Indiana Utility Law – Bender Enterprises, LLC v. Duke Energy, LLC, 22A-PL-1230 (Ind. Ct. App. 2022)

On October 21, 2022, the Indiana Court of Appeals held that objections to condemnation proceedings must state specific facts that support the assertions raised by the objections, noting that the special statutory character of eminent domain proceedings and inaction by the Indiana General Assembly necessitate greater factual specificity than what is required of pleadings under Indiana Trial Rule 8. The case involved a condemnation action brought by Duke Energy, LLC (“Duke”) in which it sought to take a perpetual and non-exclusive easement running across certain real estate owned by Bender Enterprises, LLC (“Bender”). The complaint alleged that the easement was necessary for Duke to connect its 11th Street substation to its Rogers Street Substation in Bloomington and that efforts to purchase the easement interest from Bender had been unsuccessful. Bender filed objections to the complaint, arguing that the easement interest was unnecessary and that the designated location of the easement was “capricious, arbitrary, and not based upon accepted engineering and industry standards.” Bender Enterprises, LLC v. Duke Energy, LLC, 22A-PL-1230 at 3 (Ind. Ct. App. 2022). The trial court overruled Bender’s objections, finding that they failed to include additional facts to support the assertions raised. Bender appealed the trial court’s ruling.

The single issue before the Court of Appeals was whether the trial court erred in overruling Bender’s objections on the grounds that they did not allege specific support facts. The court began by noting while I.C. 34-24-1-8 does not explicitly require objections in condemnation proceedings to state specific supporting facts, Indiana precedent has long established that such facts must be included, observed by the Indiana Supreme Court’s 1947 holding in Joint Cnty. Park Bd. of Ripley, Dearborn and Decatur Cnty.s v. Stegemoller that “[i]f facts exist in addition to those disclosed by the [condemnation] complaint which would defeat plaintiff’s recovery, they should be affirmatively pleaded.” Stegemoller, 88 N.E.2d 686, 688 (Ind. 1949). According to the court, Bender’s objections failed to state “why or how the condemnation was unnecessary, arbitrary, and capricious,” and similarly failed explain why the condemnation was not based on “accepted engineering and industry standards” or what those specific standards were. Bender Enterprises, 22A-PL-1230 at 6 (Ind. Ct. App. 2022).

Bender next argued that, because Stegemoller was decided prior to Indiana’s change to notice pleading in 1971, its objections should have been evaluated on the same basis as pleadings in civil actions under Indiana Trial Rule 8. The court disagreed with this assertion for two reasons. First, the court noted that, unlike standard civil pleadings, the statutes governing eminent domain proceedings specify that they are two be conducted in two stages, with the first stage “being a summary proceeding in which the trial court may rule on the legality of the proposed condemnation based solely on the complaint and objections thereto.” Bender Enterprises, 22A-PL-1230 at 8 (Ind. Ct. App. 2022). As such, the court determined that the condemnation complaint and the objections “clearly…must articulate all the facts necessary for the factfinder to rule on the legality of the action before proceeding to the second stage” of the proceedings. Id. at 9. Finally, the Court found that the Indiana General Assembly’s silence following the Indiana Supreme Court’s decision in Stegemoller to be indicative of “the General Assembly’s acquiescence and agreement with the judicial interpretation” that objections to a condemnation complaint must allege specific supporting facts. Id. at 8. Therefore, the court affirmed the overruling of Bender’s objections, reaffirming the longstanding precedent that objections to a condemnation complaint must state specific supporting factual allegations.


Jeremy Fetty is a partner in the law firm of Parr Richey Frandsen Patterson Kruse with offices in Lebanon and Indianapolis. He often advises businesses and utilities (for profit, non-profit and cooperative) on organizational, human resources, and transactional matters and drafts and reviews commercial contracts.

The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.

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