year limitation period in this case appears to be more than adequate to allow Court of Appeals of Indiana | Opinion 53A04-1511-CT-1880 | September 13, 2016 Page 6 of 28 property owners to learn of the utility regulation. [Bellwether] has not offered any authority to the contrary, or any authority that regulations should be treated differently than statutes.

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The issue is whether the trial court erred in dismissing Bellwether’s claim. A [7] complaint may not be dismissed under Ind. Trial Rule 12(B)(6) for failure to state a claim upon which relief can be granted unless it appears to a certainty on the face of the complaint that the complaining party is not entitled to any relief.

McQueen v. Fayette Cnty. Sch. Corp., 711 N.E.2d 62, 65 (Ind. Ct. App. 1999), trans. denied. We view motions to dismiss for failure to state a claim with disfavor because such motions undermine the policy of deciding causes of action on their merits. Id. When reviewing a trial court’s grant of a motion to dismiss, we view the pleadings in a light most favorable to the nonmoving party, and we draw every reasonable inference in favor of that party. Id. We will not affirm a dismissal under Ind. Trial Rule 12(B)(6) unless it is apparent that the facts alleged in the challenged pleading are incapable of supporting relief under any set of circumstances. Id.

Court of Appeals of Indiana | Opinion 53A04-1511-CT-1880 | September 13, 2016 Page 7 of 28 Inverse condemnation is a process provided by statute that allows individuals to [8] be compensated for the loss of property interests taken for public purposes without use of the eminent domain process. Sloan v. Town Council of Town of Patoka, 932 N.E.2d 1259, 1262 (Ind. Ct. App. 2010) (citing Ind. Code § 32-24-1It serves to provide a remedy for a taking of property that would otherwise violate Article 1, Section 21 of the Indiana Constitution, which provides in relevant part that “No person’s property shall be taken by law, without just compensation; nor except in case of the State, without such compensation first assessed and tendered.” Id. “A taking by inverse condemnation includes any substantial interference with private property which destroys or impairs one’s free use and enjoyment of the property or one’s interest in the property.” Id.

(internal quotation marks omitted). In general, inverse condemnation claims are governed by a six-year statute of limitations period. Murray v. City of Lawrenceburg, 925 N.E.2d 728, 733 (Ind. 2010).

Bellwether asserts that, under these circumstances, the trial court should have [9] applied the discovery rule, noting that no Indiana court has expressly analyzed whether the discovery rule applies to inverse condemnation actions. The crux of Bellwether’s argument is that the court “erred in conflating two distinct legal concepts: knowledge of the law and the accrual of a cause of action,” asserting that although it is charged with knowledge of the law, its claim had not accrued because it did not have knowledge of certain technical facts giving rise to the claim. Appellant’s Brief at 17. Specifically, Bellwether argues: “The real question is at what point did [it] learn that a certain state of facts existed giving Court of Appeals of Indiana | Opinion 53A04-1511-CT-1880 | September 13, 2016 Page 8 of 28 rise to a cause of action, i.e., Duke’s electric supply lines carried enough voltage to require a larger horizontal clearance than was permitted by the easement?” Id. at 14. Bellwether maintains that this question should survive Duke’s motion to dismiss. It asserts that “neither the existence of the strike clearance, nor the type and voltage of the utility lines were visible to the naked eye; yet knowledge of both was necessary to realize a cause of action existed.” Id. at 16 (citing Fenley Farms, Inc. v. Clark, 404 N.E.2d 1164, 1171-1172 (Ind. Ct. App. 1980)).

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Bellwether further argues that, even if the discovery rule does not apply to [10] inverse condemnation actions such as at issue here, it should not be charged with knowledge of the 2002 NESC because it “is not a law affecting the control or disposition of property” and rather is a regulation applicable only to electrical public utilities. Id. at 20-21. It asserts that “[w]hile Bellwether is charged with knowledge of laws that affect the control or disposition of its land, it should not be charged with the knowledge of the technical requirements placed upon sophisticated public utilities.” Id. at 21.

Court of Appeals of Indiana | Opinion 53A04-1511-CT-1880 | September 13, 2016 Page 9 of 28 Duke observes that almost all applications of the discovery rule in Indiana are [11] in tort cases and that an inverse condemnation action is not a tort, but rather is based upon the constitutional prohibition of the taking of property without just compensation. It argues that even if the discovery rule is found to be applicable to inverse condemnation claims, it did not toll the statute of limitations in this case. Duke asserts that, when the discovery rule applies, the relevant question is not what the claimant knew of the injury, but rather “[w]hat might he have known, by the use of the means of information within his reach, with the vigilance which the law requires of him?” Appellee’s Brief at 23 (quoting Millwright v. Romer, 322 N.W.2d 30, 33 (Iowa 1982)). It argues that citizens are charged with knowledge of the law and that the discovery rule does not excuse a plaintiff’s duty to exercise diligence to discover the facts from sources open to investigation. Its position is that, upon adoption by the IURC, the 2002 NESC was capable of ascertainment because it is a public law, which defeats application of the discovery rule, and that, because Bellwether ultimately did discover the needed information, it is proven that indeed such information was capable of ascertainment. Duke posits that Bellwether’s argument is basically that “the discovery rule should apply because it was allegedly difficult to discover the specific nuances of the law and regulations adopted in 2002,” but that this is not the relevant inquiry. Id. at 30. And it asserts that “the threshold for non-discoverability is high—it must have been ‘practically impossible’ to discover the injury—and the fact that it is simply difficult, technical, or challenging is not enough, especially when what is to be discovered is a public record like an enacted law....” Id. at 31 (quoting Catellus Dev. Corp. v. United Court of Appeals of Indiana | Opinion 53A04-1511-CT-1880 | September 13, 2016 Page 10 of 28 States, 31 Fed. Cl. 399, 407 (1994)). Finally, Duke contends that Bellwether is judicially estopped from taking a position inconsistent with the pleadings, noting that Bellwether sought to bring a class action but, when faced with the motion to dismiss, it “reversed course and attempted to invoke the discovery rule by setting forth a long list of individualized inquiries” which is inapposite

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In its reply Bellwether argues that to not apply the discovery rule would place [12] an “insurmountable burden” upon Indiana property owners, that the cases cited by Duke involve the enactment of an ordinance or statutory provision, and that the 2002 NESC is neither. Appellant’s Reply Brief at 9. It specifically argues that it is not analogous to a zoning ordinance, as claimed by Duke, because although the applicability and effect of a zoning ordinance is immediately apparent, the 2002 NESC “applies based on invisible characteristics of which a property owner is unlikely to have notice unless and until he seeks to make improvements that are restricted by the regulation applying to electrical utilities.” Id. at 13. Regarding Duke’s judicial estoppel claim, Bellwether asserts that the trial court based its Order on its conclusion that the discovery rule was inapplicable, that its arguments accordingly relate to the court’s Order, and that Duke’s assertion of judicial estoppel is without merit. It also contends that class actions involve some degree of individualized inquiry and that this fact does not make the Complaint inconsistent with later pleadings or its

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