Legal Surveys — Fall 2024 – Indiana Society of Professional Land Surveyors

The goal of this column is to provide brief summaries of recent Indiana Court of Appeals and Supreme Court cases involving topics related to surveying practice, certainly not to provide legal advice. I use Google Scholar to search for Indiana cases. Once cases are found, I search for a case by a party’s name or case number on the Indiana Courts website to obtain a more conveniently formatted document at www.in.gov/judiciary. Comments or suggestions for future columns are welcome by email to: Bryan.Catlin@indy.gov

You may have already heard about this opinion since it was in the news in early June. This is the case where Carmel was trying to make utilities pay for the costs of relocation of those utilities when Carmel was performing improvements.

The City of Carmel, Indiana, v. Duke Energy Indiana, LLC, Indiana Utility Regulatory Commission, and Indiana Office of Utility Consumer Counselor, Indiana Supreme Court Case No. 23S-EX-129, May 30, 2024

For convenience, my earlier summary of the Indiana Court of Appeals summary follows in italics:

The City of Carmel, Indiana, v. Duke Energy Indiana, LLC, and Indiana Office of Utility Consumer Counselor, Indiana Court of Appeals Case No. 22A-EX-88, October 28, 2022

In 2019, Carmel adopted Ordinance D-2492-19 (the “Underground Ordinance”) and D-2491-19 (the “Relocation Ordinance”). The Underground Ordinance prohibits erection of above-ground public utility poles, lines, or structures in Carmel’s right-of-way unless authorized by Carmel. After the adoption of the ordinances, Carmel started two improvement projects requiring Duke to relocate several facilities, and Carmel and Duke were unable to agree on which party should bear the costs of relocation.

Carmel filed a complaint with the Indiana Utility Regulatory Commission (IURC), asking that they find Carmel’s ordinances reasonable under Indiana Code, order Duke to relocate the relevant facilities, and order Duke to bear the costs of the relocation. The IURC held a hearing where they admitted pre-filed testimony and attachments and subsequently issued an order finding Carmel’s ordinances unreasonable and void under Indiana Code 8-1-2-101. Carmel appealed.

Carmel essentially asked whether the IURC erred in concluding the ordinances are unreasonable and void because they conflict with INDOT regulations and contain vague terms and whether the IURC further erred in concluding the ordinances are unreasonable and void because they impermissibly shift the cost of relocation to Duke’s customers statewide. Duke provided testimony that the ordinance could shift costs to statewide customers but could not say it definitely would. The court found that the IURC erred in finding the ordinances unreasonable and void and due to the presumption of validity of local ordinances without substantive evidence otherwise and reversed the IURC order.

The IURC and Duke petitioned the Indiana Supreme Court to take up the case, which was granted, thus vacating the appellate opinion.

The Indiana Supreme Court found that because Duke would have to seek recovery of costs, the IURC, using its expertise and statutory authority, reasonably concluded that those costs would be shifted to all Duke customers statewide. The IURC order was affirmed.

The opinion by Justice Mark Massa was joined by Chief Justice Loretta Rush. Interestingly, Justice Geoffrey Slaughter concurred with a separate opinion; Justice Christopher Goff concurred in the result with a separate opinion; and Justice Derek Molter concurred in part, dissented in part, and wrote a fourth opinion. So, four of the five justices felt that they needed to explain or clarify their understanding of this case.

Marcie Gosnell v. Matthew Gosnell, Indiana Court of Appeals Case No. 23A-PL-2436, April 30, 2024 – MEMORANDUM DECISION – not regarded as precedent

Here a brother and sister had a dispute over property they inherited from their mother. The Madison Circuit Court ordered mediation that was successful, and the parties signed a settlement agreement which in part required Marcie to convey certain real estate to Matthew and sell other real estate. After the mediation, a dispute arose over certain terms of the agreement which the parties were unable to resolve. Because Marcie had not fulfilled her obligations under the settlement agreement and a tax sale was looming due to her repeated failure to pay real estate taxes, Matthew filed an emergency motion to enforce the terms of the settlement agreement. This motion was granted, and the court awarded Matthew attorneys’ fees.

Marcie appealed and the court affirmed the trial court judgment, awarded Matthew’s request for appellate attorneys’ fees, and remanded the case for determination of appropriate fees.

Duke Energy Indiana, LLC, v. Diana Lynn Yockey and German American Bancorp, Indiana Court of Appeals Case No. 24A-PL-73, June 7, 2024 – MEMORANDUM DECISION – not regarded as precedent

Here Duke Energy (DEI) had tried to obtain easements across Yockey’s property in Knox County. Failing to reach an agreement, DEI filed a “Complaint in Condemnation” in the Knox Circuit Court. Without providing evidence, Yockey denied the truth of two of DEI averments: that DEI found it necessary to take the easements, and that DEI had a present public need and necessity to condemn the two easement interests. The trial court held for Yockey, and this appeal ensued.

On appeal, the court found that the trial court had not followed long established law limiting review of condemnations for public purposes and requiring specific objection to statements, not just general denial of their truthfulness. The judgment of the trial court was reversed and remanded with instructions to find for DEI.

Widduck, LLC, v. ROA Indianapolis, LLC, d/b/a, Reagan Outdoor Advertising of Indianapolis, and Reagan Management Indianapolis, LLC, v. Tortas El Guero, LLC, Indiana Court of Appeals Case No. 23A-PL-2080, June 12, 2024 – MEMORANDUM DECISION – not regarded as precedent

If you deal with leases for billboard companies as a part of your surveying practice, you may be interested in this case where the terms of a lease were not followed. The arguments centered around renewal of the lease, right of first refusal to purchase the property if the lease was being canceled, and properly providing notice to the billboard owner. I won’t go into it other than to say that in this case the owner of the real estate had changed, and the owner of the billboard had changed multiple times. This case originated in the Marion Superior Court.

Nathan L. Reitenour and Jamie Reitenour, v. M/I Homes of Indiana, L.P., Indiana Court of Appeals Case No. 23A-CT-3090, June 21, 2024 – MEMORANDUM DECISION – not regarded as precedent

This appeal from the Marion Superior Court arose after the Reitenours purchased a home in Lawrence from M/I Homes. The Reitenours moved in on May 26, 2017 and on June 13, 2017, a sewage backup occurred due to a broken sewer lateral at the exterior of the foundation. In September of 2020 the Reitenours filed a complaint which eventually boiled down to a claim of fraudulent inducement and requesting rescinding the purchase agreement as a remedy.

Here a program that installed a Certificate of Quality Inspection plaque was found to be merely a promise a plaque would be installed at closing; it did not contain an actionable misrepresentation of facts. The Reitenours also argued that M/I Homes had failed to disclose that the home’s elevation did not meet the City of Lawrence’s building code requirements, making it susceptible to sewer backup. Due to site topography the home elevation was adjusted but still had appropriate fall to drain by gravity flow. The City of Lawrence requires that the first floor of a home be more than one foot above the top of both the first upstream and downstream manholes. If the elevation is not a foot higher than both manholes, a sewer permit will still be issued, but only if the property owner executes a covenant indemnifying the City of liability for sewer backups.

M/I Homes uses a courier service, here A-1 Expeditors, to obtain building permits. M/I provides A-1 with documents and A-1 is responsible for filling out the application for the permit. In this instance, the City decided a covenant was needed, and A-1 signed the covenant but did not provide M/I homes with a copy. M/I was therefore unaware of the covenant until the Reitenours provided a copy on February 18, 2018. M/I had not made any representations about the plot plan, elevation of the home, or sewer lines to the Reitenours prior to closing on the home. The home was completed and passed all relevant inspections, and a certificate of occupancy was issued on May 25, 2017. After the one sewer backup there have not been any further sewer backups. The trial court found that because M/I did not know about the covenant, they could not have intended to deceive the Reitenours.

The trial court ruled in favor of M/I Homes and the appeals court affirmed that ruling.

Indiana Society of Professional Land Surveyors

Legal Surveys — Fall 2024