FOR PUBLICATION
ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE:
JOHN W. MEAD ANDREW WRIGHT
Mead, Mead & Clark, P.C. Andrew Wright, P.C.
Salem, Indiana Salem, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ADKINS INVESTMENTS, INC., PAUL H. )
ADKINS, MARIE ADKINS, DENNIS VOYLES )
And ANGELA VOYLES, )
)
Appellants-Plaintiffs/Counterclaim Defendants, )
)
vs. ) No. 88A01-9904-CV-123
)
JACKSON COUNTY REMC, )
)
Appellee-Defendant/Counterclaim Plaintiff. )
APPEAL FROM THE WASHINGTON CIRCUIT COURT
The Honorable James D. Kleopfer, Jr., Special Judge
Cause No. 88C01-9609-CP-102
July 12, 2000
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellants-Plaintiffs-Counterclaim Defendants Adkins Investments, Inc., Paul H. Adkins, Marie Adkins (the Adkins), Dennis
Voyles and Angela Voyles (the Voyles) (hereinafter referred to collectively as Appellants) appeal
the trial courts permanent injunction order in favor of Appellee-Defendant-Counterclaim Plaintiff Jackson County
Rural Electric Membership Cooperative (hereinafter referred to as REMC).
REMC cross-appeals from the trial courts order, which fined REMC $1,000.00, and found
it in contempt of court for violating the trial courts Temporary Restraining Order.
We affirm.
ISSUES
On appeal, Appellants raise two issues for our review, which we consolidate and
restate as follows: whether the trial courts findings of fact and conclusions of
law with respect to its Permanent Injunction Order were clearly erroneous because they
were not supported by the evidence.
On cross-appeal, Appellee raises two issues for our review, which we restate as
follows:
1. Whether there was sufficient evidence to support the trial courts finding that REMC
was in contempt of court for violating a Temporary Restraining Order by disconnecting
electrical service to appellants property.
2. Whether the Voyles stated a claim for damages to personal property.
FACTS AND PROCEDURAL HISTORY
REMC is an Indiana corporation organized under the provisions of Ind. Code §
8-1-13 for the purpose of providing utility electrical service to its members located
in South Central Indiana, including much of Washington County.
Sometime in the 1970s, REMC constructed an electrical line into a recreational vehicle
resort development in Washington County, Indiana, known as Seldom Seen Lake. Seldom Seen
Lake has two entrances, located between State Road 135 on the west and
Delaney Creek Valley on the east. The electric line serving Seldom Seen
Lake enters the property from the west along the public road, State Road
135, and then the road becomes a private easement belonging to Appellants.
The electrical line continues across the property until it exits Seldom Seen Lake
along Delaney Creek Road.
In 1989, Paul Adkins purchased approximately 500 acres of the Seldom Seen Lake
property, and he became a member of REMC in order to receive electrical
service. Paul Adkins then transferred part of the real estate to Adkins
Investment, Inc., which also became a member of REMC.
Angela Voyles is the daughter of Paul and Marie Adkins, and Dennis is
Angelas husband. Although the Voyles are neither owners of real estate on
the Seldom Seen Lake property nor members of REMC, they are residents and
full-time occupants of real estate on the property owned by Adkins Investment, Inc.
When Adkins purchased the Seldom Seen Lake property, there was a double lock
mechanism at the west entrance, allowing access for both REMC and Adkins.
Sometime in 1991, Adkins removed the double lock from the west gate and
refused to provide REMC with a key. From that point until the
Fall of 1993, REMC used the east entrance to the property for access
to its utility lines.
In the Fall of 1993, a culvert under the east entrance washed out,
making the roadway impassable. The culvert was never repaired or replaced.
The east entrance lies on a roadway that is common access for individual
lot owners on Seldom Seen Lake, while the west entrance is a private
easement owned by Appellants.
On September 19, 1996, Appellants suffered an interruption of service. The Voyles
contacted REMC about the outage, but REMC refused to restore service until it
was provided with a key to the locked west gate.
On September 24, 1996, Appellants filed a Complaint for Temporary Restraining Order, Preliminary
Injunction, Permanent Injunction and Damages against REMC for interrupting their service without notice
and refusing to restore it. That same day, the trial court issued
a Temporary Restraining Order against REMC, ordering it to restore service to Appellants
and prohibiting it from interrupting or terminating electric utility service to Appellants for
any reason without notice. REMC was also required to enter Appellants property
and make necessary repairs to restore service to Appellants. Further, the court
ordered that the west gate was to remain unlocked for access by REMC.
On September 26, 1996, Appellants service was again interrupted, and on October 21,
1996, Appellants filed a Citation for Contempt against REMC.
On October 17, 1996, REMC filed a Counterclaim for Preliminary Injunction and Permanent
Injunction, requesting the court to enjoin Appellants from interfering with its easement and
access rights to Appellants property.
On October 22, 1996, and December 13, 1996, the trial court held a
hearing on the Temporary Restraining Order and the parties Preliminary Injunction motions.
On June 9, 1997, the trial court entered its Preliminary Injunction Order, enjoining
Appellants from locking the west gate, and enjoining REMC from terminating Appellants service
without notice.
On June 4, 1998, and July 21, 1998, the trial court held a
hearing on Appellants Complaint and REMCs Counterclaim for Permanent Injunction. On October
30, 1998, the trial court entered a Permanent Injunction, enjoining Appellants from locking
the west gate, and ordered them to either double lock the gate and
provide REMC with a key or leave the gate unlocked.
On November 30, 1998, Appellants filed a Motion to Correct Errors, and the
trial court granted their motion and amended its Permanent Injunction on March 2,
1999. The amended Permanent Injunction order left in place the injunction against
Appellants regarding the west gate. However, the amended order found that REMC
was in contempt of court for violating its Temporary Restraining Order for interrupting
Appellants service without notice on September 26, 1996. The trial court fined
REMC $1,000.00 and scheduled a hearing on Appellants request for damages as a
result of REMCs refusal to restore service.
See footnote
Appellants now appeal the trial
courts Permanent Injunction Order challenging its order with respect to the west gate,
and REMC cross-appeals, challenging its contempt of court order and scheduling of a
hearing on Appellants damages. Additional facts will be supplied when necessary.
DISCUSSION AND DECISION
I. Permanent Injunction Order
Appellants argue that the trial court erred by issuing a Permanent Injunction Order
in favor of REMC. Specifically, Appellants claim that the trial court erred
in its Findings of Fact No. 18 and No. 20, and Conclusions of
Law No. 41, 42, 43, 44, and 45.
At Appellants request in their Motion to Correct Errors, the trial court entered
amended findings and conclusions thereon in support of its judgment. When a
party has requested special findings of fact and conclusions of law pursuant to
Ind.Trial Rule 52(A), the reviewing court must first decide whether the evidence supports
the findings and second whether the findings support the judgment. Panhandle Eastern
Pipe Line Co. v. Tishner, 699 N.E.2d 731, 736 (Ind. Ct. App. 1998).
The findings and judgment will be reversed only when clearly erroneous.
Id. Findings of fact are clearly erroneous when the record lacks any
evidence or reasonable inferences from the evidence to support them. Temby v.
Bardach,
699 N.E.2d 775, 777 (Ind. Ct. App. 1998). The judgment is clearly
erroneous when it is not supported by the findings of fact and the
conclusions of law entered on the findings.
Id. In making these
determinations we shall neither reweigh the evidence nor judge witness credibility but consider
only the evidence and the inferences flowing therefrom, which are most favorable to
the judgment. Panhandle, 699 N.E.2d at 736.
On March 2, 1999, the trial court granted Appellants Motion to Correct Errors,
and ordered a Permanent Injunction as follows:
1. That counterclaim/defendants, Paul H. Adkins, Adkins Investment, Inc., and their employees,
agents and persons acting in concert with them are hereby restrained and prohibited
from denying reasonable access to the Jackson County REMC to their premises .
. . for the purpose of placing, constructing, operating, repairing, maintaining, relocating and
replacing electrical transmission or distribution lines or systems . . . pursuant to
an easement recorded in Deed Book D-7, page 105, in the Office of
the Recorder of Washington County, Indiana.
2. That the counterclaim/defendants shall have the option of leaving the west
gate . . . unlocked at all times or installing a double lock
mechanism on the west gate of their premises and providing the counterclaim/plaintiff with
a key thereto for access to the property for the exclusive purpose of
inspecting, maintaining, constructing, operating, repairing and relocating or replacing electrical transmission or distribution
lines or systems and appurtenances thereto on the premises of the counterclaim/defendants.
3. That if the counterclaim/defendants elect to install the double lock mechanism
on the west gate on their premises, then the counterclaim/plaintiff shall not distribute
or provide its key to the double lock mechanism of the counterclaim/defendants to
any persons or legal entities other than their own employees or independent contractors
for any purpose without the written consent of the counterclaim/defendant, Paul H. Adkins.
(R. 28-30).
A. Finding No. 18
First, Appellants argue that the trial courts Permanent Injunction Order is in error
because the Record is void of evidence to support Finding of Fact No.
18, which is as follows:
18. That the evidence indicates that Paul H. Adkins and his tenants,
agents or employees are not always readily or reasonably available to provide access
to their premises to the Jackson County REMC to make timely repairs or
replacements for the servicing of power outages or other emergency conditions.
(R. 20).
Specifically, Appellants contend that there is no evidence of an instance when REMC
attempted to contact them and they were not available to allow REMC access
to their premises through the west gate. In addition, Appellants argue that
on instances when REMC arranged for someone to be at the west gate
in order to gain access to Appellants premises, someone was always present at
the gate to do so. Finally, Appellants claim the Record reflects that
from August 1994 until September 1996, REMC entered Appellants premises via the east
entrance without contacting them, and that sometimes it was not necessary for REMC
to even enter Appellants premises in order to make timely repairs or replacements
for the servicing of power outages.
However, the trial courts Finding No. 18 does not state that the Appellants
were not available when REMC requested entrance via the west gate; instead, it
states that the Appellants are not always readily or reasonably available to provide
access. (R. 20). In addition, the Record reveals that Adkins owned
500 to 600 acres of land on the Seldom Seen Lake property, but
he did not reside at the premises and was only present periodically.
However, the Voyles did live on the property, but both Angela and Dennis
did not work on the premises. Therefore, during the day, there often
was no one present on Adkins property to provide REMC access to the
premises.
Nevertheless, the Appellants claim that if REMC needed to gain access to the
property via the west gate when no one was present, REMC could leave
a message on the Voyles answering machine. However, in the event of
a power outage, an answering machine would not operate.
Finally, the evidence reveals that following the power outage that occurred on September
19, 1996, to twenty-seven (27) customers including the Appellants, REMC restored power to
every customer within an hour, except the Appellants. The Voyles testified that
they both arrived home several hours after the power outage. Therefore, we
find that sufficient evidence exists in the Record to affirm the trial courts
Finding No. 18 that Appellants are not always readily or reasonably available to
provide REMC access to their premises to service power outages.
B. Finding No. 20
Next, Appellants argue that the trial courts Permanent Injunction Order is in error
because they did not have a duty to repair the washed out culvert
at the east entrance, and therefore, Finding of Fact No. 20 is clearly
erroneous. Finding No. 20 is as follows:
20. That a culvert located on or near the real estate of
the counterclaim/defendants where this access road crosses a tributary of Delaney Creek washed
out in the Fall of 1993 and that the counterclaim/defendants have not replaced,
installed or participated in the replacement or installation of a new culvert so
as to provide access to the east side of their premises by this
roadway.
(R. 20).
Specifically, Appellants contend that Adkins owns the servient estate on half the roadway
and REMC, as the owner of the dominant estate, has the duty to
make repairs and maintenance to the easement. Therefore, Appellants concede that they
did not repair or replace the culvert, but argue that they are under
no obligation to make repairs to the easement because the dominant estate owner
of an easement bears the duty to maintain it unless there is a
special or express agreement to the contrary. The Appellants have correctly stated
that the owner of an easement must generally bear the entire cost of
maintaining it, absent an express agreement to the contrary. Larabee v. Booth,
463 N.E.2d 487, 492 (Ind. Ct. App. 1984). However, when the Appellants
applied for membership to REMC, they agreed to be bound by the rules
and regulations of REMC as a condition of membership. Specifically, pursuant to
the Rules and Regulations, the Appellants agreed to the rule regarding Right of
Way and Access, which provides in relevant part as follows:
Each member shall grant, as a condition of membership, without charge to the
Rural Electric, necessary easements over, under and across land owned by the member,
for transmission and distribution lines of the Rural Electric.
****
b. Suitable easements shall be granted for extension and maintenance of service
to other members as well as for the members own requirements.
c. Any applicant for membership service shall be required to secure to,
and for, the Rural Electric, all necessary and convenient rights of way and
to pay the costs incident thereto.
d. Duly authorized representatives of the Rural Electric shall have the right
of ingress to and egress from the premises of members at all reasonable
times, for the purpose of reading, testing, inspection, repairing, replacing or removing its
meters or other property, or inspecting the members installation or for the purpose
of removing its property on the termination of its contract or on discontinuance
of service for whatever reason.
(R. 468). In addition, Appellants agreed to the rule regarding Right-of-Way Easement
Standards and Maintenance, which states in relevant part as follows:
An applicant for membership, who requires a new installation for electric service on
his property, will be asked to execute and submit a legal easement, to
permit crossing and entering upon his property for installing and maintaining necessary poles
and electric lines and keeping them clear of trees, brush, etc.
****
Granting of right-of-way is one economy in electric line construction which helps keep
the cooperatives electric rates low and service dependable.
****
The standard right-of-way for underground lines includes clearing and maintaining a path to
a minimum distance of ten feet on each side of the electrical conductors,
for construction and repairs, and provides for necessary access.
(R. 448).
Therefore, there is sufficient evidence in the Record to support the trial courts
finding that the Appellants did not replace, install or participate in the replacement
of installation of a new culvert so as to provide access to the
east side of their premises because pursuant to the REMCs rules and regulations,
the Appellants had agreed to maintain the easement to provide REMC access to
the premises in order to service the electric lines.
C. Conclusion No. 41-45
Appellants argue that the trial courts Permanent Injunction Order was in error because
Conclusions of Law Nos. 41-45 are clearly erroneous. Specifically, Appellants contend that
Conclusions Nos. 41-45 improperly interpret REMCs easement by expanding the terms of the
easement to require the Appellants, as REMCs customers, to provide REMC safe, reliable,
immediate and unrestricted access to its property, including access to an unlocked or
double-locked gate. Therefore, we must determine whether in its Conclusions of Law
Nos. 41-45, the trial court properly interpreted REMCs easement as defined in its
Rules and Regulations.
The trial courts Conclusions of Law Nos. 41-45 are as follows:
41. That the counterclaim/defendants have interfered with the right of ingress and
egress of the Jackson County REMC to their premises for the purpose of
reading, testing, inspecting, repairing, or removing its meters or other property by restricting
access to said premises by locking a gate across the roadway and to
the west side of the counterclaim/defendants property and not providing the counterclaim/plaintiff with
a key thereto.
42. That the stream ford and farm lane crossing over the real
estate of Ralph Dickmeyer (now deceased) located to the east of the premises
of the counterclaim/defendants is not a suitable easement for use of the Jackson
County REMC as it does not afford a safe, reliable and immediate access
to the premises of the counterclaim/defendants for the making of either routine inspections
and maintenance or emergency repairs.
43. That the roadway running from State Road 135 to the west
side of the real estate of the counterclaim/defendants is a suitable easement for
use of the Jackson County REMC as it affords safer and more reliable
and immediate access to the premises of the counterclaim/defendants for the making of
either routine inspections and maintenance or emergency repairs.
44. That the counterclaim/defendants, Paul H. Adkins and Adkins Investment, Inc., have
violated the Rules and Regulations of the Jackson County REMC in regard to
providing the right of ingress and egress to its premises for the service
of facilities of the Jackson County REMC.
45. That the counterclaim/defendants, Paul H. Adkins and Adkins Investment, Inc., violated
the Rules and Regulations of the Jackson County REMC in regard to providing
suitable easement for use of the Jackson County REMC to its premises for
safe, reliable and immediate access for the making of either routine inspections and
maintenance or emergency repairs.
(R. 24-26).
Appellants argue that although REMC contends that it is entitled to unrestricted access
to include the unlocked or double-locked gate, REMC concedes that neither its rules
and regulations nor its easement provides for the unlimited and unrestricted right to
enter its customers property at any time. Appellants further claim that REMCs
rules and regulations do not contain a statement with respect to a double-locked
gate.
At trial, Paul Adkins testified that the west side entrance to the Seldom
Seen Lake property is his private easement that he has maintained with a
locked gate. Adkins further testified that REMC owned a common easement on
the east side of the Seldom Seen Lake property that was in existence
at the time he purchased the property. The Record reveals that this
common easement consists of three separate easements contained in three separate deeds, conveying
REMC the right to enter upon the lands to place, construct, operate, repair,
maintain, relocate and replace thereon . . . an electric transmission or distribution
line or system . . . (R. 175-179). Nevertheless, REMC did
not own an easement to enter the Seldom Seen Lake property from the
west side, where Adkins owned a private easement.
However, the issue concerns the proper construction to be given to REMCs Rules
and Regulations with respect to its right of way to the Seldom Seen
Lake property. Specifically, we must determine whether the trial court properly construed
the Rules and Regulations to which Appellants agreed when they became REMC customers,
in order to conclude that REMC could access the Seldom Seen Lake property
via Adkins private easement on the west side of the property. Although
the Record reveals three separate deeds providing an easement to REMC by express
grant on the east side of the property, REMCs access to the west
side of the property is not created by these deeds, but instead by
Appellants agreement expressly granting REMC a necessary and suitable easement to the property
as an REMC customer.
The nature of an easement created by an express agreement or grant must
be determined by the provisions of the instrument creating the easement. Indiana
Broadcasting Corp. v. Star Stations of Indiana, 180 Ind.App. 207, 388 N.E.2d 568,
571 (1979). It is the duty of the court, in construing an
instrument creating an easement, to ascertain and give effect to the intention of
the parties, which is determined by a proper construction of the language in
the instrument from an examination of all the material parts thereof. Brock
v. B & M Moster Farms, Inc., 481 N.E.2d 1106, 1108 (Ind. Ct.
App. 1985), superseded by statute on other grounds. If possible, meaning must
be given to all parts of the agreement to remain consistent with the
rest of the agreement. Indiana Broadcasting Corp., 388 N.E.2d at 571.
Fundamental rules of construction guide us here. The nature of a particular
easement should be gleaned by contemplating the purpose to be served by the
easement.
See Brock, 481 N.E.2d at 1108. In the case at
hand, the purpose of REMC is not ambiguous, providing in relevant part as
follows:
[T]o serve the electric energy needs of its members fully, equitably, and reliably
at a high level of service consistent with sound economy and good management.
The following Rules and Regulations are general policies which apply to each and
every member or applicant for membership. They are to be considered a
part of every contract made by the Rural Electric, unless modified by special
terms written therein, and govern all classes of service.
(R. 467). In addition, the plain language of the Rules of Regulations
created a necessary and suitable easement for REMC to maintain and service its
customers electricity needs.
However, Appellants argue that REMCs easement created pursuant to its Rules and Regulations
does not state that REMC is entitled to unrestricted access to their property.
Instead, the Rules and Regulations entitle REMC access to its customers property
at all reasonable times. In addition, Appellants contend that REMC has not
established that its use of the east entrance is unreasonable. Specifically, Appellants
claim that Adkins, pursuant to the Rules and Regulations, is required to provide
REMC ingress to and egress from his property at reasonable times, and that
he has satisfied this burden by providing access to the property via the
east entrance. Further, Appellants argue that it is REMCs burden to establish
that access to the property via the east entrance is unreasonable, REMC has
not done so, and instead has arbitrarily decided to use the west entrance
rather than the east entrance.
REMC does not claim and the trial court did not conclude that REMC
has unlimited and unrestricted access to Appellants property. Instead, REMC has access
to Appellants property limited to the restricted purpose of a necessary, suitable, safe,
and reliable easement, providing REMC with the right of ingress to and egress
from Appellants property in order to maintain and service Appellants electrical service.
When read together, Conclusions Nos. 41-45 conclude in summary as follows: 1) The
east entrance was not a suitable easement for REMC because it did not
afford REMC safe, reliable and immediate access to Appellants property; 2) The west
entrance was a suitable easement for REMC because it afforded REMC a safer
and more reliable and immediate access to Appellants property; 3) Appellants interfered with
REMCs right of ingress to and egress from their property by locking the
gate at the west entrance without providing REMC with a key; and therefore,
4) Appellants violated REMCs Rules and Regulations by failing to provide REMC the
right of ingress egress, and by failing to provide REMC a suitable easement
to their property for safe, reliable and immediate access.
We find that the Record contains sufficient evidence to support the trial courts
Conclusions Nos. 41-45, including: extensive photographs of the Seldom Seen Lake property depicting
both the east and west entrances, testimony of both REMC and Appellants witnesses,
and evidence that upon a joint motion by the parties, the trial court
visited the Seldom Seen Lake property.
First, REMCs employees testified regarding the nature and size of the equipment used
to provide maintenance and service to the electric service at Seldom Seen Lake
property. Further, the Rules and Regulations stated and REMCs employees testified that
safety is a primary consideration of REMC. Appellants also called a non-party
witness who testified that after the culvert was washed out, he no longer
towed his camper into Seldom Seen Lake via the east entrance due to
safety concerns. Therefore, sufficient evidence existed for the trial court to conclude
that the east entrance was not a suitable easement for REMC because it
did not afford safe, reliable and immediate access to the Seldom Seen Lake
property.
Second, although REMCs Rules and Regulations do not specify the location of its
easement or the means of ingress to and egress from the property, because
the west entrance is the only other entrance to the property, and if
the east entrance is not a suitable easement, then it is reasonable to
infer that the west entrance is a suitable easement.
Third, there is sufficient evidence to support the trial courts conclusion that Appellants
interfered with REMCs right to ingress and egress when they locked the only
safe, reliable and immediate access to the property.
Finally, the evidence reveals that pursuant to the Rules and Regulations to which
Appellants agreed, they were required to secure necessary and suitable easements to provide
REMC the right of ingress to and egress from their property.
Therefore, we find sufficient evidence to support the trial courts Conclusions of Law
Nos. 41-45.
II. Contempt of Court
On cross-appeal, REMC argues that the trial court erred in concluding that it
was in contempt of court for violating the Temporary Restraining Order it issued
against REMC on September 24, 1996. Specifically, REMC contends that there was
insufficient evidence to conclude that REMC was in contempt of court because it
did not willfully disobey the trial courts Temporary Restraining Order.
The determination of whether a party is in contempt of court is a
matter within the trial courts discretion and the trial courts decision will only
be reversed for an abuse of that discretion. Williams v. State ex
rel. Harris, 690 N.E.2d 315, 316 (Ind. Ct. App. 1997). A court
has abused its discretion when its decision is against the logic and effect
of the facts and circumstances before the court or is contrary to law.
Id. When reviewing a contempt order, we will neither reweigh
the evidence nor judge the credibility of witnesses. Zillmer v. Lakins, 544
N.E.2d 550, 552 (Ind. Ct. App. 1989). Our review is limited to
considering the evidence and reasonable inferences drawn therefrom that support the trial court's
judgment. Unless after a review of the entire record we have a
firm and definite belief a mistake has been made by the trial court,
the trial court's judgment will be affirmed. In re Marriage of Glendenning,
684 N.E.2d 1175, 1179 (Ind. Ct. App. 1997), trans. denied. Furthermore, this
court will only reverse the trial court's contempt judgment if there is no
evidence to support it. Shively v. Shively, 680 N.E.2d 877, 882 (Ind.
Ct. App. 1997).
In order to be punished for contempt of a court's order, there must
be an order commanding the accused to do or refrain from doing something.
Adler v. Adler, 713 N.E.2d 348, 354 (Ind. Ct. App. 1999).
To hold a party in contempt for a violation of a court order,
the trial court must find that the party acted with "willful disobedience."
Glendenning, 684 N.E.2d at 1179.
In the present case, the evidence reveals that on September 19, 1996, Appellants,
along with other REMC customers, suffered an interruption of their electric utility.
Although REMC restored service to its other customers, it failed to restore service
to Appellants, but instead rerouted electrical service around the Seldom Seen Lake property
to its other customers. Appellants promptly notified REMC of the power outage
on September 19, 1996, however, REMC refused to restore service to Appellants until
Appellants furnished it with a key to the west gate. Although the
trial court found that REMC did not intentionally terminate electrical service to Appellants
premises on September 19, 1996, it did find that REMC did not use
reasonable diligence to provide and maintain electric service to Appellants after it was
notified of the power outage. REMC refused to restore service to Appellants
until the trial court granted Appellants Complaint for Temporary Restraining Order for REMCs
failure to restore service. In relevant part, the trial courts Temporary Restraining
Order provided as follows:
IT IS THEREFORE ORDERED that a temporary restraining order be, and is hereby
issued against Jackson County REMC, and Jackson County REMC is hereby restrained and
enjoined from interrupting or terminating electric utility service to the plaintiffs for any
reason without notice unless a condition dangerous or hazardous to life, physical safety
or property exists, or plaintiffs failure to pay for utility services.
(R. 40).
On September 26, 1996, Appellants electric service was again interrupted. In its
Amended Findings of Fact and Conclusions of Law, the trial court found and
concluded that:
38. On September 26, 1996, Jackson County REMC again interrupted electric service
to the Plaintiffs while undertaking repairs of its lines; Jackson County REMC gave
no notice and attempted to give no notice to the Plaintiffs of the
interruption of electric service even though Plaintiff Angela Voyles was at home, at
the residence, at the time service was interrupted, and the work being done
by REMC was in the yard.
39. Jackson County REMC caused the interruption of service on September 26,
1996.
****
47. That Jackson County REMC did unreasonably fail to provide restoration of
electric utility service to the Plaintiff in a timely fashion in violation of
its own rules and regulations, after the outage on September 19, 1996, by
inserting as a condition to the restoration of service, a key to the
gate.
48. Jackson County REMC, without notice, in violation of the Temporary Restraining
Order, disconnected service to Plaintiffs property on September 26, 1996.
49. Jackson County REMC is in contempt of court for its violation
of the Temporary Restraining Order.
(R. 24, 26).
Although REMC correctly argues that the trial courts Findings of Fact and Conclusions
of Law do not state that REMC willfully or intentionally disconnected service, thereby
disobeying the Temporary Restraining Order, we find that the evidence supports the inference
that REMCs interruption of Appellants service on September 26, 1996, was willful.
Specifically, REMC had interrupted Appellants service in the past, refusing to restore service
for five days until the trial court issued a Temporary Restraining Order against
it. Further, REMC again interrupted service to Appellants on September 26, 1996,
without notice. Therefore, we can infer that although the trial courts finding
did not include the word willful or intentional when referring to REMCs interruption
of Appellants service on September 26, 1996, there is sufficient evidence to support
the trial courts conclusion that REMC was in contempt of court for violating
its Temporary Restraining Order.
III. Claim for Damages to Personal Property
On cross-appeal, REMC argues that Appellants made no request for relief for damages
to personal property in their Motion to Correct Errors, the issue of damages
to personal property has never been pleaded, and the Voyles never introduced any
evidence of damages to personal property. Specifically, REMC contends that the trial
court erred in its Conclusion of Law No. 56, which stated that:
56. Plaintiffs [sic] were damaged through the loss of freezer contents by
Jackson County REMCs failure to timely restore service on September 19, 1996.
A hearing on plaintiffs [sic] damages is scheduled for the 7 day of
May, 1999, at 1:00 oclock p.m.
(R. 28). Therefore, REMC claims that the trial court erred in its
Amended Order granting Appellants Motion to Correct Errors by scheduling a hearing on
the issue of the Voyles damages to personal property. We disagree.
First, in their Motion to Correct Errors, Appellants did not address the issue
of personal property damage because the trial court did not address this issue
in its Preliminary Injunction Order that was subsequently amended after the trial court
granted AppellantsMotion to Correct Errors. However, in their Complaint for Temporary Restraining
Order, Preliminary Injunction, Permanent Injunction and Damages stemming from REMCs refusal to restore
service on September 19, 1996, Appellants alleged the damages that they would suffer
if their electrical service was not restored:
9. That plaintiffs Dennis Voyles and Angela Voyles reside upon the property
and immediate and irreparable injury, loss, and damage will result to plaintiffs unless
electrical service is promptly restored to plaintiffs property; plaintiffs are without electrical service
for the basic necessities and convenience of life from day to day living,
including lights for the security of the premises and property which is remote
and isolated; the power to operate a freezer for the preservation and storage
of food; power to operate a telephone answering device necessary in plaintiffs business.
(R. 36).
Next, in the trial courts Temporary Restraining Order of September 24, 1996, the
court found that irreparable injury, loss or damage may result if a temporary
restraining order is not granted without notice. (R. 39).
Finally, Dennis Voyles testified that when he returned home following the service interruption
on September 19, 1996, he discovered that items in the freezer were beginning
to melt and were inedible. Angela Voyles also testified that she had
food in the freezer on September 19, 1996, when service was interrupted, and
that she and her husband were unable to save the food.
Therefore, we find that the Voyles properly stated a claim for damages to
personal property, and that the trial court properly scheduled a hearing on the
issue of damages to the Voyles personal property.
CONCLUSION
Based on the foregoing, the trial courts findings of fact and conclusions of
law with respect to its Permanent Injunction Order were supported by the evidence,
there was sufficient evidence to support the trial courts finding that REMC was
in contempt of court for violating a Temporary Restraining Order by disconnecting electrical
service to Appellants property, and Voyles adequately stated a claim for damages to
personal property.
Affirmed.
KIRSCH, J., and BAKER, J., concur.
Footnote:
There is no evidence in the record regarding whether this hearing
has been or will be held.