*1
an issue
that issue must
appeal,
this
serve
district court determined
The
for.
court
to the attention of the trial
in a
the document
called
Based on
a contract.
major portion
As
manner.
to a
evidence
clear
above,
all the other
as well as
us
arguments, appellant provides with
these
trial,
only conclude
presented at
we can
even
very
authority
little relevant
less
properly
court
determined
that the district
cogent argument.
appellant
as
Where
was formed
contract
that an enforceable
authority
serts errors but cites no
parties.
point out
We
between
perfunctory argument
sup
only a
makes
with abso
presented this court
appellant
contention,
will
court
port of the
this
argument
nothing in his brief or oral
lutely
Scherling v. Kil
consider the contention.
relationship
be
to
demonstrate
gore, supra,
provisions, sign failed the builders paid plans specifications,
tract with directly to in violation
money Wilson asserted provision. As to these
contract
his end of
appellee
perform
failures
SERVICE COMMISSION the
PUBLIC
contract,
this court
it is sufficient for
Wyoming, Appellant
State
facts
point
these were contested
out that
(Defendant),
against
We
appellant.
resolved
and were
that of
our
do not substitute
LIGHT,
VALLEY
AND
POWER
LOWER
evidence to
court where there is
the trial
Corpora-
INC., Wyoming Co-operative
the trial court’s determination.
support
tion,
(Plaintiff).
Appellee
Inc.,
Machinery,
v. Hi-Plains Elevator
True
5132.
No.
Moreover, these
premise appellate
quences of the commission’s action. Over commission, objection of the evidence was given judge ruling before the district but no legal was made as to the effect thereof and upon no action was taken the merits of the appealed review. Its now commission, was that the com- mission . receive evidence from Lower Inc., Valley Light, Power and to show the Wyoming effect of the Public Service dated Commission’s Order December 1978, upon operations of Lower Val- Light, ley Power & Inc.” appealed The commission to this court prior filing but briefs appeal for lack filed a motion dismiss appealable a final order under WRAP, part pertinent defines a final order as one “. . . a substantial action, when such order in effect de- prevents judg- termines the action and ment.” prejudice to We denied this motion without upon argument. renew the same oral press LVPL has continued to its motion and briefs, argu- of the oral consideration case, majority ment and the record in Rose, court, and of the Justices McClintock Gen., Troughton, Atty. D. Thomas J. John Guthrie, Retired, are of the and Justice Gen., Carroll, II, Atty. appellant. Asst. opinion appeal dismissed. that the should be Frome, Afton, appellee. Ted C. Raper and Justice Thomas are Chief Justice not, opinion and have it McCLINTOCK, RAPER, J., Before C. separate dissents hereto at- filed their GUTHRIE, THOMAS, JJ., and and ROSE tached. Retired Justice. Generally or order which determines the merits of contro APPEAL ORDER DISMISSING nothing for future consid versy and leaves McCLINTOCK, Justice. appealable, eration is is not things. does those appealable unless Light, Inc. Valley Power Lower Appeal p. and Error We § C.J.S. (LVPL) Wyoming with the application filed of the conclude that the order (the commission) Public Service finally dispose designed was not requesting in its rates. an increase infor only to obtain additional matter public hearing the commission en- After should be considered mation which authorizing some increase tered instance. No sub commission in first as as neces- but not much LVPL considered rights of the commission were ad stantial sary. petition for review filed versely affected including County, Lincoln district court of captioned request permit- It is ordered that the petition in that that it be therefore hereby is dismissed. the conse- be and it ted to J., GUTHRIE,* ROSE, again again opportunity prove Retired Jus for an tice, doing concur. That is what case. the court allege here. LVPL does not that the PSC THOMAS, RAPER, J., J., dissent. C. wrongfully refused hear this evidence. RAPER, Justice, dissenting. Chief Indeed, had LVPL concedes the evidence *3 the dissent Justice join I dissent and of yet being hearing not come into when the Thomas. major was held before the PSC. The dif- (from rate-making setting ference in the analysis and accept I cannot the shallow case) LVPL, that ordinary civil is summary disposition given to the district through procedures, have a proper court’s order. The determination that is can second, cetera, an third, not a final rests extraordi- prove et to chance narily majority slender The is sat- However, thread. must in a new case. do so general rely upon expres- isfied to the most hearing, reopening rate-making not finality as set in 4 sion of rule of out case already an decided a back-door 94, p. Appeal Error 252. The § C.J.S. & grossly misapplied method that has been exceptions nuances of rule—the that blessing now the district court and with the of require pages scores to de- distinctions— scribe within that one section of of The C.J.S. background I shall set out the of this case applies majority regard a rule without express fully views some detail and practicalities making. reason or the of rate great of because I consider matter one ceases, When the for the rule so does reason importance functioning to the efficient of ex City the rule. Rodin v. State rel. of power vis-a-vis the of courts to 196; 1966, 180, Wyo., 417 P.2d Cheyenne, The plays its activities. á vital Chicago Railway City & N.W. Co. v. of utility role in protecting consumers in the Riverton, 84, 122, 1952, Wyo. 70 247 P.2d area, and this decision serves to inhibit 660-661; 660, Pape Hockett, ex rel. State statutorily established functions. 145, 170, 299, 1945, Wyo. 156 P.2d 308. application LVPL made to the PSC (PSC) The Public Service charges an in the rates it to its increase power regulate given charged rates investiga- After an extensive customers.1 of by utilities. The whole nature rate mak- hearings, public granted tion and the PSC (known analyze ing is to historical facts LVPL increase to that amounted to and, facts) measurable on basis of that requested. 86%of the amount A final deci- analysis, project utility may what rate the sion the commission was issued to that charge in the If LVPL future. failed 21, January effect on December 1978. On place evidence in the record 15, 1979, filed an dis- which would to demonstrate that a serve 37-2-219, trict in accordance with increase, § given request- less than that W.S.1977, Wyoming Administrative ed, would not that afford sufficient (W.A.P.A.), 9-4-101, Act et Procedure obligations, §§ revenue meet its financial W.S.1977, 12, seq., and Rule Rules Wyoming then it has failed to meet burden of context, Appellate (WRAP). Procedure In addi- proof. party other where a carry proof general tion to a review of the fails to the burden of PSC’s court, present has lost LVPL asked to evi- party lower that its claim additional “ * * * permitted go consequences would dence as to the not be back * ROONEY, J., having par- himself 2. Rule WRAP: recused case, GUTHRIE, J., retired, ticipation in this “If, hearing, applica- before the date set for assigned, having been retained in active was present tion is made to the court leave to 5, 5, judicial pursuant Wyo- to Art. § service evidence, and shown to the additional it is Constitution, 5-l-106(f), W.S.1977, ming § satisfaction of the court the additional that 1, January on order of this court entered material, good rea- there was 37-2-101, seq., 1. Sections W.S.1977. et * *” * ty. they prevail type are If action. the Commission’s argument, nothing go hearing on March then can back conducted a ever
district court they issue whether LVPL Commission once have made on the up you additional evi- minds are be allowed adduce and determined to, evidence in con- The nature there is no additional dence. allowed by counsel for troversy summarized an application evidence that for a rehear- ing present. things LVPL: The two are * * * different. We want to to them “MR. FROME: why it is results their order and permit us to “When I asked them to wrong. anything We didn’t have fur- without present additional evidence added.) (Emphasis ther.” necessity hearing, they advised application we should have made to intro- attempt PSC resisted this and, *4 rehearing before the Commission evidence, arguing duce that additional course, staturoty [statutory] is a of there utility 12.08, supra, by should not be used to do period you that have that time utility other involved in company, party they failed to realize and within. What cases, proper to loophole rate as a avoid them is that we had no can’t convince of rate-making procedures. The asserted PSC to that present additional evidence to allowing intro- that the effect of LVPL to during hearing and we that require be to the duce such evidence would not the effect of their did know one only consider as to PSC to evidence we had the rate order— ordered until had which aspect utility’s of the financial status prepared and after the rate order was relates, subsequent to the period to a time filed with the Commission and had rates period by time which was considered PSC twenty they which took about accepted, determining the for a rate increase need Then, they accepted, were days. after all and the took into account for which PSC rates they projected then those com- aspects utility’s financial condition. to the effect of that puter see what net Further, contended that LVPL had the PSC as the that would would be as far income remedies not exhausted administrative from the increase in the rates. be derived rehearing requested because it had not addition, re- In we had to determine the 37-2-214, W.S.1977, pursuant and that to § operation, year of last sults the calendar rate-making also a new LVPL could initiate company the before we financially, of events that proceeding subsequent proved if what the debt were able to determine was warranted. a new rate increase coverage and service the times interest hearing arguments counsel After the of ratio, earned what the TIER for that LVPL, proof by the district and an offer go- what we are particular time. That’s 2, 1979, April court on entered order But, ing talking to be about here. basi- “ * * * receive requiring the PSC cally, have information to we didn’t the Valley Lower Power and evidence from got present we the Order and ana- until Inc., Wyo- effect the Light, to show the applied of it then lyzed the results ming Public Service Commission’s operation. way there is back our So no opera- the dated December presented we could have the evidence Inc.” Light, tions Power & Valley of Lower they that Commission the time appeal, parties In the have continued they we should have wanted —that said impossibili- positions they the did the district physical done so. That was a take proceedings made. the decision in the had and son failure to may agency, Supplemental be the evidence taken before the court in contested the involving involving in cases fraud or evidence court cases shall order be taken the additional person engaged agency upon the conditions misconduct administration of the some may agency deci- law determined modify findings cases In all other than contested adhere after shall and decision sion. additional material evidence cases evidence, may present- receiving such additional supplement court.” to reflect the ed to the record revenues, materiality gross (2) regard operating to the ex- addition, base, (3) LVPL penses, (4) evidence. In asserts rate of return. Priest, Principles Utility Regula- the order the district of Public a. tion, should judgment and therefore supra. Based on all the evidence be dismissed. presented, and LVPL does not contend that did not receive all evidence PSC of the district court view the o 'der rate-making adduce at wished to appeala- in effect a final hearings, granted increase a rate ble, pow- court exceeded its and the district that amounted to 86% of what LVPL re- directing taking of further evi- er in quested. take LVPL now wants the PSC to have reviewed what was dence. relating one LVPL’s element of actually administrative level done at the condition, return, for a financial its rate of made a decision. period time than the one utilized different general power has and exclusive the original rate case and thus different every public regulate supervise utili- period all elements the time in accordance ty within state with were ana- LVPL’s financial condition public service commission provisions lyzed. 37-2-112, statute. Section W.S.1977. The nature, By especially very and most granting plenary such purpose unpredicta- times of unbridled and these power regulate public pro- utilities tois inflation, ble financial util- conditions of public monopolis- tect the from the interest *5 they charge ities the rates must are and public utilities. tic characteristics of changing. constantly LVPL concedes Priest, Principles Utility Regula- of Public present it had no additional data to to the tion, 1, p. (1969). Among powers ch. the hearing at time this rate was con- just PSC the accorded the is to determine what PSC had no may by a ducted and that it data it wanted charged and reasonable rates be 37-2-121, Yet, a utility rehearing. for its service. Section address to the in PSC The which the rate-making proc- matters commis- LVPL have the W.S.1977. wants to determining may just in and sion consider interrupted ess and case remanded to 37-2-122, reasonable rates are set out at § the it can PSC so that demonstrate W.S.1977. things working way are not out the envi- sioned in the this were de- If step setting utility The first rates is to acceptable procedure, termined to be an within all period select a recent test which possible, quite no likely, and indeed operations a fi- utility’s elements of finally rate-making case would be deter- may analyzed and nances be matched granted, mined after until the PSC had against Ordinarily, pe- one another. a test repeated facts that reevaluation based on covering riod twelve months used and is being do not come into until after the PSC’s case, year.” to as “test referred the investigation public hearings and conduct of year running April 1, test from 1977 to over, requested by are the full increase 31, 1978, Once March was used.3 the test utility. the I cannot that this is selected, conceive year has been the commission purpose the intended the W.A.P.A. or must then determine the financial condition 12.08, The supra. Rule evidence which utility test during period LVPL did not wanted to to the PSC requested order to decide if the new rates even exist at the time the made its by utility are and reasonable.4 The fair order; not, the cir- utility the and so it could under financial condition of breaks case, (1) major They into four areas. be to that down are: cumstances of material clearly analytical by accepted year” 4. The 3. LVPL this as the “test bulk of the work is done any change appears at PSC staff which as an intervenor be the basis Indeed, utility presents independent began hearings anal- their investigation rates. staffing ysis request using for rate work a differ- increases. period adopted used ent the one to accom- modate LVPL. powers proceed- limited conferred on the district review that 12.08, court to the district court ing. was error for Rule must to the consid- case back PSC for conduct review in accordance with Rule remand the evidence. effect of 12.09: eration of that
position to foreclose is not “The review shall be conducted rather seeking review of PSC be jury court without a and shall con- proceed in the man- compel it is to them supplemented fined to pur- the record as legislature. I would hold ner set out 12.08,W.R.A.P., suant Rule with which wanted that the evidence agency. issues before the raised the record was not material supplement court’s limited to a review shall be deter- under Rule hence not admissible specified mination of the matters supra. 9-4-114(c). may The court receive § may written in its briefs and discretion compelled to the conclusion that am also hear oral argument. the district court was a final order of of this judgment under circumstances “The enter court shall af- 37-2-219, supra, provides: firming, reversing case. modifying Section or- * * * * * der, discretion, remanding or in its “Any party authorized agency proceedings case to the complaint original to file an before the conformity commission, with the direction may appeal from a final deci- [Emphasis or other commission action or inac- sion added.] manner, tion, in the same and to the same argument “If are be briefs and oral extent, provided by Wyoming Ad- allowed, petitioner’s brief shall filed * * *” Act. Procedure ministrative (30) thirty days and served within by the agency of the record transmittal general implements The W.A.P.A. court; respondent’s to the brief shall be review in the district court (30) days thirty filed and within served 9-4-114, Pursuant to authori- W.S.1977.5 § service of brief.” petitioner’s 9-4-114(b), ty the court § vested in 12, WRAP, 12.11, WRAP, W.S.1977, were for review provides Rules 1.03 *6 provides: any Rule 1.03 final district court in adopted. judgment of the this court: or judgment “A rendered final order any may a by agency aggrieved party an administrative or “An obtain re- made jurisdiction in to the dis- the judgment court inferior view of of district reversed, vacated, re- may trict court by appeal Supreme court to the Court. upon an appeal or modified taken appeal manded taken as in other civil shall be appearing court for errors to the district cases.” on the record.” Although an order which captioned as provides:
Rule 12.01 the to hear purports only require PSC judicial that review of
“To the extent
evidence,
court’s or-
additional
the district
aby
action
district court is
effect,
administrative
judgment
der is a final
because
available, any person
aggrieved
who is
new
requires the
to conduct a
rate-
by
adversely affected in fact
a final deci- making
upon the
proceeding based
financial
case,
agency
an
in a contested
sion of
period
condition of LVPL for a
time
* * * may
pro-
obtain such review as
which the PSC and
different
from that
in this rule.”
vided
agreed
purpose
the
to use for
a rate
determining
application in-
empowers a
court
supra,
Rule
district
crease. A
of the above-cited stat-
review
evidence to be taken
order additional
abundantly
utes and
clear
in contested
within
rules makes
agency
before the
cases
power
that
this is
the
the
by
Beyond
the
set
that rule.
the
not within
limitations
republished
petition
the
5.
rather
than
1979
Since this
was initiated
statutes
1979,
governed
January
by
which became effective on
it would be
the
amended version
May
25,
appearing in
1977
1979.
version of this statute
PSC,
an order to
court. To allow such
had
without remand
district
powers
totally
would
frustrate the
take further evidence of the nature
stand
contem-
legislature
plated by
conferred on the PSC
the district court’s order.
charged by
regulate the
utilities.
rates
Moreover,
only apply
even if we
Rule 1.05
proceeding,
analysis
to this
rather than the
juris
in our
firmly
It is a rule
embedded
above,
discussed
the order of the district
will
be allowed
prudence
appeals
question
court is
is no
reviewable. There
Hilzer, Wyo.1976,
v.
piecemeal. Knudson
that the
affects
but
district court’s order
a
680;
Ruppert, Wyo.1975,
P.2d
v.
Snell
PSC,
e.,
right
right
substantial
i.
1042;
Harris, Wyo.1963,
v.
541 P.2d
Reeves
statutory
rates
to fix
based
au-
However, in
case the
P.2d 769.
adopted
thority and administrative roles
simply does not exist
reason for the rule
to those statutes. The use of a
pursuant
applied
permit
an
and it should not be
year
accepted
is the
means of deter-
test
place.
to take
improper
mining
field
increases
However,
1.04, WRAP, provides:
adopted-by
parties in
mutually
judgment
“A
rendered or final order
not be re-
case at bar. The PSC should
may
a
court
be reversed
made
continuing adjustments
in a
quired make
part,
whole or
or modified
vacated
utility se-
granted rate increase based on
Supreme
appear-
by the
Court for errors
time-period unrelated to
lected data from a
ing on the record.”
original proceeding.
used in
may
be con-
An order
the district
Rule 1.05
final order is:
provides
“[a]
judgment though
as a final
denomi-
strued
(1)
right
a
an order
substantial
Boulder,
City
as an
Cline v.
nated
action,
effect
an
when such
deter-
1975, 35
532 P.2d
Colo.App.
prevents
judgment;
mines the action and
“Ordinarily, it
considered
**
The district court’s order affects
decree,
sufficiency
judgment,
or or-
of a
prevents
a substantial
depends
support
as final to
der
Public Service
in favor
substance,
effect,
or its
and not on
on its
setting
for LVPL
Commission’s
form,
at com-
despite
strict rule
statutory authority. Big
Horn
under
making
It has
mon law
form essential.
County
Hinckley, Wyo.
Commissioners
question
that the
whether
also been held
1979,
additional evidence alluded major- quoted as
court remand court,
ity material to order of this Service Com- Public the district court
mission.
has Public directed the Service Public to receive evidence which the Service INC., SERVICE, WATER JIM’S ignore performing Commission can then Wyoming Corporation, Appellant statutory responsibilities, (Defendant), affirm the Public court will have to Service regard. Consequently Commission in that court order is that
the effect the district ALINEN, (Plaintiff). Larry Appellee it inhibits the Public Service No. 5211. work accord- pursue Commission to statute, regula- ance with the its rules and Supreme Wyoming. Court tions, agreement with Lower and even its Light, one- Valley Power and limited March for the data year period would used ap- need for an
necessary to establish the
propriate rate increase. The Public Service
Commission, litigant, enti- any other finality, yet prospect
tled some right is the dis-
that substantial denied ruling. very In a real
trict court’s sense has been denied
Public Service Commission process
due law. as additional evi-
This case stands me *8 develop procedure
dence of a need to discretionary
granting interlocutory court.1 The court then could in review orders which otherwise
discretion regarded in na- interlocutory
must be
ture, need be reviewed but which egregious to correct an mistake of a review was denied because the absence
1. There have been before this Court in recent years necessity or a final order. several matters in which the obvious, correcting a mistake of law