K N Energy, Inc. v. Cities of Broken Bow

505 N.W.2d 102, 244 Neb. 113, 145 P.U.R.4th 575, 1993 Neb. LEXIS 215
CourtNebraska Supreme Court
DecidedAugust 27, 1993
DocketNos. S-91-848, S-91-849, S-91-850, S-91-851
StatusPublished
Cited by11 cases

This text of 505 N.W.2d 102 (K N Energy, Inc. v. Cities of Broken Bow) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
K N Energy, Inc. v. Cities of Broken Bow, 505 N.W.2d 102, 244 Neb. 113, 145 P.U.R.4th 575, 1993 Neb. LEXIS 215 (Neb. 1993).

Opinion

Shanahan, J.

K N Energy, Inc. (K N), a retail supplier of natural gas for customers in several municipalities, filed an action in the district court for Lancaster County for an injunction to prevent numerous municipalities in eastern and central Nebraska from enforcing ordinances which set natural gas rates lower than the rates requested by K N pursuant to the Municipal Natural Gas Regulation Act, Neb. Rev. Stat. §§ 19-4601 to 19-4623 (Reissue 1987 & Supp. 1989). The district court found that the rates prescribed by the municipalities’ ordinances were “arbitrary, unreasonable and confiscatory” and, consequently, resulted in a deprivation of K N’s property without due process, a violation of the 14th Amendment to the U.S. Constitution. The district court then enjoined enforcement of the rate ordinances.

[115]*115The Nebraska Court of Appeals held that K N failed to meet its burden of proving the cost of its service as a factor in determining an appropriate rate for K N, reversed the district court’s judgment, and remanded the cause for a new trial. K N Energy, Inc. v. Cities of Broken Bow et al., 1 NCA 2185 (1992). Pursuant to Neb. Rev. Stat. § 24-1107 (Cum. Supp. 1992), we granted K N’s petition for further review of the decision of the Nebraska Court of Appeals.

STANDARD OF REVIEW

“An injunction is a remedy available through an equity action.” Chambers-Dobson, Inc. v. Squier, 238 Neb. 748, 750, 472 N.W.2d 391, 395 (1991), See, also, Burton v. Annett, 215 Neb. 788, 341 N.W.2d 318 (1983).

In an appeal of an equity action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court; provided, where credible evidence is in conflict on a material issue of fact, an appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

Chambers-Dobson, Inc. v. Squier, 238 Neb. at 750, 472 N.W.2d at 395. Accord, In re Estate of Stephenson, 243 Neb. 890, 503 N.W.2d 540 (1993); Ehlers v. Perry, 242 Neb. 208, 494 N.W.2d 325 (1993); Gottsch v. Bank of Stapleton, 235 Neb. 816, 458 N.W.2d 443 (1990); American Sec. Servs. v. Vodra, 222 Neb. 480, 385 N.W.2d 73 (1986). See, also, Neb. Rev. Stat. § 25-1925 (Cum. Supp. 1992) (appeal of an equity action; de novo review).

FACTUAL BACKGROUND

On July 1, 1990, K N filed applications for rate increases in 147 municipalities in eastern and central Nebraska. The requested increases varied from area to area and ranged from 18.02 to 24.09 percent. K N prepared a cost-of-service study to justify its requested rate increases and filed the study with its applications to each municipality. In accordance with § 19-4607, the requested increases became effective on October 1, 1990, but were subject to a partial refund if the rates, as [116]*116finally determined, were less than the interim rates that had been placed into effect.

The municipalities hired the consulting firm of Dahlen, Berg & Co. (Dahlen), which prepared a “Municipal Report” containing an analysis of K N’s cost-of-service study. Dahlen made various adjustments to K N’s computations and recommended significantly lower rate increases that ranged between 5.02 and 10.7 percent. K N subsequently filed a “Rebuttal Report,” disputing Dahlen’s adjustments of the figures contained in K N’s study. After area rate hearings held pursuant to § 19-4616(4), many municipalities passed ordinances that set natural gas rates for K N at, and sometimes below, the level recommended in the Dahlen report.

In January 1991, K N filed petitions in the district court to enjoin enforcement of the ordinances which set natural gas rates at or below the level recommended in the Dahlen report. K N alleged that the rates expressed in the various ordinances were arbitrary, unreasonable, and capricious and deprived K N of its property without due process of law, a violation of U.S. Const, amend. XIV; Neb. Const, art. I, § 3; and the Municipal Natural Gas Regulation Act.

At trial, when K N sought to introduce exhibits 1 to 8, which included transcripts of the various rate hearings, rate ordinances, K N’s cost-of-service study, the Dahlen report, and K N’s rebuttal report, the municipalities objected on the bases of foundation, relevance, and hearsay. The following exchange occurred between counsel:

Mr. Bruckner: Your Honor, maybe we can clear this up. What is your objection to foundation?
Mr. Larson: There is probably a million numbers in there, Mr. Bruckner. We can’t stipulate to the - -
Mr. Bruckner: I’m not offering any of that for the truth of what is contained. I am offering it solely for the fact that it is what transpired at the hearings below. It is the evidence that was before the cities upon which they made their judgment. It is offered for that limited purpose. It is the beginning point of this lawsuit.

The court overruled the objections and received the exhibits.

The district court found that the rates adopted by the [117]*117municipalities were arbitrary, unreasonable, and confiscatory, and, consequently, the court enjoined enforcement of the rates in the ordinances passed by the municipalities.

On appeal to the Court of Appeals, the municipalities contended that because K N introduced the cost-of-service study for the limited purpose of showing what had occurred at the rate hearings and had not introduced any other evidence regarding the cost of service, K N had not met its burden of proving that the rates set by the municipalities were arbitrary, capricious, and confiscatory; hence, K N was not entitled to injunctive relief.

The Court of Appeals agreed with the municipalities, reversed the district court’s judgment, and remanded the cause for a new trial.

K N’S COST-OF-SERVICE STUDY

The Court of Appeals concluded that K N had failed to prove its case because K N’s cost-of-service study was merged into the rate ordinances and that the study could not be introduced at trial because

[t]he hearing in district court cannot be a review of the legislative record of the rate hearings____
The district court was in error in accepting the rate area hearing records into evidence for the limited purpose of showing what transpired at the rate area hearings. That evidence served no purpose in district court because the hearing records merged into the ordinances.

K N Energy, Inc. v.

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Bluebook (online)
505 N.W.2d 102, 244 Neb. 113, 145 P.U.R.4th 575, 1993 Neb. LEXIS 215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/k-n-energy-inc-v-cities-of-broken-bow-neb-1993.