Brooks v. Empire Dist. Elec. Co.

• Decision Date: 01 October 2013
• Docket Number: No. SD 32177.,SD 32177.
• Parties: Karen J. BROOKS, Clark Harris, and Dianne Slater, Petitioners/Plaintiffs–Appellants, v. The EMPIRE DISTRICT ELECTRIC COMPANY, Respondent/Defendant–Respondent.
• Court: Missouri Court of Appeals

420 S.W.3d 586

Karen J. BROOKS, Clark Harris, and Dianne Slater, Petitioners/Plaintiffs–Appellants,
v.
The EMPIRE DISTRICT ELECTRIC COMPANY, Respondent/Defendant–Respondent.

No. SD 32177.

Missouri Court of Appeals,
Southern District,
Division Two.

June 18, 2013.
Motion for Rehearing and/or Transfer to Supreme Court Denied July 10, 2013.
Application for Transfer Denied Oct. 1, 2013.

[420 S.W.3d 587]

C. Edward Peterson, Stuart W. Conrad, William J. Fleischaker, for Appellants.

Diana C. Carter, for Respondent.

[420 S.W.3d 588]

DON E. BURRELL, J.

Karen J. Brooks, Clark Harris, and Dianne Slater (“Plaintiffs”), “as members of a class of customers of [t]he Empire District Electric Company” (“Empire”), filed a lawsuit in circuit court seeking money damages from Empire on a claim that Empire had charged and retained from them payments for electric service “in excess of [Empire's] lawful and authorized tariff rates [.]” ¹ In a judgment entered June 29, 2012, the trial court dismissed Plaintiff's petition with prejudice.

Plaintiffs assert five points of alleged error: (1) the trial court erred in sustaining Empire's motion to dismiss because the trial court failed to state a basis for the dismissal; (2) the trial court wrongly concluded that Plaintiffs' petition constituted an impermissible collateral attack on the tariffs; (3) the trial court incorrectly concluded it lacked jurisdiction; (4) the trial court erred in concluding that the filed rate doctrine barred Plaintiffs' claim; and (5) the trial court wrongly concluded that Plaintiffs' petition failed to state a claim for relief.

Finding no merit in any of these contentions, we affirm the dismissal.

Standard of Review

We review the trial court's decision to dismiss a petition de novo.Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). “If the motion to dismiss can be sustained on any meritorious grounds, the ruling of the trial court will be affirmed.” Hall v. Podleski, 355 S.W.3d 570, 574 (Mo.App. S.D.2011) (quoting In re Estate of Dean v. Morris, 963 S.W.2d 461, 464 (Mo.App. W.D.1998)). In conducting our review, we “treat the facts contained in the petition as true and construe them liberally in favor of the plaintiffs.” Atkins v. Jester, 309 S.W.3d 418, 425 (Mo.App. S.D.2010). “If the petition sets forth any set of facts that, if proven, would entitle the plaintiffs to relief, then the petition states a claim.” Lynch, 260 S.W.3d at 836;accord Jones v. Kennedy, 108 S.W.3d 203, 206 (Mo.App. S.D.2003) (dismissal reversed “only if the facts alleged in the petition would, upon proof, entitle Appellant to relief”).

Background

In 2006, Empire filed proposed tariff sheets with the PSC “to increase Empire's existing tariffed rates for its Missouri service territory.” On December 21, 2006, the PSC rejected Empire's proposed rate increases but found that Empire's previous tariffs then on file with the PSC were no longer just and reasonable. Its order authorized Empire to file new (increased) tariffs. On December 28, 2006, Empire filed revised tariff sheets, to go into effect on January 27, 2007—thirty days after filing. Empire again re-submitted revised tariff sheets along with a request for expedited treatment so the tariffs would go into effect on January 1, 2007. On December 29, 2006, the PSC approved Empire's requested rate increase.

The Office of Public Counsel (“Public Counsel”) challenged the validity of the rate increase on the ground that it was not given sufficient time during which to file

[420 S.W.3d 589]

an application for rehearing.² On October 30, 2007, our supreme court issued a writ of mandamus that directed the PSC to vacate its December 29, 2006 order expediting review and approving the increased tariffs. Public Counsel I, 236 S.W.3d at 637. The Court specifically noted that it was “not examin[ing] the lawfulness and reasonableness of the substance of the December 29, 2006 order, but rather, whether the timing of its issuance foreclosed the possibility of rehearing.” Id. at 635 n. 3.

On December 4th, 2007, the PSC issued an order—with an effective date of December 14, 2007—that vacated the December 29, 2006 order and re-approved the increased tariffs. This ten day delay before the new rates were to go into effect allowed Public Counsel an opportunity to file a request for rehearing. In its order, the PSC noted as follows the practical difficulties it faced in complying with the Supreme Court's mandate: “The [PSC] cannot literally turn back the clock. The facts are that almost eleven months have passed, Empire has been providing service, and Empire has been charging its customers for that service.” The PSC also noted that until the December 29, 2006 order was vacated, Empire was required by statute to charge its customers the rates authorized by that order. See section 393.140(11).

Public Counsel did file a request for rehearing which challenged the PSC's December 4, 2007 order on the ground that it did not actually serve to vacate the December 29, 2006 order and thereby did not fully comply with our high court's mandate in Public Counsel I. The Court determined that the PSC had exceeded the Court's mandate because the PSC's December 4, 2007 order “sought to do more than restore the existing status but also to determine the effect on those moneys collected under the tariffs the commission had previously approved.” State ex rel. Office of Pub. Counsel v. Public Serv. Comm'n, 266 S.W.3d 842, 843 (Mo. banc 2008) (“Public Counsel II”). In so ruling, the Court again explicitly stated that it was taking “no position on the effect such action ha[d] on any tariffs the [PSC] ha[d] approved.” Id. On November 14, 2008, the PSC issued an order vacating its December 29, 2006 order.

As best we can discern from the incomplete record provided by Plaintiffs, the PSC reaffirmed the increased tariffs that it sought to implement through its original December 29, 2006 order. On November 20, 2008, it issued an order denying all pending applications for rehearing. Public Counsel filed a petition for review in circuit court. The circuit court affirmed the PSC's order approving the increased tariffs. On appeal, the western district of our court affirmed that ruling. State ex rel. Praxair, Inc. v. Public Serv. Comm'n, 328 S.W.3d 329, 347 (Mo.App. W.D.2010).

Plaintiffs' Petition

On December 29, 2011, Plaintiffs filed their petition for money damages in the circuit court. The petition set forth the history noted above and claimed that:

[u]ntil the [PSC] approved Empire's new tariffs in the Second Tariff Order effective December 14, 2007, the only lawful rates that Empire could charge were the rates that were contained in earlier tariffs that were on file with the [PSC] at the time the vacated First Tariff Order was adopted. As the Supreme

[420 S.W.3d 590]

Court stated in its second mandamus order: “[When] an order or judgment is vacated, the previously existing status is restored and the situation is the same as though the order or judgment had never been made.” [citing Public Counsel II, at 843.]

Any amounts collected from customers between January 1, 2007 and December 13, 2007 that exceeded the level authorized by the tariffs in effect at that time were unlawful and must be refunded to the customers or credited to their Empire accounts.

(Paragraph numbers omitted.)

The petition claimed that because the Court vacated the December 29, 2006 order, Empire was legally obligated to have charged the class the rates in place prior to that order—to act as though the later-vacated order had never existed.³

Empire responded to the petition with its motion to dismiss. The motion asserted that Plaintiffs' petition failed to state a claim upon which relief might be granted in that the PSC had primary jurisdiction over the subject matter of utility rates, that the judicial review process set forth in section 386.510 is...