Forest Woods Utility Company, Inc. v. Siwell Utility Company, Inc.
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CC-01387-COA
FOREST WOODS UTILITY COMPANY, INC.
v.
SIWELL UTILITY COMPANY, INC. AND MISSISSIPPI PUBLIC SERVICE
COMMISSION
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
APPELLANT
APPELLEES
08/07/2000
HON. PAT WISE
HINDS COUNTY CHANCERY COURT
DALE F. SCHWINDAMAN, JR.
JAMES H. HERRING
WILLIAM BRUCE MCKINLEY
CIVIL - STATE BOARDS AND AGENCIES
APPELLANT'S MOTION TO INTERVENE DISMISSED
BY PUBLIC SERVICE COMMISSION; AFFIRMED BY
HINDS COUNTY CHANCERY COURT
AFFIRMED - 10/16/2001
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
11/6/2001
BEFORE SOUTHWICK, P.J., THOMAS, AND IRVING, JJ.
THOMAS, J., FOR THE COURT:
¶1. Siwell Utility Company, Inc. ("Siwell") filed a petition before the Public Services Commission
("Commission") seeking a supplemental certificate of public convenience and necessity to construct, operate
and maintain its sewer system in an expanded area. Forest Woods Utility Company, Inc. ("Forest Woods")
filed a motion to intervene. Siwell filed a motion to dismiss the intervention proceedings. The Commission
granted Siwell's motion to dismiss and granted Siwell's petition seeking a supplemental certificate of public
convenience and necessity. Forest Woods appealed to the chancery court, which affirmed the Commission.
Aggrieved, Forest Woods asserts the following errors:
I. THE DECISION OF THE PUBLIC SERVICES COMMISSION WAS NOT BASED ON
SUBSTANTIAL EVIDENCE.
II. THE COMMISSION'S PROCEEDINGS VIOLATED FOREST WOODS'
FOURTEENTH AMENDMENT DUE PROCESS RIGHTS.
Finding no error, we affirm.
FACTS
¶2. Siwell is a Mississippi corporation that exclusively provides sewer service to residents of a specified
area of Hinds County, Mississippi by virtue of a certificate of public convenience and necessity granted to it
by the Mississippi Public Service Commission several years ago, pursuant to Miss. Code Ann. § 77-311(3) (1972). On November 9, 1999, Siwell filed a petition in this action before the Commission seeking a
supplemental certificate of public convenience and necessity to construct, operate and maintain its sewer
system in an expanded specified area.
¶3. With its new petition, Siwell filed numerous exhibits, including the following: a full legal description of the
proposed service area; a large scale map showing the boundaries of the proposed service area; a general
description of the facilities to be used in rendering sewer service to the area; an estimate of the cost to
construct the additional sewer system; a listing of all sources of funding for the project; an estimate of
prospective and assured customers in the new service area, as well as Siwell's existing service area; a
complete set of engineering plans and specifications for the project; approval of the engineering plans and
specifications by the Mississippi Department of Environmental Quality; and the pre-filed testimony of John
T. Robinson, President of Siwell Utility Company, Inc., and John T. Bailey, P.E., the engineer who
designed the new sewer system. In his testimony, Mr. Robinson asserted that a real estate developer had
requested sewer service from Siwell for the developer's new subdivision and that the developer would
construct, contribute and convey the new sewer system to Siwell, in exchange for sewer service from Siwell
to new lot owners in the subdivision. Thus, Robinson stated that there was a public need for expansion of its
present sewer system. John T. Bailey, P.E., testified that DEQ had approved the extention of Siwell's sewer
system, which consisted of approximately 4000 lineal feet of eight inch gravity sewer main; 6000 lineal feet
of six inch force main; manholes; and a 275 GPM Pumping Station.
¶4. Forest Woods filed a petition to intervene in these proceedings on November 30, 1999 and objected to
Siwell's request for an extension of its exclusive service area. Among its reasons for opposing Siwell's
petition, Forest Woods asserted that it had plans to connect its sewer system to regional treatment facilities,
and the public interest would therefore be best served by connecting the new subdivision to Forest Woods'
facilities. Forest Woods was immediately allowed to intervene in these proceedings by order of the
Commission dated November 30, 1999.
¶5. On December 7, 1999, Siwell filed a motion to dismiss Forest Woods' objection, arguing that: (1)
Forest Woods currently had no adequate treatment facility to service its wastewater, and no approval from
DEQ or the Commission to connect its sewer system to any regional treatment facility; and (2) because
Forest Woods had no approval from the Commission in regard to additional sewer rates to be charged to
Forest Woods' existing and prospective customers, should it be allowed to connect to a regional treatment
facility. In response, Siwell pointed out that (1) its proposed extension for service as well as the extension
plans and specifications for installation of improvements, had already been approved by DEQ; and,
significantly, (2) the developer of the subdivision had requested service from Siwell, not Forest Woods.
¶6. A pre-hearing conference was held pursuant to Miss. Code Ann. § 77-3-39 (3) and (4) (Rev. 2000)
on December 20, 1999, and was conducted by the Public Utilities staff to discuss all issues of the case, and
all parties were in attendance. After a thorough discussion, both parties agreed to allow the Commission to
rule on Siwell's motion to dismiss Forest Woods' objection without a hearing, and both sides were allowed
to file any additional affidavits that might be helpful to the Commission in rendering its decision.
¶7. The Commission granted Siwell's motion to dismiss Forest Woods' objection on January 12, 2000 and
ultimately granted Siwell's petition for a supplemental certificate of public convenience and necessity by final
judgment dated February 2, 2000. Among its reasons for dismissing Forest Woods' objection and granting
its final judgment in Siwell's favor, the Commission stated the following: (1) Siwell's request for an extension
of its service area had DEQ approval, whereas Forest Woods had no sewer treatment facilities immediately
available to provide sewer service to the area under consideration; (2) the real estate developer of the
subdivision in question emphatically desired service from Siwell, rather than Forest Woods; (3) the public
convenience and necessity would best be served and it would be in the best interest of the subdivision
residents and customers by granting a supplemental certificate to Siwell, rather than Forest Woods, for the
reasons set forth in Siwell's original petition.
¶8. The Commission also found that Forest Woods presently had no legitimate contract with the City of
Jackson to connect to Jackson's regional sewer treatment facility because (1) Forest Woods had not sought
Commission approval of such a contract; and (2) Forest Woods had no authority to connect its facilities to
a regional facility or to pass along to its customers the additional costs it would be required to pay as a
result of such a connection or contract. Thus, since no Public Service Commission approval had been
granted (or sought) for any of its proposed actions which Forest Woods cited as its justification to object to
Siwell's petition to expand its service area, the Commission unanimously found that Forest Woods'
objection had no legitimate basis. The Commission further found that the developer would be irreparably
harmed if Siwell's petition was unduly delayed.
STANDARD OF REVIEW
¶9. Miss. Code Ann. § 77-3-67 (Rev. 2000) states that:
(1) In addition to other remedies now available at law or in equity, any party aggrieved by any final
finding, order or judgment of the commission, except those final findings, orders or judgments
specified in section 77-3-72, shall have the right, regardless of the amount involved, of appeal to the
chancery court of the judicial district in which the principal place of business of the utility in the state of
Mississippi is located.
***
(3) No new or additional evidence shall be introduced in the chancery court but the case shall be
determined upon the record and evidence transferred.
(4) The court may hear and dispose of the appeal in term time or vacation and the court may sustain
or dismiss the appeal, modify or vacate the order complained of in whole or in part, as the case may
be. In case the order is wholly or partly vacated the court may also, in its discretion, remand the
matter to the commission for such further proceedings, not inconsistent with the court's order as, in the
opinion of the court, justice may require. The order shall not be vacated or set aside either in whole or
in part, except for errors of law, unless the court finds that the order of the commission is not
supported by substantial evidence, is contrary to the manifest weight of the evidence, is in excess of
the statutory authority or jurisdiction of the commission, or violates constitutional rights.
¶10. Therefore, a decision of the Commission will not be vacated if: it is supported by substantial evidence,
it is not arbitrary or capricious, or unless the decision is beyond the power of the Commission to decide.
Shadburn v. Tishomingo County Water District, Inc., 710 So. 2d 1227, 1231-32, (Miss. Ct. App.
1998); Mississippi Public Service Commission v. Mississippi Valley Gas Co., 327 So. 2d 296 (Miss.
1976); Hinds-Rankin Metro Water and Sewer Ass'n., Inc. v. Miss. Public Service Commission, 263
So. 2d 546, 553 (Miss. 1972); Capital Elec. Power Ass'n v. Mississippi Power & Light Co., 216 So.
2d 428 (Miss. 1968). Our supreme court has previously applied this standard to the same situation as the
case at hand. In that opinion, our supreme court made it abundantly clear that a grant of certificate of
convenience and necessity by the Public Service Commission cannot be overturned if it is supported by
substantial evidence and if not arbitrary, capricious, violative of constitutional right, or beyond the power of
the Commission. Mississippi Power Co. v. South Mississippi Elec. Power Ass'n, 183 So. 2d 163, 167
(Miss. 1966).
¶11. Further, Miss. Code Ann. § 77-3-77 (Rev. 2000) establishes who carries the burden of proof,
In all actions and proceedings arising under the provisions of this article or growing out of the exercise
of the authority and powers herein granted to the commission, the burden of proof shall be on the
party seeking to vacated an order of said commission.
ANALYSIS
I. WAS THE DECISION OF THE PUBLIC SERVICES COMMISSION BASED ON
SUBSTANTIAL EVIDENCE?
¶12. It is clear to this Court that Forest Woods has not met the burden of proving that the Commission's
holding was against the substantial evidence. Therefore, the grant of certificate of convenience and necessity
by the Commission cannot be overturned.
II. DID THE COMMISSION'S PROCEEDINGS VIOLATE FOREST WOODS'
FOURTEENTH AMENDMENT DUE PROCESS RIGHTS?
¶13. The Commission had original jurisdiction to hear and rule on the matter at hand, and proper legal
procedure was followed. The Commission properly afforded Forest Woods its rights of due process, as did
the chancery court on first appeal. There was no violation of due process in the case at hand.
¶14. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS AFFIRMED.
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
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