Dennis v. Duke Power Co.

442 S.E.2d 104, 114 N.C. App. 272, 1994 N.C. App. LEXIS 376
CourtCourt of Appeals of North Carolina
DecidedApril 19, 1994
DocketNo. 9310UC278
StatusPublished
Cited by2 cases

This text of 442 S.E.2d 104 (Dennis v. Duke Power Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dennis v. Duke Power Co., 442 S.E.2d 104, 114 N.C. App. 272, 1994 N.C. App. LEXIS 376 (N.C. Ct. App. 1994).

Opinion

EAGLES, Judge.

On the appeals of respondent Haywood EMC and intervenors NCEMC and the Public Staff, the questions presented are whether the Commission erred in: (1) failing to render its decision pursuant to the standards set forth in G.S. 62-79(a), thereby frustrating appellate review; (2) reassigning complainant M-B Industries, the manufacturing company, from Haywood EMC to Duke; (3) failing to reassign the residential complainants to an electric supplier other than Haywood EMC, and; (4) excluding an expert’s testimony regarding the adverse economic impact on Haywood EMC of shifting customers to other electric suppliers. After careful review of the record, transcript, and briefs, we hold that the Commission erred in reassigning M-B Industries from Haywood EMC to Duke and [282]*282remand for entry of an order vacating that portion of the Commission’s 5 October 1992 order. We further hold that the Commission erred in excluding the expert testimony. As to the other issues brought forward in these appeals, the Commission’s 5 October 1992 order is affirmed.

I. Standard of Review

G.S. 62-94(b) governs our review of the Commission’s order. G.S. 62-94(b) provides that an appellate court

(b) . . . may reverse or modify the decision if the substantial rights of the appellants have been prejudiced because the Commission’s findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional provisions, or
(2) In excess of statutory authority or jurisdiction of the Commission, or
(3) Made upon unlawful proceedings, or
(4) Affected by other errors of law, or
(5) Unsupported by competent, material and substantial evidence in view of the entire record as submitted, or
(6) Arbitrary or capricious.

The Commission’s order will not be upheld if error is found based on one of the enumerated grounds of G.S. 62-94(b). State ex rel. Utilities Comm. v. Southern Bell, 88 N.C. App. 153, 177, 363 S.E.2d 73, 87 (1987); Utilities Comm. v. Bird Oil Co., 302 N.C. 14, 20, 273 S.E.2d 232, 235 (1981) (“judicial reversal of an order of the Utilities Commission is a serious matter for the reviewing court which can be properly addressed only by strict application of the six criteria which circumscribe judicial review”). Grounds for relief not specifically set forth in the notice of appeal filed with the Commission may not be relied upon in the appellate courts. G.S. 62-94(e). However, even when specific grounds are set forth, the applicable scope of review may be determined only from an examination of the issues brought forward by the appealing party and the nature of the supporting contentions. Utilities Comm. v. Bird Oil Co., 302 N.C. 14, 273 S.E.2d 232.

II. Appealability of the Commission’s Order

Respondent Haywood EMC argues that “[t]he Commission’s order lacks proper findings and conclusions and a statement of [283]*283the reasons or bases therefore concerning all the material issues as required by G.S. 62-79(a).” We disagree. G.S. 62-79 provides, in pertinent part, that:

(a) All final orders and decisions of the Commission shall be sufficient in detail to enable the court on appeal to determine the controverted questions presented in the proceedings and shall include:
(1) Findings and conclusions and the reasons or bases therefor upon all the material issues of fact, law, or discretion presented in the record, and
(2) The appropriate rule, order, sanction, relief or statement of denial thereof.

G.S. 62-79(a) mandates that the Commission has “to find all facts which are essential to a determination of the issues before it, in order that the reviewing court may have sufficient information to determine whether an adequate basis exists, in law and in fact, to support the Commission’s resolution of the controverted issues.” State ex rel. Utilities Comm. v. Mackie, 79 N.C. App. 19, 29, 338 S.E.2d 888, 895 (1986), modified on other grounds and aff’d, 318 N.C. 686, 351 S.E.2d 289 (1987) (citations omitted). “The failure to include all the necessary findings of fact is an error of law and a basis for remand upon N.C.G.S. § 62-94(b)(4) because it frustrates appellate review.” State ex rel. Utilities Comm. v. The Public Staff, 317 N.C. 26, 34, 343 S.E.2d 898, 904 (1986) (citations omitted). See State ex rel. Utilities Comm. v. Carolina Water Service, 335 N.C. 493, 502, 439 S.E.2d 127, 132 (1994); State ex rel. Utilities Comm. v. AT&T Communications, 321 N.C. 586, 588, 364 S.E.2d 386, 387 (1988). However, the Commission is not required to set forth comments regarding “every single fact or item of evidence presented by the parties.” State ex rel. Utilities Comm. v. Nantahala Power & Light Co., 313 N.C. 614, 745, 332 S.E.2d 397, 474 (1985), rev’d on other grounds sub nom., Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953, 90 L.Ed.2d 943 (1986). Our Supreme Court has stated that:

The purpose of the findings required by G.S. § 62-79(a) is to provide the reviewing court with sufficient information to allow it to determine the controverted questions presented in the proceedings. . . .
[284]*284The Commission’s summary of the appellant’s argument and its rejection of the same is sufficient to enable the reviewing court to ascertain the controverted questions presented in the proceeding. That is all that G.S. § 62-79 requires.

State ex rel. Utilities Comm. v. Conservation Council, 312 N.C. 59, 62, 320 S.E.2d 679, 682 (1984).

Respondent Haywood EMC contends that various findings of fact actually are “mere conclusions.” Regarding findings of fact, our Supreme Court has stated:

Findings of fact are statements of what happened in space and time. . . .
The Commission’s mislabeling of its findings and conclusions will not, however, be fatal to its order if certain procedural requirements are met.

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Related

Holt v. Williamson
481 S.E.2d 307 (Court of Appeals of North Carolina, 1997)
Dennis v. Duke Power Co.
459 S.E.2d 707 (Supreme Court of North Carolina, 1995)

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Bluebook (online)
442 S.E.2d 104, 114 N.C. App. 272, 1994 N.C. App. LEXIS 376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dennis-v-duke-power-co-ncctapp-1994.