Celleco Partnership, et al. v. Indiana Utility Regulatory Commission, et al. (6/30/04 IndCtApp) [Utilities; Trade Secrets]
Baker, Judge
Today we hand this case down along with a related case, Indiana Bell Telephone Co., Inc. d/b/a SBC Indiana, v. Indiana Utility Regulatory Commission , et al. No. 93A02-0306-EX-484 (Ind. Ct. App. June 30, 2004). [See next case] Appellants-petitioners Cellco Partnership, et al., (collectively, the Wireless Carriers) appeal an order issued by the Indiana Utility Regulatory Commission (IURC), which determined that intrastate revenues generated by the Wireless Carriers are disclosable public records and are not subject to trade secret protection. Furthermore, as in the SBC case, the Wireless Carriers maintain that the IURC erred in departing from established precedent regarding confidentiality of certain data without setting forth its reasons for doing so. Concluding that no reversible error occurred, we affirm the IURC’s order. * * *Indiana Bell (SBC) et al. v. Indiana Utility Regulatory Commission, et al. (6/30/04 IndCtApp) [Utilities; Trade Secrets]When construing this portion of the order in conjunction with the remaining findings and conclusions, it is apparent that the IURC has fully examined the issues in this case, and it has made relevant factual findings in support of the judgment. Moreover, as explained in the findings, only a minority of the telephone companies has sought confidential treatment of the survey and the reports. The companies also have not shown consistency in requesting that the same information in different public records be treated as confidential. Additionally, not all of the companies requesting confidential treatment of the material have made the same confidentiality request for the reports in years past. In our view, the IURC got it right when it concluded that such a lack of unanimity or consensus as to the need for confidentiality, along with the lack of consistency in seeking confidential treatment for the same information, are factors that weigh against a finding that the various responses should be excepted from public disclosure. As a result, we reject the Wireless Carriers’ claim that the IURC failed to adequately explain why it chose to take a different approach and depart from its prior treatment of this data. Judgment affirmed.
ROBB, J., concurs.
BARNES, J., concur in result with opinion.I concur in result with the majority’s opinion. Relying on the IURC’s categorization of the information that the Wireless Carriers sought to keep confidential, the majority concluded that such information constituted confidential information filed with a public agency and was subject to disclosure pursuant to Indiana Code Section 5-14-3-4(a)(5). I disagree with the majority’s assertion that confidential financial information filed with a public agency is subject to disclosure even if that same information constitutes a trade secret. * * *
Based on the minimal contents of the affidavits provided by the Wireless Carriers, they have not established that the intrastate revenues are protectable trade secrets subject to the disclosure exception in Indiana Code Section 5-14-3-4(a)(4). For this reason, I concur in result.
Today we hand down two cases addressing the issue of whether certain information provided to the Indiana Utility Regulatory Commission (IURC) by telephone companies should be afforded trade secret or confidential information protection. In this case, appellant-petitioner Indiana Bell Telephone Company, Inc., d/b/a SBC Indiana (SBC) appeals from an order issued by the IURC denying its request to maintain the confidentiality of certain business data that had been submitted to the IURC. Specifically, SBC maintains that the order should have been granted because the information provided to the IURC constituted competitively sensitive trade secret material and a preliminary ruling had been made determining that the same information had been entitled to confidential treatment in an IURC order that was not challenged by any SBC competitor. SBC also argues that the order is contrary to law because the IURC failed to set forth its reasons for deviating from the rebuttable presumption that SBC’s information was entitled to trade secret protection.Metropolitan Development Commission of Marion County v. Pinnacle Media, LLC (6/30/04 IndCtApp) [Zoning]Based upon our review of the record, we conclude that the findings were sufficient to support the IURC’s determination that the SBC information did not constitute trade secrets that is protected from public disclosure. We also observe that the IURC’s rationale set forth in the order for departing from established precedent that there is a rebuttable presumption that SBC’s data was entitled to trade secret protection does not warrant a reversal. Thus, we affirm the judgment of the IURC. We similarly hold in a companion case, Cellco Partnership et al. v. Indiana Utility Regulatory Commission, No. 93A02-0307-EX-639 (Ind. Ct. App. June 30, 2004). * * *
Judgment affirmed.
ROBB, J., concurs.
BARNES, J., dissents with opinion.I respectfully dissent. I am not comfortable with affirming the IURC’s decision by relying on its assessment of an outside-the-record document that this court cannot review. * * * I decline to jump on the “competition” train without the sufficient tracks of on-the-record evidence being present. I would reverse the IURC’s order denying trade secret protection to the information SBC seeks to keep confidential.
The Metropolitan Development Commission of Marion County (the Commission) and the Department of Metropolitan Development of the City of Indianapolis (the DMD) (referred to collectively as “the City”) appeal the grant of summary judgment and the award of attorney fees in favor of Pinnacle Media, LLC (Pinnacle) on Pinnacle’s complaint for declaratory judgment. The City presents the following restated and consolidated issues for review: Did the trial court properly grant summary judgment in favor of Pinnacle? Did the trial court abuse its discretion in awarding attorney fees to Pinnacle pursuant to IC 34-52-1-1? We affirm in part and reverse in part. * * *City of Mishawaka v. Marian Kvale (6/30/04 IndCtApp) [Real Estate]Under the specific circumstances presented in the instant case, we conclude that the vested rights doctrine applies to estop the City’s belated effort to acquire jurisdiction over construction of the signs in question. Consistent with the doctrine, a property owner should have the ability to survey the zoning laws as they exist at a particular time and determine with certainty which permitting authorities require an application. Once a property owner applies for the relevant building permits under the prevailing zoning laws, the owner’s rights vest as against other government units who subsequently attempt to intervene by enacting laws to assert jurisdiction (i.e., to require permits) over the subject matter of the pending permit applications. As our supreme court observed in a slightly different context, “A government which exercises such police power over the property of its citizens without any fixed standards which are known to the citizens and the enforcing officials is a government by men, and not by law.” Knutson v. State, 160 N.E.2d at 202.
The City alternatively argues that even if the doctrine of vested rights applies in this instance, the law in existence at the time Pinnacle applied for permits from INDOT forbade the erection of billboards on unzoned land. Over two years after the July 1999 letters and just before Pinnacle initiated litigation, the City notified Pinnacle that it now believed that the position expressed in the July 1999 letters was incorrect, as the City had previously not recognized the applicability of Indianapolis Rev. Code § 730-505(a)(1). The City argues that § 730-505(a)(1) applies to both unzoned land and zoned land. * * *
We initially ponder how a civil zoning violation could occur from the erection of a sign on unzoned property. The City does not satisfactorily answer this question. Moreover, an examination of Chapter 734, which provides the numerous sign regulations for Marion County, reveals that Chapter 734 governs only signs located within zoning districts in Marion County. * * * Reading § 730-505(a)(1) together with Chapter 734, it is clear that § 730-505(a)(1) applies only to signs within zoning districts in Marion County. As it is undisputed that Pinnacle’s proposed signs were not within a Marion County zoning district at the time the permit applications were filed with INDOT, § 730-505(a)(1) has no application in the instant case. The trial court properly granted summary judgment in favor of Pinnacle. * * *
Despite the fact that Pinnacle explicitly presented the City with its position that it had obtained a vested right, the City was not required to bow to Pinnacle’s interpretation of the law. The application of the doctrine of vested rights in this unusual context had not been addressed in Indiana and the cases supplied by Pinnacle were not directly on point. While the City ultimately lost on the merits, its defense that the doctrine does not apply between governmental units was not unreasonable, frivolous, or groundless.
We conclude that the trial court abused its discretion by awarding attorney fees to Pinnacle. We reverse that portion of the judgment, and affirm the award of summary judgment in favor of Pinnacle. Judgment affirmed in part and reversed in part.
KIRSCH, C.J., and BARNES, J., concur.
Mortgage agreement dispute between City and Estate. Issue: "Whether the trial court’s grant of summary judgment in favor of the Estate was erroneous because, even if the mortgage agreements are void, the Estate is obligated to repay the balance due on the agreements under the equitable doctrine of quantum meruit."
"For the foregoing reasons, we affirm the trial court’s grant of summary judgment to the Estate on the issue of whether the real estate mortgage agreements are void but reverse on the issue of unjust enrichment. Affirmed in part and reversed in part."
Household Finance Corporation v. Kurt and Carolyn Ness (6/30/04 IndCtApp) [Real Estate]
Friedlander, Judge
Household Finance Corporation, Inc. (Household) appeals the denial of its Motion to Enjoin Disbursement of Funds and to Set Aside Sale in an action involving a sheriff’s sale at which the Appellees, Kurt and Carolyn Ness, purchased a residence. Household challenges the correctness of that ruling as the sole issue upon appeal. We affirm. * * *Andrew & Susan Verrall v. Eric & Tina Machura (6/30/04 IndCtApp) [Real Estate]Finally, in reaching our conclusion, we are mindful that this dispute involves the interests of other parties besides Household, most notably the Nesses. Relying upon the legitimacy of the sale, they took possession of the residence and have been living there ever since. This illustrates what is perhaps the most important reason why there is generally a strong public policy in favor of finality of judicial sales. See Smith v. Fed. Land Bank of Louisville, 472 N.E.2d 1298 (Ind. Ct. App. 1985). Those public policy considerations are best served if the burden of acquiring information about the required procedures for participating in a sheriff’s sale is placed upon the party with the greatest incentive to know them, viz., prospective bidders. In this case, that would be Household. Having determined that the equities do not support Household’s petition to set aside the sale, we conclude that the trial court did not err in denying Household’s motion.
Judgment affirmed.
KIRSCH, C.J., and SHARPNACK, J., concur
* * * Buyer’s fraudulent misrepresentation allegations regarding flooding in the basement are based upon the Disclosure Form. Indiana law requires a seller to provide a potential buyer with a disclosure form before an offer is accepted for the sale of residential real estate. * * *Lanny D. Abney v. State of Indiana (6/30/04 IndCtApp) [Criminal Law & Procedure]
Judgment affirmed in part and reversed in part.
KIRSCH, C.J., and BARNES, J., concur
In this interlocutory appeal, Lanny Abney appeals the trial court’s denial of his motion to suppress blood alcohol test results. Abney raises one issue, which we restate as whether the trial court erred by denying Abney’s motion to suppress his blood alcohol test results because Abney’s blood was drawn after the police had invoked the implied consent statute and Abney had refused to consent to the blood draw. We affirm. * * *Kimberly S. Ham v. State of Indiana (6/30/04 IndCtApp) [Criminal Law & Procedure]In summary, the withdrawal of Abney’s blood was obtained pursuant to the guidelines in the implied consent statutes, more specifically Ind. Code § 9-30-6-6(g). Therefore, the trial court did not err by denying Abney’s motion to suppress his blood alcohol test results that were obtained after Abney had refused to submit to a chemical test under the implied consent statutes.
For the foregoing reasons, we affirm the trial court’s denial of Abney’s motion to suppress. Affirmed.
DARDEN, J. and ROBB, J. concur
Appellant-defendant Kimberly S. Ham appeals her conviction for Operating a Vehicle While Intoxicated, a class C misdemeanor. Specifically, Ham argues that the conviction may not stand because the trial court erred in giving a final instruction which provided that “a defendant’s refusal to submit to a chemical test may be considered as evidence of intoxication.” Ham asserts that the instruction was an incorrect statement of the law and that it unduly emphasized one evidentiary fact pertaining to her guilt regarding the charged offense.Percy Dawson v. State of Indiana (6/30/04 IndCtApp) [Criminal Law & Procedure]We conclude that the trial court erred in tendering this instruction to the jury, and we thus admonish our trial courts to refrain from giving this type of instruction in the future. However, in light of the overwhelming evidence presented at trial establishing Ham’s guilt, we hold that the instruction constituted harmless error. Therefore, we affirm the judgment of the trial court.
FRIEDLANDER, J., concurs.
BAILEY, J., concurs in result with opinion.I concur in the majority’s determination that the jury properly convicted Ham of operating a vehicle while intoxicated, a Class C misdemeanor. See footnote However, I disagree with the majority’s conclusion that the trial court abused its discretion by instructing the jury that “a [d]efendant’s refusal to submit to a chemical test may be considered as evidence of intoxication.” * * *