MORAN ELECTRIC SERVICE, INC., and THREADED ROD COMPANY, INC., Appellants-Proposed Intervenors,
COMMISSIONER, INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, Appellee-Plaintiff, CITY OF INDIANAPOLIS, Appellee-Intervenor, ERTEL MANUFACTURING CORP., Defendant
APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Michael D. Keele, Judge. Cause No.49D07-1002-MI-6915.
ATTORNEYS FOR APPELLANT, Threaded Rod Company, Inc.: DAVID A. TEMPLE, SEAN T. DEVENNEY, SCOTT P. FISHER, Carmel, Indiana.
ATTORNEYS FOR APPELLANT, Moran Electric Company, Inc.: GLENN D. BOWMAN, NICHOLAS K. GAHL, MARC A. MENKVELD, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE, Indiana Department of Environmental Management: GREGORY F. ZOELLER, Attorney General of Indiana; ANDREW R. FALK, TIMOTHY J. JUNK, Deputy Attorney General, Indianapolis, Indiana.
ATTORNEY FOR APPELLEE, City of Indianapolis: CAMERON GREGORY STARNES, Office of Corporation Counsel, Indianapolis, Indiana.
BARNES, Judge. ROBB, J., and BROWN, J., concur.
The Indiana Department of Environmental Management (" IDEM" ) and the City of Indianapolis (" the City" ) have filed a joint request for rehearing from our opinion in Moran Elec. Serv., Inc. v. Comm'r, Indiana Dept. of Envtl. Mgmt., 8 N.E.3d 698 (Ind.Ct.App. 2014). We grant rehearing to acknowledge and address some of their rehearing arguments, but we reaffirm our original decision in all respects.
In Moran, we addressed the effect of simultaneous trial court proceedings and administrative proceedings before the Office of Environmental Adjudications (" OEA" ) concerning the same issue. IDEM and the City both brought civil actions against Ertel Manufacturing, which resulted in an administrative settlement agreement and a settlement agreement approved by the trial court. Later, Threaded Rod Company (" Threaded Rod" ) and Moran Electric Service, Inc., (" Moran" ) filed an administrative action challenging IDEM's issuance of a No Further Action (" NFA" ) letter concerning contamination on Ertel's property. Threaded Rod and Moran argued that the contaminants had spread to properties owned or formerly owned by Threaded Rod and Moran and that, pursuant to the settlement agreements, escrowed funds should be used to remove Ertel's contaminants from those properties. Separately, Threaded Rod and Moran also sought to intervene in IDEM's trial court action against Ertel. They appealed the trial court's determination that they were not entitled to intervene in IDEM's action against Ertel and that it did not have subject matter jurisdiction to review IDEM's actions. We held that the trial court abused its discretion by denying Threaded Rod's and Moran's motions to intervene. We also held that IDEM's action in issuing a NFA letter was an agency action that was subject to administrative review by the OEA; however, the trial court had statutory authority to control the recovery of damages. Thus, we concluded that the trial court should retain jurisdiction over the entire case until the OEA reaches a final decision on Threaded Rod's and Moran's pending administrative petitions regarding the NFA letter. Then, the trial court should make a decision regarding the disbursement to the City of the remaining escrowed funds.
On rehearing, IDEM and the City argue that we misinterpreted the trial court's role in this action. According to IDEM and the City, neither of the two settlement agreements discussed in our original opinion required the trial court's approval, and the release of the escrowed funds was automatic once a NFA letter was issued by IDEM. They also contend that the trial court did not and could not order the release of the escrowed funds. However, the fact remains that, on October 26, 2011, the trial court did approve the settlement agreement. See App. p. 120. On April 19, 2013, the trial court noted that it would " not interrupt" IDEM's release of the escrowed funds to the City. Id. at 11. In fact, IDEM's own appellate brief states that the trial court " order[ed] that the Department should disburse
the disputed $850,000 in Escrow Account 2 to the City." Appellees' Br. p. 4; see also Appellees' Br. p. 11 (" The trial court therefore ordered IDEM to release any remaining funds from Escrow Account 2 to the City." ). Under the doctrine of invited error, " a party may not take advantage of an error that she commits, invites, or which is the natural consequence of her own neglect or misconduct." Witte ...