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Isa v. Public Utility Commission of Texas

Court of Appeals of Texas, Sixth District, Texarkana

May 26, 2017

NAWAID ISA, Appellant
v.
PUBLIC UTILITY COMMISSION OF TEXAS; AMBIT ENERGY, LLC; AND CENTERPOINT ENERGY HOUSTON ELECTRIC, LLC, Appellees

          Submitted: February 21, 2017

         On Appeal from the 201st District Court Travis County, Texas Trial Court No. D-1-GN-15-002634

          Before Morriss, C.J., Moseley and Burgess, JJ.

          OPINION

          Bailey C. Moseley Justice.

         After Nawaid Isa's electric bill for his outdoor cricket fields increased dramatically as a result of additional charges related to his high energy usage (demand charges), Isa refused to pay the demand charges and eventually filed a formal complaint with the Public Utility Commission of Texas (the PUC) against Ambit Energy, LLC (Ambit), and CenterPoint Energy Houston Electric, LLC (CenterPoint), requesting a refund of the demand charges, and a refund of construction charges paid to CenterPoint and asserting claims for mental suffering and litigation costs. In a series of orders, the Administrative Law Judge (ALJ) assigned to hear the case dismissed Isa's other claims and ultimately dismissed the matter with prejudice (the ALJ's dismissal order) after Ambit credited all of the demand charges to Isa's account. After his appeal of the ALJ's dismissal order was denied by the PUC by operation of law, Isa appealed to the 201st Judicial District Court of Travis County.[1] The PUC, Ambit, and CenterPoint filed pleas to the jurisdiction asserting that Isa failed to exhaust his administrative remedies when he failed to file a motion for rehearing with the PUC. The trial court granted the pleas to the jurisdiction and dismissed Isa's administrative appeal with prejudice.

         In this appeal, Isa does not dispute that he failed to file a motion for rehearing after his appeal of the ALJ's dismissal order was denied. Rather, he asserts that the trial court erred in granting the pleas to the jurisdiction because (1) his appeal of the ALJ's dismissal order should be construed as a motion for rehearing, (2) filing a motion for rehearing after the PUC denied his appeal would have been futile, (3) the ALJ's dismissal order was not compliant with the requirements of the PUC's rules and the Texas Government Code, and (4) the PUC's rules prevent filing a motion for rehearing instead of an appeal from the ALJ's dismissal order.[2] We find that (1) the PUC's rules required Isa to file a motion for rehearing after his appeal of the ALJ's dismissal order was denied, (2) Isa's excuse for not filing a motion for rehearing does not meet the requirements of the futility exception, (3) any complaint regarding deficiencies in the ALJ's dismissal order were required to be addressed in the motion for rehearing, and (4) he was not prevented by the PUC's rules from filing a motion for rehearing. Consequently, we will affirm the trial court's dismissal of Isa's appeal from the PUC.

         I. Background

         In 2013, Isa constructed a lighted cricket field in Wallis, Texas. He installed sixty-foot-tall, concrete poles with high-efficiency flood lights and other facilities for use at the cricket field. Isa worked with CenterPoint, the designated transmission and distribution utility (TDU), to connect his lighting system to CenterPoint's existing electric delivery system. As a result, CenterPoint installed a utility pole with transformers at a cost to Isa of $3, 341.00. Afterward, Isa selected Ambit, a retail electric provider (REP), to provide his electric service and began receiving electric service on August 30, 2013. At the time, the cricket field was classified a "Commercial Under 10 KVA" customer by CenterPoint.

          In October 2013, the cricket field's electricity consumption exceeded 10 KVA, which triggered a new service classification under CenterPoint's approved tariff. As a result, CenterPoint charged Ambit additional charges triggered by the cricket field's high energy usage. These demand charges were then billed to Isa by Ambit beginning in October 2013.[3] Isa disputed the demand charges and refused to pay them. Isa also refused to pay the demand charges in his November bill, and refused to pay any of Ambit's final bill in December. On December 28, 2013, Ambit received a drop order from Isa, who had switched to a new REP. As of Ambit's final bill, Isa had refused to pay of total of $2, 184.56, including $1, 955.74 in demand charges.

         On December 10, 2013, Isa filed an informal complaint with the PUC's Consumer Protection Division, and alleged that Ambit and CenterPoint failed to inform him about the demand charges that his cricket club began to incur on its electric bill. After his informal complaint was denied, Isa filed a formal complaint with the PUC against Ambit and CenterPoint, disputing the demand charges. On February 14, 2014, the PUC referred the complaint to the State Office of Administrative Hearings (SOAH).[4] Isa subsequently complained of CenterPoint's alleged failure to provide him with information regarding alternative construction options and technology at the time he contracted with CenterPoint to install an in-line pole on the property.

         In three orders, the ALJ granted summary decisions in favor of Ambit and CenterPoint on all of Isa's claims, except his claims regarding the demand charges. The ALJ also determined that the only remedy for Isa if he prevailed on his claims would be a refund of or credit of some or all of the demand charges. See Tex. Util. Code Ann. § 17.157(b)(3) (West 2016). During the pendency of the complaint, Ambit placed a hold on collection activities regarding Isa's unpaid bill. After one year, Ambit credited Isa's account in the amount of $2, 184.56 to satisfy the balance owed on the account and notified Isa of that credit on January 27, 2015. Ambit and CenterPoint then filed a joint motion to dismiss, arguing that since Ambit had not tried to collect the disputed demand charges and had credited Isa's account with more than the amount in dispute, his claims were moot.

         On June 4, 2015, the ALJ granted the joint motion to dismiss and dismissed Isa's complaint with prejudice. In its order of dismissal, the ALJ noted,

In support of their motion, Ambit and CenterPoint provided evidence that:
• Ambit was [Isa's] REP from August 3, 2013, until December 28, 2013.
• While Ambit was [Isa's] REP, [Isa] was charged, at most, $1, 955.74 in demand charges that were disputed by [Isa].
• When [Isa] left Ambit and switched to another REP, Ambit's records showed that [Isa] owed $2, 184.56 in unpaid charges.
• Ambit did not try to collect the unpaid charges, and in January 2015, Ambit wrote to [Isa] and informed him that it had credited his account for the full amount of $2, 184.56 and advised its third-party collection agency to remove the delinquent balance from his records.

(Footnote omitted).

         The ALJ then held that "the ALJ agrees that Ambit has already effectively made [Isa] whole . . . and that no additional relief could be awarded even if [Isa] prevailed at the hearing on the merits" and dismissed the matter with prejudice pursuant to PUC rule 22.181. See 16 Tex. Admin. Code § 22.181 (2016) (Pub. Util. Comm'n of Tex., Dismissal of a Proceeding), adopted by 41 Tex. Reg. 10597 (2016).[5] On June 10, 2015, Isa appealed the ALJ's dismissal order to the PUC. See 16 Tex. Admin. Code § 22.181(a)(4) (2016) (Pub. Util. Comm'n of Tex., Dismissal of a Proceeding) (providing that a dismissal of a proceeding by the presiding officer may be appealed pursuant to PUC rule 22.123). When no commissioner voted to hear it, Isa's appeal was deemed denied by the PUC on June 22, 2015. See 16 Tex. Admin. Code § 22.123(a)(7)(A) (2016) (Pub. Util. Comm'n of Tex., Appeal of an Interim Order & Motions for Reconsideration of Interim Order Issued by the Comm'n). Isa did not file a motion for rehearing with the PUC, but instead filed a petition for judicial review of the PUC's final order in the Travis County district court[6] on July 2, 2015. On September 14, 2016, the district court granted pleas to the jurisdiction filed by the PUC, Ambit, and CenterPoint.

          II. Standard of Review

         A plea to the jurisdiction is a dilatory plea asserting that a trial court lacks subject-matter jurisdiction. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Whether a trial court has subject-matter jurisdiction is a question of law that is reviewed de novo. Id. at 226. A plea to the jurisdiction may challenge whether the plaintiff's pleadings affirmatively allege facts showing the court's jurisdiction and may also challenge the existence ...


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