*1 251 Alsо, questioned Thomas, 223, executed. the court (N.D.1980). 290 N.W.2d 225 disposed finding whether Jim was to influence his The testamentary capacity is a question father. of fact. Matter Estate Pol da, 11, 349 N.W.2d 15 (N.D.1984). The court also found that there was a explanation disposition specifically court found that the tes- tator had the Roy’s property Roy capacity of all of to Jim. mental Mick- make a Findings will. clearly elson was substantial fact are debt. He errone- if, review, farming ous operation have wanted the to con- we are left firm with a tinue and conviction that a mistake giving believed that all of the has been made at property Insurance, lower court. Jim the farm could be saved. Herb Hill Therefore, Radtke, 651, Inc. v. 380 result doеs not in and of N.W.2d (N.D.1986). itself indicate find undue influence. We no such mistake in Therefore, this case. the order of the testimony trial court heard the county court is affirmed. evaluated presented the evidence on this issue and found no undue influence. We ERICKSTAD, C.J., and YANDE judgement will not substitute our for that WALLE, MESCHKE, JJ., LEVINE and of the trial court. The court below had the concur. opportunity credibility tо evaluate the of all testimony presented and its determina- given great tions should be deference. Rask,
re Estate N.W.2d (N.D.1974).
Finally, appellant argues Roy
Mickelson lacked the testamenta ry capacity on December 1989 due to the SHARK, Myer Appellant, fact that he early stages of a Appellant massive stroke. urges that the v. will should Roy be invalidated because NORTHERN STATES POWER COMPA ability, could not have hаd the nor did he NY and Public Service Commission of ability proper demonstrate the to know his Dakota, North and Northern States ty or the objects bounty. natural of his Company Power Gas Appellant early signs asserts that the Tariff, Appellees. Credit morning stroke that Roy rendered unable Civ. No. 910104. rationally disposition deal of his estate. Supreme Court of North Dakotа. Four witnesses Roy’s testified to testa- 18, 1991. Nov. mentary capacity at the time the will was signed. The trial court heard and evaluat- testimony by
ed the present all of those at
the execution of the All will. of the wit-
nesses testified to the alertness of tes- Although
tator. there physical were some
symptoms by Roy stroke exhibited morning, the medical doctor testified
that he could not opinion a definitive
regarding Roy’s mental condition at the
time the signed. will was principle
It is a well established the ca-
pacity of a presumed testator is and the
party contesting the will has the burden of
proving incapacity. Matter Estate *2 (argued),
Myer Appear- se. by Crary, Fargo. Peter B. ance (argued), W. Binek and Illona A. William Jeffcoat-Sacco, Gen., Attys. Asst. Public Com’n, Bismarck, Capitol, for Service State appellee Public Service Com’n. (appearance), R.W. Wheeler Wheeler Wolf, (ar- Bismarck, R. and Gene Sommers Minn., appellee gued), Minneapolis, Power Co. Northern States GIERKE, Justice.
Myer appeals from a district court judgment affirming a decision the North Dakota Public Commission Service [PSC] to re- allow Northern States Power [NSP] costs for the сonstruction of a cover its retaining up gas pipeline by natural $368,640 given in credits to certain custom- judgment ers. We and remand reverse proceedings opin- consistent with this ion. sought implement
In 1989 NSP bring gas natural from the project to Willi- to its eastern North Dakota ston Basin building pipeline service area intercon- Pipe- Interstate nect with Williston Basin line The intеrconnect would en- [WBI]. system in supply hance NSP’s current Fargo supply service area with a second provide pipeline gas natural and would also growth. plans for future project required parts to reinforce WBI existing pipeline system from the Willi- Valley City and to ston Basin construct pipeline City Mapleton. Valley new responsible constructing а NSP was Mapleton Fargo, new $1,834,- approximately an estimated cost of 3, 1989, NSP filed a 000. On October revi- existing gas sion of its tariff with the PSC 49-05-05, N.D.C.C.,1 pursuant to Section N.D.C.C., published filed service which have been 1. Section public utility, thirty days’ except after “Changes to commis- rates—Notice tariff change Filing No shall be made notice to commission. The notice shall sion— feе. tariffs, rates, any public utility joint changes plainly except state tolls, schedules, classifications, rates, fares, seeking requested recover filing additional revenue to this case NSP expeditiously constructing be handled so that various pipeline. cost as well as contractual federal and state to raise the rev- additional regulatory aspects of project the entire eliminating the Firm Credit enue Service *3 completed be in could 1990. Pursuant Adjustment Provision of Purchased Gas 49-05-06, N.D.C.C.,2 Sectioñ the PSC sus- (transportation interruptible Clause and 24, pended filing NSP’s on 1989. October credits) upon of revenue commencement 30, 1989, On November NSP amended the The and transportation service from WBI. filing recovery tо limit its to more than no interruptible original- revenue credits were $368,6843 by which was calculated multi- ly by prior ordered the PSC in two cases. plying pipe- NSP’s estimated cost for the They are a “non-traditional” method of $1,834,000 justi- line of capital times a cost ratemaking to deal ordered percentage fication of .201. transportation with NSP’s revenues 5, 1989, On December a no- PSC issued customers, gas large interruptible of tice, setting filing hearing in NSP’s 1.e., purchase qualifying customers who 1989, 27, Bismarck on December and stat- directly producers gas from wellhead and ing good that the believed cause exist- transport it NSP’s town border stations hearing upon ed notice the less than 20 transported through it is NSP’s dis- where days notice. The PSC of mailed thе notice system tribution to the customers. hearing parties, including to interested PSC and NSP were unable to ascertain the Shark, 7, On December 1989. Decem- margins gas volumes and which inter- 12, 1989, hearing the PSC moved ber the ruptible purchased, customers the and PSC Fargo request Fargo’s gas at the of cus- directed NSP to credit the rates of NSP’s legislators. tomers and North Dakota On 1989, 18, Shark, other customers two-thirds net attorney ap- December se, transportation petitioned revenues from this pearing function. to intervene and accompanied fifty proposed for services must be to show increased or that the rate rate, classification, rule, change regulation, filing good dollar fee. The for a commission shown, just рractice may upon or and shall changes cause reasonable be allow less upon public utility making application the specified, par- than the notice herein either in classifications, rates, therefor. tracts, con- general appli- All such ticular instances or order rules, practices, regulations or not so speсial peculiar cable to or circumstances or suspended, expiration thirty days on the conditions.” filing from the the with the time same 49-05-06, N.D.C.C., commission, 2. Section of such time as the or lesser may grant, go shall into effect commission "Hearing change proposed commission on rates, and be the established and effective any rates. Whenever a nоtice or schedule classifications, contracts, rules, practices, rate, stating joint an individual or classifica- regulations, subject mission, power to the of the com- tion, contract, rule, practice, regulation, or hearing its own after had on mo- increasing decreasing, resulting or or in an upon complaint, modify tion or to alter or the rаte, increase or decrease in shall be filed same.” commission, may with the the commission rate, classification, filing following suspend by contract, such NSP’s listed rea- motion 3. amended the rule, practice, regulation, son for or but the the amendment: period suspension thereof not extend shall original change designed “The filed was more than seven months for common carriers retain enable NSP to and In- public other (ICS) rail and motor vehicle and for terruptible margins Service Contract beyond utilities the time it otherwise equivalent requirements when revenue to the complaint go Upon would into effect. or line new which would connect upon complaint system Fargo its own initiative without the NSP’s distribution WBI. hearing, upon original proposed commission order a due Staff has indicated the notice, rate, concerning propriety change may the of such enable NSP to recover excess classification, contract, rule, regu- practice, requirements or of the revenue line if a hearing, transportation lation. On such the commission substantial inсrease in or ICS classifications, rates, shall tracts, sales occurs. establish rules, change practices, regulations pro- or "The NSP’s incre- restricts $368,634 posed, thereof, part, recovery or in in lieu whole or others mental cost pending less de- just transportation it shall find to on actual ICS rev- hearing, the reasonable. At such burden enue.” contends that he was denied hearing “early until to continue process hearing a fair because the December PSC due 1990.” On hearing intervene and petition period granted Shark’s time between for a continuance. Ac- request his not denied reasonable view Shark, cording to he received PSC’s nature, scope, petition to intervene on granting his period оrder that that time He asserts 26, 1989. December him sufficient advance notice did permit time for of the issues to Shark re- At the December discovery ease. preparation of his He for a continuance be- newed his argues its discretion that the PSC abused prepare. of time to cause of the lack *4 denying request in his for a continuance. hearing nоted Shark’s examiner him that the PSC would ad- and informed N.D.C.C., 49-01-07, authorizes Section January it date. On dress at a later PSC “make ... rules ... for the the to allowing the its decision PSC issued it, orderly proceedings of before regulation $368,640 transporta- up to to of retain including of notice and the service forms revenue credits when interruptible tion and thereof, nearly which shall cоnform as as operational requir- the became in of possible to those in use the courts reports identifying ing NSP to file detailed statute, the to that PSC state.” Pursuant project. actual final costs of the the 69-02-04-01, N.D.A.C., adopted has Section court, which the appealed to district tending, things, he among other proceedings in which “Notice. In those hearing dеprived process of and a fair held, due hearing a to be the commission time adequate not have to will, otherwise, because he did assign a time order or court concluded that prepare. The district hearing. Notice of the hearing complied the with law hearing posted in the office the will be and affirmed the PSC’s decision. commission, upon be the and will served appealed. has may parties persons such other at least twen- entitled to receive notice be of the Appeals decisions ty days prior to the date set for the Agen governed by are the Administrative emergency.” in except cases of Act, 28-32, ch. cies Practice N.D.C.C. N.D.C.C., 49-02-02(5), pro- Power v. North Da also Northern States Co. Section Commission, 452 kota Public Service vides: (N.D.1990). N.W.2d 340 public “Powers service commission
N.D.C.C., of an admin requires affirmance public utilities. reference agency decision unless istrative power shall have to: commission “2. The order is “1. “3. Provisions been stitutional ings the law. The order before complied with is not in accordance with of this rights in violation agency. of the chapter the of the con- appellant. have not proceed- “5. Hold notice shall be [*] tion, and to shorten ing, shown when hearings [*] therefor or on its own mo- good [*] provide the given prior to good cause [*] period notice cause exists [*] thereof which being hear- [*] notice, however, Such agen- such action. procedure rules or of the reasonable in view the
cy
appellant
shall be
not afforded the
a
have
nature, scope,
importance of
hearing.
fair
hearing....”
findings of
made
“5. The
fact
by pre-
agency
supported
are not
a
Commission,
In Eckre v. Public Service
ponderance of
(N.D.1976),
evidence.
247 N.W.2d
we con-
sidered
about notice and observed:
issues
and order of
“6. The conclusions
law
delegated
“The
has
agency
supported
Legislature
are not
thus
discretionary
promul-
power
findings of fact.”
a
issue such orders tо matters had been considered
NSP for
gate such rules and
scope of notice
govern
the method and
months and
several
PSC at least
orderly
for the
be
filing.
contrast,
since the October
proceedings before the
regulation of
only
days
afforded
Shark was
matter of
PSC,
notice
long
so
as the forms
such
prepare
nearly
possible
‘confоrm
as
to those
as
state’,
in the
of this
and that
use
courts
recognize that NSP
We
asserted a
such-notice is ‘reasonable
view of
opportunity”
narrow “window
because
nature, scope,
of the
of contractual considerations as well as
hearing’.
giving
method of
The PSC’s
regulatory aspects
federal and
state
notice in the instant case will bе reversed
However,
project.
entire interconnect
even
finding
such
only by a
of this court that
perfect hindsight, the time
constraints
giving
notice was in ‘clear
method
suggested by
NSP would
have been
discretion’, i.e., failing in a
abuse of
jeopardized by
short continuance for a
proper dispatch
conducive to the
manner
hearing “early
1990,”
requested by
аs
justice,
of business and to the ends
Moreover, the
Shark.
time constraints for
failing
provide
notice that was
must be balanced with
PSC’s
*5
nature, scope,
‘reasonable in view of the
obligation
notice in
to
view
importance
hearing’.”
of the
and
“nature, scope,
and
of the
proceeding
In
the issues
this
involve
49-02-02(5),
hearing”
[Section
recovery
in the
of NSP’s investmеnt
N.D.C.C.],
“just
and to
and rea
establish
Mapleton
struction
rates.
sonable”
Section
Fargo. Although
Shark
have been
N.D.C.C.
specifics
project
of some
of the
be-
aware
was served on
fore
complex
In
of the
and technical
view
him,
specifically
that notice
identified
seg-
nature of the issues involved in this
following issues for consideration:
projeсt, the time
ment of the interconnect
Is it reasonable for the Commission
prepare
for this
did
for Shark
to authorize an increase in revenue
opportunity
fairly
him
not afford
an
recovery in this manner?
prepare his case and was not “conducive to
$368,640per year provide
“2. Will
proper dispatch
of business and to
of return on
with reasonablе rate
Eckre,
supra,
justice.”
ends of
247
investment?
at 664. We conclude the PSC’s
N.W.2d
proposed pipeline
“3. Will the
be used
for a continuance
denial
Shark’s
and
or useful
service
conve-
a clear abuse of discretion. We there-
was
public?
nience of the
district court
in-
fore remand to the
customers outside North
“4. Will NSP’s
remand to the
for hear-
structions tо
PSC
Dakota benefit
pre-
ing
opportunity
and an
for Shark to
pipeline,
they
and if so should
share
However,
present his case.
in the
pare and
costs?
interim,
the determination made
“5. Are NSP’s
and ICS
on the merits remains in effect.
PSC
See
appropriate
credits
an
revenue
Aggie Investments v. Public Service Com-
,
recovery
pro-
source for
NSP’s
mission,
(N.D.1991)
whether NSP also contends that ing recovery mеthod of cost that this justification acted without substantial reasonable, “[tjhis entangled case is attorney’s he entitled to fees under complex, technical matters.” These is 256 Crary N.D.C.C.,4 Ralph Peter B. 28-32-21.1, North Dako- Maxwell and
Section if those throughout litigation. this Even Equal Access to Justice ta’s version work, attorneys did some of Act. they did, they says for which would Supreme Court has The United States compensation, entitled to we conclude litigant se who recently held that a justification for that there was substantial attorney attorney is not entitled also an by the under the standard the actions Kay 1988. v. fees under U.S.C.A. § 28-32-21.1, N.D.C.C. set forth — U.S. —, Ehrler, S.Ct. petition re- Accordingly, deny the we (1991). We conclude that L.Ed.2d 486 se, is Shark, attorney appearing pro not аttorney’s fees under Section entitled C.J., WALLE, Acting LEVINE VANDE 28-32-21.1, N.D.C.C. MESCHKE, JJ., E. LAWRENCE case, of our resolution of Because JAHNKE, Judge, District concur. any remaining no express opinion we raised We reverse the issues Shark. JAHNKE, E. LAWRENCE District with in- district court decision remand ERICKSTAD, Judge, sitting pro- to remand to the PSC structions C.J., disqualified. opinion. with this ceedings accordance GIERKE, J., a member of the Court decided, re- when this case was heard C.J., WALLE, Acting LEVINE VANDE 20, 1991, ac- signed effective November MESCHKE, JJ., and E. LAWRENCE cept appointment the United States JAHNKE, Judge, District concur. Military par- Appeals did Court JAHNKE, E. District LAWRENCE Rehearing. ticipate in the Petition *6 ERICKSTAD, sitting Judge, C.J., disqualified. FOR REHEARING
ON PETITION rehearing petition for Shark as
On attorney’s he is
serts that entitled fees attorneys represented by he was
because 28-32-21.1, N.D.C.C., rulemaking adopted a rule an action or 4. rulemaking agency action as a result of the against agencies “Actions administrative —At- being appealed. torneys’ and costs. fees any judicial proceeding involving Any attorneys' "1. In civil awarded fees costs parties agency an as adverse administrative pursuant paid must be section agency party administrative or and a not an agency administrative funds available аgency, agent of an administrative order, action, rulemaking or rule of final party must not an adminis- court award by the The court was reviewed court. which may agency attorneys’ fees and trative attorneys’ part all fees withhold or party if the court finds in favor of costs award if the court finds the admin- agency the administrative and determines that substantially jus- agency’s istrative action justification. without substantial acted special exist or circumstances tified applies This section to an administrative "2. portion all or make the award judicial proceeding brought party or civil attorneys’ unjust. fees agency against an an administrative ad- Nothing shall "4. in this section be construed judicial agency for review of a ministrative rights party fees to alter the to collect order, judicial pur- agency review final applicable other law.” under legality agency chapter to this suant