Arnold Line Water Ass'n v. MISSISSIPPI PUBLIC SERVICE

744 So. 2d 246, 1999 Miss. LEXIS 116, 1999 WL 161337
CourtMississippi Supreme Court
DecidedMarch 25, 1999
Docket97-CC-01509-SCT
StatusPublished
Cited by4 cases

This text of 744 So. 2d 246 (Arnold Line Water Ass'n v. MISSISSIPPI PUBLIC SERVICE) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arnold Line Water Ass'n v. MISSISSIPPI PUBLIC SERVICE, 744 So. 2d 246, 1999 Miss. LEXIS 116, 1999 WL 161337 (Mich. 1999).

Opinion

744 So.2d 246 (1999)

ARNOLD LINE WATER ASSOCIATION, INC.
v.
MISSISSIPPI PUBLIC SERVICE COMMISSION.

No. 97-CC-01509-SCT.

Supreme Court of Mississippi.

March 25, 1999.
Rehearing Denied June 3, 1999.

*247 Jeffrey Loewer Hall, Michael Dwight Callahan, Hattiesburg, Attorneys for Appellant.

William Bruce McKinley, Frances Corley Lynch, Jackson, Attorneys for Appellee.

EN BANC.

SULLIVAN, Presiding Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. This case began when Arnold Line Water Association, Inc. (hereinafter "ALWA"), filed a motion, on November 15, 1993, before the Mississippi Public Service Commission (hereinafter "Commission"), to set aside a previous order issued by the Commission. ALWA complained that the Commission had failed to give ALWA notice that a portion of its certificated area was to be canceled in favor of the City of Hattiesburg (hereinafter "the City"). ALWA alleged that it had no opportunity to be heard on the issue.

¶ 2. The City filed a response to the motion on December 2, 1993, as a real party in interest. The City asserted that ALWA was given notice of the Commission's order. The City claimed that a purchase agreement concerning the disputed area was entered into between the City and ALWA in August of 1988. The City asserted that the purchase agreement, upon which the Commission relied in canceling *248 a portion of ALWA's certificate, required no further notice to ALWA.

¶ 3. The Commission conducted a hearing in January of 1994, and the Commission entered its order on March 14, 1994. The Commission found that it had canceled a portion of ALWA's certificated area in an order dated September 25, 1992. Because the purchase agreement between ALWA and the City involved no sale or assignment of a certificate, the Commission held that the notice provisions of Miss.Code Ann. § 77-3-23 (1991 & Supp. 1998), were not applicable. As a result, the Commission found that the mailing of the September 25 order to all interested parties served as sufficient notice.

¶ 4. ALWA filed its notice of appeal with the Chancery Court of Lamar County, Mississippi on April 13, 1994. The City requested that the chancellor recuse himself because of the elaborate background of facts relating to the City's growth west into Lamar County and the resulting political tensions. The chancellor granted the motion, and Chancellor Kenneth B. Robertson of Pascagoula was subsequently appointed by this Court as special chancellor.

¶ 5. After all interested parties filed briefs, the special chancellor filed his opinion on October 27, 1997. The chancellor stated that the situation between ALWA and the City relating to the 1988 Purchase Agreement was complex: ALWA had sued the City in federal court and the 1988 Purchase Agreement was a result of the compromise and settlement between them.

¶ 6. The chancellor also noted as a factual matter that at the hearing, ALWA had not produced the person employed by the Commission charged with sending the notice of the September 25, 1992, order, nor had it produced its own secretary-treasurer, the person responsible for receiving the notice.

¶ 7. The chancellor held that since post-deprivation notice and due process were available in circumstances where the parties had previously agreed on the conveyance of a certificated area, that ALWA had failed to demonstrate a due process violation. As a result, the chancellor found that the Commission had not acted in an arbitrary or capricious manner.

¶ 8. Taking exception to the chancellor's judgment, ALWA appealed to this Court on November 26, 1997, raising the following issues:

I. THE COMMISSION'S FINDING THAT ALWA WAS AFFORDED DUE PROCESS OF LAW WHEN A PORTION OF ITS CERTIFICATED AREA WAS CONVEYED TO THE CITY IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.
II. THE MISSISSIPPI PUBLIC SERVICE COMMISSION LACKS JURISDICTION TO SETTLE A CONTRACT DISPUTE.

¶ 9. We find that the special chancellor was correct in holding that ALWA received actual notice of the Commission's 1992 amendment regarding the certificated area in dispute. Further, the special chancellor did not abuse his discretion, nor was he manifestly in error in finding that the Commission had jurisdiction to act in this matter. Therefore, we conclude that ALWA's appeal is meritless, and we affirm the judgment below.

STATEMENT OF FACTS

¶ 10. ALWA is a non-profit corporation supplying domestic and fire-flow water to its subscribers/customers within its certificated area. ALWA's certificated area, established by the Certificate of Public Convenience and Necessity, issued to ALWA by the Commission on June 1, 1967, encompasses an area in Lamar County, Mississippi, bordering the municipal boundaries of the City of Hattiesburg, Mississippi.

¶ 11. On or about August 2, 1988, the City and ALWA entered into a purchase agreement in order to resolve pending federal court litigation between them. In the *249 settlement agreement, the City agreed to pay $180,000 in return for a portion of ALWA's certificated territory located on three parcels of land. The area which is the object of this dispute (hereinafter "Tract 3") was under consideration as the site of a future shopping center.[1] The 1988 agreement read as follows regarding Tract 3:

Association [ALWA] does further agree that it will transfer and convey to City without additional consideration that portion of its certificated territory located in Lamar County, Mississippi more particularly described herein below, that may be developed as a shopping center and/or shopping mall....

¶ 12. After this agreement was executed, the parties jointly petitioned the Commission to approve the conveyance. The Commission stated in its order of September 13, 1988, that the parties had "request[ed] approval of the sale and transfer of a portion of the Certificate of Public Convenience and Necessity held by Arnold Line Water Association, Inc., to the City...." In its September 13 order, the Commission approved the cancellation of ALWA's certificate for Tracts 1 and 2, but did not mention Tract 3.

¶ 13. On September 8, 1992, the City contacted the Commission seeking guidance as to how it could amend the September 1988 order to also include Tract 3. In this regard the City Clerk, Ms. Clarice Wansley, wrote a letter to the Commission which stated in part:

You will note that on pages 4 and 5 of the agreement between the City and Arnold Line a certain portion of Arnold Line's certified territory, located in Lamar County, Mississippi, was omitted from the Public Service Order by an apparent error or oversight.
Would you please give the City guidance as to how the original order may be amended nunc pro tunc, to include this parcel of property.

¶ 14. In response to the City's letter, the Commission amended its prior 1988 order with an order dated September 25, 1992, which deleted Tract 3 from ALWA's certificated area. The Commission's order stated that its actions were pursuant to a joint application from ALWA and the City.

¶ 15. On November 12, 1993, ALWA filed its petition to set aside the Commission's September 25, 1992 order, claiming it had never received notice of the order or the amendment it contained. This matter was set for hearing before the Commission on January 26, 1994.

¶ 16.

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Bluebook (online)
744 So. 2d 246, 1999 Miss. LEXIS 116, 1999 WL 161337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arnold-line-water-assn-v-mississippi-public-service-miss-1999.