Opinion
24A-PL-73
06-07-2024
Duke Energy Indiana, LLC, Appellant-Plaintiff v. Diana Lynn Yockey and German American Bancorp, Appellees-Defendants
ATTORNEYS FOR APPELLANT Yasmin L. Stump Erica Sullivan Ann Marie Skirvin Yasmin L. Stump Law Group, PC Carmel, Indiana ATTORNEY FOR APPELLEE - GERMAN AMERICAN BANCORP Charles J. Otten Louisville, Kentucky
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Knox Circuit Court The Honorable Monica C. Gilmore, Judge Trial Court Cause No. 42C01-2206-PL-000024
ATTORNEYS FOR APPELLANT Yasmin L. Stump Erica Sullivan Ann Marie Skirvin Yasmin L. Stump Law Group, PC Carmel, Indiana
ATTORNEY FOR APPELLEE - GERMAN AMERICAN BANCORP Charles J. Otten Louisville, Kentucky
MEMORANDUM DECISION
FELIX, JUDGE.
Statement of the Case
[¶ 1] In 2022, Duke Energy Indiana, LLC ("DEI") brought a condemnation action against Diana Yockey and German American Bancorp (the "Bank") to acquire an easement on Yockey's real estate. Yockey filed objections to DEI's action, and the trial court sustained those objections. DEI now appeals and presents two issues for our review, which we revise and restate as the following single issue: Whether the trial court erred in sustaining Yockey's objections to DEI's condemnation action.
[¶ 2] Because the trial court's decision is contrary to well-settled law, we reverse and remand.
Facts and Procedural History
[¶ 3] Yockey is an individual who owns real estate in Knox County, Indiana (the "Yockey Real Estate"). DEI is an Indiana public utility serving the Vincennes, Indiana, area. On June 9, 2022, DEI filed a "Complaint in Condemnation" in which it sought to take a "perpetual, non-exclusive easement" across a portion of the Yockey Real Estate. Appellant's App. Vol. II at 15. DEI's complaint alleged the easement was necessary "for its Vincennes 3431 electric line project," id. at 11, namely to maintain vegetation near its facilities, including removal of any vegetation that "may endanger the safe or reliable operation" thereof, id. at 15-16. DEI also alleged that it had "made an effort to Purchase the aforesaid easement interest from [Yockey] for the amount of Three Thousand Two Hundred Dollars ($3,200.00), and [DEI] has been unable to agree with [Yockey] for the purchase of the same." Id. at 12.
[¶ 4] After Yockey filed her objections to the complaint, Yockey and DEI began working to resolve the issue of the inclusion of Yockey's residence in the easement because it was not depicted in DEI's easement illustration. DEI had a survey prepared of the Yockey Real Estate and divided the easement between the two parcels constituting the Yockey Real Estate and excluded Yockey's residence from the easements; DEI then sought "two permanent, non-exclusive easements . . . to manage vegetation growth located in the proximity of DEI's overhead transmission line facilities" (the "Easements"). Appellant's App. Vol. II at 56. On May 24, 2023, DEI filed an "Amended Complaint in Condemnation." DEI alleged in relevant part as follows:
4. In connection with DEI's public utility business, it is necessary that DEI now take easements across the real estate at issue for its Vincennes 3431 electric line project located in Knox County, Indiana.
5. DEI has a present public need and necessity to condemn two easement interests for the overhead electric line facilities described above affecting the real estate of the Defendant. The specific easement interests, right and privileges DEI is now seeking to condemn are as set forth in those certain Easements, which are attached hereto as Exhibit A and Exhibit B and hereby made a part of this Complaint by this reference.Id. at 76-77 (emphases in original).
[¶ 5] On June 13, 2023, Yockey filed her "Amended Objection, Answer, and Other Responsive Pleadings." Appellant's App. Vol. II at 92-95. Yockey objected in relevant part as follows:
4. Yockey denies the truth of the averments in paragraph 4 of the Amended Complaint.
5. Yockey denies the truth of the averments in paragraph 5 of the Complaint and the referenced Exhibit A and Exhibit B.
Furthermore, Yockey objects to the expanded easement interest, rights, and privileges [DEI] is now seeking to condemn as set forth in paragraph 5 of the Amended Complaint.Id. at 92.
[¶ 6] On July 19, 2023, DEI filed an unopposed motion to substitute Exhibits A and B to the Amended Complaint due to DEI "inadvertently" failing to include the terms and conditions of the Easements in its original exhibits. Appellant's App. Vol. II at 100. The next day, the trial court granted that motion. On July 21, 2023, DEI filed a "Motion to Overrule" Yockey's objections on the grounds that the objections were "legally insufficient and should be stricken as a matter of law without a hearing." Id. at 139. On December 7, 2023, the trial court held a hearing on DEI's motion and made the following rulings from the bench:
Does Duke have authority to condemn? I find that they do. I think that that's pretty clear that they are given that. Now, what I will note and what is going to take me into my next step is that in the complaint . . . in Paragraph 5, ["]DEI has a present public need and necessity to condemn two easement interests for the overhead electric line facilities described above affecting the real
estate of the Defendant.["] That, to me, is no different than Paragraph Number 5 of the amended objection, ["]Yockey denies the truth of the averments in Paragraph 5 of the complaint.["] They are both cursory statements. They are both not specified in saying one or the other.
So what I'm going to do is sustain the objection. I don't really know how much it's going to help the Defendant because you're going to be able to amend however you see fit or appeal. But I think that the objection should be sustained because I think that it is a fair objection, especially in light of the kind of broad assessment.
* * *
I am finding that Defendant's objection to Paragraph 4 is sustained and I am finding that Defendant's objection to Paragraph 5, each of these to the Plaintiff's complaint, is sustained as well. Now, my specific issue with these is that it's not spelled out that there is -- what is the present public need and necessity? And I think that if that is correct, that might solve the problem.Tr. Vol. II at 35-36. On December 12, 2023, the trial court issued its order which stated it "now finds that the Defendant's Objections should be and are hereby SUSTAINED, and the Plaintiff's Motion is DENIED." Appellant's App. Vol. II at 10. DEI now appeals.
DEI's appeal is permitted by Indiana Code section 32-24-1-8(d), which allows a condemnor to appeal as a final judgment a trial court's decision to sustain a property owner's objections.
Discussion and Decision
[¶ 7] We initially observe that neither Yockey nor the Bank filed briefs in this case. "[W]here, as here, the appellees do not submit a brief on appeal, the appellate court need not develop an argument for the appellees but instead will 'reverse the trial court's judgment if the appellant's brief presents a case of prima facie error.'" Salyer v. Washington Regular Baptist Church Cemetery, 141 N.E.3d 384, 386 (Ind. 2020) (quoting Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014)). "Prima facie error in this context means 'at first sight, on first appearance, or on the face of it.'" Id. (quoting Front Row Motors, 5 N.E.3d at 758).
[¶ 8] DEI appeals the trial court order sustaining Yockey's objections to its condemnation action. As another panel of this court recently explained:
"The State has inherent authority to take private property for public use" with just compensation. Knott v. State, 973 N.E.2d 1259, 1262 (Ind.Ct.App. 2012), trans. denied. Moreover, the legislature may delegate the State's eminent domain authority to other entities. Utility Center, Inc. v. City of Fort Wayne, 985 N.E.2d 731, 733 (Ind. 2013). Thus, the focus of judicial review in eminent domain proceedings is narrow. Knott, 973 N.E.2d at 1262. "Like the trial court, we must restrict our review to whether the condemnation proceedings were legal, whether the condemning [entity] had authority to condemn the property in question, and whether the property was to be taken for a public purpose." Id.
Indiana Code Chapter 32-24-1 et seq. sets forth Indiana's general eminent domain proceedings. Condemnation proceedings "involve two stages and are summary in nature until the question
of damages is reached." State ex rel. Bd. of Aviation Comm'rs of City of Warsaw v. Kosciusko Cnty. Superior Ct., 430 N.E.2d 754, 755 (Ind. 1982). In the first stage, eminent domain proceedings are initiated by a would-be condemnor filing a complaint in the trial court. Ind. Code § 32-24-1-4(a). The property owner may then file objections to the condemnation proceedings within thirty days from the date it receives notice of the action. I.C. § 32-24-1-8(b).... The property owner may object based on the following: lack of subject matter or personal jurisdiction; lack of authority "to exercise the power of eminent domain for the use sought;" or "for any other reason disclosed in the complaint or set up in the objections." I.C. § 32-24-1-8(a).Bender Enters., LLC v. Duke Energy, LLC, 201 N.E.3d 206, 208-09 (Ind.Ct.App. 2022) (alteration in original), trans. not sought.
[¶ 9] It is well established that
a court may not inquire into the administrative determination of the propriety, reasonableness, or necessity for the taking of property by eminent domain by a proper authority, except for fraud, or where the proceeding is a subterfuge for taking property for private use." Cemetery Co. v. Warren School Twp. of Marion County, 236 Ind. 171, 189, 139 N.E.2d 538, 546-47 (1957).State v. Collom, 720 N.E.2d 737, 740 (Ind.Ct.App. 1999). Indiana courts do not have "the power to inquire into the wisdom or propriety" of an agency's determination of reasonableness or necessity of taking certain property "unless a question of fraud or bad faith is raised." Id. at 740-41 (quoting Cemetery Co., 236 Ind. at 188, 139 N.E.2d at 545). We presume a taking is necessary and do not require the condemnor to plead with specificity the reasons underlying its necessity determination. Id. at 741-42 (quoting 11A I.L.E., Eminent Domain § 99, n. 91). Accordingly, "the burden is placed on the party objecting to the appropriation of real estate . . . to establish that the taking is not necessary for the purpose sought, and then, only on the grounds of fraud, capriciousness, or illegality in the State's determination of necessity." Id. at 742 (citing Dahl v. N. Ind. Pub. Serv. Co., 239 Ind. 405, 412, 157 N.E.2d 194, 198 (1959); Ellis v. Pub. Serv. Co. of Ind., Inc., 168 Ind.App. 269, 272, 342 N.E.2d 921, 924 (1976)).
[¶ 10] Notably, "the eminent domain statutes do not contemplate evidentiary proceedings beyond the filing of the complaint and objections" during the first stage, so "those pleadings must articulate all the facts necessary for the factfinder to rule on the legality of the action before proceeding to the second stage." Bender Enters., 201 N.E.3d at 210. That is, the property owner must state specific facts supporting its objections; if the property owner fails to do so, the trial court may overrule its objections. Id. at 209-10 (quoting Joint Cnty. Park Bd. of Ripley, Dearborn, and Decatur Cntys. v. Stegemoller, 228 Ind. 103, 88 N.E.2d 686, 688 (1949); State v. Collom, 720 N.E.2d 737, 740 (Ind.Ct.App. 1999)).
[¶ 11] For example, in Bender Enterprises, LLC v. Duke Energy, LLC, Duke Energy brought a condemnation action against Bender Enterprises, and Bender filed a response and objections thereto. 201 N.E.3d at 208. In relevant part, Bender objected on the grounds that the location of the proposed easement was "capricious, arbitrary[,] and not based upon accepted engineering and industry standards." Id. (alteration in original). Bender did not allege specific facts to support this objection-it "did not state why or how the condemnation was unnecessary, arbitrary, and capricious, nor did it state why or how the condemnation was not based on 'accepted engineering and industry standards' or to what standards Bender referred." Id. at 210. The Bender court determined that Bender's objections were essentially a "general denial, not contemplated by [Indiana Code Section 32-24-8-1]." Id. (alteration in original) (quoting Collom, 720 N.E.2d at 740). Because Bender failed to state specific supporting factual allegations for its objections, the Bender court affirmed the trial court's order overruling Bender's objections. Id. at 211.
[¶ 12] Here, Yockey's objections are even more general than those in Bender. Yockey did not even state a basis for her objections to the necessity of the Easements; instead, she merely "denie[d] the truth of the averments" in paragraphs 4 and 5 of the Amended Complaint and "object[ed] to the expanded easement interest, rights, and privileges [DEI] is now seeking to condemn." Appellant's App. Vol. II at 92. Yockey's objections wholly fail to state why or how the condemnation is unnecessary, arbitrary and capricious, fraudulent, or otherwise illegal. They are essentially a general denial and therefore inadequate. See Bender, 201 N.E.3d at 210. Consequently, the trial court erred in sustaining Yockey's objections.
[¶ 13] Furthermore, to the extent the trial court's ruling can be understood to require DEI to plead specific facts in support of its necessity determination, such is not required by our law, see Collom, 720 N.E.2d at 740-42. Again, the onus is on the property owner to plead specific facts in support of its objections to an agency's necessity determination. See id. at 741-42; Bender, 201 N.E.3d at 210. Because Yockey failed to plead specific facts supporting her objections as required by long standing precedent, see Bender, 201 N.E.3d at 209-10 (quoting Stegemoller, 88 N.E.2d at 688; Collom, 720 N.E.2d at 740), the trial court does not have the authority to inquire into whether the Easements are necessary for the purpose sought, see Collom, 720 N.E.2d at 742 (citing Dahl, 239 Ind. at 412, 157 N.E.2d at 198; Ellis, 168 Ind.App. at 272, 342 N.E.2d at 924).
[¶ 14] Based on the foregoing, DEI has clearly shown prima facie error. We therefore reverse and remand for the trial court to enter an order granting DEI's "Motion to Overrule" and overruling Yockey's objections.
[¶ 15] Reversed and remanded.
Altice, C.J., and Bradford, J., concur.