A property owner’s inverse condemnation complaint against Duke Energy properly states a claim on its face, and the trial court’s dismissal pursuant to Indiana Trial Rule 12(B)(6) was erroneous, according to the Indiana Supreme Courts in Bellwether Properties, LLC v. Duke Energy Indiana, Inc.
Plaintiff Bellwether owns real property in Bloomington on which Duke Energy has a recorded 10-foot wide utility easement. Bellwether filed an inverse condemnation claim against Duke in 2015, alleging Duke’s clearing and maintenance of a 23-foot wide swath of Bellwether’s property constituted an uncompensated taking for public use of the additional 13-foot wide portion of the property.
Duke filed a motion to dismiss the claim under T.R. 12(B)(6), asserting that Duke was bound by a National Electrical Safety Code provision the Indiana Utility Regulatory Commission incorporated by reference in 2002. That safety code required the wider easement, and thus Duke asserted Bellwether’s 2015 claim was barred by the six year statute of limitations. The trial court granted Duke’s motion to dismiss on that basis, and Bellwether appealed.
After the Indiana Court of Appeals reversed the trial court, Duke Energy sought transfer to the Indiana Supreme Court, which also reversed the trial court, but on other grounds.
The Supreme Court noted dismissals based on a failure to state a claim must be based solely on the allegations contained in the complaint, and may not incorporate any defenses. The Court found Bellwether’s complaint on its face alleged only that Duke Energy “currently” uses a 23-foot easement, but not when that use started. As a result, the complaint did not establish that the statute of limitations had expired, and thus dismissal under T.R. 12(B)(6) was premature.
In its guidance for remand, the Supreme Court noted that although citizens are presumed to know the law and comply with it, the sources of such laws must be accessible to those bound by such laws. In this case, the IURC incorporated by reference 2002 safety standards Duke Energy is required to comply with. The Court found the administrative code “amendment was available free on-line in the Indiana Register, but the Safety Code was not.” Slip.op. at 7. Neither of the parties included a copy of the safety code in the appellate record, and the Court was unable to independently obtain one from the IURC. In short, the law Bellwether is charged with knowledge of is not readily available, and thus problematic.
The Court reversed the trial court’s dismissal of Bellwether’s complaint against Duke Energy as premature based on the current state of the record, and remanded for further proceedings
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