Application of Northwestern Bell Telephone Co., F-3442

CourtSupreme Court of South Dakota
Writing for the CourtMORGAN; FOSHEIM, C.J., HENDERSON, J., and EVANS; HERTZ; EVANS, Circuit Judge, sitting for WUEST
Citation382 N.W.2d 413
PartiesIn the Matter of the Application of NORTHWESTERN BELL TELEPHONE COMPANY for an Increase in its Intrastate Rates (AND).
Decision Date19 February 1986
Docket NumberF-3443,No. 14723,F-3442

Page 413

382 N.W.2d 413
In the Matter of the Application of NORTHWESTERN BELL
TELEPHONE COMPANY for an Increase in its
Intrastate Rates (F-3442 AND F-3443).
No. 14723.
Supreme Court of South Dakota.
Argued May 20, 1985.
Decided Feb. 19, 1986.

Mary L. Vanderpan and David C. Jarratt, Asst. Attys. Gen., Pierre, for South Dakota Public Utilities Com'n; Mark V. Meierhenry, Atty. Gen., Pierre, and Alan J. Roth of Spiegel & McDiarmid, Washington, D.C., on brief.

Jeremiah D. Murphy of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, and Melvin R. Quinlan, Richard A. Karre, Ronald G. Lenhart and Perry W. Hooks, Jr., Omaha, Neb., for Northwestern Bell Telephone Co.

MORGAN, Justice.

This appeal arises from an application filed by Northwestern Bell Telephone Company (Company), with the South Dakota Public Utilities Commission (Commission), by which Company sought an increase of some $21.5 million dollars per year in intrastate rates. The results of a long and somewhat complicated procedure * were two Commission decisions allowing a net rate increase of $4,993,000.00. Company appealed that decision to the Circuit Court, Sixth Judicial Circuit, Hughes County, South Dakota. The decision of the circuit court is before us on appeal by the Commission in two aspects only: (1) The circuit court reversed Commission's disallowance of Company's claim that average cash balances should be included in rate base ($99,000.00); and (2) circuit court reversed Commission's disallowance of Company's claim for an inflation adjustment ($270,000.00). By stipulation between Company and Commission's staff, approved by Commission and accepted by the circuit court, appeal on all substantive issues except for the two noted above was foreclosed. We affirm and remand.

The evidence as adduced at the various proceedings will be discussed in conjunction with any issue to which it may be relevant. The issues as detailed by Commission are as follows: (1) The circuit court's decision should be reversed if Commission's decision was not clearly erroneous in light of the entire evidence in the record. (2) Commission's disallowance of the average cash balances from Company's working capital allowance in Company's rate base is supported by the evidence. (3) The Commission's disallowance of Company's requested inflation adjustment is supported by the evidence.

Company raises the procedural question as to whether Commission preserved the question of sufficiency of the evidence for review by failure to request appropriate findings of fact and by failure to make relevant written objections to Company's proposed findings of fact.

Obviously, we must examine Company's procedural question first. SDCL 15-26A-8 provides, in pertinent part: "Such ... matters ... as may have been timely presented to the trial court by motion for directed verdict, request for findings, or other [appropriate] motion, offer, or objection may be reviewed on appeal[.]" As pointed out by this court in Burke v. Lead-Deadwood Sch. Dist. No. 40-1, 347 N.W.2d 343 (S.D.1984): "The thrust of this statute is twofold. On the one hand, it will not allow a party, upon review, to profit from its own failure to act. On the other, it protects the trial court's right to rule correctly."

Page 415

347 N.W.2d at 344. A review of the record discloses that subsequent to the trial court's memorandum opinion, Commission filed proposed findings of fact and conclusions of law as well as objections to anticipated findings and conclusions from Company. A stipulation was then entered into which provided: "The Commission may appeal to the Supreme Court on the issue of the average cash balance in working capital and the inflation adjustment." Both parties waived their rights to appeal all other issues. The stipulation further provided that the trial court could enter its judgment on the basis of its memorandum decision. At the time the trial court approved this stipulation, and when it entered Company's proposed findings of fact and conclusions of law to the decision, it had before it in the file Commission's proposed findings filed subsequent to the memorandum decision and prior to the stipulation. The statutory requirement and the Burke decision thereon were clearly met.

We then examine the first issue, our scope of review. Commission has framed its issues in terms of whether or not Commission's decision was clearly erroneous in light of all of the evidence in the record. Company argues that the proper scope of review on this appeal is whether the circuit court's findings were clearly erroneous.

Company's argument is based on the 1983 legislative amendment to SDCL 1-26-37 which, as amended, reads:

The aggrieved party or an agency may obtain a review of any final judgment of the circuit court under this chapter by appeal to the Supreme Court. The appeal shall be taken as in other civil cases. The Supreme Court shall give the same deference to the findings of fact, conclusions of law and final judgment of the circuit court as it does to other appeals from the circuit court. Such appeal may not be considered de novo. (Amendment underlined.)

As was pointed out in a footnote to State Div. of Human Rights v. Miller, 349 N.W.2d 42, 46 n. 2 (S.D.1984):

Even if we apply SDCL 1-26-37 as amended, the required deference to the circuit court nevertheless appears not to have changed. As amended, we decide whether the circuit court was clearly erroneous in determining that the agency was clearly erroneous. This reverts us to the agency record. If after review of the evidence we deem the agency findings clearly erroneous, we affirm the circuit court. If the agency findings are not clearly erroneous, then the circuit court was clearly erroneous in so concluding. It follows that, in the final analysis, we still review essentially as did the circuit court.

Subsequent to that, in Matter of S.D. Water Mgmt. Bd., 351 N.W.2d 119, 122 (S.D.1984), we affirmed our holding as follows:

In ... State v. Miller, 349 N.W.2d 42 (S.D.1984), we decided that despite the new language in the statute, this court still reviews the administrative decision essentially in the same manner as did the circuit court; the required deference to the circuit court has not changed. (Emphasis in original.)

We read the 1983 amendment in the light of SDCL 15-6-52(a) and the subsequent decisions of this court. The statute, in pertinent part, provides: "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." In Geo. A. Clark & Son, Inc. v. Nold, 85 S.D. 468, 474, 185 N.W.2d 677, 680 (1971), when discussing evidence submitted by deposition, this court said: "Since [the deponent] did not appear before the court when testifying we have reviewed his testimony as though presented here in the first instance. Consequently, the clearly erroneous rule of SDCL 15-6-52(a) does not apply. In other words, it is not burdened with a...

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44 practice notes
  • Interstate Telephone Co-op., Inc. v. Public Utilities Com'n of State of S.D., No. 18182
    • United States
    • Supreme Court of South Dakota
    • October 6, 1993
    ...ITC appeals. STANDARD OF REVIEW The standard of review is governed by SDCL 1-26-36 1 and 1-26-37. In re Northwestern Bell Tel. Co., 382 N.W.2d 413, 415-16 (S.D.1986). We make the same review of the administrative agency's decision as did the circuit court, unaided by any presumption that th......
  • Permann v. South Dakota Dept. of Labor, Unemployment Ins. Div., No. 15390
    • United States
    • Supreme Court of South Dakota
    • April 21, 1987
    ...numerous other cases. Appeal of Jackpine Gypsies Motorcycle Club, 395 N.W.2d 593 (S.D.1986); Application of Northwestern Bell Tel. Co., 382 N.W.2d 413 (S.D.1986); S.D. Wildlife Federation v. Water Mgt. Bd., 382 N.W.2d 26 (S.D.1986); Matter of S.D. Water Mgmt. Bd., 351 N.W.2d 119 (S.D.1984);......
  • Zoss v. United Bldg. Centers, Inc., Nos. 19764
    • United States
    • Supreme Court of South Dakota
    • July 16, 1997
    ...question of fact, the actions of the agency are judged by the clearly erroneous standard. Application of Northwestern Bell Telephone Co., 382 N.W.2d 413 (S.D.1986). When the issue is a question of law, the actions of the agency are fully reviewable. Matter of State & City Sales Tax Liabilit......
  • Foltz v. Warner Transp., No. 18372
    • United States
    • Supreme Court of South Dakota
    • January 11, 1994
    ...In administrative appeals, the standard of review is generally governed by SDCL 1-26-36 1 and -37 2. In re Northwestern Bell Tel. Co., 382 N.W.2d 413, 415-16 (S.D.1986); Caldwell v. John Morrell & Co., 489 N.W.2d 353, 357 (S.D.1992). Under SDCL 1-26-36, questions of law are fully reviewable......
  • Request a trial to view additional results
44 cases
  • Interstate Telephone Co-op., Inc. v. Public Utilities Com'n of State of S.D., No. 18182
    • United States
    • Supreme Court of South Dakota
    • October 6, 1993
    ...ITC appeals. STANDARD OF REVIEW The standard of review is governed by SDCL 1-26-36 1 and 1-26-37. In re Northwestern Bell Tel. Co., 382 N.W.2d 413, 415-16 (S.D.1986). We make the same review of the administrative agency's decision as did the circuit court, unaided by any presumption that th......
  • Permann v. South Dakota Dept. of Labor, Unemployment Ins. Div., No. 15390
    • United States
    • Supreme Court of South Dakota
    • April 21, 1987
    ...numerous other cases. Appeal of Jackpine Gypsies Motorcycle Club, 395 N.W.2d 593 (S.D.1986); Application of Northwestern Bell Tel. Co., 382 N.W.2d 413 (S.D.1986); S.D. Wildlife Federation v. Water Mgt. Bd., 382 N.W.2d 26 (S.D.1986); Matter of S.D. Water Mgmt. Bd., 351 N.W.2d 119 (S.D.1984);......
  • Zoss v. United Bldg. Centers, Inc., Nos. 19764
    • United States
    • Supreme Court of South Dakota
    • July 16, 1997
    ...question of fact, the actions of the agency are judged by the clearly erroneous standard. Application of Northwestern Bell Telephone Co., 382 N.W.2d 413 (S.D.1986). When the issue is a question of law, the actions of the agency are fully reviewable. Matter of State & City Sales Tax Liabilit......
  • Foltz v. Warner Transp., No. 18372
    • United States
    • Supreme Court of South Dakota
    • January 11, 1994
    ...In administrative appeals, the standard of review is generally governed by SDCL 1-26-36 1 and -37 2. In re Northwestern Bell Tel. Co., 382 N.W.2d 413, 415-16 (S.D.1986); Caldwell v. John Morrell & Co., 489 N.W.2d 353, 357 (S.D.1992). Under SDCL 1-26-36, questions of law are fully reviewable......
  • Request a trial to view additional results

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