381 N.W.2d 226 (S.D. 1986), 14908, State ex rel. Johnson v. Public Utilities Com'n of South Dakota

Docket Nº:14908, 14919.
Citation:381 N.W.2d 226
Opinion Judge:The opinion of the court was delivered by: Hertz
Party Name:STATE of South Dakota, ex rel Corinne JOHNSON, Jeff Johnson, Elmer Olson and Mary Jane Olson, Plaintiffs and Appellants, v. The PUBLIC UTILITIES COMMISSION OF SOUTH DAKOTA: Kenneth Stofferahn, Jeff Solem and Dennis Eisnach, as duly elected members thereof, Defendants and Appellees, and Northwestern Bell Telephone Company, a foreign corporation, Int
Attorney:George A. Bangs of Bangs, McCULLEN, Butler, Foye & Simmons, Rapid City, South Dakota. and Charles Rick Johnson of Johnson, Eklund & Davis, Gregory, South Dakota. Attorneys for plaintiffs and appellants.
Case Date:January 22, 1986
Court:Supreme Court of South Dakota
 
FREE EXCERPT

Page 226

381 N.W.2d 226 (S.D. 1986)

STATE of South Dakota, ex rel Corinne JOHNSON, Jeff Johnson,

Elmer Olson and Mary Jane Olson, Plaintiffs and

Appellants,

v.

The PUBLIC UTILITIES COMMISSION OF SOUTH DAKOTA: Kenneth

Stofferahn, Jeff Solem and Dennis Eisnach, as duly

elected members thereof, Defendants and

Appellees,

and

Northwestern Bell Telephone Company, a foreign corporation,

Intervenor and Appellee.

Nos. 14908, 14919.

Supreme Court of South Dakota.

January 22, 1986

Argued Oct. 22, 1985.

Page 227

George A. Bangs of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, and Charles Rick Johnson of Johnson, Eklund & Davis, Gregory, for plaintiffs and appellants.

Mary L. Vanderpan, Asst. Atty. Gen., Pierre, for defendants and appellees; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

James E. McMahon of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for intervenor and appellee.

HERTZ, Acting Justice.

Appellants appeal from the trial court's denial of a writ of certiorari in which they contended that the Public Utilities Commission (P.U.C.), appellee, exceeded its jurisdiction by entering into a settlement agreement with Northwestern Bell Telephone Company (Northwestern Bell), appellee-intervenor. Additionally, the P.U.C. has filed a notice of review from the trial court's final order which denied it recovery of costs. We affirm in all respects.

Commencing in the early 1970's and prior to November 17, 1980, Northwestern Bell Telephone Company sold decorator telephone housings to between 7,800 and 15,000 South Dakota customers. Most of the people who purchased such telephones were unaware that Northwestern Bell, through tariffs filed with the Public Utilities Commission, retained title to all of the working parts of said telephones. Similarly unknown to these customers, was the fact that Northwestern Bell charged them rentals on such inner working parts. On December 31, 1983, the American Telephone & Telegraph Company ("AT & T") monopoly was broken up by federal court order and title to the inner workings of the telephones passed to another of its subsidiaries, AT & T Information Systems ("AT & TIS"). AT & TIS billed the owners of the decorator housings for lease payments on the inner workings of the telephones. Shortly thereafter, the P.U.C. received between 400 and 500 complaints from customers who were disputing this practice. In response to these complaints, the P.U.C.

Page 228

launched an investigation into the matter on April 4, 1984.

On August 17, 1984, appellants-Johnson brought suit in the Sixth Judicial Circuit. This lawsuit sought class action status and made various allegations against Northwestern Bell and AT & TIS in connection with the sale of decorator telephone housings. The trial court denied class action status, but left appellants-Johnson's claim intact.

Northwestern Bell sought to prohibit the P.U.C. from investigating the telephone shell matter by virtue of its application for a writ of prohibition against the Commission dated October 5, 1984. Pursuant to court order entered October 18, 1984, Northwestern Bell's writ of prohibition was quashed which thereby allowed the P.U.C. to proceed with the investigation.

Appellants-Johnson petitioned to intervene in the P.U.C.'s investigation on December 12, 1984. The Commission denied such petition on January 2, 1985, on the ground that appellants had already commenced an action in circuit court and was thus barred by SDCL 49-3-23 from proceeding in both forums. No appeal was taken from the order denying intervention.

On January 2, 1985, the P.U.C. approved a settlement agreement which its staff negotiated with Northwestern Bell in which Northwestern Bell would offer to pay each South Dakota customer to which it sold a decorator telephone shell the sum of $55.00. Pursuant to this settlement, customers have the option to accept or decline the $55.00 payment from Northwestern Bell. As such, the agreement does not force purchasers to accept the settlement and in no way affects their rights should they choose not to accept the offer. Customers who choose to decline the offer are free to pursue any legal remedies available to them. However, those purchasers accepting the offer thereby waive any further claims they may have against Northwestern Bell, AT & TIS and AT & T iin regard to their decorator telephone shells.

Appellants-Olson moved to intervene in the P.U.C.'s investigation on January 2, 1985. The Commission did not receive this motion until after it had accepted the settlement agreement. Appellants' counsel was advised on January 3, 1985 and again on...

To continue reading

FREE SIGN UP