Midwest Motor Exp., Inc., Bismarck, Matter of, No. 16046

• Court: Supreme Court of South Dakota
• Writing for the Court: MILLER
• Citation: 431 N.W.2d 160
• Decision Date: 31 August 1988
• Docket Number: No. 16046
• Parties: In the Matter of the Motor Carrier Application of MIDWEST MOTOR EXPRESS, INC., BISMARCK, North Dakota. RUDE TRANSPORTATION COMPANY, Protestant and Appellant, v. SOUTH DAKOTA PUBLIC UTILITIES COMMISSION and Midwest Motor Express, Inc., Bismarck, North Dakota, Appellees. . Considered on Briefs

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431 N.W.2d 160 In the Matter of the Motor Carrier Application of MIDWEST
MOTOR EXPRESS, INC., BISMARCK, North Dakota.
RUDE TRANSPORTATION COMPANY, Protestant and Appellant,
v.
SOUTH DAKOTA PUBLIC UTILITIES COMMISSION and Midwest Motor
Express, Inc., Bismarck, North Dakota, Appellees. No. 16046. Supreme Court of South Dakota. Considered on Briefs Aug. 31, 1988.
Decided Nov. 2, 1988.

Ronald G. Schmidt of Schmidt, Schroyer, Colwill & Barnett, Pierre, for appellee Midwest Motor Exp., Inc.

Steven K. Rabuck of Andera, Rabuck & Smith, Chamberlain, for appellant Rude Transp. Co.

Diane M. Patrick, Asst. Atty. Gen., Pierre, for appellee South Dakota Public Utilities Com'n; Mary L. Vanderpan, Gen. Counsel, Public Utilities Com'n, Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief.

MILLER, Justice.

In this appeal we affirm a decision of the circuit court which upheld the South Dakota Public Utilities Commission's (PUC's) granting of a Class B motor carrier permit to Midwest Motor Express (MME). At issue is (1) whether appellant Rude Transportation Company (Rude) has standing to appeal PUC's decision, (2) whether PUC erred in determining that issuance of the permit was consistent with the public convenience and necessity, and (3) whether the circuit court erred in amending PUC's findings and conclusions.

FACTS

MME, a North Dakota corporation, filed an application for a Class B Motor Carrier Permit with PUC. ¹ PUC gave notice of

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hearing on the proposed application to all other Class B permit holders in the state. Two holders, Barber Transportation and Rude, filed written notices of intent to protest the application; however, Rude (a "regional carrier") was the only protestant appearing at the hearing. MME presented ten witnesses (customers and sales representatives) in support of its application. Regge Rude (sales coordinator for Rude) was the only witness to testify against the application. Subsequent to the hearing PUC granted MME's permit, finding that MME met the necessary granting criteria set forth in SDCL 49-28-14.

Rude appealed PUC's decision to circuit court, which affirmed PUC's decision but orally instructed MME's counsel to draft new findings of fact and conclusions of law in order to set forth more precisely the decision made by PUC. Rude appeals the circuit court's holding, contending that PUC's decision did not comport with SDCL 49-28-14, that PUC's decision was clearly erroneous, arbitrary, capricious and an abuse of discretion, and that the circuit court erred in allowing MME to draft new findings and conclusions.

MME argues that PUC's decision complies with the requirements of SDCL 49-28-14, that the findings of fact and conclusions of law entered by the circuit court were consistent with its authority under SDCL 1-26-36, and further argues that Rude lacks standing to appeal the PUC decision because of its failure to file any exceptions or objections to PUC's findings of fact or conclusions of law and for Rude's failure to file its own proposed findings and conclusions.

ISSUES I

WHETHER RUDE HAD STANDING TO APPEAL PUC'S DECISION.

MME's argument that Rude lacks standing to appeal is not without merit; however, MME did not properly preserve that issue. MME, while arguing the issue of standing to the circuit court and in its brief to this court, failed to file a notice of review with either the circuit court (pursuant to SDCL 1-26-36.1) or this court (pursuant to SDCL 15-26A-22). Because of MME's failure, the issue of Rude's standing was waived. See Application of Trade Development Bank, 382 N.W.2d 47 (S.D.1986), and Application of Northwestern Bell Tel. Co., 326 N.W.2d 100 (S.D.1982).

II

WHETHER PUC ERRED IN DETERMINING THAT THE ISSUANCE OF THE PERMIT WOULD BE CONSISTENT WITH PUBLIC CONVENIENCE AND NECESSITY.

Rude asserts several errors in PUC's factual determination concerning whether the issuance of the Class B motor carrier permit would be consistent with the public convenience and necessity. Our standard of review of agency decisions allows this court to reverse only if we are left with a definite and firm conviction that a mistake has been committed. See Dakota...