Associated Elec. Co-op., Inc. v. City of Springfield, s. 16423
| Decision Date | 21 June 1990 |
| Docket Number | 16458,Nos. 16423,s. 16423 |
| Citation | 793 S.W.2d 517 |
| Parties | ASSOCIATED ELECTRIC COOPERATIVE, INC., Webster Electric Cooperative, Southwest Electric Cooperative, Ozark Electric Cooperative, Sho-Me Power Corporation, and Kamo Electric Cooperative, Inc., Plaintiffs-Appellants-Cross-Respondents, v. CITY OF SPRINGFIELD, Missouri, Defendant-Respondent-Cross-Appellant. |
| Court | Missouri Court of Appeals |
W. Stanley Walch, Michael J. Morris, Mike W. Bartolacci, Thompson & Mitchell, St. Louis, Eugene E. Andereck, George Johnson, Stockard, Andereck, Hauck, Sharp & Evans, Springfield, Thomas Jot Hartley, Rorschach, Pitcher, Castor & Hartley, Vinita, Okl., for plaintiffs-appellants-cross-respondents.
Mark E. Gardner, Hall, Ansley, Carmichael & Gardner, Turner White, Springfield, for defendant-respondent-cross-appellant.
At issue is the geographic area within which defendant, a municipal corporation, may provide retail electrical service. Plaintiffs sought declaratory judgment, injunctive and other relief not relevant to these appeals. They contend that defendant can not provide electrical service outside its corporate limits.
Plaintiffs and defendant each sought summary judgment under Rule 74.04. The trial court denied plaintiffs' motion for summary judgment and granted "in part" defendant's motion for summary judgment. The trial court determined "that there is no just reason for delay" and entered judgment on this issue as provided in Rule 74.01(b). Plaintiffs and defendant appeal.
The court found that defendant was "legally authorized to provide retail electric service within the Springfield City limits and within the 1945 service area of the Springfield Gas and Electric Company only." The parties treat the "service area of the Springfield Gas and Electric Company" as being the area it was authorized to serve by the Missouri Public Service Commission in 1945. In that year defendant acquired the corporate stock of Springfield Gas and Electric Company.
Plaintiffs contend that the trial court erred in concluding that Springfield can provide retail electric service outside its corporate limits. They contend that provisions of the Missouri Constitution and Statutes, and case law interpreting them, prevent a municipality from selling retail electric power outside the limits of the city. Plaintiffs also assert that the area outside the city limits prescribed by the trial court was erroneous because Springfield's city charter "only purports to authorize municipal electric service to those customers or locations outside city limits which were already served by SG & E [Springfield Gas and Electric Company] when Springfield acquired the SG & E assets in 1945".
Defendant contends that the trial court erred in limiting the area of service outside the city limits to that which Springfield Gas and Electric was authorized to serve in 1945. Defendant asserts that it can provide electrical service outside its city limits if consistent with the Missouri Constitution, statutes and its charter "and not as limited by the arbitrary boundary of the SG & E territory." Defendant also claims that by limiting its area of service outside the city limits the trial court's judgment was beyond the pleaded and submitted issue because the sole issue pleaded by plaintiffs and disputed by defendant was the propriety of Springfield's furnishing electrical service anywhere outside the city limits. Defendant's remaining contentions are that plaintiffs' action is barred by laches and that the only remedy available to limit Springfield's service in these areas would be quo warranto brought by the state.
Plaintiffs Webster Electric Cooperative, Southwest Electric Cooperative, and Ozark Electric Cooperative sell to retail customers either in the area being served by defendant or within the area that these plaintiffs contend defendant intends to provide retail electric service. Plaintiff Associated Electric Cooperative, Inc. generates and transmits electricity to plaintiff Sho-Me Power Corporation and plaintiff KAMO Electric Cooperative, Inc. who sell to plaintiffs Webster Electric Cooperative, Southwest Electric Cooperative and Ozark Electric Cooperative.
The sale to defendant of the stock of Springfield Gas and Electric Company was approved by the Public Service Commission, which as a part of the order approving the sale, rescinded the certificate of convenience and necessity issued to Springfield Gas and Electric Company. 1 Defendant liquidated Springfield Gas and Electric Company and operates a utility system which includes electrical power. It provides retail electrical service within and without its corporate limits.
Since 1945 defendant has expanded that service outside its corporate limits into areas where electricity was not actually being sold in 1945 by Springfield Gas and Electric Company. It has also extended its service to one limited area which is beyond the territory which Springfield Gas and Electric Company was authorized by the Missouri Public Service Commission to serve.
Since its adoption at an election held on March 17, 1953, defendant is governed by a city charter as permitted by article VI, Section 19 of the Missouri Constitution. Article XVI of defendant's city charter provides that utilities owned or thereafter acquired by the city are to be controlled and operated by a board known as the Board of Public Utilities. A section within that article provides:
Section 16.19. Area of service.
The board of public utilities shall operate the utilities and furnish the services thereof within the corporate limits and within the area outside of such corporate limits served by any public utility now owned or hereafter acquired, at the time of such acquisition.
Nothing in this section shall be construed to prevent said board from purchasing, leasing, erecting, installing, or otherwise acquiring real and personal property necessary, useful or desirable in the conduct of its operations at any place whether within or without the corporate limits of the city.
Defendant, in a combined point, contends that this action was improper because it was barred by laches and that the only remedy against its service in the area beyond its limits is "quo warranto at the hands of the state." With admirable candor defendant's attorneys admit that the quo warranto argument "wasn't pushed before the trial court" and that although its answer raised the issue of remedies, saying declaratory and judgment were not proper, quo warranto was not expressly mentioned. Even if, as defendant asserts, that quo warranto would be the only remaining remedy, that argument was not presented to the trial court.
Raising an affirmative issue in an answer does not ordinarily present it to the trial court. Defendant contends that a recent appellate decision caused it to reconsider these defenses. 2 That does not resurrect those issues. Laches is an affirmative defense, see Rule 55.08, and a showing of its existence must be presented to the trial court. The quo warranto contention should also have been raised there. By not having done so these claimed defenses are not preserved for review here. This court will not convict a lower court of error on an issue which was not presented to it. Asarco, Inc. v. McNeill, 750 S.W.2d 122, 129 (Mo.App.1988). Nevertheless, we gratuitously comment briefly upon these contentions.
It has been held that a privately owned public utility has standing to seek to enjoin a municipally owned utility from extending its utility service beyond its corporate limits into an authorized area of the complaining utility. Missouri Public Service Co. v. City of Trenton, 509 S.W.2d 770, 772 (Mo.App.1974); Missouri Cities Water Co. v. City of St. Peters, 508 S.W.2d 15, 18 (Mo.App.1974). In those cases the plaintiff utility companies were privately owned public utilities operating under a certificate of convenience and necessity in the area to which the municipal utility sought to expand. The present plaintiffs are not holders of such a certificate. Defendant, however, does not attempt to distinguish the cases on that basis but only contends that quo warranto is the only appropriate remedy to prevent a municipality from operating in an unauthorized area. Plaintiffs' standing to bring the action has not been directly challenged in the trial court or here. Only the remedy is questioned.
We decline to distinguish these cases on the basis of the certificate of convenience and necessity when no contention was presented to us on that theory. Plaintiffs rely upon those holdings and defendant does not challenge them. Therefore, they dispose of defendant's contention that quo warranto is the only remedy to limit defendant's service outside its corporate limits. Declaratory relief could appropriately be joined with seeking an injunction.
Defendant has been selling electricity outside the city since 1945. The record does not establish that it and one or more of the plaintiffs who sell retail electricity, have actually been in competition since that time. Plaintiffs contend that in recent years defendant has been more aggressive in its expansion and that competition between the retail plaintiffs and defendant has intensified. Laches is an equitable doctrine that unreasonable delay bars a claim if the delay is prejudicial to the defendant. Mississippi-Fox River Drainage District No. 2 v. Plenge, 735 S.W.2d 748, 754 (Mo.App.1987). Defendant as the party asserting laches had the burden of proof on that issue. Joplin CMI, Inc. v. Spike's Tool and Die, 719 S.W.2d 930, 938 (Mo.App.1986). We conclude that this burden was not met here as unreasonable delay prejudicial to defendant was not established.
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