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Bellwether Properties, LLC v. Duke Energy Indiana, Inc.

Supreme Court of Indiana

December 20, 2017

Bellwether Properties, LLC, Appellant (Plaintiff),
Duke Energy Indiana, Inc., Appellee (Defendant).

          Appeal from the Monroe Circuit Court, No. 53C01-1506-CT-1172 The Honorable E. Michael Hoff, Judge

         On Petition to Transfer from the Indiana Court of Appeals, No. 53A04-1511-CT-1880

          ATTORNEYS FOR APPELLANT William N. Riley Joseph N. Williams James A. Piatt Anne Medlin Lowe Riley Williams & Piatt, LLC Indianapolis, IN

          Lonnie D. Johnson Pamela J. Hensler Michael J. Potraffke Clendening Johnson & Bohrer, P.C. Bloomington, IN

          ATTORNEYS FOR APPELLEE Thomas L. Davis Darren A. Craig Maggie L. Smith Frost Brown Todd LLC Indianapolis, IN

          Steven J. Moss Duke Energy Business Services, LLC Plainfield, IN

          Slaughter, Justice

         Dismissal under Trial Rule 12(B)(6) is rarely appropriate when the asserted ground for dismissal is an affirmative defense. To withstand a 12(B)(6) dismissal, the complaint need only allege such facts that, if proved, would entitle the plaintiff to obtain relief from the defendant. A complaint that survives that limited scrutiny states a claim for relief, even if there may lurk on the horizon an unassailable defense. Only where a plaintiff has pleaded itself out of court by alleging, and thus admitting, the essential elements of a defense does its complaint fail to state a claim on which relief can be granted. Here, the trial court found the statute of limitations had expired and dismissed the plaintiff's complaint with prejudice under Rule 12(B)(6). We hold the dismissal was premature because the face of the complaint did not establish that the asserted claim was time-barred. We thus reverse and remand.

         Factual and Procedural History

         Plaintiff, Bellwether Properties, LLC, owns real property in Bloomington, Indiana. In 1957, the property's prior owner granted a utility easement-an "Electric Pole Line Easement"- to the predecessor in interest of Defendant, Duke Energy Indiana, Inc. The easement, which is perpetual and runs with the land, granted the utility the right to build, remove, and maintain electrical lines, including necessary poles and wires, for transmitting electricity over a ten-foot-wide strip of the property. Thus, the easement's burden on the property was no more than ten feet in width.

         In 2002, the Indiana Utility Regulatory Commission adopted the 2002 edition of the National Electrical Safety Code. 26 Ind. Reg. 328-29 (November 1, 2002) (codified at 170 Ind. Admin. Code 4-1-26(b) (2004)). The Safety Code is published by the Institute of Electrical and Electronic Engineers, Inc., a private professional association. The Code establishes standards for safeguarding persons from hazards arising from "the installation, operation, or maintenance of overhead supply and communication lines." National Electric Safety Code, IEEE, 2002 at 59. The Commission did not reproduce the Safety Code's text within an administrative rule, but merely incorporated the Code by reference and advised that copies could be obtained from the Institute in New Jersey and the Commission in Indianapolis. 170 I.A.C. 4-1-26(b).

         Of relevance here, the 2002 Safety Code establishes how close structures on the land can be to a utility's overhead lines. These minimum "strike" or lateral clearances vary with the types of lines and the amount of electrical current they carry. National Electric Safety Code, at 101-03. Table 234-1 of the Code provides that "Insulated communication conductors and cables; messengers; surge-protection wires; grounded guys; ungrounded guys exposed to 0 to 300 V; neutral conductors meeting Rule 230E1; and supply cables meeting Rule 230C1" require 1.40 meters of horizontal clearance to walls, projections, and guarded windows. Id. And "[o]pen supply conductors, over 750 V to 22 kV" require 2.30 meters of horizontal clearance. Id.

         In 2015, Bellwether brought an inverse-condemnation action alleging that Duke Energy's maintenance of its electrical line on Bellwether's property, in accordance with the Safety Code, imposes a 23-foot-wide easement-thirteen feet more than the easement permits. According to Bellwether, this additional burden effected a taking of its property for a public use requiring the payment of just compensation. Duke Energy responded by filing a motion to dismiss under Rule 12(B)(6), arguing that Bellwether's claim was time-barred under the applicable six-year statute of limitations. The trial court agreed and granted Duke's motion, concluding that Bellwether's claim was untimely because more than six years had passed since adoption of the Safety Code in 2002.

         A divided Court of Appeals reversed. It held that Indiana's discovery rule tolled the running of the statute of limitations because "the circumstances here are too attenuated to conclude that the taking was ascertainable by Bellwether". Bellwether Properties, LLC v. Duke Energy Indiana, Inc., 59 N.E.3d 1037, 1046 (Ind.Ct.App. 2016) (footnote omitted). The dissent relied on our opinion in Tiplick v. State, 3 N.E.3d 1259');">43 N.E.3d 1259 (Ind. 2015), in concluding that Bellwether "must be charged with knowledge" of the taking and that the trial court was correct to dismiss its complaint as untimely. 59 N.E.3d at 1051 (May, J., dissenting). Duke Energy then sought transfer, which ...

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