      MEMORANDUM DECISION
                                                                                 FILED
      Pursuant to Ind. Appellate Rule 65(D), this                           Mar 29 2018, 8:50 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the                         CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
      purpose of establishing the defense of res judicata,                        and Tax Court
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
      Jeffrey Alan Hokanson                                    C. Gregory Fifer
      Maggie L. Smith                                          Jeffersonville, Indiana
      Darren A. Craig
      Jaclyn M. Flint
      Frost Brown Todd LLC
      Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Duke Energy Indiana, LLC,                                March 29, 2018

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               10A04-1605-PL-1084
                   v.                                          Appeal from the Clark Circuit Court.
                                                               The Honorable Steven M. Fleece,
                                                               Senior Judge.
      J & J Development Company,                               Trial Court Cause No.
      LLC,                                                     10C04-1508-PL-91
      Appellee-Plaintiff.




      Friedlander, Senior Judge

[1]   Duke Energy Indiana, LLC (Duke) appeals from the trial court’s order granting

      partial summary judgment in favor of J & J Development Company, LLC (J &



      Court of Appeals of Indiana | Memorandum Decision 10A04-1605-PL-1084 | March 29, 2018          Page 1 of 16
      J). J & J raises a cross-appeal issue based upon the trial court’s order. We

      reverse and remand.


[2]   On January 17, 1956, Jacob and Agnes Yochem granted to Public Service of

      Indiana, Incorporated (PSI), an electric transmission line easement that was

      recorded in Clark County on January 27, 1956. The text of the easement reads

      in pertinent part as follows:


              Grantors hereby grant unto [PSI], an Indiana corporation, and its
              successors and assigns, Grantee, the perpetual right, privilege,
              easement and authority to enter upon the real estate hereinafter
              described and, now or in the future, there to construct, erect,
              maintain, operate, inspect, patrol, repair, replace, extend, renew
              and/or remove two (2) lines of metal towers supporting one or
              more electric transmission lines, together with the anchors, guys,
              wire, conductors, cables, insulators, appurtenances, and other
              appliances, fixtures and apparatus attached thereto, for the
              supply, transmission, distribution and/or delivery of electrical
              energy to the public in general, for light, heat, power, telephone
              and/or other purposes . . . . (a three hundred foot wide easement,
              legal description omitted)[.]
              In constructing said lines, Grantee shall have the right to
              determine the exact location in said real estate where the
              supportive towers of each of said lines are to be located; to erect,
              construct and maintain the necessary substructures for said
              towers and to mount upon and string between said towers, the
              wires, cables, conductors, cross-arms, insulators, transformers,
              lightning arresters, disconnect switches, and other apparatus and
              equipment comprising, or reasonably appurtenant to, said electric
              transmission lines.
              The Grantors reserve the use of the above described land not
              inconsistent with this grant, with the right to extend fences across
              the same. The Grantee shall not fence said land, but may put

      Court of Appeals of Indiana | Memorandum Decision 10A04-1605-PL-1084 | March 29, 2018   Page 2 of 16
        gates in any fences now or hereafter built thereon by the
        Grantors. Access to the above described land by way of
        established roads, lanes or driveways is hereby given.
        The Grantee may at any and all times trim, retrim, cut down or
        remove, without further payment, trees, bushes, saplings or other
        obstructions upon or extending over said land, so far as may
        reasonably be necessary in the construction, operation and
        maintenance of said lines.
        The Grantees shall and will indemnify and save the Grantors
        harmless from and against any and all damages, injuries, losses,
        claims, demands or costs proximately caused by the fault,
        culpability, or negligence of the Grantee in the construction,
        erection, maintenance, operation, repair or removal of said
        electric transmission lines and the structures and appurtenances
        connected therewith.
        Any damages to crops, fences, gates, drains, ditches or buildings
        of the Grantor done by the Grantee in the erection, repair,
        replacement or renewal of said towers, (illegible) wires, cables or
        equipment shall be promptly repaired, replaced or paid for by the
        Grantee, provided a claim thereof is presented with the Grantee
        at its General Office within thirty (30) days after such damages
        occur.
Appellant’s App. Vol. II, pp. 23-24. A second easement was granted to PSI by

Henry G. and Nettie E. Zipp dated October 2, 1956, and was recorded

sometime in October 1956. The rights granted by the Zipps appear to be
                                                                    1
consistent with the rights granted by the Yochems.




1
 The transmission line right of way includes a small, triangular portion within the Zipp easement, with the
majority of the transmission line right of way lying within the Yochem easement. Appellant’s App. Vol. VI,
p. 34 (Affidavit of Brian K. Lundy). We will refer to the Yochem and Zipp easements collectively as “the
easement” or “the recorded easement.”

Court of Appeals of Indiana | Memorandum Decision 10A04-1605-PL-1084 | March 29, 2018           Page 3 of 16
[3]   Duke, a public utility serving the southern two-thirds of Indiana and elsewhere,

      is the successor-in-interest to PSI and holds the dominant interest under the

      easement. There is no evidence in the record to suggest that Duke, or any other

      successor-in-interest since PSI, has relocated the towers from their original

      placement within the easement, but instead, has maintained and operated the

      towers in a manner consistent with the terms of the easement.


[4]   In 2013, J & J, a limited liability company which has its principal office in
                                                                                          2
      Clark County, retained David R. Blankenbeker (Blankenbeker), a certified

      surveyor, to prepare plats for two residential subdivisions–Waters of Millan and

      Plains of Millan. The Plains of Millan subdivision is adjacent to the easement.

      Blankenbeker has prepared hundreds of residential subdivision plats for tracts of

      land in the area and has designed plats for property encumbered by utility

      easements. The real property is located along State Road 60, and the two

      parcels total, in the aggregate, 118.97 acres. The infrastructure/improvements

      at issue here involve those associated with the Plains of Millan residential

      subdivision.


[5]   Blankenbeker designed a primary plat for an R-1 district, and the Clark County

      Plan Commission (CCPC) approved it after the public hearing held on January

      8, 2014. On March 12, 2014, the petition of Dr. Joselito and Carla Millan

      requesting to rezone the property from A-1 Agricultural to R-1 Single Family



      2
        Blankenbeker was also the duly elected Clark County Surveyor. He abstained from voting on issues
      involving the property at public hearings in the county addressing such.

      Court of Appeals of Indiana | Memorandum Decision 10A04-1605-PL-1084 | March 29, 2018         Page 4 of 16
      Residential was approved by the CCPC and was recommended to the Clark

      County Board of Commissioners (CCBC). The CCBC approved the rezoning

      on March 27, 2014. The secondary, or final, plat was approved by the CCPC

      on June 11, 2014.


[6]   J & J acquired the property from the Millans on July 28, 2014, and now holds

      the servient interest under the easement. The final plat was recorded on

      September 2, 2015.


[7]   In furtherance of developing the Plains of Millan, J & J has established either

      wholly or partly within the easement, the following

      infrastructure/improvements: (1) a graded roadway designated as Palermo

      Street, which J & J plans to pave, curb and gutter to connect the landlocked

      subdivision with State Highway 60; (2) underground utilities consisting of a

      sanitary sewer line of the Town of Sellersburg (the Town), the water line of

      Silver Creek Water Company, the electric line of Clark County REMC, the

      natural gas line of Vectren Energy and the cables of Insight Cable Company

      and AT&T; (3) a fire hydrant which rises less than four feet above the ground

      and a few electric termination boxes which rise approximately three feet above

      the ground; (4) two storm water detention basins designed to contain storm

      water runoff temporarily and empty at a controlled rate within hours, excavated

      to a maximum depth of eleven feet; and, (5) five concrete storm water culverts

      at ground level. Id. at 25.




      Court of Appeals of Indiana | Memorandum Decision 10A04-1605-PL-1084 | March 29, 2018   Page 5 of 16
[8]    Regarding the sanitary sewer service to be provided to the homes in the Plains

       of Millan, an extension of the collection system owned and operated by the

       Town was required to connect to the Town’s system. To accomplish that, J & J

       needed to install a small diameter pressure main within a sanitary sewer

       easement running through Duke’s easement to connect two lift stations owned

       and operated by the Town. The Town issued to J & J a sanitary sewer

       construction permit which included a condition requiring J & J to obtain

       Duke’s approval prior to construction of the main.


[9]    A principal of J & J, Jeff Corbett (Corbett), contacted Duke as requested by the

       Town to notify Duke about the Plains of Millan development and to inform

       Duke that J & J needed to extend a sanitary sewer line through the Duke

       easement. Gary McNamee (McNamee), an asset protection specialist

       employed by Duke, corresponded by email with Corbett, expressing concerns

       about perceived encroachments caused by the infrastructure/improvements and

       alleging that they were in violation of Duke’s easement rights under the

       recorded easement and a Duke guidelines and restrictions document.


[10]   Duke had generated a document entitled “Electric Transmission Right-Of-Way

       Guidelines/Restrictions Valid For Ohio, Indiana and Kentucky.” Id. at 54.

       McNamee sent a copy of this document, reflecting that it had been revised on

       November 20, 2014, to Corbett. The document contained the statement that it

       was developed to provide Duke’s interpretation of and answers to the most

       frequently asked questions about how property owners–presumably those with

       a servient interest–may use Duke’s electric transmission rights of way. The

       Court of Appeals of Indiana | Memorandum Decision 10A04-1605-PL-1084 | March 29, 2018   Page 6 of 16
       document further declared the authority to change the list of restrictions at any

       time without notice. Duke further took the position in the document that all

       activity by others within a Duke easement was required to receive prior review

       and approval by a Duke asset protection right-of-way specialist.


[11]   Blankenbeker and McNamee attempted to resolve the dispute between Duke

       and J & J prior to litigation. Duke maintained that the

       infrastructure/improvements constituted impermissible encroachments on its

       easement and insisted that J & J remove them. Duke asserted its position was

       supported by both the recorded easement and Duke’s guidelines/requirements.

       J & J, on the other hand, maintained that the infrastructure/improvements did

       not violate, interfere with, or obstruct Duke’s enjoyment of its rights under the

       easement.


[12]   J & J filed a verified complaint against Duke in which it asserted claims for

       inverse condemnation and sought declaratory and injunctive relief. Duke filed

       its answer, affirmative defenses, and counterclaim on August 24, 2015. In its

       counterclaim, Duke sought the following: (1) a declaratory judgment

       concerning the validity and scope of its easements and J & J’s interference with

       those rights; (2) an alternative claim for a declaratory judgement concerning the

       validity and scope of a prescriptive easement and J & J’s interference with those

       rights; and, (3) injunctive relief to enforce easement rights and damages.




       Court of Appeals of Indiana | Memorandum Decision 10A04-1605-PL-1084 | March 29, 2018   Page 7 of 16
[13]   J & J filed a First Amended Verified Complaint on September 22, 2015. The
                                                                                                                   3
       amendment added several defendants so they could answer as to their interests.

       This complaint also asked for the following: (1) a declaratory judgment that J

       & J’s construction does not unreasonably interfere with Duke’s use of its

       easement; (2) a permanent injunction prohibiting Duke from requiring the

       removal of construction in Duke’s easement; (3) damages for Duke’s alleged

       tortious interference with J & J’s contractual and business relationships; (4)

       damages under the Indiana frivolous litigation statute; and, (5) an alternative

       claim for inverse condemnation if the trial court required J & J to remove the

       construction in Duke’s easement.


[14]   On November 16, 2015, J & J filed a motion for partial summary judgment on

       the issues of declaratory and injunctive relief. After the designation of evidence

       by the parties, the trial court granted J & J’s motion for partial summary

       judgment on its claim for declaratory relief. Although Duke contends in its

       opening brief that the trial court denied J & J’s request for summary judgment

       as to injunctive relief, Appellant’s Br. at 6, the trial court declined to rule on

       that issue stating in its order as follows:


                The court finds that issues relevant to Injunctive Relief has [sic]
                so far taken a back seat to the issues relevant to Declaratory
                Judgment. The court finds it would benefit from a further



       3
         The trial court found that the main controversy was between Duke and J & J. The additional defendants’
       interests can be summarized as either neutral or supportive of J & J’s position. Those defendants seek to
       avoid liability in the event the infrastructure needs to be removed. We note that under Indiana Trial Rule 17
       (A), however, “a party of record . . . shall be a party on appeal.” Ind. Tr. Rule 17(A).

       Court of Appeals of Indiana | Memorandum Decision 10A04-1605-PL-1084 | March 29, 2018            Page 8 of 16
               hearing specifically on the issue of Injunctive Relief. The court
               will schedule such hearing upon motion of either party.
       Appellant’s App. Vol. II, p. 34.


[15]   Duke filed its notice of appeal from the trial court’s order. J & J filed a motion

       to dismiss the appeal or, in the alternative, confirmation from this Court that

       the trial court’s order was final and appealable as a matter of right. We

       dismissed the appeal, but later granted Duke’s petition for rehearing on the

       dismissal. The appeal was reinstated, we resumed jurisdiction and stayed the

       trial court proceedings pending the outcome of the appeal.


[16]   Duke raises several issues, the following of which is dispositive:


               1. Did the trial court apply an incorrect legal standard when
               granting partial summary judgment in favor of J & J on its
               request for a declaratory judgment?
       Duke responds to J & J’s cross-appeal issue regarding injunctive relief with a

       dispositive argument, which we restate as follows:


               2. Does the Court of Appeals have jurisdiction over the issue of
               injunctive relief when the issue has not been decided and reduced
               to a final appealable judgment?

                                                         1.
[17]   Duke challenges the trial court’s grant of partial summary judgment,

       contending that the trial court made credibility determinations and decided

       genuine issues of material fact. “The standard of review for a partial summary

       judgment is the same as that used in the trial court: summary judgment is

       appropriate only where the evidence shows that there is no genuine issue of

       Court of Appeals of Indiana | Memorandum Decision 10A04-1605-PL-1084 | March 29, 2018   Page 9 of 16
       material fact and that the moving party is entitled to judgment as a matter of

       law.” Ballard v. Lewis, 8 N.E.3d 190, 193 (Ind. 2014). “Where the challenge to

       the trial court’s summary judgment ruling presents only legal issues, not factual

       ones, the issues are reviewed de novo.” Id. “The party seeking summary

       judgment must demonstrate the absence of any genuine issue of fact as to a

       determinative issue, and only then is the non-movant required to come forward

       with contrary evidence.” Jarboe v. Landmark Cmty Newspapers of Ind., Inc., 644

       N.E.2d 118, 123 (Ind. 1994).


[18]   When a trial court rules on a motion for summary judgment, not only are all

       facts to be construed in favor of the non-moving party but also all reasonable

       inferences to be drawn from those facts. Auto-Owners Ins. Co. v. Harvey, 842

       N.E.2d 1279 (Ind. 2006). A trial court must accept as true those facts alleged

       by the non-moving party and resolve all doubts against the moving party. Id.


[19]   In this case, the trial court entered detailed findings of fact and conclusions of

       law in support of its judgment. Neither is required nor prohibited in the

       summary judgment context. Knighten v. East Chicago Housing Auth., 45 N.E.3d

       788 (Ind. 2015). While specific findings aid appellate review of a summary

       judgment ruling, they are not binding. City of Gary v. Indiana Bell Tel. Co., Inc.,

       732 N.E.2d 149 (Ind. 2000). A trial court’s findings and conclusions supporting

       its summary judgment order offer insight into the rationale of the trial court’s

       judgment. Winchell v. Guy, 857 N.E.2d 1024 (Ind. Ct. App. 2006).




       Court of Appeals of Indiana | Memorandum Decision 10A04-1605-PL-1084 | March 29, 2018   Page 10 of 16
[20]   Here, it is evident from the trial court’s order that the trial court, in determining

       whether there was a genuine issue of material fact, made credibility

       determinations involving issues that were in dispute. At the summary judgment

       stage of litigation, it is not the trial court’s role to weigh evidence or judge the

       credibility of witnesses and then make findings of fact. Dickerson v. Strand, 904

       N.E.2d 711 (Ind. 2009). Where the evidence is in conflict, or undisputed facts

       lead to conflicting inferences, summary judgment should not be granted, even if

       it appears that the non-movant will not succeed at trial. Id. Summary

       judgment proceedings should not be used as an abbreviated trial. Id.


[21]   In Finding of Fact Number 17, the trial court, when referring to the affidavit of

       Duke employee Martin Dickey, states, “The court specifically finds this

       assertion not credible. . . .” Appellant’s App. Vol. II, p. 27. Dickey had stated

       in his affidavit that the intersection created for ingress and egress related to the

       subdivision affected Duke’s ability to stage a laydown necessary for repairs in

       the event of outages. Appellant’s App. Vol. VI, pp. 40-49. The trial court

       found that “The road makes access to this [nearby] flat field easier, not more

       difficult. The field is obviously a more appropriate laydown or staging area

       than the intersection. . . .” Appellant’s App. Vol. II, p. 27.


[22]   Additionally, in its conclusions of law, the trial court states, “The trier of fact is

       satisfied that Developer acted in good faith in refraining from placing anything

       in the easement that might practically encroach upon Duke Energy’s rights as

       the owner of the Dominant interest or endanger the public.” Id. at 33

       (emphasis added).

       Court of Appeals of Indiana | Memorandum Decision 10A04-1605-PL-1084 | March 29, 2018   Page 11 of 16
[23]   These findings and conclusions lead us to decide that the trial court did not
                                                                                                    4
       apply the correct legal standard for purposes of summary judgment, which

       required the determination whether there was a genuine issue of material fact.

       On this basis the matter should be remanded to the trial court.


[24]   Remand is necessary on a further basis. The purpose of the Uniform
                                            5
       Declaratory Judgment Act “is to settle and to afford relief from uncertainty and

       insecurity with respect to rights, status and other legal relations; and is to be

       liberally construed and administered.” Here, both parties’ rights are spelled out

       in the recorded easement. Although the parties agree that the recorded

       easement is unambiguous, the controversy to be resolved involves differing

       interpretations of the rights as reflected in the recorded easement.


[25]   When interpreting an unambiguous instrument granting easement rights, we

       interpret the instrument as a matter of law from the plain and ordinary meaning

       of the language of the grant. McCauley v. Harris, 928 N.E.2d 309 (Ind. Ct. App.

       2010). Individual words and particular phrases cannot be read alone. Id.

       Instead, the parties’ intention is to be ascertained from the instrument as a




       4
         Findings of fact and conclusions of law were entered and would normally trigger the clearly erroneous
       standard of review. Because the findings and conclusions were entered in the context of summary judgment,
       our decision is based upon the Indiana Trial Rule 56(C) materials properly before the trial court. Campbell v.
       Spade, 617 N.E.2d 580 (Ind. 1993).
       5
           Ind. Code § 34-14-1-12 (1998).


       Court of Appeals of Indiana | Memorandum Decision 10A04-1605-PL-1084 | March 29, 2018            Page 12 of 16
       whole. Id. If there is any doubt or uncertainty as to the construction of the

       language of the easement, we construe the language in favor of the grantee. Id.


[26]   In Finding of Fact Number 22, the trial court states as follows:


               The affidavits submitted by Duke Energy raise no concerns
               related to the new infrastructure as to routine maintenance,
               operation or access to its currently existing overhead lines,
               towers, poles and other appurtenances. The concerns expressed
               relate to the possible consequences of possible future
               contingencies, such as remedial actions required in the event of a
               natural disaster or the unlikely major reconfiguration of the
               towers.
       Appellant’s App. Vol. II, p. 29.


[27]   In part, the express, undisputed language of the easement grants to Duke “the

       perpetual right, privilege, easement and authority to enter upon the real estate

       hereinafter described and, now or in the future, there to construct, erect,

       maintain, operate, inspect, patrol, repair, replace, extend, renew and/or remove

       two (2) lines of metal towers supporting one or more electric transmission lines.

       . . .” Id. at 23. Remedial actions would include repair, replacement, or removal

       of the towers now or in the future. Duke’s affidavits, specifically the Dickey

       affidavit, conflict with J & J’s affidavits, specifically the Blankenbeker affidavit,

       regarding the placement of the road and the detention basins and the effect of

       that placement on the rights of the parties. Thus, to the extent there is any

       doubt or uncertainty as to the construction to be given to the granting language,

       the uncertainty must be resolved in favor of the grantee, in this case Duke. See

       McCauley, 928 N.E.2d 309. Granting partial summary judgment was improper.

       Court of Appeals of Indiana | Memorandum Decision 10A04-1605-PL-1084 | March 29, 2018   Page 13 of 16
                                                                   2.
[28]   Duke contends that this Court lacks jurisdiction over J & J’s cross-appeal issue

       because an order declining to enter a permanent injunction is neither a final,
                                                                                                                 6
       appealable order nor an interlocutory order appealable as a matter of right.

       Duke argues in the alternative that if we have jurisdiction over this issue, the

       issue is of no merit.


[29]   Indiana Appellate Rule 5 defines the jurisdiction of the Indiana Court of

       Appeals. Subsection A provides, with certain exceptions, that “the Court of

       Appeals shall have jurisdiction in all appeals from Final Judgments of Circuit,

       Superior, Probate, and County Courts, notwithstanding any law, statute or rule

       providing for appeal directly to the Supreme Court of Indiana.” Subsection B

       provides that the “Court of Appeals shall have jurisdiction over appeals of

       interlocutory orders under Rule 14” with certain exceptions.


[30]   In its opening brief, Duke asserted that the trial court denied J & J’s request for

       permanent injunctive relief. Duke’s argument in response to J & J’s cross-

       appeal is that the trial court declined to rule on J & J’s request for permanent

       injunctive relief. Relying on that position, Duke argues that J & J’s cross-

       appeal should be dismissed because it is neither a final judgment as defined by

       Indiana Appellate Rule 2(H), nor is it reviewable under Indiana Appellate Rule




       6
         Duke has filed a motion to strike the portion of J & J’s brief raising the cross-appeal issue, and J & J has
       filed a response to the motion. We have issued a separate order addressing the motion and response.

       Court of Appeals of Indiana | Memorandum Decision 10A04-1605-PL-1084 | March 29, 2018               Page 14 of 16
       14. We agree that the portion of the trial court’s order addressing the request

       for permanent injunctive relief is not reviewable under either of those rules.


[31]   J & J asserts that because this Court previously deemed the trial court’s order a

       final appealable order, its issue on cross-appeal is reviewable. The basis for this

       Court’s order, however, was Duke’s argument that the grant of partial summary

       judgment on J & J’s request for a declaratory judgment was a final judgment

       under Indiana Code section 34-14-1-1. That statute provides that the trial

       court’s “declaration has the force and effect of a final judgment or decree.” The

       request for permanent injunctive relief, which was not decided, does not fall

       under that statute as no rights of parties were declared. Thus, the final

       judgment here only covers the issues addressed, and injunctive relief was not

       among those issues. The issue must be reviewable on other grounds.


[32]   J & J further contends that the issue is properly before this Court under Indiana

       Appellate Rule 46(D)(2). That portion of the rule addresses the contents of an

       appellee’s brief, providing “the appellee’s brief shall contain any contentions the

       appellee raises on cross-appeal as to why the trial court or Administrative

       Agency committed reversible error.”


[33]   The trial court reserved judgment on the issue of permanent injunctive relief for

       decision at a later date after an evidentiary hearing where only that issue was

       addressed. While a party is obligated by the appellate rules to include cross-

       appeal issues alleging reversible error, a party is not obligated or required by the

       appellate rules to include on cross-appeal issues that have not yet been decided.


       Court of Appeals of Indiana | Memorandum Decision 10A04-1605-PL-1084 | March 29, 2018   Page 15 of 16
       We agree with Duke’s argument that J & J’s cross-appeal issue should be

       dismissed, and it is dismissed without prejudice so that the parties can resolve

       the issue before the trial court should they choose to do so.


[34]   In light of the foregoing, the trial court’s judgment is reversed and the matter is

       remanded for further proceedings.


[35]   Judgment reversed and remanded.


       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 10A04-1605-PL-1084 | March 29, 2018   Page 16 of 16
