Valley Elec. Membership Corp. v. Southwestern Elec. Power Co.
| Decision Date | 23 August 1989 |
| Docket Number | No. 21021-CA,21021-CA |
| Citation | 550 So.2d 702 |
| Parties | VALLEY ELECTRIC MEMBERSHIP CORPORATION, Plaintiff/Appellant, v. SOUTHWESTERN ELECTRIC POWER COMPANY, et al., Defendants/Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Gahagan and Conlay by Henry C. Gahagan, Jr., Nachitoches, for VEMCO.
Wilkinson, Carmody & Gilliam by Arthur R. Carmody, Jr., Shreveport, for SWEPCO.
Burnett, Sutton & Walker by Steven R. Baker, Shreveport, for Town of Stonewall.
Schwab & Walter by William E. Hodgkins, Baton Rouge, for the Ass'n of La. Elec. Cooperatives.
Before HALL, C.J., and NORRIS and HIGHTOWER, JJ.
Valley Electric Membership Corporation (VEMCO) filed this action for declaratory judgment and injunctive relief against the Town of Stonewall and Southwestern Electric Power Company (SWEPCO). VEMCO sought declaratory judgment recognizing its right to continue to provide electric power to existing customers and locations in the corporate limits of the town which it served under a 15 year franchise from the town which expired October 16, 1987 and under a 99 year franchise granted in 1938 by DeSoto Parish prior to incorporation of the Village (now Town) of Stonewall in 1972. It sought a preliminary and permanent injunction enjoining the town from enforcing the town's order for VEMCO to remove its facilities and to coordinate a transfer of service to SWEPCO and from interfering with VEMCO's service to its customers. VEMCO sought injunctive relief enjoining SWEPCO from interfering with VEMCO's service to its customers and a mandatory injunction requiring SWEPCO to remove its lines and facilities providing service to any service location formerly served by VEMCO within the town limits.
In response, the Town of Stonewall filed an exception of improper cumulation of actions, non-joinder of a necessary party, failure to join an indispensable party, and an exception of no cause and no right of action. SWEPCO filed a motion to dismiss for failure to join an indispensable party, a motion to dismiss the claim for injunctive relief, and exceptions of no cause and no right of action.
After a hearing on the rule for preliminary injunction, the district court found that VEMCO was entitled to serve customers existing on the date of incorporation of the village, but that VEMCO's right to serve customers established later under the town franchise had terminated with the expiration of the franchise granted by the town. Judgment was rendered ordering the issuance of a preliminary injunction against the Town of Stonewall enjoining it from taking any action to remove or cause to be removed any of the facilities which VEMCO had installed, improved or maintained under its non-exclusive franchise from the DeSoto Parish Police Jury or interfere with its service locations which were being served prior to October 16, 1972, the date the franchise was granted by the municipality. The remainder of the demands of VEMCO were denied. Costs were assessed one-half to VEMCO and one-half to the town and SWEPCO.
A separate judgment was rendered dealing with the exceptions. SWEPCO's motion to dismiss for failure to join indispensable parties was denied. SWEPCO's motion to dismiss the claim for injunctive relief was granted to the extent set forth in the court's written reasons for judgment. SWEPCO's exceptions of no cause and no right of action were sustained. The exceptions of no cause and no right of action filed by the town were sustained in part and denied in part as explained in the written reasons for judgment. The exceptions of improper cumulation of actions, non-joinder of necessary party and non-joinder of indispensable parties were overruled.
VEMCO appealed. The town answered the appeal. SWEPCO neither appealed nor answered. For reasons expressed herein we amend to grant a preliminary injunction against SWEPCO enjoining it from making connections to provide electric service to locations presently served by VEMCO which were being served prior to October 16, 1972, and otherwise affirm.
On appeal VEMCO asserts that the trial court erred in not finding that VEMCO had the right to continue to provide electrical service to those locations within the municipal limits of the town being served on October 15, 1987, the date of expiration of the town franchise, and that the trial court erred in limiting the preliminary injunction against the town to VEMCO's service locations being served prior to October 1972. VEMCO also argues that the trial court erred in not enjoining SWEPCO from providing electrical service to locations being served by VEMCO on October 16, 1987 and in not enjoining the town from taking any action to remove or cause to be removed any of VEMCO's distribution facilities located in the town which served customer's outside of the town limits. VEMCO asks that the judgments sustaining the exceptions be reversed and that the judgment granting the preliminary injunction be amended to enjoin the town from taking any action to remove or cause to be removed or to interfere with any of the facilities installed or locations served by VEMCO on the date of expiration of the town franchise. VEMCO also asks that a preliminary injunction against SWEPCO be granted enjoining SWEPCO from providing electrical service to any customer served by VEMCO on the date of the expiration of the town franchise and ordering SWEPCO to remove any lines or other facilities now serving such locations.
By answer to the appeal, the town urges that those parts of the judgments rejecting VEMCO's demands be affirmed but that the part of the judgment granting a preliminary injunction against the town be reversed. The town complains of the assessment of any part of the costs against it.
SWEPCO urges affirmance of the parts of the judgment rejecting VEMCO's demands and aligns itself with the town in urging reversal of that part of the judgment granting the preliminary injunction.
On June 1, 1938, VEMCO was granted a non-exclusive franchise by the DeSoto Parish Police Jury for a period of 99 years to erect, construct, maintain and operate a line or lines or poles, wires and structures or transmission and distribution of electric energy over, on, along, under and across public roads and state highways within the parish for the purpose of transmitting, distributing and supplying electricity for lights, heat, power and other purposes, including the right to erect and construct all necessary and proper fixtures in and along said public roads and state highways, not within the limits of any incorporated city, town or village. LSA-R.S. 33:4361. Pursuant to its franchise VEMCO began providing electric service to customers within DeSoto Parish, including the area later incorporated into the Village of Stonewall.
On August 11, 1972, the community of Stonewall was incorporated as a village. On October 16, 1972, on application of VEMCO, the mayor and board of alderman of the Village of Stonewall by ordinance granted unto VEMCO a non-exclusive franchise to erect, construct, operate and maintain electric facilities and consisting of within limitation generating plants, sub-stations, transformers, switches, towers, poles, cablewires, conductors and lamps with all fixtures and appurtenance necessary or advisable for the proper operation and the maintenance of such facilities within the limits of the Village of Stonewall, for the purpose of supplying electric service for public and private use therein and for the transmission of electricity through and beyond the Village of Stonewall. LSA-R.S. 33:4401. This franchise was granted for a period of 15 years.
On June 7, 1950 the DeSoto Parish Police Jury had granted a similar 99 year non-exclusive franchise to SWEPCO. SWEPCO provided electric service to the Stonewall area under this franchise. On September 11, 1972, the Village of Stonewall granted a non-exclusive franchise to SWEPCO for a term of 25 years effective October 1, 1972.
The franchises granted by the village to VEMCO and SWEPCO provided for payment by the utility companies to the village of two percent of its gross revenues on all electricity sold and paid for within the village limits, payable quarterly.
After the 1972 franchise grant, VEMCO expanded its electric distribution operations within the municipal limits of Stonewall and continued to provide electric service to those service locations which previously existed within the limits of Stonewall prior to 1972, as did SWEPCO.
Upon expiration of the 15 year franchise granted to VEMCO by the Town of Stonewall after unsuccessful negotiations for renewal of the franchise, the town refused to renew VEMCO's franchise because its rates are higher than SWEPCO's, and ordered VEMCO to cease and terminate furnishing electrical service in Stonewall. The town demanded that VEMCO coordinate with SWEPCO the transfer of all of its customers within the municipal limits of the town to SWEPCO and thereafter to remove all of its facilities located within the municipal limits. The town had its VEMCO service to the town hall disconnected and SWEPCO began serving electricity to this facility. About 35 or 40 of VEMCO's customers had their VEMCO service disconnected and SWEPCO, upon request, began serving those former VEMCO customers and locations. SWEPCO has applications pending from about 75 other customers who wish to discontinue the VEMCO service and obtain service from SWEPCO.
Following these events, VEMCO filed the present action.
The appeal and answer to the appeal present the issue of what rights, if any, VEMCO has to continue to provide electric service to locations within the corporate limits of the Town of Stonewall under or flowing from the 99-year franchise granted by the parish in 1938 and/or the expired 15-year franchise granted by the town in 1972.
The decisions in City of Thibodaux v. Louisiana Power & Light Company, 126...
To continue reading
Request your trial
-
Washington-St. Tammany Elec. Co-op., Inc. v. St. Tammany Parish Police Jury, WASHINGTON-ST
...and the franchisee can be required to cease service and remove its facilities. See Valley Electric Membership Corporation v. Southwestern Electric Power Company, 550 So.2d 702, 707 (La.App. 2nd Cir.), writs denied, 551 So.2d 1341, 551 So.2d 1342 (La.1989). In addressing the form of such not......
-
Four Rivers Gaming v. Reliable Amusement
...third party from interfering with the exclusive rights granted by a contract. For example, in Valley Electric Membership Corp. v. Southwestern Electric Power Co., 550 So.2d 702 (La.App. 2 Cir.), writs denied, 551 So.2d 1341, 1342 (La.1989), a utility company obtained an injunction prohibiti......
-
Gordon's Const. & Landfill, Inc. v. IBERIA GOVT.
...the Parish, the Contractor could not be forced to relinquish service upon annexation. See Valley Electric Membership Corporation v. Southwestern Electric Power Co., 550 So.2d 702 (La.App. 2d Cir.1989). All of these provisions convince the Court that the contract is non-exclusive. The Court ......
-
Valley Elec. Membership Corp. v. Southwestern Elec. Power Co.
...Court of Appeal, Second Circuit, No. 21021-CA; Parish of DeSoto, 11th Judicial District Court, Div. "B" No. 48576. Prior report: La.App., 550 So.2d 702. CALOGERO, DENNIS and WATSON, JJ., would grant the writ. ...