Dudley v. Southern Union Co.

• Decision Date: 17 June 2008
• Docket Number: No. WD 68735.,WD 68735.
• Citation: 261 S.W.3d 598
• Parties: James DUDLEY, Appellant, v. SOUTHERN UNION COMPANY d/b/a Missouri Gas Energy, Respondent.
• Court: Missouri Court of Appeals

261 S.W.3d 598

James DUDLEY, Appellant, v.SOUTHERN UNION COMPANY d/b/a Missouri Gas Energy, Respondent.

No. WD 68735.

Missouri Court of Appeals, Western District.

June 17, 2008.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 29, 2008.

Application for Transfer Denied September 30, 2008.

James Dudley, Kansas City, MO, pro se.

Matthew W. Geary, Kansas City, MO, for respondent.

Before: JAMES M. SMART, JR., P.J., THOMAS H. NEWTON, and RONALD R. HOLLIGER, JJ.

THOMAS H. NEWTON, Judge.

Factual and Procedural Background

On November 7, 2003, Mr. James Dudley filed a complaint with the Public Service Commission(PSC) against Southern Union Company doing business as Missouri Gas Energy (MGE), for transferring someone else's bill to his residential bill on May 16, 2002, and, subsequently, turning off his gas at his personal residence for nonpayment on July 30, 2002.PSC granted Mr. Dudley's complaint in part and denied it in part.It found that MGE disconnected Mr. Dudley's home gas service for failure to pay his residential gas bill rather than his tenant's¹bill.It ruled that MGE did not violate its tariff or PSC rules when it disconnected Mr. Dudley's gas service.However, it ruled that MGE did not comply with its tariff when it transferred the tenant's account to Mr. Dudley's residential account.It ordered MGE to remove $2,099.96 of the transferred account along with any resultant fees for nonpayment.Mr. Dudley and MGE both filed an application for rehearing, which PSC denied on November 9, 2004.Although Mr. Dudley sought judicial review of the PSC's decision pursuant to section 386.510,² his application was dismissed.

On September 19, 2006, Mr. James Dudley filed a petition alleging MGE illegally transferred his tenant's bill to his residential account, illegally disconnected his home gas service while his bill was in dispute, and negligently and recklessly acted in deciding not to follow its own tariff for gas service.He included family members who resided with him at the time as additional plaintiffs.Mr. Dudley alleged that MGE's behavior was illegal because it violated tariffs, regulations, and policies.He sought $2,000,000 for punitive damages, $2,000,000 for "neglect damages," and demanded a jury trial.

MGE filed a motion to dismiss based on several grounds.MGE alleged that the trial court lacked subject matter jurisdiction to review the petition because Mr. Dudley's claims were within the "primary jurisdiction of the Missouri Public Service Commission," pursuant to sections 386.510 through 386.550.MGE also argued the petition failed to state a claim upon which relief can be granted and that Mr. Dudley was estopped from relitigating claims that PSC adjudicated.Finally, MGE sought dismissal of the additional plaintiffs³ because they were in violation either of Rule 55.02, which prevents minors from bringing an action in their name, or Rule 55.03, which requires pro se litigants to sign the petition.The trial court ruled that the motion to dismiss was "well taken" and dismissed the petition with prejudice on May 21, 2007.On June 11, 2007, Mr. Dudley filed a Motion for Clarification of the Order/ And Ex of Time to File 74.01.He filed a Motion for Hearing on PlaintiffMotion for Clarification of the Order/ And Ex of Time to File 75.01 on July 30, 2007.

Mr. Dudley filed his notice of appeal on August 20, 2007.The trial court denied the motion for clarification and the hearing on the motion on September 4, 2007.On November 15, 2007, MGE filed a motion to dismiss the appeal because the notice of appeal was untimely, and in the alternative a motion for an extension of time.We took the motion to dismiss with the case.In its brief, MGE asks this court to dismiss the appeal because Mr. Dudley's brief violates Rule 84.04.We deny both requests.

Jurisdiction to Review the Appeal

A notice of appeal should be filed in the circuit court within ten days after the judgment becomes final; a late filing renders the appeal ineffective.Rule 81.04(a).A judgment becomes final thirty days after its entry.Rule 81.05(a).However, if an authorized post-trial motion is timely filed, the judgment becomes final at the earlier of ninety days from the filing of the motion if no ruling is made or "[i]f all motions have been ruled, then the date of ruling of the last motion to be ruled or thirty days after entry of judgment, whichever is later."Id.

MGE argues that Mr. Dudley's notice of appeal was untimely filed because the judgment became final on June 20, 2007, and his motion for clarification is not an authorized after-trial motion.After reviewing the motion, we disagree.Mr. Dudley's motion closely resembles a motion to amend the judgment in that it challenges the language used by the trial court.Blue Ridge Bank & Trust Co. v. Hart,152 S.W.3d 420, 425-26(Mo.App. W.D.2005)("the motion alleged errors in the language of the judgment and, thus, qualified as a motion to amend the judgment").A motion to amend the judgment is an authorized post-trial motion.Id.;In re C.M.C.,173 S.W.3d 695, 699(Mo.App. W.D.2005).

Contrary to MGE's contention, Mr. Dudley's motion requests the trial court to amend its judgment by asking for clarification so that he could "have a chance to argue his case with the law and not [merely] with [the court's statement that the motion to dismiss is] well taken."He further alleged that the judgment was "improper and evasive."We construe this motion liberally to raise errors of fact or law; thus, it was also a motion for reconsideration, which is considered an authorized after-trial motion.SeeHart,152 S.W.3d at 425-26.Mr. Dudley filed his motion for clarification on June 11, 2007, before the trial court lost jurisdiction.It was not ruled upon until September 4, 2007, after Mr. Dudley filed his notice of appeal.A notice of appeal filed prematurely is timely.SeeRule 81.05(b).Therefore, we have jurisdiction over this appeal.

MGE asserts that we should dismiss the appeal because Mr. Dudley's brief violates Rule 84.04.We have discretion to dismiss appeals that do not comply with Rule 84.04.Saidawi v. Giovanni's Little Place, Inc.,987 S.W.2d 501, 504(Mo.App. E.D.1999)(citingRule 84.08)."However, we will not exercise our discretion even where the brief is technically deficient in the respects charged unless the deficiency impedes disposition on the merits."Id.(citingWilkerson v. Prelutsky,943 S.W.2d 643, 647(Mo. banc 1997)).Notwithstanding the deficiencies in Mr. Dudley's brief, we review the merits of the appeal because the claims of error are readily ascertainable.Seeid.

Standard of Review

Our review of a motion to dismiss is de novo.Moynihan v. Gunn,204 S.W.3d 230, 232-33(Mo.App. E.D.2006).The trial court failed to state a basis for its dismissal so we presume it granted the motion based on the grounds alleged therein.Seeid. at 233.We can affirm under any of the grounds stated in the motion to dismiss.Id."When reviewing the dismissal of a petition for failure to state a claim, appellate courts treat the facts contained in the petition as true and construe them liberally in favor of the plaintiffs."Ste. Genevieve Sch. Dist. R-II v. Bd. of Aldermen of Ste. Genevieve,66 S.W.3d 6, 11(Mo. banc 2002).A petition states a claim if it asserts "any set of facts that would, if proven, entitle the plaintiffs to relief."Id.

Legal Analysis

In Mr. Dudley's second and third points, he argues the circuit court improperly dismissed his petition for intentional tort or gross negligence because he stated a claim upon which relief can be granted and it was not an administrative action but a civil court action based on PSC's ruling that MGE violated its tariff for transferring the accounts for which he should be able to seek damages.Mr. Dudley's points are in response to MGE's arguments that the trial court lacked jurisdiction because the PSC has primary jurisdiction over Mr. Dudley's claim pursuant to sections 386.510 through 386.550,⁴ and that Mr. Dudley failed to state a claim in his petition.

Mr. Dudley argues that the circuit court has jurisdiction because MGE's tariff grants residential customers the option to pursue appropriate legal and equitable remedies after the issuance of any informal Commission staff opinion.The Commission issued a formal opinion, so this tariff does not assist Mr. Dudley.Mr. Dudley also argues that he is allowed to seek damages based on the PSC's ruling because it...