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HomeMy WebLinkAboutRES 11-125 RESOLUTION NO. 11-125 WHEREAS, came on to be heard the matter of Munro Uniform Services, LLC vs. CenterPoint Energy, Inc. and CenterPoint Energy Resources Corp.; and, WHEREAS, the parties were represented by their duly appointed attorneys of record ; and, WHEREAS, after having considered the documents on file with the City Clerk, arguments of Council and the applicable law, the City Council is of the opinion that jurisdiction in this matter should not be asserted. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the statements and findings set out in the preamble to this resolution are hereby, in all things, approved and adopted; and, BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT- THAT the City Council, recognizing its exclusive original jurisdiction over the rates, operations and services of CenterPoint Energy, Inc. and not intending to surrender said jurisdiction to the Railroad Commission by this action,declines to accept jurisdiction of this matter in that it is not a rate dispute. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 5th day of April, 2011. 'Iyayor Becky Ames - ELI7..ABt?'rul AMES.JONES,CHAIRMAN dS�� Up LINDII.C. (OWI.i?R,JR.(iF'NF.IIAI.C01I.YSh,'1. DAVID POR'17 R,CoMM1.SSIUNl:R COLIN K. LINEBERRY, DIRIWPYIR Y HBAR1NGS SliC'!'ION RAILROAD COMMISSION OF TEXAS OFFICE OF GENERAL COUNSEL June 24, 2011 TO: All Parties of Record Re: Gas Utilities Docket No. 10477, CenterPoint's Petition for Review. EXAMINERS' LETTER NO. 1 Determination Denying Jurisdiction On May 5, 2011, CenterPoint Energy Resources Corp. d/b/a CenterPoint Energy Texas Gas Operations and CenterPoint Energy Entex (CenterPoint) filed the above referenced Petition for Review (Petition). In its Petition, CenterPoint alleged that the Railroad Commission (Commission) represented the proper forum for a dispute involving Munro's Uniform Services, L.L.0(Munro's). Specifically, CenterPoint alleges that the Commission has jurisdiction over the subject dispute because it concerns gas utility rates and services that CenterPoint provided to Munro's under the Gas Utility Regulatory Act (GURA).' The Commission has the authority under GURA to ensure compliance with the act's provisions.2 Furthermore, GURA grants the Commission exclusive appellate jurisdiction to review an order of a municipality exercising exclusive original jurisdiction over a proceeding regarding rates or services within its area.3 CenterPoint provided gas utility sales service to Munro's prior to August 1, 2009. Disappointed with CenterPoint's cost of service, Munro's negotiated a contract with a third-party transporter on August 1, 2009. The crux of the dispute involves whether CenterPoint misled, misinformed, or concealed information from Munro's regarding a lower Transportation Rate. Munro's filed a complaint in Jefferson County District Court on May 26, 2010 alleging fraud, negligent misrepresentation, and fraud by nondisclosure. After non-suiting its district court claim, Munro's filed a complaint with the Beaumont City Council (Beaumont) alleging the same causes of action. Beaumont issued an order and an amendment to that order(collectively, Order) that acknowledged its exclusive original jurisdiction but denied jurisdiction in the subject dispute because it failed to involve rate issues. Following this determination, Munro's re-filed its original complaint in Jefferson County District Court on April 12, 2001. CenterPoint filed a Petition for Review with the Commission on May 5,2011. Gas Utility Regulatory Act,TEX. UTIL.CODEANN.§§ 101.001-105.051, (West 2011). 'Id. § 104.001(a). 'Id.§ 102.001(b). 1701 NORTII CONGRESS AVENUE * POST OFFICE BOX 12967 * AUSTIN.TEXAS 7871 1-2967 * PHONE:512/463.6924*FAX:5121463-6989 MD 800/735-2989 OR TDY 512/463-7284*AN EQUAL OPPORTUNITY EMPLOYER*IITTPJ/W WW.RRC.STATE.TX.US I GUD No. 10077 Examiners' Letter No. 1 Page 2 After considering the parties' pleadings and the relevant authorities, the Examiners have determined that no hearing will be noticed at this time and the Examiners will not convene a hearing unless otherwise directed by the Commission. Furthermore, as this proceeding may represent an unnecessary duplication of proceeding, the Examiners intend to seek dismissal` Pursuant to 16'Tex. Adinin. Code§1.126. First,to support this conclusion, the Examiners note that the primary jurisdiction does not apply. The Examiners acknowledge the fact that administrative agencies are well suited to analyze and resolve issueM1s relating to particular fields over which they exercise jurisdiction because of their expertise. However, the primary jurisdiction doctrine does not apply when the questions presented involve questions of law that are more appropriate for a district courts Even if one finds that CenterPoint may have exhibits discriminatory behavior, the facts of the subject dispute are not so unique as to require Commission review.6 In its petition for review, CenterPoint cast the claims as rate issues. This argument is misplaced. CenterPoint alleges that Munro's claims relate to the gas utility rates and services it paid for and received from CenterPoint. Yet the subject dispute relates to the fact that CenterPoint may have misinformed Munro's about the possibility of lowering its rate and cost of service. Put simply, the dispute does not involve whether the rate ohm, was unjust or unreasonable;it involves whether Munro may have been entitled to a lower rate. CenterPoint also argues that the Commission has exclusive appellate jurisdiction because Beaumont declined initial jurisdiction. The Examiners agree that the Commission has appellate jurisdiction in a case where a utility appeals the action of a municipal regulatory authority. The district court, however, has concurrent jurisdiction over the issues raised and the Commission may decline to consider the appellate proceeding at this time. Pursuant to 16 Tex. Admin. Code §1.30,any party filing an interim appeal is directed to file the appeal no later than ten days of the date of this ruling. Any response must be filed no later than ten days after the date the appeal is filed. The Examiners respectfully request that the parties file any appeal or response no later than 10:00 a.m, on the date the al or due. In the event that an a appeal response is appeal is filed, the Hearings Examiner will forward to each Commissioner a copy of the appeal and upon request of a Commissioner schedule the appeal for . 'See,e.g.,Gregg v.Delhi-Taylor oil Corp.(Deihl-raylor),162 Tex.26,29-30,344 R:W.2d:4.11,413(1961);Rio Grande Valley Gas Co., v. City of Edinburg, 59 S.W.3d 149, 220 (Tex. App.—Corpus Christi 2000);Shell Pipeline Corp. v. Coastal state Trading, Inc.,788 S.W.2d 837,842(Tex. App.—Houston fist Dist.] 1990, writ denied)(quoting United States v. Wester Pac. R.R.,352 U.S.59,64(1956)). s See,e.g.,Amarillo Oil Co.V. Energy-Agri Prod., Inc., 794 S.W1d 20i 26(Tex. 1990)("We have addressed the issue of the Railorad Commission's primary jurisdiction on several occasions,and found it not to be so broad-sweeping as to oust the courts of jurisdiction just because the Commission might have jurisdiction to determine some facts related to the controversy.");Delhi. Taylor,344 S.W.2d 411,4 15(holding that trespass claim was inherently judicial in nature);Diskamp Y.General Crude Oil Co., 452 S.W.2d 515,516(Tex.Civ.App.—San Antonio 137'0,writ ref'd)(Commission lacked authority to interpret contract), 6 Roberts Express,Inc.,v. Expert Transp.,Inc.,842 S.W.2d 766,771 (Tex.App.—Dallas 1992,no writ)C`[i]f the issue does riot involve the interpretation of technical words or phrases not commonly understood or there is no need to determine the impact of underlying cost allocation matters,then the matter is a pure question of law for fad o district court's]determination."). GUD No. 10077 Examiners' Letter No. 1 Page 3 consideration by the Commission at an open meeting. Any timely appeal filed will be deemed denied by operation of law on the 46`h day after the date the appeal was filed. Contact for Additional Information -- In accordance with Tex. Gov't Code Ann. § 2001.061 and 16 Tex. Admin. Code § 1.6, ex parle communications with the Hearings Examiners and Commissioners is prohibited. Any persons or entities desiring additional information may contact the Commission by writing to Colin Lineberry at the Railroad Commission of Texas, 1701 North Congress Avenue, P. O. Box 12967, Capitol Station, Austin, Texas 78711-2967, or by calling Mr. Lineberry at (512) 463-7033. Any persons or entities having clerical questions, such as questions regarding the number of copies of filings, the service list or reviewing the record, may contact the secretary of the Gas Services Section of the Office of General Counsel,Loretta Howard,at(512)463-7033. Sincerely, Gene ontes Hearings Examiner Office of General Counsel . I �I SERVICE LIST Gas Utilities Docket No. 10077 Appeal of CenterPoint Energy Resources Corp.DBA CenterPoint Energy Texas Gas Oper ations and CenterPoint Energy Entex from the Action of the City of Beaumont Denying the Request of Munro's Uniform Services, LLC Examiner: Gene Montes Co Examiner: Mark Brock A TES REPRESENTATIVE CenterPoint Energy, Inc. J. D. Munn Robert W. Claude Kate Norman Associate General Counsel Parsley Coffin Renner LLP P.O. Box 2628 98 San Jacinto Blvd., Suite 1450 Houston, Texas 77252-2628 P.O. Box 1336 713-207-5603 Austin,Texas 78711 713-207-0101 (fax) 512-879-0900 512-879-0912 (fax) shellev mo 11 .com dane.mckau An ucrllp cam �,.np coffin roll om laurle.robinsonnnmllp com Tyrone E. Cooper Ernest W. Boyd City Attorney M. C. Carrington City of Beaumont Jeremy R. Stone P.O. Box 3827 Christopher Grimm Beaumont,TX 77704-3827 Mehaffy Weber, P.C. 409-880-3715 500 Dallas, Suite 1200 409-880-3121 (fax) Houston,Texas 77002 713-655-1200 713-655-0222 (fax) Chris G 'mm mehaffvweber com June 24,2011 ELI7..ABt?'rul AMES.JONES,CHAIRMAN dS�� Up LINDII.C. (OWI.i?R,JR.(iF'NF.IIAI.C01I.YSh,'1. DAVID POR'17 R,CoMM1.SSIUNl:R COLIN K. LINEBERRY, DIRIWPYIR Y HBAR1NGS SliC'!'ION RAILROAD COMMISSION OF TEXAS OFFICE OF GENERAL COUNSEL June 24, 2011 TO: All Parties of Record Re: Gas Utilities Docket No. 10477, CenterPoint's Petition for Review. EXAMINERS' LETTER NO. 1 Determination Denying Jurisdiction On May 5, 2011, CenterPoint Energy Resources Corp. d/b/a CenterPoint Energy Texas Gas Operations and CenterPoint Energy Entex (CenterPoint) filed the above referenced Petition for Review (Petition). In its Petition, CenterPoint alleged that the Railroad Commission (Commission) represented the proper forum for a dispute involving Munro's Uniform Services, L.L.0(Munro's). Specifically, CenterPoint alleges that the Commission has jurisdiction over the subject dispute because it concerns gas utility rates and services that CenterPoint provided to Munro's under the Gas Utility Regulatory Act (GURA).' The Commission has the authority under GURA to ensure compliance with the act's provisions.2 Furthermore, GURA grants the Commission exclusive appellate jurisdiction to review an order of a municipality exercising exclusive original jurisdiction over a proceeding regarding rates or services within its area.3 CenterPoint provided gas utility sales service to Munro's prior to August 1, 2009. Disappointed with CenterPoint's cost of service, Munro's negotiated a contract with a third-party transporter on August 1, 2009. The crux of the dispute involves whether CenterPoint misled, misinformed, or concealed information from Munro's regarding a lower Transportation Rate. Munro's filed a complaint in Jefferson County District Court on May 26, 2010 alleging fraud, negligent misrepresentation, and fraud by nondisclosure. After non-suiting its district court claim, Munro's filed a complaint with the Beaumont City Council (Beaumont) alleging the same causes of action. Beaumont issued an order and an amendment to that order(collectively, Order) that acknowledged its exclusive original jurisdiction but denied jurisdiction in the subject dispute because it failed to involve rate issues. Following this determination, Munro's re-filed its original complaint in Jefferson County District Court on April 12, 2001. CenterPoint filed a Petition for Review with the Commission on May 5,2011. Gas Utility Regulatory Act,TEX. UTIL.CODEANN.§§ 101.001-105.051, (West 2011). 'Id. § 104.001(a). 'Id.§ 102.001(b). 1701 NORTII CONGRESS AVENUE * POST OFFICE BOX 12967 * AUSTIN.TEXAS 7871 1-2967 * PHONE:512/463.6924*FAX:5121463-6989 MD 800/735-2989 OR TDY 512/463-7284*AN EQUAL OPPORTUNITY EMPLOYER*IITTPJ/W WW.RRC.STATE.TX.US I GUD No. 10077 Examiners' Letter No. 1 Page 2 After considering the parties' pleadings and the relevant authorities, the Examiners have determined that no hearing will be noticed at this time and the Examiners will not convene a hearing unless otherwise directed by the Commission. Furthermore, as this proceeding may represent an unnecessary duplication of proceeding, the Examiners intend to seek dismissal` Pursuant to 16'Tex. Adinin. Code§1.126. First,to support this conclusion, the Examiners note that the primary jurisdiction does not apply. The Examiners acknowledge the fact that administrative agencies are well suited to analyze and resolve issueM1s relating to particular fields over which they exercise jurisdiction because of their expertise. However, the primary jurisdiction doctrine does not apply when the questions presented involve questions of law that are more appropriate for a district courts Even if one finds that CenterPoint may have exhibits discriminatory behavior, the facts of the subject dispute are not so unique as to require Commission review.6 In its petition for review, CenterPoint cast the claims as rate issues. This argument is misplaced. CenterPoint alleges that Munro's claims relate to the gas utility rates and services it paid for and received from CenterPoint. Yet the subject dispute relates to the fact that CenterPoint may have misinformed Munro's about the possibility of lowering its rate and cost of service. Put simply, the dispute does not involve whether the rate ohm, was unjust or unreasonable;it involves whether Munro may have been entitled to a lower rate. CenterPoint also argues that the Commission has exclusive appellate jurisdiction because Beaumont declined initial jurisdiction. The Examiners agree that the Commission has appellate jurisdiction in a case where a utility appeals the action of a municipal regulatory authority. The district court, however, has concurrent jurisdiction over the issues raised and the Commission may decline to consider the appellate proceeding at this time. Pursuant to 16 Tex. Admin. Code §1.30,any party filing an interim appeal is directed to file the appeal no later than ten days of the date of this ruling. Any response must be filed no later than ten days after the date the appeal is filed. The Examiners respectfully request that the parties file any appeal or response no later than 10:00 a.m, on the date the al or due. In the event that an a appeal response is appeal is filed, the Hearings Examiner will forward to each Commissioner a copy of the appeal and upon request of a Commissioner schedule the appeal for . 'See,e.g.,Gregg v.Delhi-Taylor oil Corp.(Deihl-raylor),162 Tex.26,29-30,344 R:W.2d:4.11,413(1961);Rio Grande Valley Gas Co., v. City of Edinburg, 59 S.W.3d 149, 220 (Tex. App.—Corpus Christi 2000);Shell Pipeline Corp. v. Coastal state Trading, Inc.,788 S.W.2d 837,842(Tex. App.—Houston fist Dist.] 1990, writ denied)(quoting United States v. Wester Pac. R.R.,352 U.S.59,64(1956)). s See,e.g.,Amarillo Oil Co.V. Energy-Agri Prod., Inc., 794 S.W1d 20i 26(Tex. 1990)("We have addressed the issue of the Railorad Commission's primary jurisdiction on several occasions,and found it not to be so broad-sweeping as to oust the courts of jurisdiction just because the Commission might have jurisdiction to determine some facts related to the controversy.");Delhi. Taylor,344 S.W.2d 411,4 15(holding that trespass claim was inherently judicial in nature);Diskamp Y.General Crude Oil Co., 452 S.W.2d 515,516(Tex.Civ.App.—San Antonio 137'0,writ ref'd)(Commission lacked authority to interpret contract), 6 Roberts Express,Inc.,v. Expert Transp.,Inc.,842 S.W.2d 766,771 (Tex.App.—Dallas 1992,no writ)C`[i]f the issue does riot involve the interpretation of technical words or phrases not commonly understood or there is no need to determine the impact of underlying cost allocation matters,then the matter is a pure question of law for fad o district court's]determination."). GUD No. 10077 Examiners' Letter No. 1 Page 3 consideration by the Commission at an open meeting. Any timely appeal filed will be deemed denied by operation of law on the 46`h day after the date the appeal was filed. Contact for Additional Information -- In accordance with Tex. Gov't Code Ann. § 2001.061 and 16 Tex. Admin. Code § 1.6, ex parle communications with the Hearings Examiners and Commissioners is prohibited. Any persons or entities desiring additional information may contact the Commission by writing to Colin Lineberry at the Railroad Commission of Texas, 1701 North Congress Avenue, P. O. Box 12967, Capitol Station, Austin, Texas 78711-2967, or by calling Mr. Lineberry at (512) 463-7033. Any persons or entities having clerical questions, such as questions regarding the number of copies of filings, the service list or reviewing the record, may contact the secretary of the Gas Services Section of the Office of General Counsel,Loretta Howard,at(512)463-7033. Sincerely, Gene ontes Hearings Examiner Office of General Counsel . I �I SERVICE LIST Gas Utilities Docket No. 10077 Appeal of CenterPoint Energy Resources Corp.DBA CenterPoint Energy Texas Gas Oper ations and CenterPoint Energy Entex from the Action of the City of Beaumont Denying the Request of Munro's Uniform Services, LLC Examiner: Gene Montes Co Examiner: Mark Brock A TES REPRESENTATIVE CenterPoint Energy, Inc. J. D. Munn Robert W. Claude Kate Norman Associate General Counsel Parsley Coffin Renner LLP P.O. Box 2628 98 San Jacinto Blvd., Suite 1450 Houston, Texas 77252-2628 P.O. Box 1336 713-207-5603 Austin,Texas 78711 713-207-0101 (fax) 512-879-0900 512-879-0912 (fax) shellev mo 11 .com dane.mckau An ucrllp cam �,.np coffin roll om laurle.robinsonnnmllp com Tyrone E. Cooper Ernest W. Boyd City Attorney M. C. Carrington City of Beaumont Jeremy R. Stone P.O. Box 3827 Christopher Grimm Beaumont,TX 77704-3827 Mehaffy Weber, P.C. 409-880-3715 500 Dallas, Suite 1200 409-880-3121 (fax) Houston,Texas 77002 713-655-1200 713-655-0222 (fax) Chris G 'mm mehaffvweber com June 24,2011