Public Service Commission v. Lower Valley Power & Light, Inc.

608 P.2d 660, 1980 Wyo. LEXIS 249

• Court: Wyoming Supreme Court
• Decided: March 19, 1980
• Docket: 5132
• Status: Published

Opinions

ORDER DISMISSING APPEAL

McCLINTOCK, Justice.

Lower Valley Power and Light, Inc. (LVPL) filed application with the Wyoming Public Service Commission (the commission) requesting an increase in its utility rates. After public hearing the commission entered its order authorizing some increase but not as much as LVPL considered necessary. It filed petition for review in the district court of Lincoln County, including in that petition a request that it be permitted to present evidence as to the consequences of the commission’s action. Over objection of the commission, evidence was given before the district judge but no ruling was made as to the legal effect thereof and no action was taken upon the merits of the review. Its order, now appealed to this court by the commission, was that the commission

. receive evidence from Lower Valley Power and Light, Inc., to show the effect of the Wyoming Public Service Commission’s Order dated December 21, 1978, upon the operations of Lower Valley Power & Light, Inc.”

The commission appealed to this court but prior to the filing of any briefs LVPL filed a motion to dismiss the appeal for lack of a final appealable order under Rule 1.05, WRAP, which in pertinent part defines a final order as one

“. . . affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment.”

We denied this motion without prejudice to renew the same upon oral argument. LVPL has continued to press its motion and upon consideration of the briefs, oral argument and the record in the case, a majority of the court, Justices McClintock and Rose, and Justice Guthrie, Retired, are of the opinion that the appeal should be dismissed. Chief Justice Raper and Justice Thomas are of the opinion that it should not, and have filed their separate dissents hereto attached.

Generally a judgment or order which determines the merits of the controversy and leaves nothing for future consideration is final and appealable, and it is not appealable unless it does those things. 4 C.J.S. Appeal and Error § 94, p. 252. We conclude that the order of the district court was not designed finally to dispose of the matter but only to obtain additional information which should be considered by the commission in the first instance. No substantial rights of the commission were adversely affected by that order.

It is therefore ordered that the captioned appeal be and it hereby is dismissed.

ROSE, J., and GUTHRIE,

* Retired Justice, concur.

RAPER, C. J., and THOMAS, J., dissent.

ROONEY, J., having recused himself from participation in this case, GUTHRIE, J., retired, was assigned, having been retained in active judicial service pursuant to Art. 5, § 5, Wyoming Constitution, and § 5-l-106(f), W.S.1977, by order of this court entered on January 1, 1979.