Missouri-American Water Co. v. Hall

470 S.W.3d 761, 2015 Mo. App. LEXIS 963, 2015 WL 5561845
CourtMissouri Court of Appeals
DecidedSeptember 22, 2015
DocketWD 78297
StatusPublished
Cited by1 cases

This text of 470 S.W.3d 761 (Missouri-American Water Co. v. Hall) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Missouri-American Water Co. v. Hall, 470 S.W.3d 761, 2015 Mo. App. LEXIS 963, 2015 WL 5561845 (Mo. Ct. App. 2015).

Opinion

Joseph M. Ellis, Judge

George Hall appeals from the Public Service Commission’s denial of his motion to intervene in a case in which Missouri-American Water Company (“MAWC”) has applied for a certificate of convenience and necessity to provide sewer service to a portion of Benton County, Missouri. For the following reasons, the appeal is- dismissed.

[763]*763On September 8, 2014, MAWC filed its application with the Commission seeking a certificate of convenience and necessity to provide sewer service to a portion of Benton County, Missouri.1 In its application, MAWC stated that it planned to provide such service by purchasing an existing wastewater collection and treatment system owned by Benton County Sewer District # 1 (“District # 1”). After voters of that sewer district had voted to dissolve it, a Federal District Court had enjoined the dissolution of District # 1 and appointed a receiver to control its assets and operations and to explore the potential sale of the sewer system. MAWC had subsequently executed an asset purchase agreement to purchase District # l’s assets, and that agreement had been approved by the Federal District Court. MAWC asked the Commission for permission “to install, own, acquire, construct, operate, manage and maintain a sewer system for the public” in the area served by District # 1 and, specifically, for permission to acquire the assets of District # 1 identified in the asset purchase agreement.

The deadline for applying to intervene in the matter was set at October 1, 2014. The Missouri Department of Natural Resources filed a timely application to intervene and was granted status as a party. The Missouri Office of the Public Counsel is also party to the matter pursuant to § 386.710(2).

On November 16,2014, Appellant, acting pro se, filed a motion for leave to intervene out of time or, in the alternative, for leave to file an amicus curiae brief. After considering multiple responses in opposition to Appellant’s intervention and affording Appellant an opportunity to speak at a local public meeting, the Commission denied Appellant’s motion to intervene but granted him permission to file an amicus curiae brief. In denying leave to intervene, the Commission found that Appellant had good cause for not timely filing his motion to intervene but that Appellant’s interests were no different from those of the general public and, further, that he had faded to demonstrate that his interests would be adversely affected by any decision the Commission might render in the matter. It further found that the public interest would not be served by allowing him to intervene.

Appellant filed a motion asking the Commission to reconsider its ruling: In response, the Commission issued a further order acknowledging that' Appellant’s interest in operating his own, on-site residential septic system might not be shared by the general public but noted that Appellant’s interest in operating such a system could not be affected by any final order of the Commission rélated to MAWC’s application. The Commission stated that its authority in the case was limited to determining whéther MAWC should be authorized to purchase and operate a specific sewer system and that it had no authority related to Appellant’s ability to use a private septic system on his property. It concluded that its order denying his request to intervene out of time was correctly decided and denied Appellant’s motion for reconsideration.

On appeal, again acting pro se, Appellant claims that the Commission abused its discretion in denying his-motion to intervene because the record reflects that his interests would be affected by any decision reached by the Commission. He argues that the construction of District # l’s sew[764]*764er system was illegally funded by loans from the United States Department of Agriculture (“USDA”) rather than revenue bonds as approved by the voters. He contends that District # l’s board of trustees had no authority to incur such debt absent voter approval. He maintains that the terms of the purchase agreement executed by MAWC improperly provide that MAWC will make payments on the USDA loans and that any proceeds from the sale of District # 1 should, instead, be divided between the residents of the district.

Before we can address the merits of Appellant’s appeal, we must consider MAWC’s motion to dismiss the appeal, which was taken with the appeal. MAWC contends that the Commission’s order concerns the denial of a request for permissive intervention and that the denial of such a request is not a final and appealable order. An appellate court can only entertain appeals from final orders or decisions of the Commission. AG Processing, Inc. v. KCP & L Greater Mo. Operations Co., 432 S.W.Bd 226, 230 (Mo. App. W.D. 2014) (citing MO. CONST. art V, § 18). An order denying permissive intervention is not a final order and is, therefore, not reviewable on interlocutory appeal. In re Adoption of C.T.P., 452 S.W.3d 705, 712 n. 14 (Mo. App. W.D. 2014) (internal quotation omitted); see also In re M.M.P., 10 S.W.3d 195, 197 (Mo. App. W.D. 2000); In re C.G.L., 28 S.W.3d 502, 504 (Mo. App. S.D. 2000).

In his motion, Appellant asked the Commission to exercise its discretion under 4-CSR 240-2.075 to allow him to intervene in the action. The Commission’s standard for intervention is set forth in 4 CSR 240-2.075(3), which states:

The commission may grant a motion to intervene or add new member(s) if—
(A) The proposed intervenor or new member(s) has an interest which is different from that of the general public and which may be adversely affected by a final order arising from the case; or
(B) Granting the proposed intervention would serve the public interest.

Any motion to intervene in an action before the Commission must be filed within thirty days after the Commission issues its order giving notice of the case, 1* CSR 21*0-2.075(1), however, the Commission may grant an application to intervene filed out of time upon a showing of good cause. I CSR 21*0-2.075(10).

MAWC argues that, because 4 CSR 240-2.075(3) provides that the Commission “may” permit intervention under the circumstances set forth, all intervention in actions before the Commission is permissive in nature and, therefore, the Commission’s denial of any motion to intervene is never appealable. We need not address this argument, however, because, even assuming arguendo the existence of intervention as a matter of right in actions before the Commission and an ability to appeal the denial of such intervention, Appellant’s motion clearly failed to plead any claim to intervention as a matter of right and any relief granted on his motion would necessarily have to have been permissive in nature.

In the absence of a statute or regulation specifically granting a party a right to intervene, “intervention of right exists when one seeking to intervene claims an interest relating to the transaction that is the subject of the action that is ■not adequately represented by existing parties and the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest.” In re C.G.L., 28 S.W.3d at 504.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
470 S.W.3d 761, 2015 Mo. App. LEXIS 963, 2015 WL 5561845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/missouri-american-water-co-v-hall-moctapp-2015.