                                                                                    FILED
                                                                               Apr 27 2017, 11:11 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
VECTREN ENERGY                                             INDIANA UTILITY
Robert E. Heidorn                                          REGULATORY COMMISSION
P. Jason Stephenson                                        Curtis T. Hill, Jr.
Vectren Corporation                                        Attorney General of Indiana
Evansville, Indiana
                                                           David Lee Steiner
Wayne C. Turner                                            Deputy Attorney General
Patrick A. Ziepolt                                         Indianapolis, Indiana
Hoover Hull Turner LLP
                                                           Beth E. Heline
Indianapolis, Indiana
                                                           General Counsel
ATTORNEY FOR AMICUS CURIAE                                 Jeremy R. Comeau
INDIANA ENERGY ASSOCIATION                                 Assistant General Counsel
Brian J. Paul                                              Indianapolis, Indiana
Indianapolis, Indiana                                      ATTORNEYS FOR APPELLEE
                                                           INDIANA OFFICE OF
                                                           UTILITY CONSUMER
                                                           COUNSELOR,
                                                           Randall C. Helmen
                                                           Lorraine Hitz-Bradley
                                                           Jeffrey M. Reed
                                                           Indianapolis, Indiana
                                                           ATTORNEYS FOR AMICUS
                                                           CURIAE
                                                           INDIANA INDUSTRIAL
                                                           ENERGY CONSUMERS, INC.
                                                           Todd A. Richardson
                                                           Jennifer W. Terry
                                                           Joseph P. Rompala
                                                           Indianapolis, Indiana




Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017                    Page 1 of 23
                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Indiana Gas Company, Inc. and                              April 27, 2017
      Southern Indiana Gas & Electric                            Court of Appeals Case No.
      Company,                                                   93A02-1604-EX-943
      Appellants-Petitioners,                                    Appeal from the Indiana Utility
                                                                 Regulatory Commission
              v.                                                 The Honorable Loraine L.
                                                                 Seyfried, Chief Administrative
      Indiana Utility Regulatory                                 Law Judge
      Commission, et al,                                         The Honorable Carol A. Stephan,
      Appellee-Statutory Parties.                                Commissioner
                                                                 Indiana Utility Regulatory
                                                                 Commission Cause Nos.
                                                                 44429-TDSIC-3
                                                                 44430-TDSIC-3



      Pyle, Judge.


                                         Statement of the Case
[1]   This case concerns the interpretation of INDIANA CODE § 8-1-39-1 et seq, the

      Transmission, Distribution, and Storage System Improvement Charges and

      Deferrals (“TDSIC”) statute (“TDSIC statute”). Specifically, the parties

      dispute whether a utility may, once it has established a seven-year plan for its

      transmission, distribution, and storage system improvements under Section 10

      of the TDSIC statute, update its seven-year plan by adding new projects under

      Section 9 of the TDSIC statute. Appellants/Plaintiffs, Indiana Gas Company,

      Inc. (“Vectren North”) and Southern Indiana Gas & Electric Company

      Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017                Page 2 of 23
      (“Vectren South”) (collectively, “Vectren”), filed a petition with the Appellee,

      Indiana Utility Regulatory Commission (“the Commission”), under Section 9

      of the TDSIC statute, requesting to update their seven-year Section 10 TDSIC

      plan with additional projects. The Commission partially denied Vectren’s

      petition, and now Vectren appeals the Commission’s denial. The Indiana

      Office of Utility Consumer Counselor (“OUCC”) is also an Appellee, and we

      will refer to the Commission and the OUCC collectively as “the Appellees.”


[2]   On appeal, Vectren argues that the Commission erred when it partially denied

      their petition because the Commission misinterpreted the TDSIC statute. They

      also argue that the Commission should be barred from denying their petition on

      the basis of res judicata. Because we conclude that the Commission did not

      misinterpret the TDSIC statute and the doctrine of res judicata does not apply,

      we affirm the Commission’s decision.


[3]   We affirm.


                                                      Issues
              1. Whether the Commission erred when it partially denied
              Vectren’s petition to update its seven-year TDSIC plan.

              2. Whether the Commission should be barred from denying
              Vectren’s petition to add new projects under the doctrine of res
              judicata.




      Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017   Page 3 of 23
                                                         Facts1
[4]   Traditionally, a utility’s rates charged to customers are adjusted through

      periodic general rate cases. These can be “expensive, time consuming, and

      sometimes result in large, sudden rate hikes for customers.” NIPSCO Indus.

      Group v. N. Ind. Pub. Serv. Co., 31 N.E.3d 1, 4 (Ind. Ct. App. 2015). Another way

      to adjust rates is through a “tracker” proceeding, which is a cost-recovery

      proceeding that allows smaller increases in rates so that a utility can recover

      costs for specific projects between general rate case proceedings. 2 Id.


[5]   In 2013, the Legislature enacted the TDSIC statute, INDIANA CODE § 8-1-39-1

      et seq, which allows a utility to petition for a tracker proceeding for new or

      replacement electric or gas transmission, distribution, or storage projects, and

      thereby recover its costs in a timelier manner than through a general rate case.

      Under Section 10 of the TDSIC statute (“Section 10”), a utility may create a

      seven-year plan for its predicted transmission, distribution, and storage

      improvements and may seek approval of that plan from the Commission. IND.

      CODE § 8-1-39-10. Following notice and a hearing on the petition, the

      Commission is required to issue an order that includes the following:




      1
        We held an oral argument in this case on April 11, 2017 in the Indiana Court of Appeals courtroom. We
      thank counsel for their excellent preparation and presentation.
      2
        The Appellees clarify in their brief that “[r]ate adjustment mechanisms (the statutory term) are commonly
      referred to as ‘trackers,’ as the approved rate changes track the costs of the approved projects.” (Appellees’
      Br. 20).

      Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017                            Page 4 of 23
              (1) A finding of the best estimate of the cost of the eligible
              improvements included in the plan.

              (2) A determination whether public convenience and necessity
              require or will require the eligible improvements included in the
              plan.

              (3) A determination whether the estimated costs of the eligible
              improvements included in the plan are justified by incremental
              benefits attributable to the plan.

      I.C. § 8-1-39-10(b). Section 10 provides that “[i]f the [C]ommission determines

      that the public utility’s seven (7) year plan is reasonable, the [C]ommission shall

      approve the plan and designate the eligible transmission, distribution, and

      storage improvements included in the plan as eligible for TDSIC treatment.”

      Id.


[6]   Once the Commission has approved a utility’s Section 10 seven-year plan, the

      utility may recover 80% of the capital expenditures and costs approved by the

      Commission, although it must wait to recover the remaining 20% during its

      next general rate case. During the seven years of the plan, the utility may

      petition to recover 80% of its costs or for an “update” of the plan under Section

      9 of the TDSIC statute (“Section 9”). A utility’s Section 9 petition must, in

      relevant part:

                                                  *        *        *

              (2) include the public utility’s seven (7) year plan for eligible
              transmission, distribution, and storage system improvements;
              and

              (3) identify projected effects of the plan described in subdivision
              (2) on retail rates and charges.

      Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017      Page 5 of 23
      I.C. § 8-1-39-9(a). The utility is also required to “update” its seven-year plan

      “with each petition the public utility files under [Section 9].” Id.


[7]   Vectren North and Vectren South are two Indiana gas utilities that do business

      as Vectren Energy Delivery of Indiana and that provide Indiana consumers

      with natural gas utility services. The two utilities received approval for their

      seven-year TDSIC plans in 2013 in Cause Numbers 44429 and 44430,

      respectively. These causes were largely consolidated before the Commission

      and are completely consolidated on appeal.


[8]   Vectren’s original seven-year plan included project-by-project details for only

      the first year and contained cost estimates for years two through seven. In its

      order approving the plan, the Commission found that “the projects in Years 2

      through 7 were presumed to be eligible improvements subject to further

      definition and specifics being provided in updates to the Plan.” (App. Vol. 2 at

      10). It approved an update process whereby Vectren would “move [its]

      upcoming year-specific projects into a work-order level of detail,” each year,

      similar to the work-order level of detail it had provided for year one. (App. Vol.

      2 at 62).


[9]   Subsequently, the OUCC appealed the Commission’s approval of Vectren’s

      seven-year plan on grounds that are not relevant for the instant appeal.

      However, Vectren Industrial Group intervened in that appeal and argued that

      the Commission had erred in approving the seven-year plan because it lacked




      Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017   Page 6 of 23
       sufficient detail. See Ind. Office of Util. Consumer Counselor v. S. Ind. Gas & Elec.

       Co., No. 93A02-1409-EX-668 (Ind. Ct. App. June 11, 2015).


[10]   In the meantime, while the appeal of Vectren’s seven-year plan was pending,

       Vectren petitioned for its first update to the plan (“TDSIC Update-1”) under

       Section 9 of the TDSIC statute. On January 14, 2015, the Commission

       approved the update, which included new projects that were not a part of

       Vectren’s seven-year plan.


[11]   Thereafter, this Court decided a case—NIPSCO Industrial Group (“NIPSCO”)—

       in which we found that NIPSCO’s seven-year plan, which was similar to

       Vectren’s seven-year plan in the instant case, was not sufficient under the

       TDSIC statute. NIPSCO Indus. Group, 31 N.E.3d at 4. Specifically, NIPSCO,

       the utility at issue, had a seven-year plan that “provided sufficient detail of the

       plan for only the first of the seven years” and included “general categories of

       spending, separated primarily by function rather than specific projects in Years

       2 through 7.” Id. at 6. The Commission had approved the plan and, even

       though it had found that only year one had sufficient detail, established a

       “presumption of eligibility” for years two through seven. Id. at 4. NIPSCO

       was required to annually update the plan through an informal process. Id.


[12]   The NIPSCO Industrial Group, which was a “group of some of NIPSCO’s

       largest industrial customers,” appealed the Commission’s approval of

       NIPSCO’s seven-year plan. Id. It argued that the Commission had erred by

       allowing NIPSCO to identify the proposed projects for only the first year of the


       Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017      Page 7 of 23
       seven-year plan and by establishing a presumption of eligibility for years two

       through seven. Id. at 6. In response, NIPSCO argued that it needed some

       flexibility in its seven-year plan to deal with changing conditions. See id. at 8.

       This Court agreed with the NIPSCO Industrial Group, holding that:

               [T]he plan provided to the Commission simply did not contain
               enough detail for the Commission to determine whether
               NIPSCO’s plan for years two through seven was “reasonable” or
               to determine a “best estimate of the cost” of the improvements
               [as required under Section 10 of the TDSIC statute]. We
               acknowledge the arguments on appeal that a utility needs some
               flexibility to deal with changing conditions. Clearly, NIPSCO
               requires some flexibility in completing the seven-year plan
               because some equipment may need to be replaced earlier or later
               than initially planned. Even the OUCC acknowledged that some
               flexibility is required . . . . The OUCC proposed that NIPSCO
               submit an updated plan annually “concurrent with its Fall
               TDSIC tracker filing” and that the parties [] have the opportunity
               to contest the revised plans. We believe that the legislature
               anticipated the necessity of flexibility when it enacted the
               updating process of [INDIANA CODE] § 8-1-39-9. The updating
               process does not, however, relieve the utility of providing an
               initial seven-year plan that meets the statutory requirements.
               Allowing for flexibility in a plan is not the same thing as not
               having a plan at all. We conclude that the Commission erred by
               approving NIPSCO’s seven-year plan given its lack of detail
               regarding the projects for years two through seven.

       Id. We also concluded that the Commission was not authorized to establish a

       presumption of eligibility in a seven-year TDSIC plan. Id. at 9.


[13]   On April 1, 2015, a week before we issued our opinion in NIPSCO, Vectren

       filed its second petition for an update to its seven-year plan (“TDSIC Update-


       Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017   Page 8 of 23
       2”) under Section 9 of the TDSIC statute. However, after NIPSCO was handed

       down, Vectren “withdrew its testimony related to its TDSIC [p]rojects, thereby

       delaying consideration of the update” until its next filing. (App. Vol. 2 at 11).

       Vectren indicated that the delay would allow this Court to address Vectren

       Industrial Group’s appeal of Vectren’s seven-year plan, which we had not yet

       decided, and would allow it to “work with the OUCC on the level of project

       detail to be provided regarding its TDSIC [p]rojects” in light of NIPSCO. (App.

       Vol. 2 at 11).


[14]   Meanwhile, the Vectren Industrial Group cited the NIPSCO decision in its

       pending appeal regarding Vectren’s seven-year plan, and Vectren moved to

       strike that citation. Ultimately, this Court issued a memorandum opinion in

       that appeal on June 11, 2015. We concluded that Vectren Industrial Group’s

       argument—that the Commission had erred by approving Vectren’s seven-year

       plan because it lacked sufficient detail—was waived because no group had

       raised it before the Commission in the underlying proceedings. See Ind. Office of

       Utility Consumer Counselor, No. 93A02-1409-EX-668 at *1 n.1.


[15]   Thereafter, on October 1, 2015, Vectren filed a third update petition (“TDSIC

       Update-3”) requesting, in part, approval for several projects that it had not listed

       in its original seven-year plan. Among other new projects, Vectren South

       proposed to install automatic meter reading equipment for its gas-only

       customers. It estimated that 27,500 meters would be impacted by the new

       project and that the cost would be $2.76 million. Vectren North also proposed

       several new projects. One such new project was a $67.34 million transmission

       Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017   Page 9 of 23
       system project Vectren North proposed for the Lafayette area. Vectren

       contended that the necessity of its proposed new projects could not have been

       predicted when it sought approval of the seven-year plan. The OUCC and the

       Commission did not oppose the need for, nor the cost of, the projects, but the

       Commission denied Vectren’s petition for the updates on the premise that it did

       not have authority to approve projects that were not included in Vectren’s

       original seven-year plan.


[16]   Specifically, the Commission construed Sections 9 and 10 of the TDSIC statute

       together and concluded that:

               The Merriam-Webster online dictionary defines “update” as, “to
               change (something) by including the most recent information; to
               make (something) more modern; to give (someone) the most
               recent information about something.” The “something” required
               to be updated in Section 9(a) is the utility’s seven-year plan for
               eligible improvements that was approved as reasonable under
               Section 10. Although the TDSIC [s]tatute does not include a
               specific definition of a “seven-year plan,” it is clear from a plain
               reading of Section 10(b) and [NIPSCO] that a “seven-year plan”
               consists of those projects that [] have been designated as eligible
               improvements based on the Commission’s findings concerning
               cost estimates, public convenience and necessity, and
               incremental benefits. Therefore, any update must reflect changes
               that have occurred to those designated eligible improvements
               since the utility’s last TDSIC filing. In addition, because our
               approval of the plan as reasonable was based on our
               determination of the best estimate of the cost of the eligible
               improvements, whether public convenience and necessity require
               the eligible improvements, and whether the estimated costs of the
               eligible improvements are justified by the incremental benefits, it
               seems reasonable that any update to the plan include changes to
               those factors we considered in approving the plan, i.e., changes

       Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017   Page 10 of 23
        in an eligible improvement’s cost estimate, necessity, and
        associated benefits. It may also include a request to approve a
        targeted economic development plan.

        We find this plain reading of the term update [in Section 9] to be
        supported when looking at the TDSIC [s]tatute as a whole. If a
        utility were allowed to change or alter its seven-year plan in any
        manner and without regard to its approved contents, it would
        defeat the requirement in Section 10 that the Commission
        evaluate the plan in its entirety to determine whether it is
        reasonable, to make specific findings concerning the cost
        estimates and the public convenience and necessity of the
        proposed eligible improvements, and to determine whether the
        estimated costs of the proposed eligible improvements are
        justified by the incremental benefits associated with the plan (i.e.,
        the list of identified projects). The [NIPSCO opinion] made a
        clear distinction between the scope of a Section 9 proceeding and
        that of a Section 10 proceeding. The Court of Appeals held that
        the Section 9 updating process could not relieve the utility from
        providing a seven-year plan with sufficient detail to satisfy the
        Section 10 requirements and allow for the Commission’s
        designation of the eligible improvements. As construed by the
        Court of Appeals, it is a function of a Section 10 proceeding, not
        a Section 9 proceeding, to designate eligible improvements. This
        conclusion is consistent with the definition of eligible
        improvement in Section 2, which requires that they be either (1)
        “designated in the public utility’s seven (7) year plan and
        approved by the [C]omission under [S]ection 10 of this chapter as
        eligible for TDSIC treatment” or (2) approved as a targeted
        economic development project.

        In addition, the TDSIC [s]tatute is a capital tracker, not an
        expense tracker. An expense tracker, such as the gas cost
        adjustment under [INDIANA CODE] § 8-1-2-42(g), permits a
        utility, within defined limits, to track and reconcile a specified
        category of costs incurred for a particular period of time. A
        capital tracker, such as the TDSIC or a compliance project under

Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017   Page 11 of 23
               [INDIANA CODE § 8-1-8.4], involves regulatory pre-approval of a
               defined scope of capital expenditures that the utility is permitted
               to reflect in rates through periodic adjustments and review
               without filing a general rate case. The purpose of plan approval
               under Section 10 is to define the set of eligible improvements that
               are designated as eligible for TDSIC treatment under Section 9.
               This interpretation is also consistent with the timeframes allotted
               for the review of a utility’s findings under Sections 9 and 10;
               Section 10 provides for a longer 210-day review, whereas Section
               9 provides for a shorter 90-day review period.

       (App. Vol. 2 at 13, 14) (footnotes omitted) (emphasis in original).


[17]   The Commission also concluded that the TDSIC statute does not “lock[]” a

       utility into making a particular set of investments. (App. Vol. 2 at 14). It noted

       that, instead, Vectren “has a statutory obligation to provide safe and reliable

       service—an obligation that existed prior to the TDSIC [s]tatute.” (App. Vol. 2

       at 14). The TDSIC statute

               simply altered the way in which a utility may seek cost recovery
               for satisfying that obligation . . . . Therefore, to the extent an
               investment is deemed appropriate to provide safe and reliable
               service, Vectren [] is expected to proceed whether tracker
               recovery under the TDSIC [s]tatute is available or not.

       (App. Vol. 2 at 14).


[18]   While it did not approve the projects that were not included in Vectren’s seven-

       year plan, the Commission did approve projects that fell within categories of

       projects Vectren had listed in its original seven-year plan. For example,

       “Service Line Replacements and Gas Communication Equipment” were

       designated project categories in Vectren South’s original seven-year plan. (App.


       Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017   Page 12 of 23
       Vol. 2 at 15). In TDSIC Update-3, Vectren identified the number of service

       lines it planned to replace each year by service area and provided additional

       detail identifying the types and costs of projects within the category. The

       Commission approved these projects, determining that they were included in

       Vectren’s original seven-year plan because they fell within a category included

       in the plan and contained sufficient detail.


[19]   Vectren now appeals the Commission’s partial denial of its petition to update its

       seven-year plan to include “new” projects. Indiana Energy Association has

       filed a “friend of the court” brief that aligns with Vectren, and Industrial Energy

       Consumers, Inc. has filed a “friend of the court” brief that aligns with the

       Appellees.


                                                     Discussion
[20]   On appeal, Vectren and the Appellees dispute whether: (1) the Section 9

       “update process” of the TDSIC statute allows a utility to update its Section 10

       seven-year plan to include new projects; and (2) the Commission was barred

       from denying Vectren’s Section 9 update petition by the doctrine of res judicata

       since it had agreed to Vectren’s update process.3 We will discuss each of these

       issues in turn.




       3
        Vectren also requests that we clarify whether, if it is not allowed to update its seven-year plan with new
       projects, it may file a replacement seven-year plan or an additional seven-year plan. However, this issue is
       not ripe as Vectren has not attempted to file a replacement or additional seven-year plan. See Texas v. U.S.,
       523 U.S. 296, 300 (1998) (stating that a claim is not ripe for adjudication if it rests upon “contingent future
       events that may not occur as anticipated, or indeed may not occur at all”). Accordingly, we will not address

       Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017                          Page 13 of 23
       1. Section 9 Update Process

[21]   First, Vectren asserts that the Commission erred when it concluded that the

       TDSIC statute does not allow a utility to update its seven-year plan with new

       projects through the Section 9 update process.


[22]   The Legislature created the Commission primarily as a fact-finding body with

       the technical expertise to administer the regulatory scheme devised by the

       Legislature. N. Ind. Pub. Serv. Co. v. U.S. Steel Corp., 907 N.E.2d 1012, 1015

       (Ind. 2009). The Commission’s assignment is to ensure that public utilities

       provide constant, reliable, and efficient service to the citizens of Indiana. Id.

       The Commission can exercise only power conferred upon it by statute. Id. Its

       authority also “‘includes implicit powers necessary to effectuate the statutory

       regulatory scheme.’” NIPSCO Indus. Group, 31 N.E.3d at 5 (quoting U.S.

       Gypsum, Inc. v. Ind. Gas Co., 735 N.E.2d 790, 795 (Ind. 2000)). Any doubts

       regarding the Commission’s statutory authority must be resolved against the

       existence of such authority. Id.


[23]   On matters within its jurisdiction, the Commission enjoys wide discretion. Id.

       at 5-6. On appellate review, we first review the entire record to determine

       whether there is substantial evidence to support the Commission’s findings of

       basic fact. Id. at 6. Next, we review ultimate facts, or mixed questions of fact




       this issue. See Cavallo v. Allied Physicians of Michiana, LLC, 42 N.E.3d 995, 1001 n.3 (Ind. Ct. App. 2015) (“A
       court may not review an issue that is not ripe.”).

       Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017                          Page 14 of 23
       and law, for their reasonableness, with the amount of deference owed

       depending on whether the issue falls or does not fall within the Commission’s

       expertise. Id. Finally, we review legal propositions for their correctness. Id.

       Specifically, “‘an agency action is always subject to review as contrary to law,

       but this constitutionally preserved review is limited to whether the Commission

       stayed within its jurisdiction and conformed to the statutory standards and legal

       principles involved in producing its decision, ruling, or order.’” Id. (quoting

       U.S. Steel Corp. v. N. Ind. Pub. Serv. Co., 951 N.E.2d 542, 551 (Ind. Ct. App.

       2011), reh’g denied, trans. denied).


[24]   The Commission’s ruling was based on its plain reading of Section 10,

       regarding the establishment of a utility’s seven-year plan, in conjunction with

       Section 9, regarding the updating of a utility’s seven-year plan. First, it

       concluded that the plain reading of the word “update” in Section 9 indicated

       that the term applied to only the projects that were designated in Vectren’s

       seven-year plan under Section 10. It cited the Merriam-Webster’s Dictionary’s

       definition of “update”—to “change (something) by including the most recent

       information; to make (something) more modern; to give (someone) the most

       recent information about something”—for the proposition that the “something”

       that a utility could change under Section 9 was a project designated and

       approved in its seven-year plan. (App. Vol. 2 at 13). The Commission

       concluded that this interpretation was supported by the statute as a whole,

       because “[i]f a utility were allowed to change or alter its seven-year plan in any

       manner and without regard to its approved contents, it would defeat the


       Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017   Page 15 of 23
       requirement in Section 10 that the Commission evaluate the plan in its

       entirety.” (App. Vol. 2 at 13).


[25]   Vectren argues that the Commission misinterpreted the statute with respect to

       the plain meaning of the word “update.” It asserts that the “something” a

       utility may change under Section 9 is the utility’s seven-year plan, not its

       individually designated projects. In support of this interpretation, Vectren

       argues that the legislative intent in enacting the TDSIC statute was to provide a

       timelier process for utilities to recover their costs, and a broader application of

       the word “update” would support that intent by qualifying a wider spectrum of

       projects for timely cost recovery.


[26]   Even if Vectren’s interpretation were plausible, it has not shown that the

       Commission’s interpretation was unreasonable. Although an agency’s

       interpretation of a statute presents a question of law entitled to de novo review,

       the agency’s interpretation is given “great weight.” Jay Classroom Teachers Ass’n

       v. Jay School Corp., 55 N.E.3d 813, 816 (Ind. 2016). If a court “determines that

       an agency’s interpretation is reasonable, it should terminate its analysis and not

       address the reasonableness of the other party’s proposed interpretation.” Dev.

       Servs. Alts., Inc. v. Ind. Family and Social Servs. Admin., 915 N.E.2d 169, 181 (Ind.

       Ct. App. 2009), trans. denied. Even if we accept Vectren’s argument that the

       Legislature’s intent in enacting the TDSIC statute was to provide a timely

       method of cost recovery for utilities, the Legislature clearly did not intend this

       cost-recovery method to apply to all projects, or even to as many projects as

       possible, as Vectren seems to suggest. Section 9 specifies that utilities may

       Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017   Page 16 of 23
       recover, at a maximum, only 80% of their costs. See I.C. § 8-1-39-9(a). In

       addition, Vectren has not alleged that the Legislature repealed the process

       utilities have for recovering their costs under a general rate case. Accordingly,

       it is clear that the Legislature intended for utilities to recover some of their costs

       through general rate cases rather than TDSIC update petitions.


[27]   Further, the Commission’s interpretation is consistent with the TDSIC statute

       as a whole. As the Commission noted, “[i]f a utility were allowed to change or

       alter its seven-year plan in any manner and without regard to its approved

       contents, it would defeat the requirement in Section 10 that the Commission

       evaluate the plan in its entirety.” (App. Vol. 2 at 13). Vectren disagrees and

       argues that allowing alterations would not defeat the Section 10 requirement

       because the Commission must still evaluate a plan in its entirety under a

       Section 9 proceeding. Specifically, Vectren contends that the Commission must

       determine that a Section 9 petition satisfies the “requirements of this chapter”

       and that its “capital expenditures and TDSIC costs are reasonable” before it

       approves the petition. I.C. § 8-1-39-12(c)). Because Section 10 is included in

       “this chapter,” Vectren contends that compliance with Section 10 is a

       component of the Section 9 petition review process.


[28]   However, Vectren’s argument proves the Commission’s point. If, as Vectren

       argues, each Section 9 update were equivalent to a Section 10 review and

       included the evaluation of new projects within the context of an overall seven-

       year plan, the Legislature need not have separated Sections 9 and 10 into

       distinct sections. Because the Legislature did separate the sections, the

       Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017    Page 17 of 23
       Commission’s conclusion that Sections 9 and 10 contemplate distinct processes

       was reasonable. Moreover, as the Commission noted, this conclusion is

       consistent with our NIPSCO decision, which “made a clear distinction between

       the scope of a Section 9 proceeding and that of a Section 10 proceeding.” 4

       (App. Vol. 2 at 13).


[29]   In addition, the Commission’s interpretation that new projects may only be

       added through a Section 10 seven-year petition is consistent with the TDSIC

       statute’s references to “eligible improvements.” Section 10 specifies that a

       public utility may petition the Commission for approval of “the public utility’s

       seven (7) year plan for eligible transmission, distribution, and storage

       improvements.” I.C. § 8-1-39-10 (emphasis added). Also under Section 10, if the

       Commission approves the plan, it designates the “‘eligible . . . improvements’

       included in the plan as eligible for TDSIC treatment.” I.C. § 8-1-39-10. Section

       2 of the TDSIC statute defines “eligible improvements” as:

               New or replacement electric or gas transmission, distribution, or
               storage utility projects that: . . . (3) either were: (A) designated in
               the public utility’s seven (7) year plan and approved by the [C]ommission
               under [S]ection 10 of this chapter as eligible for TDSIC treatment; or (B)
               approved as a targeted economic development project under
               section 11 of this chapter.




       4
        Vectren argues that the Commission erred by basing its argument on the NIPSCO decision because the
       NIPSCO decision concerned the establishment of a seven-year plan under Section 10, not the Section 9
       update procedure. We agree with Vectren that NIPSCO did not concern the Section 9 update procedure, but
       we need not address Vectren’s arguments because the Commission did not base its conclusion on our
       decision in NIPSCO. Instead, it is clear that the Commission merely cited the NIPSCO Court’s distinction
       between “the scope of a Section 9 proceeding and that of a Section 10 proceeding.” (App. Vol. 2 at 13).

       Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017                    Page 18 of 23
       I.C. § 8-1-39-2 (emphasis added). This definition requires that the Commission

       approve eligible improvements under either Section 10 or Section 11, not

       Section 9. Accordingly, the Commission’s conclusion that new projects may

       not be added through a Section 9 petition is consistent with the TDSIC statute’s

       treatment of “eligible improvements.”


[30]   Vectren contends that its interpretation that new projects may be added under

       Section 9 is not inconsistent with the TDSIC statute’s treatment of eligible

       improvements. In support of this contention, Vectren reiterates its argument

       that a Section 10 analysis must be a component of a Section 9 update because a

       Section 9 update must satisfy the “requirements of [the] chapter.” I.C. § 8-1-39-

       12(c)). Thus, “[f]inding that a plan must be approved under Section 10 and

       then updated under the requirements of Section 10 presents no conflict with the

       wording in Section 2.” (Vectren’s Br. 55). However, in making this argument,

       Vectren ignores the first part of the definition, which provides that eligible

       improvements be “designated in the utility’s seven (7) year plan.” See I.C. § 8-1-

       39-2. Even if Section 9 updates are evaluated under Section 10 criteria for

       reasonableness, they are not designated in the utility’s seven-year plan. Also, as

       the Appellees note, “[t]here is no corresponding definition for eligible

       improvements that are approved in a Section 9 update proceeding,” so the idea

       that a new project could be added to a seven-year plan has no basis in the

       language of the TDSIC statute. (Appellees’ Br. 24).


[31]   Because, as demonstrated above, the Commission’s interpretation of the

       Section 9 update procedure precluding the addition of new projects was

       Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017   Page 19 of 23
       consistent with the language of the TDSIC statute as a whole, we conclude that

       it was reasonable. Therefore, the Commission did not err, and we need not

       evaluate Vectren’s alternative interpretation. See Jay Classroom Teachers Ass’n, 55

       N.E.3d at 816 (quoting West, 54 N.E. 3d at 353) (“‘[I]f the agency’s

       interpretation is reasonable, we stop our analysis and need not move forward

       with any other proposed interpretation.’”).


       2. Res Judicata


[32]   Alternatively, Vectren argues that even if the TDSIC statute does not

       contemplate that new project updates may be added through a Section 9 update

       petition, the Commission should have been barred from denying its updates by

       the doctrine of res judicata. This argument is premised on Vectren’s contention

       that the Commission’s ruling in the third update proceeding contradicted: (1)

       its original approval of Vectren’s seven-year plan; (2) our decision to affirm the

       Commission’s approval of the seven-year plan on appeal; and (3) the

       Commission’s approval of TDSIC Update-1, which added new projects to the

       original seven-year plan. Specifically, the Commission’s TDSIC Update-3

       order did not allow Vectren to update its seven-year plan with new projects,

       even though the Commission had originally approved such an update process

       in Vectren’s original seven-year plan.


[33]   Vectren’s argument falls under the “collateral estoppel” or “issue preclusion”

       branch of res judicata. “Collateral estoppel” is applicable when a particular

       issue is adjudicated and then is put into issue in a subsequent suit on a different


       Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017   Page 20 of 23
       cause of action between the same parties or those in privity with them. Watson

       Rural Water Co., Inc. v. Ind. Cities Water Corp., 540 N.E.2d 131, 135 (Ind. Ct.

       App. 1989), trans. denied, reh’g denied. Because the concept of “claims” and

       “causes of action” are less important in administrative proceedings, most

       problems of res judicata in administrative law involve collateral estoppel. Id.

       To determine whether an administrative decision should bar or estop

       subsequent litigation, the following criteria should be considered: (1) whether

       the issues sought to be estopped were within the statutory jurisdiction of the

       agency; (2) whether the agency was acting in a judicial capacity; (3) whether

       both parties had a fair opportunity to litigate the issues; and (4) whether the

       decision of the administrative tribunal could be appealed to a judicial tribunal.

       Id.


[34]   Vectren has not presented argument on any of these four criteria, so we

       conclude that it has waived its res judicata claim. See Ind. Appellate Rule

       46(A)(8)(a) (“The argument must contain the contentions of the appellant on

       the issues presented, supported by cogent reasoning. Each contention must be

       supported by citations to the authorities, statutes, and the Appendix or parts of

       the Record on Appeal relied on . . . .”); GHPE Holdings LLC v. Huxley, 69

       N.E.3d 513, 520 (Ind. Ct. App. 2017) (holding argument was waived for failing

       to support arguments with cogent reasoning or citation to authority).


[35]   Waiver notwithstanding, we do not find any merit in Vectren’s contention.

       Although Vectren argues that the Commission’s approval of its seven-year plan

       and its approval of TDSIC Update-1 collaterally estopped its denial of Vectren’s

       Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017   Page 21 of 23
       petition under TDSIC Update-3, Vectren acknowledges that the Commission

       justified its deviation from its prior orders by citing to INDIANA CODE § 8-1-2-

       72. This statutory provision grants the Commission the authority to “rescind,

       alter, or amend any order fixing any rate or rates, tolls, charges, or schedules, or

       any other order made by the Commission.” I.C. § 8-1-2-72. Vectren’s only

       response to this justification is:

               it is unclear exactly which authority it invokes for its departure
               from prior orders. . . . The authority that exists under this statute
               cannot apply to orders already ruled upon by the appellate
               courts. To find otherwise would remove the ability of the Court
               of Appeals to function as an appellate court over Commission
               matters.

       (Vectren’s Br. 64). Accordingly, Vectren’s arguments all seem to derive from

       our decision to affirm Vectren’s seven-year plan on appeal.


[36]   However, it is notable that we did not address the details of Vectren’s Section

       10 seven-year plan—and the update process specified in the plan—on the merits

       on appeal. Instead, we held that the Vectren Industrial Group’s argument

       regarding the details of the Section 10 plan was waived because none of the

       parties had raised it before the Commission. See Ind. Office of Utility Consumer

       Counselor, No. 93A02-1409-EX-668 at *1 n.1. We have previously held that

       “[c]ollateral estoppel does not extend to matters that were not expressly

       adjudicated or to matters that can be inferred from the prior adjudication only

       by argument.” MicroVote Gen. Corp. v. Ind. Election Comm’n, 924 N.E.2d 184,

       197 (Ind. Ct. App. 2010). The primary consideration in the use of collateral

       estoppel is whether the party against whom the former adjudication is asserted

       Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017   Page 22 of 23
       had “a full and fair opportunity to litigate the issue and whether it would be

       otherwise unfair under the circumstances.” Id.


[37]   On appeal, the Vectren Industrial Group did not raise the issue of whether a

       utility may add new projects under Section 9 when it updates its Section 10

       seven-year plan. The Vectren Industrial Group argued only that Vectren’s

       Section 10 plan was not sufficiently detailed. Because the issue of whether

       Vectren may update its plan with new projects was never expressly adjudicated,

       collateral estoppel cannot extend to that issue. Accordingly, we conclude that

       the Commission was not barred by res judicata.5 See id.


[38]   Affirmed.


       Bradford, J., and Altice, J., concur.




       5
         Vectren also argues that our previous decision on appeal became the “law of the case.” The rule of “the law
       of the case” is distinct from res judicata because it is limited to the “‘point or points considered and decided
       on the first appeal.’” Evansville Am. Legion Home Ass’n v. White, 230 N.E.2d 623, 632 (Ind. Ct. App. 1967)
       (quoting Davis v. Krug, 95 Ind. 1, 9 (Ind. 1884)), cert. denied. “Questions which might have been but were not
       considered or decided in the first and prior appeal do not become the law of the case. ‘Only points decided
       become the law of the case.’” Id. (quoting Wine v. Woods, 63 N.E. 759, 760 (Ind. 1902)). Therefore, because
       the issue of Vectren’s update process was never explicitly adjudicated, the rule of the law of the case does not
       apply here, either.

       Court of Appeals of Indiana | Opinion 93A02-1604-EX-943 | April 27, 2017                          Page 23 of 23
