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Dreyer v. Portland General Electric Co.

Court of Appeals of Oregon

November 6, 2019

Phil DREYER, Plaintiff,
v.
PORTLAND GENERAL ELECTRIC CO., Defendant-Respondent and Frank GEARHART and Kafoury Bros., LLC, an Oregon limited liability corporation, Plaintiffs-Appellants, Patricia MORGAN, Plaintiff-Appellant,
v.
PORTLAND GENERAL ELECTRIC CO., Defendant-Respondent.

          Submitted July 12, 2017

          Marion County Circuit Court 03C10639, 03C10640, Tracy A. Prall, Judge.

          Linda K. Williams, Daniel W. Meek, and Phil Goldsmith fled the briefs for appellants.

          James N. Westwood, Stoel Rives LLP, Paul W. Conable, Alexander M. Tinker, and Tonkon Torp LLP fled the brief for respondent.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and James, Judge.

         [300 Or.App. 415] Case Summary:

         In these consolidated cases, the class action plaintiffs appeal a general judgment of dismissal entered after the trial court denied plaintiffs leave to amend their complaint and granted defendant Portland General Electric's (PGE) motion for summary judgment. Held: The trial court did not abuse its discretion in denying leave to amend the complaint. The trial court properly evaluated each of the nonexclusive factors articulated in Ramsey v. Thompson, 162 Or.App. 139, 145, 986 P.2d 54 (1999), rev den, 329 Or. 589 (2000), and did not abuse its discretion in rejecting plaintiffs' proposed amended complaint. The trial court also did not err in granting PGE's motion for summary judgment, properly rejecting plaintiffs' law-of-the-case argument and plaintiffs' contention that there were genuine issues of material fact in dispute.

         Affirmed.

         [300 Or.App. 416]DEHOOG, P.J.

         In these consolidated cases, the class action plaintiffs (plaintiffs) appeal a general judgment of dismissal entered after the trial court denied plaintiffs leave to amend their complaint and granted defendant Portland General Electric's (PGE) motion for summary judgment. We review the denial of plaintiffs' motion for leave to amend for abuse of discretion. Safeport, Inc. v. Equipment Roundup & Mfg., 184 Or.App. 690, 698, 60 P.3d 1076 (2002), rev den, 335 Or. 255 (2003). In reviewing the grant of summary judgment, we view the evidence in the record and all reasonable inferences that the evidence supports in the light most favorable to plaintiffs, the nonmoving parties, to determine whether the trial court properly concluded that there are no genuine issues of material fact and that PGE is entitled to judgment as a matter of law. ORCP 47 C; Jones v. General Motors Corp., 325 Or. 404, 408, 939 P.2d 608 (1997). Applying those standards, we conclude that the trial court did not err; we therefore affirm.

         This case is the final installment in an extensive series of challenges arising out of the Public Utility Commission's (PUC) approval of rates for PGE in Order No. 95-322 that erroneously included, as a component of those rates, a return on PGE's capital investment in the unused Trojan nuclear generating facility, which had been prematurely retired from service. Plaintiffs challenged the order, and, in Citizens' Utility Board v. PUC, 154 Or.App. 702, 716-17, 962 P.2d 744 (1998), rev dismissed, 335 Or. 91 (2002), we remanded the order to the PUC for reconsideration.[1]

         While PUC's reconsideration of Order No. 95-322 was pending, plaintiffs brought this action, alleging that the rates PGE had charged between April 1, 1995 and October 1, 2000, pursuant to that order were unlawful and that PGE's collection of payments at those rates had caused them recoverable damages. The complaint alleged that: (1) PGE had [300 Or.App. 417] violated ORS 757.355 (1993)[2] by charging and receiving rates that included a return on PGE's investment in Trojan, rendering PGE liable for damages under ORS 756.185;[3](2) PGE had violated ORS 757.225[4] by charging an amount for utility services not authorized by law; and (3) plaintiffs were entitled to damages, under the equitable theories of "money had and received" and unjust enrichment, for the component of PGE's charges that represented a return on its investment. Plaintiffs sought damages in excess of $190 million, which they alleged PGE had charged "illegally" between April 1, 1995 and October 1, 2000, due to its inclusion of a return on the Trojan investment in its rates.

         In a ruling issued January 9, 2005, the trial court declined PGE's request to abate the action pending the PUC's reconsideration of its order. The court also rejected PGE's motion to dismiss and motion for summary judgment, instead granting summary judgment to plaintiffs on their claims for money had and received and violation of ORS 757.355 (1993).

         PGE petitioned the Supreme Court for a writ of mandamus, seeking to compel the trial court to dismiss or abate plaintiffs' claims. In Dreyer v. PGE, 341 Or. 262, 276, 142 P.3d 1010 (2006), the Supreme Court declined to dismiss the claims, reasoning that, at a minimum, one claim remained legally tenable: the claim alleging a violation of ORS 757.355 (1993). As the court explained, it was possible that the PUC would determine that PGE customers had, in fact, overpaid for services, but that the PUC had no authority to order refunds of the overpayment; in that event, a civil action could be plaintiffs' only means of obtaining relief. The court concluded, however, that the matter should be abated [300 Or.App. 418] pending the PUC's determination of those matters on reconsideration, because the PUC had "primary jurisdiction":

"[T]he PUC proceeding that is underway thus has the potential for disposing of the central issue in these cases, viz., the issue whether plaintiffs have been injured (and, if they have been, the extent of the injury). In that regard, we note that the PUC has been instructed either to revise and reduce rates to offset the previous 'improperly calculated and unlawfully collected rates' or to order PGE to issue refunds. Depending on how the PUC responds to that remand, some or all plaintiffs' claimed injuries may cease to exist. Moreover, the PUC's specialized expertise in the field of ratemaking gives it primary if not sole, jurisdiction over one of the remedies contemplated in the remand: revision of rates to provide for recovery of unlawfully collected amounts. Certainly, if the PUC decides to take that approach to the problem, its special expertise makes it a far superior venue for determining that remedy."

341 Or at 285. And, as the court explained, the PUC's determinations could potentially ...


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