Mo. Pub. Ser. v. Hurricane Deck Holding

• Decision Date: 09 February 2010
• Docket Number: No. WD 70299.,WD 70299.
• Citation: 302 S.W.3d 786
• Parties: MISSOURI PUBLIC SERVICE COMMISSION, Respondent, v. HURRICANE DECK HOLDING COMPANY, Appellant.
• Court: Missouri Court of Appeals

302 S.W.3d 786

MISSOURI PUBLIC SERVICE COMMISSION, Respondent, v. HURRICANE DECK HOLDING COMPANY, Appellant.

No. WD 70299.

Missouri Court of Appeals, Western District.

February 9, 2010.

Elizabeth A. Marr, Lone Jack, MO, for appellant.

Jennifer L. Heintz and Eric Dearmont, Jefferson City, MO, for respondent.

Before Division Four: THOMAS H. NEWTON, Chief Judge, Presiding, LISA WHITE HARDWICK, Judge and CYNTHIA L. MARTIN, Judge.

CYNTHIA L. MARTIN, Judge.

Hurricane Deck Holding Company ("Hurricane Deck") appeals the trial court's judgment imposing a penalty of $20,000 pursuant to section 386.570¹ for a previously determined violation of public utility regulatory laws. Hurricane Deck contends that the trial court erred in assessing a penalty for the period from September 22, 2005, through December 30, 2005, as there was no evidence that Hurricane Deck unlawfully held itself out as a public utility for the entirety of that period. Hurricane Deck also contends that the penalty imposed was excessive and disproportionate. For the following reasons, we affirm the trial court's judgment.

Factual and Procedural History

This is the second time we have addressed Hurricane Deck's violation of public utility regulatory laws. In Hurricane Deck Holding Co. v. Public Service Commission, we found that the Missouri Public Service Commission ("PSC") did not err in concluding that Hurricane Deck had illegally operated as a "public utility" subject to PSC regulation. 289 S.W.3d 260, 268 (Mo.App. W.D.2009) ("Hurricane Deck I"). The salient facts in that case warrant repeating to provide context for this case.

Hurricane Deck developed a residential subdivision in Camden County known as Chelsea Rose Estates or the Chelsea Rose Service Area ("Chelsea"). In doing so, Hurricane Deck constructed water and sewer systems to service Chelsea. Hurricane Deck owned these systems. However, the systems were initially operated by Osage Water Company ("Osage"), a public utility which possessed an appropriate certificate of convenience and necessity from the PSC. The PSC is statutorily authorized to exercise jurisdiction, regulation and control over public utilities, including public water and sewer utilities, by Chapters 386 and 393 of the Missouri Revised Statutes. On October 21, 2005, Osage went into receivership at the PSC's request.

Hurricane Deck sent a letter to Chelsea homeowners on December 30, 2005. The letter informed the homeowners of the receivership and also indicated that Hurricane Deck had been temporarily managing the systems since Osage had ceased being able to do so. The letter advised of Hurricane Deck's desire to turn ownership and responsibility for the systems over to the homeowners. The letter enclosed an accounting itemizing a portion of the actual costs for the systems for the previous two months and told the homeowners they were being billed their pro rata shares of the total, with each homeowner's share of the bill to be paid by January 22, 2006. Attached to the letter was the referenced accounting, entitled "HDHC/Quarterly Water & Sewer Assessment/ September 22-December 30." The accounting directed that payment should be remitted to Hurricane Deck.

The Staff of the PSC filed a complaint against Hurricane Deck on January 23, 2006 ("Complaint"). The Complaint alleged, in multiple counts, that Hurricane Deck held itself out as a public water and sewer utility commencing September 22, 2005, without the appropriate authorization from the PSC. The PSC issued an order ("PSC Order")² finding that by sending out bills to the homeowners, Hurricane Deck had engaged in conduct evidencing an intent to supply water and sewer service to the public for gain or compensation, subjecting it to PSC regulation. The PSC Order authorized the Staff to proceed with filing a petition in the circuit court to seek statutory penalties for these violations.

Hurricane Deck petitioned the circuit court of Cole County for review of the PSC Order. The circuit court affirmed the findings of the PSC on April 22, 2008. This court affirmed the circuit court order and found the PSC Order was supported by competent and substantial evidence and appropriately declared and applied the law. Hurricane Deck I, 289 S.W.3d at 263, 268.

While the proceedings reviewing the PSC Order were pending, and consistent with the authorization it was provided in the PSC Order, the Staff of the PSC initiated a separate action in the circuit court of Cole County seeking an assessment of statutory penalties against Hurricane Deck pursuant to section 386.570. On the PSC's motion, the trial court entered partial summary judgment on June 25, 2008, noting that the PSC's motion was essentially seeking affirmation of the PSC Order insofar as necessary to permit the trial court to proceed with calculation of a statutory penalty for the determined violations of public utility regulatory law. The trial court thus took judicial notice of its previous judgment affirming the PSC Order and found as a matter of law that Hurricane Deck "operated a water and sewer corporation, is subject to the jurisdiction of the PSC, and operated in violation of state laws and grounds."³

The trial court's partial summary judgment order specifically reserved determination of "the actual total days of operation and thus the amount of the penalties to be imposed." An evidentiary hearing was subsequently conducted to address these remaining issues. The trial court thereafter entered its order and judgment on November 5, 2008, finding that Hurricane Deck "sought to recover operational costs for the 100 days between September 22 and December 30." Because the PSC's petition requested recovery of the statutory minimum penalty of $100 per day per each violation determined, the trial court did not consider or permit evidence which would have authorized a penalty in excess of the amount prayed. The trial court thus entered judgment for a $20,000 penalty, calculated by multiplying 100 days times $100 per day for each of the two violations — operating a water utility and operating a sewer utility. This appeal follows.

Standard of Review

In a court tried case, the "judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "When determining the sufficiency of the evidence [we] accept as true the evidence and inferences from the evidence that are favorable to the trial court's decree and disregard all contrary evidence." T.B.G. v. C.A.G, 772 S.W.2d 653, 654 (Mo. banc 1989) (citing Morgan v. Morgan, 701 S.W.2d 177, 179 (Mo.App. S.D.1985)).

Point I

In its first point, Hurricane Deck claims that the trial court erred in determining that Hurricane Deck held itself out as a public utility from September 22, 2005, through December 30, 2005. Hurricane Deck alleges that the only "holding out" occurred on December 30, 2005, the date of its letter to Chelsea homeowners. Hurricane Deck thus contends that the maximum number of days for which a penalty could be assessed was one day. Hurricane Deck suggests that the content of the letter — i.e. the effort to extract payment from homeowners for a period from September 22 to December 30 — is immaterial and that the only relevance of the December 30, 2005 letter was its date.

Though its point relied on is so framed, the argument portion of Hurricane Deck's brief attacks the propriety of the underlying conclusion that Hurricane Deck violated the law by holding itself out as a public utility. This issue was not before the trial court for determination, having already been determined by the PSC Order, and by the court's earlier judgment affirming the PSC Order. It is true that at the time of the trial court's judgment in this case, the finality of the PSC Order was still subject to appellate review. However, the trial court appropriately concluded that the PSC Order it had earlier affirmed foreclosed the issue of whether Hurricane Deck had violated the law, thus permitting the trial court to determine the timeframe of the violations and the appropriate statutory penalty to be assessed for the violations.⁴

To the extent Hurricane Deck's arguments expressly or impliedly seek review of the underlying determination that it acted as a public utility, the doctrine of law of the case precludes such review. In Williams v. Kimes, our Supreme Court stated that "[t]he doctrine of law of the case governs successive appeals involving substantially the same issues and facts, and applies appellate decisions to later proceedings in that case." 25 S.W.3d 150, 153 (Mo. banc 2000) (citations omitted). A previous holding precludes re-litigating issues on remand and subsequent appeal, and "[t]he decision of a court is the law of the case for all points presented and decided, as well as all matters that arose before the adjudication and might have been raised but were not." Id. at 153-54. Whether Hurricane Deck held itself out as a public utility was finally disposed of in Hurricane Deck I and will not be directly or indirectly revisited by us here under the guise of an objection to the assessment of a statutory penalty. The only issue properly before us is whether the timeframe during which Hurricane Deck's illegal conduct occurred, as determined by the trial court, is supported by the weight of the evidence.

We conclude that the trial court's finding that Hurricane Deck held itself out illegally as both a water utility and a sewer utility from September 22, 2005, to December 30, 2005, was supported by substantial evidence, and is not against the weight of the evidence. Murphy, 536 S.W.2d at 32. The trial court received into evidence the December 30, 2005 letter authored by Hurricane Deck, along with its enclosed accounting. In that letter,...