248 P.3d 400
Okla. Civ. App.2010Background
- PSO is an investor‑owned utility serving Duncan since 1973; DP & L is a competing public utility in Duncan.
- Haulmark facility within Duncan was served by PSO since 1988; DP & L disconnected PSO service over the weekend of Sept. 6–7, 2008.
- DP & L claimed the Haulmark facility was acquired by the Duncan Area Economic Development Foundation; evidence shows DP & L sought to become Haulmark’s electric provider, but PSO did not consent in writing.
- No written mutual consent for the service transfer exists; DP & L installed lines, transformers, and meters to serve Haulmark without PSO’s agreement.
- PSO filed Sept. 11, 2008 for declaratory and injunctive relief; the trial court granted a temporary injunction prohibiting DP & L from serving Haulmark and ordering transfer back to PSO.
- DP & L appealed the temporary injunction order, contesting due process, entitlement to relief, and a constitutional challenge to the regulatory scheme.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mutual consent required for service change | PSO: no written mutual consent; unlawful switch. | DP & L: consent valid or not required in writing under statute. | Yes violation; no written mutual consent; injunction proper. |
| Temporary injunction criteria and court discretion | PSO: likelihood of success and irreparable harm met; injunction appropriate. | DP & L: insufficient notice/due process and no irreparable harm. | Court did not abuse discretion; criteria satisfied; injunction affirmed. |
| Constitutional challenge to regulatory scheme | DP & L: statutes violate Article 18 and ban on exclusive franchises; require AG notice. | DP & L: statutes unconstitutional as applied pre-statutory changes. | We decline to address constitutionality due to lack of notice to AG. |
Key Cases Cited
- Oklahoma Gas & Electric Co. v. Total Energy, 499 P.2d 917 (Okla. 1972) (electric utilities injunctive relief in interference cases)
- Bartlesville Electric Light and Power Co. v. Bartlesville Interurban Ry. Co., 109 P.228 (Okla. 1910) (irreparable injury when statutory rights are violated)
- Semke v. State Ex Rel. Okl. Motor Vehicle Comm'n., 465 P.2d 441 (Okla. 1970) (irreparable injury; statutory violations support injunctive relief)
- Stuart v. Titus, 400 P.2d 797 (Okla. 1965) (injunction relief requires irreparable injury; not damages only)
- Western Heights Ind. Sch. Dist. No. 1-41 v. Avalon Retirement Centers, L.L.C., 37 P.3d 962 (Okla. Civ. App. 2001) (statutory violation constitutes irreparable harm)
- Lierly v. Tidewater Petroleum Corp., 139 P.3d 897 (Okla. 2006) (de novo review of statutory violations on appeal)
- Sharp v. 251st St. Landfill, 39 P.3d 152 (Okla. Civ. App. 2001) (injunction criteria; clear and convincing evidence required)