City of Arlington v. Texas Elec. Service Co.

• Decision Date: 06 August 1976
• Docket Number: No. 17769,17769
• Citation: 540 S.W.2d 580
• Parties: CITY OF ARLINGTON, Texas, et al., Appellants, v. TEXAS ELECTRIC SERVICE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 580

540 S.W.2d 580

CITY OF ARLINGTON, Texas, et al., Appellants, v. TEXAS ELECTRIC SERVICE COMPANY, Appellee.

No. 17769.

Court of Civil Appeals of Texas,

Fort Worth.

Aug. 6, 1976.

Rehearing Denied Sept. 10, 1976.

Tom Todd, City Atty., Arlington, Hutchison, Price & Boyle, and Rayford Price, Dallas, for appellants.

Cantey, Hanger, Gooch, Cravens & Munn, J. A. Gooch, Fort Worth, for appellee.

OPINION

SPURLOCK, Justice.

This is an appeal from an order granting a public utility an injunction after a city whose residents it serves had denied it a rate increase. Appellee, Texas Electric Service Company (hereinafter called 'TESCO'), brought this suit to enjoin the City of Arlington, the Mayor of Arlington, and the other members of the Arlington City Council (hereinafter referred to as 'the City') from enforcing Ordinance No. 74--17 enacted by the City, effective April 1, 1974. The ordinance set certain electric rates TESCO could charge its customers in Arlington.

On September 2, 1975, TESCO had petitioned all the municipalities it serves, including the City of Arlington, for a rate increase. The rate increase was approved by all of the 72 municipalities with the exception of Arlington and Grand Prairie. After the staff of the City of Arlington, including the finance director, had investigated the petition for a rate increase and after several public hearings, on December 23, 1975 the City adopted a resolution denying TESCO's request.

Thereafter, TESCO brought this suit seeking an injunction to prohibit the City from continuing to enforce said ordinance on the grounds that it does not allow TESCO a fair rate of return on the fair value of TESCO's property used and useful in supplying electricity to its customers in the City.

After a hearing the court overruled the City's motion to abate and dismiss the suit and granted a temporary injunction effective February 12, 1976, in accordance with TESCO's request. TESCO posted a bond in the sum of $2,000,000.00 to indemnify its Arlington customers in the event of an adverse decision.

At the City's request the trial court filed an original and supplemental findings of fact and conclusions of law.

Prior to submission in this Court, the City assigned 10 points of error; after submission it assigned one additional point of error. In its brief the City states that its points of error 4 through 10, inclusive, deal with the City's plea in abatement. They are briefed together. The eleventh point of error also deals with the City's plea in abatement. Points of error 4 through 11 will be considered together by this Court.

The City filed a plea in abatement praying that this suit be abated and dismissed because TESCO did not furnish the City all the information necessary for it to consider a rate increase. The evidence reflects, and it is undisputed, that TESCO did furnish the City all information necessary to determine a fair rate, but that TESCO had additional information which the City did not request. The evidence further shows, without dispute, that TESCO offered to furnish the City with any information it desired, The City replied that it had all the information it desired.

Eight of the City's eleven points of error deal with the trial court's alleged error in denying the City's plea in abatement. There is no statute or rule which permits an interlocutory appeal with respect to the denial of a plea in abatement.

'An interlocutory judgment or order is one made during the pendency of an action or proceeding that does not finally dispose of the case but leaves it in such a state that further action by the court is necessary in order to settle and determine the entire controversy.' 3 Tex.Jur.2d 392, Appeal & Error, § 74 (1974); Bloomfield Royalty Corp. v. Carco Investments, Inc., 435 S.W.2d 178 (Tex.Civ.App., Houston 14th Dist., 1968, writ ref., n.r.e.); State v . Cook United, Inc., 464 S.W.2d 105 (Tex.Sup.1971).

As a general rule, appeals lie only from such interlocutory orders as are specially made appealable by the rules or a statute. Beacon Oil & Refining Co. v. State, 56 S.W.2d 519 (Tex.Civ.App., Austin, 1933, no writ hist.); Witt v. Witt, 205 S.W.2d 612 (Tex.Civ.App., Fort Worth, 1947, no writ hist.).

An order overruling a plea in abatement and refusing to dismiss a cause in response to such plea is an interlocutory order. Beacon Oil & Refining Co. v. State, supra. But of course, if a plea in abatement were sustained, resulting in dismissal of the suit, disposing of all the parties and issues, a final judgment being rendered, such an order would be appealable. Witt v. Witt, supra.

The granting of a temporary injunction is an appealable order. Rule 385, T.R.C.P.

The question arising is, can the City tack an interlocutory order from which no appeal lies to the appeal of the temporary injunction from which an appeal does lie and in that manner get an appeal from the unappealable order of the trial court?

An appeal from an interlocutory order granting or refusing a temporary injunction may not be used as a vehicle for carrying other non-appealable interlocutory orders and judgments to the appellate court. Hastings Oil Co. v. Texas Co., 149 Tex. 416, 234 S.W.2d 389 (1950); Bloomfield Royalty Corp. v. Carco Investments, Inc., supra; Jernigan v. Jernigan, 467 S.W.2d 621 (Tex.Civ.App., Beaumont, 1971, writ dism.); Witt v. Witt, supra; Hammonds v. Lloyds Fire & Cas. Assur. of San Antonio, 256 S.W.2d 223 (Tex.Civ.App., San Antonio, 1953, no writ hist.).

This principle of law was applied by the Supreme Court in Johnson v. Avery, 414 S.W.2d 441 (Tex.1966), which stated: 'Such court, in exercising its jurisdiction, overruled such plea in abatement, and its order in such matter, being purely interlocutory, can only be reviewed by an appellate court when a final judgment is rendered in the case.'

The attempted appeal of the court's order overruling the plea in abatement is dismissed for want of jurisdiction.

This disposes of the City's points of error Nos. 4 through 11.

The first, second and third points of error all deal with TESCO's burden in the trial court to plead and prove it was entitled to the temporary injunction.

In its argument under these points the City attacks the temporary injunction as follows:

(1) Appellee's pleadings do not show a probable right or a probable injury if an injunction is not granted.

(2) Appellee failed to meet its burden to offer some substantial and probative evidence to support its cause of action because

(a) it failed to show the fair value of its property allocable to furnishing electric service to the City of Arlington alone;

(b) it offered only hearsay evidence to prove the facts it endeavored to prove; and

(c) it failed to show the present value of its existing property in that it used the year ending December 31, 1976 as its test year.

(1) The City's attack on the pleadings is without merit.

In very brief summary form TESCO pleaded all the necessary requisites for the granting of a temporary injunction. It pleaded that it had been deprived of its right to a fair return on the fair value of its property used and useful in the furnishing of electric service, and that thus its property was being confiscated in violation of its rights under the laws of the State of Texas, and under Art. 1, §§ 17 and 19 of the Constitution of this State. It further alleged that if the ordinance in question were enforced, TESCO would not earn a fair return on the fair value of its property used and useful for the furnishing of electricity to its customers. Such ordinance would compel TESCO to furnish electric service in Arlington, at rates which would result in confiscation of TESCO's property.

(2)(A) The City next contends that TESCO offered only evidence pertaining to system-wide or Fort Worth division-wide data, and offered no evidence concerning the fair value of TESCO's property used and useful in servicing its customers in Arlington.

A similar contention was rejected by the Supreme Court in the case of General Telephone Company v. City of Wellington, 156 Tex. 238, 294 S.W.2d 385 (1956). That case cites, in support of its decision, Lone Star Gas Co. v. Texas, 304 U.S. 224, 239, 58 S.Ct. 883, 82 L.Ed . 1304 (1938), a case in which the Railroad Commission of Texas Established Texas rates for gas produced in Texas and Oklahoma and sold by an integrated utility with producing properties and pipe lines both in Texas and Oklahoma. The Supreme Court held that the Commission properly considered the value of the properties in both States, and further held that, this being so, a reviewing court could not validly require the company to segregate the Oklahoma and Texas operations in order to demonstrate the Texas rates to be confiscatory. It also cites with approval the case of State v. Department of Public Utilities, 34 Wash.2d 141, 208 P.2d 882, 884, 885 (1949), for the same proposition. In that case, the rate-making authorities of Washington and Idaho met jointly in Idaho in order to fix telephone rates in two adjoining cities separated only by the state line.

See also General Telephone Co. of S.W. v. City of Garland, 509 S.W .2d 927 (Tex.Civ.App., Dallas, 1974, writ ref., n.r.e.). These decisions hold that area-wide data are acceptable for use in determining values in one part of the area. We concur.

However, even if the law required city-wide as opposed to area-wide computations, TESCO has met even that burden.

The City's exhibit #1, 'Analysis of...