O'Connor v. Northern States Power Co.

• Decision Date: 09 July 1981
• Docket Number: No. 9932,9932
• Citation: 308 N.W.2d 365
• Parties: Martin E. O'CONNOR, John Stockman, John Stockman d/b/a Stockman Investments, and Daniel St. Onge, Plaintiffs and Appellants, v. NORTHERN STATES POWER COMPANY, a Minnesota Corporation, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 365

308 N.W.2d 365

Martin E. O'CONNOR, John Stockman, John Stockman d/b/a

Stockman Investments, and Daniel St. Onge, Plaintiffs and Appellants, v. NORTHERN STATES POWER COMPANY, a Minnesota Corporation,

Defendant and Appellee.

Civ. No. 9932.

Supreme Court of North Dakota.

July 9, 1981.

Myer Shark, Fargo, for plaintiffs and appellants.

R. W. Wheeler of Wheeler, Wolf, Peterson & McDonald, Bismarck, for defendant and appellee; Gene R. Sommers, Minneapolis, Minn., of counsel.

VANDE WALLE, Justice.

Plaintiffs appealed from a judgment entered by the district court of Cass County dismissing their complaint for damages against Northern States Power Company (hereinafter "NSP"). We affirm the judgment of the district court.

NSP on July 23, 1976, filed an application for an increase in electrical rates affecting plaintiffs and other ratepayers in North Dakota. Pursuant to Section 49-05-06, N.D.C.C., ¹ the Public Service Commission (hereinafter "PSC") suspended the rate increase pending hearing on the application. On April 26, 1977, the PSC issued its findings of fact, conclusions of law, and order allowing a rate increase less than that requested by NSP in its July 23, 1976, application. The order of the PSC provided, in part, that "Northern States Power Company file with this Commission for its consideration and approval, tariffs covering electric service in the State of North Dakota consistent with the Findings of Fact and Conclusions of Law on file herein. Said tariffs shall not become effective until approved."

Plaintiffs did not participate in the proceedings leading to the April 26, 1977, order nor did the plaintiffs attempt to appeal from such order.

Rather than file a rate application as directed by the April 26, 1977, PSC order, NSP on May 12, 1977, filed a new application for an increase in rates. The PSC did not, as it did with the July 23, 1976, application, suspend the rates applied for on May 12, 1977, ² and they became effective on June 11, 1977, and NSP was so notified by the PSC on June 16, 1977, at which time NSP charged for electricity at the increased rate. The PSC did, however, receive complaints from ratepayers for allowing an automatic rate increase without a hearing and the PSC, on its own motion on July 13, 1977, set the matter for hearing. On July 17, 1977, the PSC determined that the rates would not be suspended pending the hearing. Plaintiffs' attorney, on August 5, 1977, moved to roll back the rates but that motion was denied by the PSC on April 28, 1978. A motion for rehearing of that determination was denied but no appeal was taken by these plaintiffs, although other ratepayers not parties to this action did file an appeal pursuant to Chapter 28-32, N.D.C.C., the Administrative Agencies Practice Act. ³ On July 24, 1978, the PSC, after hearings, determined the new rates to be reasonable.

Plaintiffs commenced suit alleging that NSP was required under the April 26, 1977, order of the PSC to file a rate application in accordance with the findings and conclusions of the PSC, rather than to file a new application for higher rates, and that NSP's failure to do so makes it subject to damages under the provisions of Section 49-05-10, N.D.C.C. That section provides, in part:

"In case any public utility shall ... omit to do any act, matter, or thing required to be done, either by the constitution, any law of this state, or any order or decision of the commission, such public utility shall be liable to the persons or corporations affected thereby for all loss, damages, or injury caused thereby or resulting therefrom. If the court shall find that the ... omission was willful, the court, in addition to the actual damages, shall award damages for the sake of example and by way of punishment. An action to recover for such loss, damages, or injury may be brought in any court of competent jurisdiction by any corporation or person. No recovery under this section in any manner shall affect a recovery by the state of the penalties provided in this title or the power to punish for contempt."

NSP moved for summary judgment, which was granted by the trial court, and this appeal ensued.

Plaintiffs' first allegation of error is that the trial court's denial of their motion for continuance of hearing on NSP's motion for dismissal or summary judgment was an abuse of discretion which was sufficiently prejudicial to require reversal and remand by this court. Plaintiffs had filed a petition to certify the action as a class action. Subsequent to the notice of that petition, but prior to the date set for hearing thereon, NSP filed a motion to dismiss or in the alternative a motion for summary judgment with a date of hearing set prior to the date set for the hearing on the petition to certify the class action. Plaintiffs moved to continue the hearing on NSP's motion for dismissal or summary judgment because they needed a reasonable opportunity to prepare for a hearing on such a motion. The transcript of the hearing before the trial court reveals the following statement by the trial judge:

"I also indicated over the phone to Mr. Shark that the case would be heard today on the motion to dismiss, but subject to the right of the Court within its discretion to continue the hearing if good cause is shown to this Court."

At the end of the hearing the transcript indicates the trial judge gave his preliminary position on the matter of the summary-judgment motion and then indicated to the parties that he would recess the hearing, give the parties time to file additional documents with the court, and then set a date for a "rehearing" on the matter. The parties were given the opportunity to file and did file additional documents with the trial court. Following the submission of those documents the trial court, without additional hearing, made its decision.

Although there are indications in a portion of the transcript of the hearing that the trial court would permit additional oral argument, there are also indications that such additional oral argument would be at the discretion of the trial court. Plaintiffs' counsel was served with notice of the motion for summary judgment in compliance with the time requirement of Rule 56(c) and Rule 6(e), N.D.R.Civ.P. Any additional time allowed to the plaintiffs' attorney for the hearing would be within the discretion of the trial court. The trial court permitted the parties to file additional documents. The hearing on the motion was held on August 7, 1980, and the trial court's decision was not issued until November 20, 1980. Following the decision plaintiff's attorney moved for reconsideration of that decision and another hearing was held on that motion on December 23, 1980, at which hearing plaintiffs' counsel appeared and argued the matter again before the trial court. ⁴ We believe the trial court gave plaintiffs ample opportunity to present their case. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Dobervich v. Central Cass Public School Dist., 302 N.W.2d 745 (N.D.1981). There is nothing in the record before us to indicate that the trial court acted in such manner. To the contrary, it appears that the trial court gave counsel for both parties ample opportunity to present their arguments to the court.

Plaintiffs raise a second procedural issue. They argue that their motion to certify the action as a class action should have been heard and determined by the trial court prior to the hearing and determination of NSP's motion for summary judgment because all the prospective plaintiff members of the class should have an opportunity to be heard as to the merits of the action. In support of their position plaintiffs refer us to Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), as authority for a conclusion that a court may not consider a motion to dismiss or a motion for summary judgment while a motion to certify as a class action is pending. A review of that case does not leave us with that impression. At issue in Eisen was a preliminary hearing on the merits for the purpose of allocating costs of notice to potential parties in the class-action proceeding. There was no motion for summary judgment involved such as we have here. In indicating that a preliminary hearing on the merits for the purpose of allocating costs of notice in the class action was improper, the court stated "(A) preliminary determination of the merits may result in substantial prejudice to a defendant, since of necessity, it is not accompanied by the traditional rules and procedures applicable to civil trials. The court's tentative findings, made in the absence of established safeguards, may color the subsequent proceedings and place an unfair burden on the defendant." 417 U.S. at 178, 94 S.Ct. at 2153, 40 L.Ed.2d at 749.

It is apparent that in holding that a preliminary determination of the merits was not proper in deciding whether or not to certify an action as a class action, the United States Supreme Court was not concerned with a motion for summary judgment. The Federal Rules of Civil Procedure as well as the North Dakota Rules of Civil Procedure provide for summary-judgment proceedings and the "traditional rules and procedures applicable to civil trials" of which the United States Supreme Court wrote could not have included the summary-judgment procedure, which its own rules permitted.

Plaintiffs also refer us to the decision in Pruitt v. Allied Chemical Corp., 85 F.R.D. 100 (D.Va.1980). In that case the Federal District Court, in determining to certify an action as a class action, stated:

"Defendant's motion to dismiss requires an inquiry into the merits of the proposed class action; an inquiry which could potentially reduce the size of the class to more manageable numbers. As inviting as such a determination might be, the Court has no authority to conduct a preliminary inquiry into the merits of this...