State ex rel. Ozark Border Electric Cooperative v. Public Service Commission

924 S.W.2d 597, 1996 Mo. App. LEXIS 1150, 1996 WL 348075
CourtMissouri Court of Appeals
DecidedJune 25, 1996
DocketNo. WD 52085
StatusPublished
Cited by7 cases

This text of 924 S.W.2d 597 (State ex rel. Ozark Border Electric Cooperative v. Public Service Commission) 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
State ex rel. Ozark Border Electric Cooperative v. Public Service Commission, 924 S.W.2d 597, 1996 Mo. App. LEXIS 1150, 1996 WL 348075 (Mo. Ct. App. 1996).

Opinion

ULRICH, Judge.

Ozark Border Electric Cooperative (Ozark) appeals from an order of the Missouri Public Service Commission dismissing a complaint filed by Ozark. Ozark claims the Commission erred in: 1) dismissing the complaint for failure to allege a violation of law, rule, or commission order as required by section 386.390 RSMo 1994;1 2) dismissing the complaint for failure to allege a substantial change in circumstances because section 394.312.6 does not require such an allegation; and 3) in finding that Ozark had sufficient notice and opportunity to intervene in Case EM-94-90.

The judgment is affirmed.

[599]*599On September 7, 1993, Union Electric and Poplar Bluff entered into a territorial agreement. On September 18, 1993, they filed a joint application requesting Public Service Commission approval of the sale of Union Electric’s facilities to Poplar Bluff and approval of the territorial agreement. The Public Service Commission then gave public notice of the proceedings and invited intervention and comment from anyone regarding the proposed sale and Territorial Agreement. On December 1,1993, a hearing was conducted by the Public Service Commission for the purpose of accepting evidence in support of the application. No parties intervened in the proceeding. Statements were made on behalf of Union Electric and the City of Poplar Bluff. The contract for purchase and a stipulation and agreement between the parties were admitted into evidence. On December 3,1993, the Public Service Commission found that the territorial agreement was not against the public interest and authorized and approved the sale and agreement. The Commission issued its report and order authorizing the contract for purchase.

On December 30,1994, a year later, Ozark filed a complaint with the Public Service Commission alleging that the territorial agreement between Union Electric and Poplar Bluff was no longer in the public interest because: 1) it increased duplication of electric distribution facilities; 2) the City of Poplar Bluff lacked the long term capability of adequately serving the electrical needs of all consumers within the territory covered by the territorial agreement; and 3) because the Commission did not hold sufficient hearings to satisfy the hearing requirement under section 394.312.4.

The Public Service Commission notified Union Electric and Poplar Bluff of the complaint and informed them to file responses to the complaint in accordance with Commission procedure. Poplar Bluff filed a motion to dismiss Ozark’s complaint. On March 7, 1995, the Commission issued an order dismissing Ozark’s complaint finding that: (1) the complaint did not allege a violation of law, rule or commission order as required by section 386.390; and (2) it failed to allege a substantial change in circumstances since the approval of the territorial agreement that would invoke the Commission’s jurisdiction under section 394.312.6.

Ozark filed a motion for rehearing in the Circuit Court of Cole County. The court entered an order affirming the Commission’s order dismissing the complaint. This appeal follows.

I. Standard of Review

On appeal, appellate courts review the decision of the administrative agency, not the judgment of the trial court. Clark v. Reeves, 854 S.W.2d 28, 31 (Mo.App.1993). The scope of review is limited to determining whether the Commission’s order was lawful and reasonable based on substantial and competent evidence. State ex rel. Office of Pub. Counsel v. Missouri Pub. Serv. Comm’n, 884 S.W.2d 311, 314 (Mo.App.1994). The Commission’s order is presumptively valid, and the burden is on the challenger to disprove its validity. Id.

II. Compliance with Section 386.390

Ozark claims as its first point on appeal that the Commission’s order was unlawful in requiring the complaint to comport with the requirements of section 386.390.1. Ozark asserts that for the Commission to unilaterally assimilate the requirements of section 386.390 into section 394.312.6, under which the complaint was filed, is unlawful and unreasonable.

However, the Commission did not assimilate the requirements of section 386.390 with section 394.312. Section 394.312.6 gives the Commission jurisdiction to hear complaints involving approved territorial agreements. Section 386.390 is the general complaint statute. In pertinent part section 386.390.1 reads:

Complaint may be made ... in writing, setting forth any act or thing done or omitted to be done by any corporation, person or public utility, including any rule, regulation or charge heretofore established or fixed by or for any corporation, person or public utility, in violation, or claimed to be in violation, of any provisions of law, or of any rule or order or decision of the commission;

[600]*600Ozark reads the Commission's order as requiring a complainant to allege a violation of law, rule or commission order under 394.312.6. However, this is an incorrect reading of the Commission’s order. The Commission’s order stated:

Ozark alleged that the territorial agreement is no longer in the public interest because it increases duplication of electric distribution facilities in the area, and because the City lacks the long term capability to adequately service the electrical need of all of the consumers in the assigned area. Neither of these allegations constitutes a violation of law, rule or Commission order as required by Section 386.390 RSMo. The objections Ozark has raised are among the types of objections properly considered in the original proceeding, Case No. EM-94-90.
Furthermore, Ozark has not alleged facts indicating that there has been a substantial change in circumstances since the territorial agreement was approved 15 months ago. If such a substantial change had taken place in the facts surrounding a territorial agreement, a party might successfully invoke the Commission’s jurisdiction to review the agreement pursuant to Section 394.312.6.
Since Ozark has not alleged facts indicating a substantial change in circumstances, and has not alleged a violation of law, rule or commission order, the Commission is of the opinion that its Complaint should be dismissed.

The Commission’s order reflects that it considered two alternative means by which the Commission could have jurisdiction over the complaint. If the complaint had met the requirements of either statute, the Commission would have reviewed the agreement. The Commission did not combine the requirements of the statutes but instead examined each statute separately to determine whether Ozark’s complaint asserted actionable allegations under either. Thus, the Commission examined the complaint to determine whether it asserted actionable allegations under the more specific complaint statute for territorial agreements, and whether it invoked the Commission’s jurisdiction under the general complaint statute.

The Commission found that the complaint did not allege a change in circumstance, thereby precluding jurisdiction under section 394.312.6. It then considered whether the complaint evoked jurisdictional authority under 386.390.1.

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924 S.W.2d 597, 1996 Mo. App. LEXIS 1150, 1996 WL 348075, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-ozark-border-electric-cooperative-v-public-service-moctapp-1996.