ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID S. RICHEY MARC E. LEWIS
ROBERT J. DONAHUE Indiana Michigan Power Company
Parr Richey Obremskey & Morton Fort Wayne, Indiana
DANIEL W. McGILL
CAROL SPARKS DRAKE NICHOLAS K. KILE
Parr Richey Obremskey & Morton Barnes & Thornburg
Lebanon, Indiana Indianapolis, Indiana
UNITED RURAL ELECTRIC ) MEMBERSHIP CORPORATION, ) ) Appellant-Respondent, ) ) vs. ) No. 93A02-9809-EX-747 ) INDIANA MICHIGAN POWER COMPANY ) d/b/a AMERICAN ELECTRIC POWER (AEP ), ) ) Appellee-Petitioner. )
OPINION - FOR PUBLICATION
United Rural Electric Membership Corporation ("United") appeals an order of the
Indiana Utility Regulatory Commission ("Commission") in favor of Indiana Michigan Power
Company d/b/a American Electric Power ("AEP"). We affirm.
II. Whether United waived its argument that the Commission lacked
jurisdiction over the case by filing the original petition seeking a change in the
boundaries and by not raising its jurisdictional argument at the first available
all publicly owned and operated airports in Allen County and is responsible for their
maintenance, development and promotion." Id. This includes the Fort Wayne International
Airport ("Airport") and the 3,000 acres of land upon which it is situated.
Recently, after the acquisition of additional land and a positive feasibility study, the Authority decided "to undertake the development of the Air Trade Center" ("ATC"). Id. at 433. "The [ATC] consists of 443 acres of land owned by the Authority located at the southwest end of the [Airport] adjacent to the [Airport's] 12,000 foot runway." Id. at 434.
The purpose of the [ATC] is to promote and attract economic development activity to help support the economy of Northeast Indiana. The Authority seeks to transform the [ATC] into a developed industrial park that will attract industry to Fort Wayne and Allen County, provide additional employment, and afford incentives to induce employers to invest development capital in Northeast Indiana. The Authority is specifically targeting for location in the [ATC] commercial aeronautical activities, transportation related businesses, warehouse distribution facilities requiring air freight access and light manufacturing businesses requiring close proximity to air freight facilities. Because the [ATC] will be competing for tenants with other regional airports, it is essential that the [ATC] be able to offer the best services available to prospective tenants.
Id. at 433-34. Infrastructure improvements had begun on the ATC project and several
million dollars had been committed to it in 1997 and 1998. The Authority divided the ATC
into twenty-seven lots. The first major tenant of ATC, American International Freight
Division of American International Airways, Inc. ("AIF"), chose a seventy-five acre lot and
"committed to a $33 million private development[.]" Id. at 435.
In 1986, the Commission approved a boundary through the Airport's land. United has provided electric service for the Airport on one side of the boundary and AEP has provided service on the other side. The present controversy arises because the original
boundary currently bisects the ATC and AIF, and the Authority would prefer that there be
only one service provider for the ATC.
On October 14, 1997, United filed a petition with the Commission seeking to modify existing electric service area boundaries so as to place the ATC entirely within United's assigned service area ("Cause No. 41017"). Three days later, AEP filed a petition with the Commission seeking to modify the same boundary so that ATC would be served exclusively by AEP ("Cause No. 41021"). Initially, the Commission consolidated the two causes.
On February 13, 1998, United filed a motion to dismiss Cause No. 41017 and filed an answer to Cause No. 41021. The Commission granted United's motion to dismiss and to file an answer. The Commission held a two-day evidentiary hearing on the matter in early April of 1998. In May of 1998, United filed a motion, and a brief in support thereof, requesting that AEP's petition be dismissed because the Commission did not have jurisdiction over the case under Indiana Code Section 8-1-2.3-6(3). On August 26, 1998, the Commission issued a twenty-six page order, which stated in pertinent part:
1. AEP's petition shall be and hereby is granted.
2. The service area boundary as set forth in U.S.G.S. Facet W-8-1 shall be and hereby is modified so as to place the entirety of the [ATC] as shown on AEP Exhibit DLL-4 (Revised) in AEP's assigned service area.
3. To effectuate the change approved herein, AEP shall be and hereby is ordered to file with the Engineering Department a revised Mylar map of U.S.G.S. Facet W-8-1 showing the service area boundary change approved.
4. United's request for severance damages and/or a swap of comparable territory shall be and hereby is denied.
5. This Order shall be effective on and after the date of its approval.
Record at 324.
Wabash Grain, Inc. v. Smith, 700 N.E.2d 234, 237 (Ind. Ct. App. 1998) (citation omitted) (first emphasis in original; second emphasis added), trans. denied. "Unlike equitable estoppel, which focuses on the relationship between the parties, judicial estoppel focuses on
the relationship between a litigant and the judicial system." 31 C.J.S. Estoppel and Waiver
§ 139 (1996). "The purpose of judicial estoppel is to protect the integrity of the judicial
process rather than to protect litigants from allegedly improper conduct by their adversaries."
Wabash, 700 N.E.2d at 238.
After AEP filed Cause No. 41021, United filed a motion to dismiss Cause No. 41017. The Commission granted United's motion to dismiss Cause No. 41017 prior to making any other rulings in that case. Consequently, there was no determination regarding Cause No. 41017. Since neither the Commission nor AEP acted upon the allegations, there was no danger of compromising the integrity of the judicial process. The reason for judicial estoppel was not present. Thus, United's filing of Cause No. 41017, seeking a change in the boundaries, did not waive United's argument that the Commission lacked jurisdiction over the case.
We are equally unpersuaded by the related contention that United waived its argument that the Commission lacked jurisdiction over the case by not bringing it up earlier. United raised the issue in a motion to dismiss shortly after the April hearing. Since a challenge to jurisdiction over a particular case involves a factual issue, and all the necessary facts in a case like this may not be unearthed until the hearing, we are unwilling to say United should have raised its jurisdiction challenge earlier. Further, the Commission clearly addressed the issue in its order. Record at 300-02; cf. City of Marion v. Antrobus, 448 N.E.2d 325 (Ind. Ct. App. 1983) and State ex rel. Hight v. Marion Superior Court, 547 N.E.2d 267 (Ind. 1989)
(jurisdiction issue not raised until long after judgment had been rendered). Accordingly, the
issue was not waived.
Knox County Rural Elec. Membership Corp. v. PSI Energy, Inc., 663 N.E.2d 182, 189 (Ind. Ct. App. 1996) (citations omitted), trans. denied.
Record at 301-02.
United makes a two-fold challenge to the Commission's authority under Indiana Code Section 8-1-2.3-6(3) to grant AEP's petition to modify its service boundary with United. United asserts that: 1) the territorial modification sought was for only a portion of the landowner's "single tract of land;" and, 2) no customer or customers constituted an integrated operation in the territory taken from United. United contends that, as a result, the Commission's decision was contrary to law. AEP, on the other hand, frames United's argument as a challenge to the sufficiency of the evidence.
If United were challenging the determination that, based upon public convenience and necessity, AEP should serve as the electricity provider for the ATC, then we would agree that United is merely challenging the sufficiency of the evidence. However, United is challenging AEP's right to even submit the matter to the Commission for such a determination. This is a jurisdiction question answered by examination of whether any of
the situations presented by Indiana Code Section 8-1-2.3-6(3) existed here. Because United
is challenging the Commission's jurisdiction, a question of law is presented. However,
factual issues are interwoven in this challenge to the Commission's authority. Thus, in
addressing the legal question of jurisdiction, we examine the facts most favorable to the
The Commission has the authority to change the boundaries of the assigned service areas of electricity suppliers under the following limited circumstances:
In the case where a landowner owns a single tract of land which is intersected by the boundary lines of two (2) or more assigned service areas, and retail electric service can best be supplied by only one (1) electricity supplier, or in the case where a customer or customers which are housed in a single structure or which constitute a single governmental, industrial, or institutional operation, and the electricity suppliers involved are unable to agree which shall furnish the electric service, any of the electricity suppliers may submit the matter to the commission for its determination based upon public convenience and necessity. If, after notice and hearing, the commission determines that one (1) or more electricity suppliers are to supply the required retail electric service and the boundaries of an assigned service area are to be changed, the assigned service area maps of the electricity suppliers shall be changed to reflect the new boundaries.
Ind. Code § 8-1-2.3-6(3) (emphases added).
In addressing the meaning of "single tract of land" as used in the above statute, we recall several rules of statutory construction. See Ind. Code § 1-1-4-1(1). We do not and may not interpret a statute that is facially clear and unambiguous. Rather, we give the statute its plain and clear meaning. Skrzypczak v. State Farm Mut. Auto. Ins., 668 N.E.2d 291, 295 (Ind. Ct. App. 1996). When construing a statute, the legislature's definition of a word binds us. If the legislature has not defined a word, we give the word its common and ordinary
meaning. Id. In order to determine the plain and ordinary meaning of words, courts may
properly consult English language dictionaries. Ashlin Transp. Servs., Inc. v. Indiana
Unemployment Ins. Bd., 637 N.E.2d 162, 167 (Ind. Ct. App. 1994).
If a statute is ambiguous, we seek to ascertain and give effect to the legislature's intent. Skrzypczak, 668 N.E.2d at 295. In doing so, we read an act's sections as a whole and strive to give effect to all of the provisions, id., so that no part is held meaningless if it can be reconciled with the rest of the statute. JKB, Sr. v. Armour Pharmaceutical Co., 660 N.E.2d 602, 605 (Ind. Ct. App. 1996), trans. denied. Further, we presume that our legislature intended its language to be applied in a logical manner consistent with the statute's underlying policy and goals. Walling v. Appel Service Co., 641 N.E.2d 647, 651 (Ind. Ct. App. 1994).
The legislature did not define "single tract of land" for purposes of Indiana Code 8-1- 2.3. Therefore, we look to dictionaries, other provisions of the statute, and the statute's underlying policies and goals to determine its meaning.See footnote 1
"Single" has been defined as "[o]ne only; being a unit; alone; one which is abstracted from others." Black's Law Dictionary 1557 (4th ed. 1951). The same source defines "tract" as "[a] lot, piece or parcel of land, of greater or less size, the term not importing, in itself, any precise dimension." Id. at 1665. "Land" in its most general sense, "comprehends any ground, soil, or earth whatsoever; as fields, meadows, pastures, woods, moors, waters, marshes, furzes, and heath." Id. at 1019.
activity to help support the economy of Northeast Indiana which, in turn, would provide
additional employment. Due to its close proximity to the Airport, the ATC targets as
potential tenants commercial aeronautical activities, transportation related businesses,
warehouse distribution facilities requiring air freight access, and light manufacturing
To date, several million dollars have been committed to the ATC project; the land has been divided into twenty-seven preliminary lots; and AIF has committed as the first major tenant. However, the original electrical service boundary currently bisects the ATC and AIF. As one of United's witnesses state, "the area [is] a split site[.]" Record at 618. In the past, having two separate electricity service providers has created uncertainty and its attendant problems. For instance, when power outages have occurred, the confusion over which provider controls an area has led to delays in service being restored. Assigning the area to one provider would eliminate such confusion and prevent split site problems for future tenants. In addition, due to its nature, the ATC would benefit from a utility provider with the resources and experience to serve as a partner in the development of the industrial park project.
Keeping in mind the goals of the statute and the Commission's broad discretion to achieve those goals, we are unwilling to hold that the Commission erred in determining that it has jurisdictional authority under the "single tract of land" prong in view of these particular circumstances. The record contains facts to support the conclusion that the ATC constitutes a single tract of land which is intersected by the boundary lines of two assigned service areas,
and retail electric service can best be supplied by only one electricity supplier. Because we
have concluded that the Commission properly had jurisdiction over this case under the
"single tract of land" theory, we need not examine whether the Commission properly had
jurisdiction under the integrated operation theory.
BAILEY, J. and HOFFMAN, Sr.J. concur.
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