« Ind. Decisions - Transfer list for week ending December 21, 2012 | Main | Ind. Courts - Justice Loretta Rush investiture ceremony this morning »

Friday, December 28, 2012

Ind. Decisions - Court of Appeals issues 3 today (and 21 NFP)

For publication opinions today (3):

James M. Brinkley and Stephanie L. Brinkley v. Michael Haluska, P.E., d/b/a Retro Tech, et al.

Joel Zivot v. Pamela London

In Duke Energy Indiana, Inc. v. Office of the Utility Consumer Counselor, Indiana Utility Regulatory Commission , a 20-page opinion, Judge Vaidik writes:

On October 5, 2010, Governor Mitch Daniels fired Indiana Utility Regulatory Commission (“IURC” or “Commission”) Chairman David Lott Hardy. Hardy was aware that one of his administrative law judges (“ALJ”), Scott R. Storms, had been communicating with Duke Energy Indiana (“Duke”) regarding a position with the company while Storms was presiding over administrative proceedings involving Duke, yet Hardy did not remove Storms from matters involving Duke. This was one such case; Storms was the ALJ, the Indiana Office of Utility Consumer Counselor (“OUCC”) recommended denying Duke relief, but the IURC granted Duke’s request to utilize deferred-accounting treatment for over $11 million in storm-operating expenses. The IURC conducted an audit but eventually found that Storms did not exert any undue influence in his decision. Nevertheless, the IURC reopened this case for further review and consideration of the evidence presented.

After another evidentiary hearing before a new ALJ and the full Commission at which updated evidence was presented, the IURC, in a lengthy order, denied Duke’s request to utilize deferred-accounting treatment for over $11 million in storm-operating expenses. Duke now appeals, arguing that the IURC acted arbitrarily and capriciously when it looked twice at materially the same evidentiary record but came to diametrically opposed decisions without giving any reason for the change.

We, however, find that the IURC’s findings are based on substantial evidence that was placed into the record following the IURC’s order reopening this proceeding. These findings, in turn, support the IURC’s conclusion to deny Duke’s request to utilize deferred-accounting treatment for over $11 million in storm-operating expenses. As for Duke’s argument that the IURC should have explained why it changed its mind because failing to do so was fundamentally unfair, we find that there were changes in the evidence from the first hearing to the second hearing that justified the IURC’s decision to deny Duke relief the second time around, and, in any event, the IURC was not required to explain why it reached a different conclusion. We therefore affirm the IURC’s decision to deny Duke’s request to utilize deferred-accounting treatment for over $11 million in storm-operating expenses.

NFP civil opinions today (4):

In Re the Term. of the Parent-Child Rel. of K.K.; R.I. v. The Indiana Dept. of Child Services (NFP)

Rebecca J. Bartle v. Jackson Street Investors, LLC as Assignee of Paul E. Turner (NFP)

Benito S. Gamba, Hilda P. Gamba and Gamba Real Estate Holdings, LLC v. The Ross Group, Inc., Ticor Title Ins. Co. v. The Ross Group, Inc., Benito Gamba, HIlda Gamba and Gamba Real Est. Holdings (NFP)

In Re The Adoption of C.H.; M.W. v. B.H. and V.H. (NFP)

NFP criminal opinions today (17):

State of Indiana v. Elvis Holtsclaw (NFP)

State of Indiana v. Blake Lodde (NFP)

Ricky Jester v. State of Indiana (NFP)

Johnny C. Horton v. State of Indiana (NFP)

Michael Watson v. State of Indiana (NFP)

Steven McIntyre v. State of Indiana (NFP)

Alexander A. Lopez v. State of Indiana (NFP)

William Holly v. State of Indiana (NFP)

Jesus Torres v. State of Indiana (NFP)

Randell Vandeventer v. State of Indiana (NFP)

Guy Cummings v. State of Indiana (NFP)

Mark Sexton v. State of Indiana (NFP)

Kieth McCoy v. State of Indiana (NFP)

Quintez Deloney v. State of Indiana (NFP)

Manuel J. Silva v. State of Indiana (NFP)

Robert R. Ashcraft v. State of Indiana (NFP)

Paul Marcum v. State of Indiana (NFP)

Posted by Marcia Oddi on December 28, 2012 10:59 AM
Posted to Ind. App.Ct. Decisions