Oncor Electric Delivery Company LLC v. Giovanni Homes Corporation

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00237-CV
ONCOR ELECTRIC DELIVERY APPELLANT AND APPELLEE
COMPANY LLC
V.
GIOVANNI HOMES CORPORATION APPELLEE AND APPELLANT
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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
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OPINION
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I. Introduction
In three issues, appellant Oncor Electric Delivery Company LLC appeals
the trial court’s judgment on the jury verdict for appellee Giovanni Homes
Corporation on Giovanni Homes’s breach-of-contract claim and award of
attorneys’ fees and argues that Giovanni Homes’s trespass claim cannot serve
as an alternative basis for judgment against it. In a single issue in its cross-
appeal, Giovanni Homes appeals the trial court’s judgment notwithstanding the
verdict (JNOV) in favor of Oncor on the jury’s award of interest payments on
construction loans to Giovanni Homes.
Having encountered a jurisdictional defect in the case,1 we do not reach
the merits of these issues. We reverse the trial court’s judgment and remand this
case to the trial court with instructions to abate the case to allow Giovanni Homes
a reasonable opportunity to cure the jurisdictional defect if possible. See Am.
Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 805 (Tex. 2001) (stating that the
court may abate proceedings to allow a reasonable opportunity to cure a
jurisdictional impediment if the impediment is one that can be cured).
II. Factual and Procedural Background
Giovanni Homes had to work with Oncor2 to obtain electricity for some
parcels of real property that it was developing in Fort Worth. Giovanni Homes
wanted to secure a new single-phase electrical line to serve the development;
after discovering a three-phase electrical line on its property on April 27, 2007, it
1
The parties filed supplemental briefs regarding the jurisdictional issue in
response to the court’s request for additional briefing, and the court heard
supplemental oral argument on the issue on February 11, 2014.
2
As recognized by the supreme court, Oncor “owns and operates the
largest electric distribution and transmission system in Texas, delivering power
over some 117,000 miles of lines to about three million homes and businesses.”
Oncor Elec. Delivery Co. v. Dallas Area Rapid Transit, 369 S.W.3d 845, 847
(Tex. 2012).
2
also wanted to relocate that line and transformer box from its property.3 The
single-phase line was not installed until June 2008, and the three-phase line was
not relocated until February 2009. Ultimately, the parties went to trial in
December 2010 on Giovanni Homes’s claims arising from the parties’
interactions in 2007 and 2008.4
Giovanni Homes’s breach-of-contract theory was based primarily on
Plaintiff’s Exhibit 80, a July 23, 2007 letter from Richard Hildebrand, an Oncor
employee, to a Giovanni Homes secretary, which states,
Oncor Electric Delivery intends to reroute the existing
underground primary cable currently installed through the lot in
question into a new easement along the private drive to be provided
by Giovanni Homes. The relocation will reconnect the existing
service necessary to provide service to the existing customers along
with serving the new proposed development.
Vincent Piras, Giovanni Homes’s owner, testified that in exchange for the lines’
installation and relocation, Giovanni Homes was to obtain the easements across
neighboring properties for Oncor and that he had obtained all of those
easements and delivered them to Oncor by December 6, 2007.
The trial court submitted Question No. 1 to the jury:
3
Neither party disputes that the line was located outside of the platted utility
easement at the direction of a previous owner or that it supplied electricity to an
adjacent landowner.
4
In 2008, Giovanni Homes sued Oncor for trespass, negligence, and
conspiracy; it added a breach-of-contract claim against Oncor in 2010. Prior to
the case’s submission to the jury, the other parties involved in the case either
settled or were severed from it, and Giovanni Homes’s only remaining claims
against Oncor at trial were for trespass and breach of contract.
3
Did Giovanni Homes and Oncor agree on July 23, 2007 that:
a. Oncor would relocate the three-phase underground primary
cable from the Residential Lots and the Commercial Lot to a new
easement?
b. Oncor would supply electrical power via single-phase line to
the Townhome Lots, Residential Lots, and Commercial Lot?
In deciding whether the parties reached an agreement,
you may consider what they said and did in light of the
surrounding circumstances, including any earlier course
of dealing. You may not consider the parties’
unexpressed thoughts or intentions.
Answer “Yes” or “No” for each:
a. Relocate the three-phase line:
b. Supply electrical power via single-phase line:
The jury unanimously answered “Yes” to both 1.a. and 1.b. and concluded in a
10–2 vote that Oncor had breached the agreement by failing to timely comply
with it. The jury also unanimously concluded that Oncor had trespassed on
Giovanni Homes’s commercial lot, through which the three-phase line ran.
The jury awarded to Giovanni Homes over a million dollars in damages on
the contract claim, including $189,611 for construction loan interest payments,
and attorneys’ fees. It awarded to Giovanni Homes $60,000 in damages on the
trespass claim. Giovanni Homes elected to recover under its breach-of-contract
theory, and Oncor sought a JNOV.
The trial court entered judgment in favor of Giovanni Homes except for
recovery of the construction loan interest payments and awarded to Giovanni
4
Homes $949,061 under its breach-of-contract theory, as well as prejudgment and
postjudgment interest, attorneys’ fees, and costs; it denied Oncor’s JNOV motion
except as to the construction loan interest payments. This appeal and cross-
appeal followed.
III. Jurisdiction
In the initial briefing in this case, Oncor argued, among other things, that its
tariff (the Tariff), which Giovanni Homes offered into evidence and which the trial
court admitted, required Giovanni Homes to provide easements to Oncor and
that those easements therefore could not be consideration to support the alleged
agreement between the parties. Oncor further argued that the law “forbade
Oncor from changing or ignoring the terms of the Tariff.”
Upon examining the Tariff and the utilities code, we discovered a potential
jurisdictional issue requiring supplemental briefing and requested that each party
file a brief to (1) address whether the Public Utility Commission of Texas (the
PUC)5 had exclusive jurisdiction over Giovanni Homes’s breach-of-contract claim
5
Although our reference was to the PUC, the Public Utility Regulatory Act
(PURA) specifically provides that the PUC has exclusive original jurisdiction over
the rates, operations, and services of an electric utility in (1) areas outside a
municipality; and (2) areas inside a municipality that surrenders its jurisdiction to
the commission under section 33.002. See Tex. Util. Code Ann. § 32.001(a)
(West 2007). However, when a municipality has not surrendered its jurisdiction
to the PUC, the municipality has exclusive original jurisdiction over the rates,
operations, and services of an electric utility, and the PUC then has exclusive
appellate jurisdiction to review the municipality’s order. Id. §§ 32.001(b), 32.002,
33.001(a) (West 2007). Therefore, our references here to the PUC encompass
the municipality (City of Fort Worth) to the extent that it has not surrendered its
jurisdiction to the PUC. See id. § 32.004 (West 2007) (stating that upon a
5
and (2) explain the role of the Tariff and the filed-rate doctrine in light of the 1999
deregulation amendments to the Public Utility Regulatory Act. See City of Allen
v. Pub. Util. Comm’n of Tex., 161 S.W.3d 195, 199 (Tex. App.—Austin 2005, no
pet.) (stating that the question of jurisdiction is fundamental and can be raised at
any time in the trial of a case or on appeal).
In its supplemental briefing, Oncor argued that the breach-of-contract claim
directly related to Oncor’s provision of “Delivery Services” covered by the Tariff
and that the PURA placed exclusive original jurisdiction over issues covered by
the Tariff in the pertinent regulatory authorities, while Giovanni Homes countered
that the contract was “a private, non-administrative, non-regulatory agreement
that does not fall within the PURA’s stated purpose for enactment.”6 Giovanni
Homes contends that the Tariff does not govern its claims and so does not
trigger the PURA’s exclusive jurisdiction provisions. We therefore review the
PURA and the Tariff to determine whether Giovanni Homes’s contract claim falls
within their purview.
municipality’s request, the PUC may advise and assist the municipality with
respect to a question or proceeding arising under the PURA).
6
Although the parties disagree about the application of the Tariff and the
filed-rate doctrine, both agreed that the PUC continues to regulate Oncor even
after deregulation.
6
A. Exclusive Jurisdiction
An agency has exclusive jurisdiction when the legislature has granted that
agency the sole authority to make an initial determination in a dispute and when
a pervasive regulatory scheme indicates that the legislature intended for the
regulatory process to be the exclusive means of remedying the problem to which
the regulation is addressed. In re Entergy Corp., 142 S.W.3d 316, 321–22 (Tex.
2004) (orig. proceeding). If an agency has exclusive jurisdiction, a party must
exhaust all administrative remedies before seeking review of the agency’s action.
Id. at 321. Until the party has exhausted all administrative remedies, the trial
court lacks subject matter jurisdiction and must dismiss any claim within the
agency’s exclusive jurisdiction. Id. at 321–22; see also GuideOne Ins. Co. v.
Cupps, 207 S.W.3d 900, 904 (Tex. App.—Fort Worth 2006, pet. denied).
B. Public Utility Regulatory Act
The utilities code governs electric, telecommunications, and gas utilities.
See Tex. Util. Code Ann. §§ 11.004, 31.002, 51.002, 101.003, 181.001 (West
2007 & Supp. 2013). The PURA—located in utilities code title 2—contains the
provisions that apply to the jurisdictional issue before us.7 See State v. Pub. Util.
7
Title 3 contains the Gas Utility Regulatory Act (GURA). See Tex. Util.
Code Ann. §§ 101.001–124.002 (West 2007). Title 4, subtitle A, addresses
cooperatives, joint power agencies, and joint ownership of electric facilities by
public entities. Id. §§ 161.001–164.006 (West 2007). Subtitle B of title 4
contains provisions regulating delivery of services, including the condemnation
power; the authority to own, hold, or use land, a right-of-way, an easement, a
franchise, or a building or other structure as necessary; the power to generate,
transport, and sell electric current, to impose reasonable charges, and to
7
Comm’n of Tex., 883 S.W.2d 190, 196 (Tex. 1994) (stating that in ascertaining
the scope of the PUC’s authority, “we must read PURA as a whole to ascertain
the underlying legislative intent”). Within title 2, chapters 11, 14, and 17 of the
general PURA provisions8 and chapters 31, 32, 33, and 38 of the specific PURA
provisions applicable to electric utilities are pertinent to our discussion.9 See
construct, maintain, and operate power plants, substations, and other machinery
as necessary to operate lines. See id. §§ 181.004, .007–.008 (West 2007).
Within title 4, sections 181.041 through 181.047 specifically apply to
electric utilities but do not affect our discussion on the facts of this case. Id.
§§ 181.041–.047 (West 2007 & Supp. 2013). For example, under section
181.046(b), the Texas Transportation Commission or a county commissioners
court may require an electric utility to relocate a line at the utility’s own expense
to allow for widening of a right-of-way, changing a traffic lane, improving a road
bed, or improving a drainage ditch located on a right-of-way. Id. § 181.046(b).
Various other provisions in title 4 apply to telephone and telegraph companies,
meter testing, deposits, and solar energy device ratings, among other items not
pertinent to the disposition of the issue before us. Id. §§ 181.081–185.005 (West
2007 & Supp. 2013). Title 5 addresses facility damage prevention and safety.
Id. §§ 251.001–.203 (West 2007 & Supp. 2013).
8
Chapter 12 pertains to the organization of the PUC, chapter 13 pertains to
the office of public utility counsel, chapter 15 covers judicial review of
administrative proceedings, including enforcement and penalties; and chapter 16
covers commission financing. See Tex. Util. Code Ann. §§ 12.001–.255,
13.001–.064, 15.001–.052, 16.001–.044 (West 2007).
9
Chapter 34 has been repealed, chapter 35 addresses alternative energy
providers, and chapter 36 pertains exclusively to rates—how they are computed,
procedures for proposed rate changes, cost recovery and rate adjustment, rates
for governmental entities, and securitization for recovery of system restoration
costs. Tex. Util. Code Ann. §§ 35.001–.152, 36.001–.406 (West 2007 & Supp.
2013). Chapter 37 involves certificates of convenience and necessity. Id.
§§ 37.001–.157 (West 2007 & Supp. 2013). Chapter 39 addresses deregulation
and procedures that have no bearing on the breach-of-contract issue in this case.
Id. §§ 39.001–.916 (West 2007 & Supp. 2013). Chapter 40 addresses
competition for municipally owned utilities and river authorities, chapter 41
8
Tex. Util. Code Ann. §§ 11.001–.009, 14.001–.207, 17.001–.203, 31.001–43.152
(West 2007 & Supp. 2013).
In construing the PURA, our objective is to determine and give effect to the
legislature’s intent, looking at the plain and common meaning of the statute’s
words. Entergy, 142 S.W.3d at 322. When a statute’s meaning is unambiguous,
we interpret the statute according to its plain language. Id.; see also In re Sw.
Bell Tel. Co., 235 S.W.3d 619, 624–25 (Tex. 2007) (orig. proceeding). Further,
“[i]n determining the meaning of a statute, a court must consider the entire act, its
nature and object, and the consequences that would follow from each
construction.” Benish v. Grottie, 281 S.W.3d 184, 193 (Tex. App.—Fort Worth
2009, pet. denied) (citing Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249
(Tex. 1991)); see generally Tex. Gov’t Code Ann. §§ 311.001–.034 (West 2013)
(setting out presumptions and matters to be considered in construing statutes).
1. General Provisions
The legislature enacted the PURA “to protect the public interest inherent in
the rates and services of public utilities.” Tex. Util. Code Ann. § 11.002(a). The
PURA’s purpose is “to establish a comprehensive and adequate regulatory
system for public utilities to assure rates, operations, and services that are just
and reasonable to the consumers and to the utilities.” Id. It grants to the PUC
involves electric cooperatives, and chapter 43 involves use of the electric delivery
system for access to broadband and other enhanced services. Id. §§ 40.001–
.104 (West 2007 & Supp. 2013), §§ 41.001–.104 (West 2007 & Supp. 2013),
§§ 43.001–.152 (West 2007). There is no chapter 42.
9
the authority to make and enforce rules necessary to protect electric services for
customers consistent with the public interest. Id. § 11.002(c).
Under the PURA, “service” has its “broadest and most inclusive meaning,”
which includes “any act performed, anything supplied, and any facilities used or
supplied by a public utility in the performance of the utility’s duties under this title
to its patrons, employees, other public utilities, an electric cooperative, and the
public.” Id. § 11.003(19). “Rate” is likewise broadly defined to include “any
compensation, tariff, charge, fare, toll, rental, or classification that is directly or
indirectly demanded, observed, charged, or collected by a public utility for a
service, product, or commodity described in the definition of utility in Section
31.002 or 51.002,” and “a rule, practice, or contract affecting the compensation,
tariff, charge, fare, toll, rental, or classification.”10 Id. § 11.003(16)(A)–(B).
10
Section 31.002(15), which pertains specifically to electric utilities,
contains the same definition of “rate” but adds a restrictive clause after
classification:
a compensation, tariff, charge, fare, toll, rental, or classification that
is directly or indirectly demanded, observed, charged, or collected by
an electric utility for a service, product, or commodity described in
the definition of electric utility in this section and a rule, practice, or
contract affecting the compensation, tariff, charge, fare, toll, rental,
or classification that must be approved by a regulatory authority.
Tex. Util. Code Ann. § 31.002(15) (emphasis added); see Tex. W. Oaks Hosp.,
L.P. v. Williams, 371 S.W.3d 171, 184–85 (Tex. 2012) (“Scrutinizing grammar in
interpreting statutes, we are cognizant of the rule that ‘[m]odifiers should come, if
possible, next to the words they modify.’”) (quoting William Strunk, Jr. & E.B.
White, The Elements of Style R. 30 (4th ed. 2000)). Chapter 31 does not include
a separate definition for services, and neither chapter 11 nor chapter 31 defines
“operations.”
10
Further, we are directed to liberally construe the PURA to promote the
effectiveness and efficiency of regulation of public utilities to the extent that this
construction preserves the validity of the PURA and its provisions. Id. § 11.008.
Government code chapter 2001 (the Administrative Procedure Act) applies to a
proceeding under the PURA “except to the extent inconsistent with this title.” Id.
§ 11.007(a).
The PURA provides that public agencies regulate utility rates, operations,
and services as a substitute for competition, id. § 11.002(b), and the PUC
“exercises the jurisdiction and powers conferred” by the PURA. Id. § 12.001.
Despite the 1999 deregulation amendments, the PUC is still charged with
regulating utilities as required to facilitate competition, free market operation, and
customer choice. Compare Oncor Elec. Delivery Co. v. Pub. Util. Comm’n of
Tex., 406 S.W.3d 253, 256 (Tex. App.—Austin 2013, no pet.) (noting that Oncor,
as a regulated electric utility company, applies to the PUC for authorization to
change its system-wide rates), Nucor Steel-Tex. v. Pub. Util. Comm’n of Tex.,
363 S.W.3d 871, 873 (Tex. App.—Austin 2012, no pet.) (stating that under the
PURA, the PUC was required to analyze whether the acquisition of a regulated
utility is in the public interest), and Sw. Elec. Power Co. v. Pub. Util. Comm’n,
419 S.W.3d 414, 423(Tex. App.—Amarillo 2011, pet. denied) (quoting section
25.1 of the administrative code pertaining to PUC’s purpose), with Double
Diamond, Inc. v. Hilco Elec. Co-op., Inc., 127 S.W.3d 260, 263 & n.6 (Tex.
App.—Waco 2003, no pet.) (stating that on September 1, 1999, the Hilco electric
11
cooperative ceased to be regulated by the PUC), subseq. disp., 195 S.W.3d 336
(Tex. App.—Waco 2006, pet. denied).
The PUC “has the general power to regulate and supervise the business of
each public utility within its jurisdiction and to do anything specifically designated
or implied by [the PURA] that is necessary and convenient to the exercise of that
power and jurisdiction.” Tex. Util. Code Ann. § 14.001. The PUC may also
decide a dispute involving a private agreement that directly affects the public
interest. Pub. Util. Comm’n of Tex. v. Sw. Bell Tel. Co., 960 S.W.2d 116, 122–23
(Tex. App.—Austin 1997, no writ) (op. on reh’g) (stating that attorneys’ fee
agreement was more than a private agreement because it directly affected the
public interest). Under the PURA, the PUC and individual municipalities share
jurisdiction over the regulation of utilities, including the establishment and
regulation of utility rates. Oncor Elec., 406 S.W.3d at 256 & n.3 (citing Tex. Util.
Code Ann. §§ 32.001(a)–(b), 33.001–.002).
Further, chapter 17 of the PURA specifically covers “Customer Protection,”
the purpose of which is to establish retail customer protection standards and
confer on the PUC “authority to adopt and enforce rules to protect retail
customers from fraudulent, unfair, misleading, deceptive, or anticompetitive
practices.” Tex. Util. Code Ann. § 17.001(b). Section 17.004 states that all
buyers of retail electric services are entitled to “impartial and prompt resolution of
disputes with . . . an electric utility,” and that the PUC may adopt and enforce
rules as necessary and appropriate to carry out customer protection standards.
12
Id. § 17.004(a)(5), (b). Section 17.157 provides that the PUC may resolve
disputes between a retail customer and an electric utility. Id. § 17.157(a). It may
also order the utility to produce information or records, require that all contracts
display a working toll-free number that customers can call with complaints and
inquiries, require a utility to refund or credit overcharges or unauthorized charges
with interest if it has failed to comply with PUC rules or a contract with the
customer, and “investigate an alleged violation.” Id. § 17.157. Section 17.157(c)
requires the PUC to adopt procedures to resolve disputes in a timely manner, not
to exceed sixty days. Id. § 17.157(c). As noted by the supreme court,
The PUC has broad regulatory authority to ensure utilities provide
safe, adequate, efficient, and reasonable service. Several PUC
regulations provide remedies to consumers and penalize utilities for
unsafe or inadequate service. For example, the PUC may institute a
formal investigation against a utility on its own initiative or upon a
customer’s complaint. A customer may complain to the PUC about
an electric utility’s acts or omissions that violate the PURA or PUC
regulations. The PUC resolves these complaints either through an
informal proceeding or through a formal complaint process.
The PUC also imposes administrative penalties on utilities that
do not provide safe, adequate, reasonable, and efficient service to
customers. These penalties can include lowering a utility’s
reasonable return on investment capital, adopting minimum
performance target levels the utility must meet, adopting customer-
service performance benchmarks, requiring quality assurance
through independent audits and consultants, and requiring the utility
to provide notice to customers about a utility’s service quality
requirements.
Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 221 (Tex. 2002) (internal citations
omitted.)
13
2. Specific Provisions
The PUC has exclusive original jurisdiction over the rates, operations, and
services of an electric utility in areas outside a municipality and areas inside a
municipality that surrenders its jurisdiction to the PUC. Tex. Util. Code Ann.
§ 32.001(a); Ellis v. Reliant Energy Retail Servs., L.L.C., 418 S.W.3d 235, 244
(Tex. App.—Houston [14th Dist.] 2013, no pet.) (stating that “the plain language
of sections 31.001 and 32.001 clearly expresses the Legislature’s intent that
PURA be the exclusive means of regulating, and the PUC exercise exclusive
jurisdiction with regard to, electric utilities”); City of Hous. v. Centerpoint Energy
Hous. Elec., LLC, No. 01-11-00885-CV, 2012 WL 6644982, at *4 (Tex. App.—
Houston [1st Dist.] Dec. 20, 2012, no pet.) (mem. op.) (“PURA sections 32.001
and 33.001 expressly grant ‘exclusive original jurisdiction’ over the rates and
services of an electric utility to the governing body of the municipality or to the
Public Utilities Commission, if a municipality’s jurisdiction is not implicated.”); see
also Hyde v. Ray, 181 S.W.3d 835, 841, 843 (Tex. App.—Fort Worth 2005, no
pet.) (interpreting temporary injunction order directly related to water service as
invading the TCEQ’s exclusive jurisdiction under water code section 13.042(e));
Meekey v. Rick’s Cabaret Int’l, Inc., 171 S.W.3d 394, 398–99 (Tex. App.—
Houston [14th Dist.] 2005, pet. denied) (op. on reh’g) (stating that examples of
statutory language conferring exclusive jurisdiction are found in section 32.001 of
the PURA; article 4413(36), section 3.01(a) of the Texas Revised Civil Statutes;
tax code section 111.104(b–f); and in the water code).
14
The legislature enacted chapters 31 through 43 of the PURA “to protect
the public interest inherent in the rates and services of electric utilities” and “to
establish a comprehensive and adequate regulatory system for electric utilities to
assure rates, operations, and services that are just and reasonable to the
consumers and to the electric utilities.” Tex. Util. Code Ann. § 31.001(a). Except
as otherwise provided by the PURA, “[p]ublic agencies regulate electric utility
rates, operations, and services.” Id. § 31.001(b); see Entergy, 142 S.W.3d at
323 (stating that the PURA’s statutory description as “comprehensive” showed
the legislature’s belief that it “would comprehend all or virtually all pertinent
considerations involving electric utilities operating in Texas”).
Under section 32.101, an electric utility shall file with the PUC a tariff
showing each rate that is subject to the PUC’s original or appellate jurisdiction
and in effect for a utility service, product, or commodity offered by the utility. Tex.
Util. Code Ann. § 32.101(a). As part of the tariff, it shall also file each rule that
relates to or affects a rate of the utility or a utility service, product, or commodity
furnished by it. Id. § 32.101(b). Accordingly, under the utilities code, the
provision of any service by Oncor is governed by its tariff. See id. § 32.101. The
tariff is filed with and approved by the PUC, which adopts “just and reasonable
standards, classifications, rules, or practices an electric utility must follow in
furnishing a service.” Id. § 38.002(1); see also CenterPoint Energy Hous., 2012
WL 6644982, at *1 (observing that a tariff governs the terms and conditions of
services provided by an electric utility).
15
Maintaining the uniformity of rates and services is essential to the PURA’s
regulatory scheme. See Tex. Util. Code Ann. § 36.002 (stating that an electric
utility may not charge or receive a rate for utility service except as provided by
this title); § 36.004(a) (stating that an electric utility may not directly or indirectly
charge, demand, or receive from a person a greater or lesser compensation for a
service provided or to be provided by the utility than the compensation prescribed
by the applicable tariff filed under section 32.101). And under section 38.002, the
regulatory authority, on its own motion or on complaint and after reasonable
notice and hearing, may adopt just and reasonable standards, classifications,
rules, or practices an electric utility must follow in furnishing a service. 11 Id.
§ 38.002(1); see also id. § 38.021 (stating that in providing a service to persons
in a classification, an electric utility may not either grant an unreasonable
preference or advantage or subject a person to an unreasonable prejudice or
disadvantage).
3. The PUC’s Administrative Rules
Administrative rules have the same force as statutes and are generally
construed in the same way. See Ellis, 418 S.W.3d at 248. The PUC’s rules
state that its mission is “to assure the availability of safe, reliable, high quality
services that meet the needs of all Texans at just and reasonable rates” by
11
Chapter 38 provides for the regulation of electric services in terms of
safety, adequacy, and efficiency of service. Tex. Util. Code Ann. §§ 38.001–
.101.
16
establishing a comprehensive system with respect to electric service and “to
establish the rights and responsibilities of the electric utilities . . . and electric
customers.” 16 Tex. Admin. Code § 25.1 (2003) (Pub. Util. Comm’n, Purpose
and Scope of Rules). The PUC’s rules set out time limits for items such as
requests for construction of line extensions.12 Id. § 25.22(3) (1999) (Pub. Util.
Comm’n, Request for Service). Under the rules, a customer may file a complaint
in person, by letter, or by telephone with the electric utility, which “shall promptly
investigate and advise the complainant of the results within 21 days.” Id.
§ 25.30(a) (1999) (Pub. Util. Comm’n, Complaints). The customer has the right
to request a supervisory review if unsatisfied with the electric utility’s response to
the complaint. Id. § 25.30(b). The results of the supervisory review must be
provided in writing to the customer within ten days of the review, and customers
who are dissatisfied with the supervisory review must be informed of their right to
file a complaint with the PUC. Id. § 25.30 (b)(3), (4), (c).
12
The PUC’s time limit for completing requests for new residential service
such as line extensions is within ninety days or within a time period agreed to by
the customer and the utility if the applicant has met credit requirements, made
satisfactory payment arrangements for construction charges, and complied with
all applicable state and municipal regulations. 16 Tex. Admin. Code § 25.22(3)
(1999) (Pub. Util. Comm’n, Request for Service).
17
4. Oncor’s Tariff
Oncor’s Tariff, comprised of “Rate Schedules, Riders, and service rules
and regulations,” contains numerous definitions and states that it covers “any
Service Agreements made pursuant to the Tariff.” Therefore, if the alleged
agreement between Giovanni Homes and Oncor was a “Service Agreement,”
then it falls under the Tariff.
The Tariff defines “Service Agreement” as “[a]ny Commission-approved
agreement between Company and a Retail Customer . . . which sets forth certain
information, terms, obligations and/or conditions of Delivery Service pursuant to
the provisions of this Tariff.” It defines “Delivery Service” as “[t]he service
performed by Company pursuant to this Tariff for the Delivery of Electric Power
and Energy. Delivery Service comprises Delivery System Services and
Discretionary Services.” “Delivery System Services” are defined as “all Tariffed
Delivery Services provided by the Company that are not specifically defined as
Discretionary Services,” while “Discretionary Services” are defined as “Customer-
specific services for which costs are recovered through separately priced Rate
Schedules specified in Chapter 6.” Chapter 6 of the Tariff covers “Construction
Service Charges.”
Under the Tariff, line installations and relocations fall under the definition of
“Construction Services,” as “[s]ervices related to the construction, extension,
installation, modification, repair, upgrade, conversion, relocation, or removal of
18
Delivery System facilities,[13] including temporary facilities.” [Emphasis added.]
“Whenever used in the context of Construction Services, the term Retail
Customer also includes property owners, builders, developers, contractors,
governmental entities, or any other organization, entity, or individual that is not a
Competitive Retailer making a request for such services to the Company.”
[Emphasis added.]
Section 6.1.2.2 of the Tariff applies to all retail customers requesting
construction services from Oncor under section 5.7, the Tariff’s “Facilities
Extension Policy.” The facilities extension policy covers the extension of service
at a retail customer’s request for the installation of standard facilities and the
removal and relocation of facilities. It states that Oncor is responsible for the
construction of delivery system facilities necessary to connect a retail customer
to the delivery system but that payments in the form of a contribution in aid of
construction or an advance for construction may be required prior to
commencement of construction, in accordance with sections 5.7.4, 5.7.5, and
6.1. Further, section 5.7.2 provides that Oncor may require an executed facility
extension agreement, in the form approved by the PUC and specified in section
6.3, which covers agreements and forms, before it constructs delivery system
facilities. When any payments are required, Oncor “will provide a detailed cost
13
The Tariff defines “Delivery System” as “[t]he electric lines, and other
equipment, including transformers, owned by Company and the Meters, including
Non-Company Owned Meters, used in the Delivery of Electric Power and
Energy.”
19
estimate for the entity requesting the service to determine the special contractual
arrangements required before Construction Service is provided.”
Section 5.7.3, “Processing of Requests for Construction of Delivery
System,” is particularly relevant and states,
Requests for new residential Delivery Service requiring Construction
Service, such as line extensions, shall be completed within 90 days
of execution of the Facility Extension Agreement, or within a time
period agreed to by the entity requesting the Construction Service
and Company, and after the entity requesting Construction Service
has made satisfactory payment arrangements for Construction
Service Charges. For all other extensions requiring construction,
request should be completed within the time estimated by
Company. . . . Unless mutually agreed to by Company and Retail
Customer, within ten Business Days of Company’s receipt of a
detailed request, Company shall give the entity requesting
Construction Service an estimated completion date and an
estimated cost for all charges to be assessed.
Unless a delay is beyond the reasonable control of Company, a
delay of more than 90 days beyond execution of the Facility
Extension Agreement for new residential Delivery Service shall
constitute failure to serve, unless the entity requesting the service
has agreed to a longer term. The Commission may conduct
enforcement action and seek penalties and other remedies for
unreasonable delays.
[Emphasis added.] Section 5.7.8, pertaining to the removal and relocation of
Oncor’s facilities and meters, requires the entity requesting the removal or
relocation to pay Oncor “the total cost of removing or relocating such Delivery
System facilities in accordance with Chapter 6.”
Section 6.1.2.2.1.4, “Space Requirements,” provides that with regard to
delivery system facilities,
20
Retail Customer grants to or secures for Company, at Retail
Customer’s expense, any rights-of-way or easements on property
owned or controlled by Retail Customer that are necessary for
Company to install Delivery System facilities for the purpose of
delivering Electric Power and Energy to the Retail Customer. Such
easement will be in a form acceptable to Company, including but not
limited to, the form of easement agreements set forth in Section 6.3
of this Tariff.
With respect to distribution facilities, Retail Customer shall provide
any necessary rights-of-way on property not owned or controlled by
Retail Customer. If Retail Customer is unable to secure for
Company any necessary rights-of-way or easements on property not
owned or controlled by Retail Customer, Retail Customer shall be
responsible for the actual costs incurred by Company in obtaining
and clearing such rights-of-way or easements.
[Emphasis added.]
Chapter 6 includes another set of specific definitions, including
“CONTRIBUTION IN AID OF CONSTRUCTION” (CIAC), which is a payment by
the customer to Oncor “for facilities extensions, upgrades, or expansions in
excess of allowable expenditures, or for nonstandard service facilities, removals
or relocations.” Additional fees for “Delivery System Facilities
Relocation/Removal” and a study on that relocation and removal are covered by
a “Discretionary Service Agreement,” while a Delivery Systems Facility
Installation is covered by a “Facility Extension Agreement.” Section 6.3 contains
the form agreements. Sections 6.3.6, 6.3.7, 6.3.8, 6.3.9, 6.3.10, and 6.3.11
contain forms entitled “Easement and Right of Way.”
Under section 5.11.2, “Complaints,” a retail customer “may submit written
complaints about Delivery Service” to Oncor and may call Oncor to lodge oral
21
complaints, and Oncor “shall inform Retail Customer of its right to file a complaint
with” the PUC and provide the PUC’s contact information to the customer.
5. Oncor’s Work Request Authorizations
The parties’ exhibits show the progression of the two line requests made to
Oncor—one for relocation and the other for installation.
a. Work Request #2812378
Work Request #2812378 corresponds to the installation of the single-
phase line requested by Giovanni Homes. Plaintiff’s Exhibit 73 is the May 2006
work request authorization by TXU (Oncor’s predecessor) setting out that
$19,412 was authorized of the $22,233 expenditure for “provid[ing] service to a
residential subdivision as requested by the developer. It is proposed to install the
necessary distribution facilities to meet the customer[’]s load requirements as
shown on this W[ork] R[equest] per Operational memo 2002, revised Oct. 2,
2002.” The justification of expenditure sets out the formulas to calculate the
allowable expenditure, associated costs, and CIAC charges to the customer.
Plaintiff’s Exhibit 77 is a February 22, 2007 CIAC Detail Report for Work Request
#2812378 stating that “[i]n accordance with TXU ED’s 2002 Line Extension
Policy and tariffs on record with the Public Utility Commission of Texas, this
extension may be provided at a total cost of $6236.24 to the Retail Customer,”
and explaining the CIAC calculations. Plaintiff’s Exhibit 84 is an October 18,
2007 CIAC Detail Report for Work Request #2812378, stating that
22
[i]n accordance with TXU ED’s 2002 Line Extension Policy and tariffs
on record with the Public Utility Commission of Texas, this extension
may be provided at no cost to the Retail Customer through the use
of least cost design, cleared ROW, and standard facilities at a cost
that does not exceed standard allowances.
Plaintiff’s Exhibit 83 is a September 14, 2007 email from an Oncor representative
to Giovanni Homes that states, “Construction to install facilities at Water Chase
will saw cut area to install transformer and bore parking lot to install conduit to
the north.” Defendant’s Exhibit 19 is an internal email showing Oncor’s February
4, 2008 calculations for Work Request #2812378 and the subsequent April 28,
2008, May 7, 2008, and May 9, 2008 recalculations for Work Request #2812378
due to design change.
b. Work Request #2898038
Work Request #2898038 corresponds to the relocation of the three-phase
line.
Plaintiff’s Exhibit 79 is a July 19, 2007 email from one of Oncor’s
representatives to Giovanni Homes in which the Oncor representative states,
“The cable that exists on the property in question will be relocated when we
complete the paperwork necessary to relocate the line as requested. Oncor
Electric Delivery intends to relocate the primary cable crossing lot 3 Block 1 of
The Academy At Waterchase.” Plaintiff’s Exhibit 80 is the July 23, 2007 letter
relied upon by Giovanni Homes in support of its contract claim and set out in our
factual recitation above.
23
Plaintiff’s Exhibit 5 is the January 2008 work request authorization (Work
Request #2898038) by Oncor stating that $73,843 was authorized along with the
following justification: “The developer of Academy at Waterchase Subdivision
has request [sic] a section of underground and a three phase transformer out of
easement be relocated. This w[ork] r[equest] will cover the cost to relocate
underground facilities into a new easement and clear area for development.
Voucher is for travel yard/time adder.” The work request authorization listed
material, labor, and other items that were factored into the authorized
expenditure. Plaintiff’s Exhibits 87, 88, and 89 contain lists of the materials
required for the activity.
Plaintiff’s Exhibit 283, the easement that Giovanni Homes granted to
Oncor on September 20, 2007, is in substantially the same format as the
easement form in the Tariff, as is Plaintiff’s Exhibit 281, the easement that K.
Hovnanian Homes-DFW, LLC granted to Oncor that same day. Also in the same
format are Plaintiff’s Exhibit 285, the easement that Links at Waterchase LLC
granted to Oncor on November 15, 2007; Plaintiff’s Exhibit 284, the easement
that Jim McLean Enterprises, Inc. granted to Oncor on November 19, 2007; and
Plaintiff’s Exhibit 282, the easement that Dorcas Benson granted to Oncor on
December 6, 2007. Plaintiff’s Exhibits 283, 284, and 285 are stamped “Return
to: Oncor Electric Delivery Company Right of Way Department” and reference
Work Request #2898038. The K. Hovnanian Homes easement also references
24
Work Request #2898038, while the Benson easement references Work Request
#2812378.
c. Giovanni Homes’s Conversation with the PUC
Piras testified that when he found out that the three-phase line ran through
Giovanni Homes’s property, he called the PUC to find out what his rights were
and discussed the fact that there was an electric line on his property for over an
hour. He said that the PUC told him that it could not help him and that he had to
deal with the matter civilly.14 Piras said that when he spoke to the PUC, he
asked as a hypothetical, “I have lines on my property, and this company, Oncor,
won’t take the lines off my property. What can I do?”
During cross-examination, the following conversation occurred:
Q. Well, you know the Public Utility Commission is the
watchdog—the governmental watchdog over the public utilities,
right?
A. That’s what I assume, yes.
Q. Okay. Have—have you ever looked and seen on the Web
sites or talked to these people about the fact that you can file a
complaint, the electric company has to answer within 21 days, there
is an investigation done, and both parties get a result of that
investigation?
Did you find that information out?
A. I was told by them directly, sir, that my only avenue I could
take is taking it up civilly.
14
Piras also said that he did not tell the PUC who he was when he called
because he wanted to find out what the law was and what it regulated but did not
want Oncor to find out and cause trouble for his company.
25
Q. All right. So—so you made an anonymous call. And—and
you’re—you’re a developer. You say you have done multiple
developments, hundreds and hundreds of homes.
You have dealt with all these situations, right, as far as
developing property?
A. I have developed properties, yes.
Q. And you call the Public Utility Commission because you
are having all these horrendous problems with Oncor, and you don’t
leave your name, you don’t make a complaint, you don’t do anything
except, according to you, make a phone conversation; is that right?
A. I had a phone conversation to find out what the legalities
were, and I found out that there is no governing over you, Oncor,
being able to have utility lines on somebody else’s property. There
is nothing there.
Q. So the PUC said there is nothing that governs Oncor
having lines on the property where they were?
A. On—on other people’s property out of easement. There is
no details of this situation anywhere.
Q. Okay. Nothing governs it, then, is your understanding?
A. Nothing governs it from my understanding of what I was
told.
During the supplemental oral arguments in this case, Oncor’s counsel
pointed out that Piras would have called the PUC in 2007 or 2008, after
discovering the three-phase line and encountering delay, but that Giovanni
Homes did not add its breach-of-contract claim to its lawsuit until 2010. Until
adding that breach-of-contract claim in 2010, all of Giovanni Homes’s claims
against Oncor—negligence, conspiracy, and trespass—had sounded in tort. See
infra n.19.
26
C. Analysis
Although Giovanni Homes argues that the PUC’s exclusive jurisdiction
does not apply to this case because the Tariff does not address the dispute at
issue, based on the provisions of the PURA, the PUC’s administrative
regulations, and the Tariff set out above, we disagree.
The PURA sets out a comprehensive regulatory scheme, with broad and
inclusive definitions of “rates” and “services” and a requirement that every rate or
service provided by an electric utility be furnished and filed in a tariff. In
compliance with the PURA, the PUC’s administrative rules set out time limits for
the kinds of services Giovanni Homes sought from Oncor and a complaint
process. Oncor’s Tariff is also comprehensive, and Giovanni Homes, a retail
customer under the Tariff, sought relocation of one electric utility line and
installation of another, both of which fall under the Tariff’s definitions of
“Construction Services” and “Service Agreement.” The work request
authorizations that correspond to Giovanni Homes’s requested services follow
the Tariff’s requirements, as do the easements Giovanni Homes claims were
consideration, which it was required to obtain under the Tariff.
When claims pertain to “services” and “rates” under the PURA, the PUC
has exclusive original jurisdiction. Compare CenterPoint Energy Hous., 2012 WL
6644982, at *2–3, *8 (concluding that regulatory authority had exclusive original
jurisdiction over dispute concerning overcharges for street light services), Tara
Partners, Ltd., v. CenterPoint Energy Res. Corp., 371 S.W.3d 441, 447 (Tex.
27
App.—Houston [1st Dist.] 2012, no pet.) (holding plaintiff failed to exhaust
administrative remedies in its lawsuit against gas company for overbilling), and
City of Allen, 161 S.W.3d at 197, 212 (stating that when a city’s municipal
ordinance conflicts with Oncor’s tariff, the PURA, or the PUC’s rules, the PUC
has jurisdiction under the PURA to review and invalidate the ordinance), 15 with
Jenkins v. Entergy Corp., 187 S.W.3d 785, 791–92, 800–01 (Tex. App.—Corpus
Christi 2006, pet. denied) (concluding that the PUC did not have exclusive
jurisdiction because the retail rate structure was not the object of appellant’s
pleadings and the suit was inherently judicial because appellant had brought
state law tort claims based on interstate purchasing and allocation decisions),
cert. denied, 552 U.S. 1224 (2008). To hold otherwise would contradict the
PURA’s standardization and nondiscrimination purposes and the point of having
a tariff. See Tex. Util. Code Ann. §§ 32.101, 36.004, 38.002, 38.021. Therefore,
we conclude that the PUC had exclusive jurisdiction over Giovanni Homes’s
contract claim.
15
The supreme court “has implicitly recognized that municipalities
sometimes contract with third parties by way of ordinance” and when an
ordinance evidences a contract and is sought to be enforced as one, the court
has construed it as any other contract. City of Hous. v. Williams, 353 S.W.3d
128, 136–37 (Tex. 2011). We see no reason why the PUC, which has exclusive
jurisdiction to review an ordinance that might conflict with the Tariff, the PURA, or
the PUC’s rules, see City of Allen, 161 S.W.3d at 212, should not also have
exclusive jurisdiction to review a contract that might do so. See City of Hous.,
353 S.W.3d at 136–37.
28
Further, although Giovanni Homes argues that the Tariff does not apply
because Terry Ariail, Oncor’s corporate representative, testified that the Tariff did
not apply, we disagree with this interpretation of his testimony, which was less
than clear. Ariail’s testimony was as follows:
Q. Okay. Now, let me ask you this: Would you agree with
me that when Oncor laid the line, the three-phase line, that line was
laid outside of the easement?
A. Yes, ma’am.
Q. All right. And it is against Oncor’s policies and procedures
to lay a line such as that outside of an easement and never obtain
an easement from the property owner?
A. That’s not exactly correct.
Q. Why is that not correct, Mr. Ariail?
A. Well, it’s against our policies and procedures not to—well,
let me back up.
It is our policy to—to get an easement where we can and—
and we prefer to have easements covering all of our three-phase
facilities that are underground. However, not all three-phase
facilities and not all underground lines get easements, and that’s
appropriate that they don’t all get easements.
Q. Let me ask you this: If a three-phase electrical line is built
outside of an easement and an easement is never obtained, that
would be against Oncor’s policies, would it not?
A. Yes, that would—that would not be what—that would not
be our desire.
Q. It would be against Oncor’s policies?
A. Against our policy in particular situations. Again, not in
every situation, but, yes.
29
Q. Now, the tariff that the Public Utility Commission has in the
State of Texas that Oncor has to abide by, they don’t even discuss
Oncor’s failure to install electrical lines outside of easements, do
they?[16]
A. Not—not—they do not.
Q. And you have never been directly involved in a situation
where an electrical line was installed outside of an easement, have
you?
A. No, I have not.
Q. But you do know and you have heard that with Oncor, that
happens several times a year?
A. I think when I made that statement, I may have been a little
glib about how often it happens, but it—it does happen on occasion.
Q. When you say you made that statement, that’s what you
said in your deposition?
A. Right. That’s—that’s correct.
....
Q. All right. And would you agree, Mr. Ariail, that Oncor
doesn’t have a written policy and procedure as to how they should
handle a situation where an electrical line is placed outside of an
easement?
A. We do not.
Q. Okay. It makes common sense what Oncor should do
under those situations, does it not?
A. Yes, do the right thing.
16
We infer from context that the question Giovanni Homes’s counsel meant
to ask was something along the lines of whether the Tariff discusses Oncor’s
installing electrical lines outside of easements.
30
Q. And the common sense approach and what Oncor has the
duty to do when they have laid a line outside of an easement and it’s
brought to their attention is they should handle that situation as
expeditiously or as quickly as possible, should they not?
A. As quickly as the conditions will allow.
Q. Absolutely. So when Oncor is notified by a customer such
as Vincent Piras or Giovanni Homes, I bought some property and I
just learned that there is a three-phase wire running smack-dab
through my property, common sense alone and the duties of Oncor
would dictate that Oncor has the responsibility to fix that problem as
]
quickly as the circumstances will allow[17 . . . correct?
A. We’re obligated to find a solution to fix it. It wouldn’t
necessarily be to move the line. There are several options to do
that.
[Emphasis added.]
While Ariail testified that Oncor did not have a written policy and procedure
to handle a situation in which an electrical line is placed outside of an easement,
no one disputes that the property’s previous owner instructed Oncor to place the
line outside of the platted easement, and, as set out above, section 5.7.8 of the
Tariff contains specific provisions to address removing and relocating lines. 18
Although Giovanni Homes argues that this provision “does not address removal
and relocation of trespassing electrical lines and applies only when the customer
requests removal or relocation of Oncor’s facilities at the customer’s expense,”
17
Oncor’s counsel objected to this question, but the trial court overruled it.
18
Ariail also agreed with the following statement: “Oncor is going to do
what they think they should do to service the customer but also obey your [sic]
rules and regulations and the tariffs in the State of Texas.”
31
here, Giovanni Homes, a retail customer under the Tariff, specifically requested
the removal and relocation of the three-phase line, actions covered by the Tariff
regardless of their location or characterization as “trespassers.” Cf. Oncor Elec.,
369 S.W.3d at 847–48 (recounting PUC approval process to construct a new
transmission line and landowner participation and negotiations regarding need
for aerial easement and right-of-way); Oncor Elec. Delivery Co. v. Schunke, No.
04-13-00067-CV, 2013 WL 6672494, at *1 (Tex. App.—San Antonio Dec. 18,
2013, pet. filed) (mem. op.) (reviewing judgment on special commissioners’
award in condemnation case involving Oncor); Oncor Elec. Delivery Co. v.
Brockriede, Nos. 02-13-00071-CV, 02-13-00072-CV, 2013 WL 6564276, at *1
(Tex. App.—Fort Worth Dec. 12, 2013, no pet.) (mem. op.) (same); Fuqua v.
Oncor Elec. Delivery Co., 315 S.W.3d 552, 557–58, 561 (Tex. App.—Eastland
2010, pet. denied) (affirming in part Oncor’s injunction against property owner for
violating electrical easement by flying small plane under high voltage power line
when landing on airstrip).19
19
Further, as pointed out by Oncor, the cases Giovanni Homes cites to
support its argument that the trial court had jurisdiction over its claim—Fuqua
(cited above), Wooldridge v. TXU Electric Delivery Co., 236 S.W.3d 484 (Tex.
App.—Dallas 2007, no pet.), Roberts v. TXU Energy Retail Co., 171 S.W.3d 901
(Tex. App.—Beaumont 2005, no pet.), and Oncor Electric Delivery Co. v. Murillo,
No. 01-10-01123-CV, 2014 WL 1056471 (Tex. App.—Houston [1st Dist.] Mar. 18,
2014, no pet. h.)(op. on reh’g)—do not involve a “retail customer,” Oncor’s tariff,
the PUC, the PURA, or a contract claim, much less a contract claim covered by
Oncor’s Tariff. Wooldridge, Roberts, and Murillo all involved tort claims. Murillo,
2014 WL 1056471, at *1; Wooldridge, 236 S.W.3d at 485, 488; Roberts, 171
S.W.3d at 903; see Lynn v. Hous. Lighting & Power Co., 820 S.W.2d 57, 58 (Tex.
App.—Houston [14th Dist.] 1991, no writ) (stating that when appellant’s claims
32
Giovanni Homes also argues that the Tariff does not apply because its
breach-of-contract claim did not involve a dispute over Oncor’s regulated utility
rates, pricing, or services; because its claim did not seek to enforce alleged rights
that contradict the Tariff’s provisions; and because it is not a suit over issues that
the Tariff’s terms govern. Giovanni Homes states, “Claims that do not arise out
of the [T]ariff or that are not expressly governed by the [T]ariff or the PURA fall
outside the PUC’s exclusive jurisdiction.”
However, as set out above, the alleged agreement between the parties
here was governed by the Tariff’s express terms, which is governed in turn by the
PURA and its purpose of protecting the public interest inherent in the rates and
services of electric utilities. See CenterPoint Energy Hous., 2012 WL 6644982,
at *7 (observing that the tariff had been filed with and approved by the PUC such
that it was a natural extension of the PUC’s authority for it to decide, as a
regulatory matter, a dispute arising from the tariff). And contrary to Giovanni
Homes’s argument that no provision of the PURA or the Tariff addresses an
award of damages to a customer when Oncor places its line out of an easement,
a request for such damages cannot operate to vest the trial court with jurisdiction
when there was none before. See Sw. Bell Tel. Co., 235 S.W.3d at 625–26
(concluding that the PUC had exclusive jurisdiction to hear telephone customers’
were tort claims for actual and exemplary damages that did not concern rates
and regulations governed by the PURA, the trial court had jurisdiction to address
them); see also Grant, 73 S.W.3d at 219–22 (reviewing tariff’s reasonableness
with regard to provision limiting liability for personal injuries).
33
rate change dispute because of the specific grant of “exclusive original
jurisdiction over the business and property of a telecommunications utility” and
the comprehensive regulatory scheme set out in the utilities code).
Because we conclude that the PUC has exclusive jurisdiction over the
breach-of-contract claim, Giovanni Homes had to exhaust its administrative
remedies before it could sue Oncor in district court on that claim.20
IV. Conclusion
Based on our conclusion above, we reverse the trial court’s judgment and
remand this case to the trial court with instructions to abate the case to allow
Giovanni Homes a reasonable opportunity to cure the jurisdictional defect, if
possible. See Fodge, 63 S.W.3d at 805.
/s/ Bob McCoy
BOB MCCOY
JUSTICE
PANEL: WALKER, MCCOY, and GABRIEL, JJ.
DELIVERED: April 3, 2014
20
Having concluded that the PURA and the Tariff apply, we do not reach
the parties’ filed-rate doctrine arguments. See Grant, 73 S.W.3d at 216–17
(explaining that the filed-rate doctrine is a novel aspect of cases involving utilities
that precludes claims seeking to enforce contracts that contradict a filed tariff’s
terms); see also In re Birch Telecom, Inc., No. 05-12237 (PJW), 2009 WL
1531792, at *2 (Bankr. D. Del. June 2, 2009) (“Extensive case law makes it clear
that in Texas, as elsewhere, filed tariffs govern utilities’ relationships with their
customers, and not any contradictory provisions of contracts that may have been
executed.”).
34