{
  "id": 11710524,
  "name": "CRESCENT ELECTRIC MEMBERSHIP CORPORATION, Plaintiff-Appellee v. DUKE POWER COMPANY, Defendant-Appellant",
  "name_abbreviation": "Crescent Electric Membership Corp. v. Duke Power Co.",
  "decision_date": "1997-05-20",
  "docket_number": "No. COA96-674",
  "first_page": "344",
  "last_page": "349",
  "citations": [
    {
      "type": "official",
      "cite": "126 N.C. App. 344"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
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    {
      "cite": "166 S.E.2d 663",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1969,
      "pin_cites": [
        {
          "page": "671"
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    {
      "cite": "275 N.C. 250",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8558370
      ],
      "weight": 2,
      "year": 1969,
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          "page": "261"
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    {
      "cite": "N.C. Gen. Stat. \u00a7 62-110.2",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
      "weight": 2,
      "year": 1989,
      "opinion_index": 0
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  "last_updated": "2023-07-14T19:11:14.463583+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges MARTIN, John C. and MARTIN, Mark D. concur."
    ],
    "parties": [
      "CRESCENT ELECTRIC MEMBERSHIP CORPORATION, Plaintiff-Appellee v. DUKE POWER COMPANY, Defendant-Appellant"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nThis case involves the right to provide electric service to the North Mecklenburg Water Treatment Plant being constructed by the Charlotte-Mecklenburg Utility Department (\u201cCMUD\u201d). Drawing water from Lake Norman, this water treatment facility will include a water treatment plant, a vacuum pump building, a water compressor intake building and an underground pipeline to carry the water from the intake building to the treatment plant. All of these structures are essential and operate together to produce potable water.\nUnder authority granted by The Territorial Assignment Act of 1965 codified at N.C. Gen. Stat. \u00a7 62-110.2 (1989), the North Carolina Utilities Commission (\u201cCommission\u201d) assigns the right to service certain rural territories to various electric suppliers. When CMUD completes the entire facility, the water treatment plant will be located in territory assigned to plaintiff Crescent Electric Membership Corporation (\u201cCrescent\u201d) and the water compressor intake building and vacuum pump building will be located in unassigned territory. The connecting pipeline will extend through both unassigned territory and Crescent territory.\nPortions of CMUD\u2019s facility will be constructed within 300 feet of existing Duke Power Company (\u201cDuke Power\u201d) lines and also within 300 feet of existing Crescent lines. After considering proposals from both Crescent and Duke Power, CMUD selected Duke Power as the electric supplier.\nIn response, Crescent brought this action seeking to prevent Duke Power from providing electric service to the CMUD water treatment facility. The trial court issued a preliminary injunction enjoining Duke Power from building electric lines or facilities on territory assigned to Crescent and from providing electric power to CMUD\u2019s facility pending a final resolution on the merits. Duke Power moved for summary judgment. Following a hearing in which the trial court concluded that \u201cthe Plant is wholly located in territory assigned to Crescent EMC by the North Carolina Utilities Commission, and that Defendant Duke Power Company may not lawfully provide electric service to the Plant\u201d, the trial court granted summary judgment in Crescent\u2019s favor and entered a permanent injunction against Duke Power. This appeal followed.\nThe issue on appeal is whether, under the facts of this case, CMUD has a statutory right under N.C. Gen. Stat. \u00a7 62-110.2 to choose its electric supplier. We hold that it does.\nAs a preliminary matter, we note that Duke Power neglected to include in its brief a statement of the questions presented for review as required by N.C.R. App. 28. However, since the issue on review is clear from the argument contained in defendant\u2019s brief, we choose to exercise our discretion under N.C.R. App. 2 and address the merits of this appeal.\nDuke Power contends that CMUD, as the consumer, has the right to choose its electric supplier under N.C.G.S. \u00a7 62-110.2 which provides:\n(b) In areas outside of municipalities, electric suppliers shall have rights and be subject to restrictions as follows:\n(4) Any premises . . . located wholly or partially within 300 feet of the lines of one electric supplier and also wholly or partially within 300 feet of the lines of another electric supplier .. . may be served by such one of said electric suppliers which the consumer chooses ....\n(6) Any premises . . . located partially within a service area assigned to one electric supplier . . . and partially within 300 feet of the lines of another electric supplier . . . may be served by such one of said electric suppliers which the consumer chooses....\nIn response to Duke Power\u2019s contentions, Crescent argues that subsection (8) of N.C.G.S. \u00a7 62-110.2(b), rather than subsections (4) and (6), controls in this case. Subsection (8) provides: \u201cEvery electric supplier shall have the right to serve all premises located wholly within the service area assigned to it ... .\u201d Cresent contends that subsection (8) gives it the exclusive right to supply electric power in this case because CMUD\u2019s new water treatment facility does not constitute \u201cone \u2018premises\u2019 \u201d under N.C.G.S. \u00a7 62-110.2(a)(1) which provides:\n\u201cPremises\u201d means the building, structure, or facility to which electricity is being or is to be furnished; provided, that two or more buildings, structures, or facilities which are located on one tract or contiguous tracts of land and are utilized by one electric consumer for commercial, industrial, institutional, or governmental purposes, shall together constitute one \u201cpremises, \u201d.\n(emphasis added). The parties do not dispute that the subject water treatment facility will be utilized by one electric consumer, CMUD, for one of the purposes listed in the statute. Thus, to resolve the issue of whether CMUD has a statutory right to choose its own electric supplier, we must determine whether all the buildings and structures that make up CMUD\u2019s water treatment facility are \u201clocated on one tract or contiguous tracts of land\u201d and therefore fit the statutory definition of \u201cone \u2018premises.\u2019 \u201d The record on appeal reveals that the City of Charlotte owns fee simple title to all of the land upon or under which all the buildings and structures for the facility will be constructed with the exception of an easement required by the Federal Energy Regulatory Commission (\u201cFERC\u201d) for the raw water intake structure located in Lake Norman and a seventy foot strip of land originally condemned in fee simple for which this Court recently determined only the taking of an easement was justified.\nCrescent argues that the FERC easement precludes the classification of the water treatment facility as \u201cone \u2018premises.\u2019 \u201d It further maintains that the water treatment facility is not \u201cone \u2018premises\u2019 \u201d since this Court recently reversed and vacated the fee simple condemnation of a 70 foot strip of property after determining that the City of Charlotte only needed an easement to accomplish the intended public purpose. Crescent contends that the statutory definition of \u201cpremises\u201d necessarily implies that the electric consumer must own the one tract or contiguous tracts of land in fee simple. However, we find nothing in the plain language of the statute, and Crescent cites no applicable authority, which supports such an interpretation. Therefore, we hold that the buildings and structures of the CMUD facility are located on one tract or contiguous tracts of land, and thus constitute \u201cone \u2018premises\u2019 \u201d under N.C.G.S. \u00a7 62-110.2(a)(l).\nCrescent lastly argues that even if CMUD\u2019s water treatment facility constitutes \u201cone \u2018premises,\u2019 \u201d allowing Duke Power to provide electric service would undermine the legislative intent of N.C.G.S. \u00a7 62-110.2 to avoid unnecessary duplication of electric facilities. We disagree.\nOur Supreme Court addressed a similar argument in relation to N.C.G.S. \u00a7 62-110.2(b)(5) in Utilities Comm. v. Electric Membership Corp., 275 N.C. 250, 166 S.E.2d 663 (1969). Like the subsection at issue, N.C.G.S. \u00a7 62-110.2(b)(5) provides for customer choice. In answering the question of whether the Commission erred by dismissing the appellant\u2019s complaint without inquiring whether there would be unnecessary duplication of electric facilities by the consumer\u2019s choice of electric supplier, the Court noted:\nIt is for the Legislature, not the Court or the Utilities Commission, to determine whether a special provision should be made for the regulation of competition between electric membership corporations and public utility companies rendering electric service. Here, the Legislature has made that determination in clear, unequivocal terms. Consequently, it was unnecessary for the Utilities Commission to inquire into or determine the general economic or esthetic effect and advisability of the duplication of [the electric membership corporation\u2019s] line by [the public utility]. In view of the policy expressly declared by the Legislature, such determination by the commission would have been immaterial.\nUtilities Comm. v. Electric Membership Corp., 275 N.C. at 261, 166 S.E.2d at 671.\nFollowing the reasoning in Utilities Comm. v. Electric Membership Corp., we hold that the legislature unequivocally set forth in N.C.G.S. \u00a7 62-110.2(b) the situations in which an electric consumer has the right to choose between competing suppliers. Thus, it is not for this Court to determine the advisability of the duplication of electric facilities so long as the specific facts of the case bring it within the scope of the statute.\nIn conclusion, we hold that the entire water treatment facility constitutes \u201cone \u2018premises\u2019 \u201d as defined in N.C.G.S. \u00a7 62-110.2(a)(l). Consequently, N.C.G.S. \u00a7 62-110.2(b)(4) and (6) provide CMUD with the statutory right to choose its electric supplier. Thus, Duke Power, as CMUD\u2019s choice as electric supplier for the water treatment facility, is entitled to judgment as a matter of law. Since the trial court erred by granting summary judgment in Crescent\u2019s favor, we must reverse and remand for entry of summary judgment for Duke Power.\nReversed and remanded.\nJudges MARTIN, John C. and MARTIN, Mark D. concur.",
        "type": "majority",
        "author": "WYNN, Judge."
      }
    ],
    "attorneys": [
      "Crisp, Page & Currin, L.L.P., by Cynthia M. Currin and Tyrus H. Thompson, and William R. Pope, for plaintiff-appellee.",
      "Jeff D. Griffith, III, and Adams Kleemeier Hagan Hannah & Pouts, L.L.P. by W. Winbume King, III and D. Beth Langley, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "CRESCENT ELECTRIC MEMBERSHIP CORPORATION, Plaintiff-Appellee v. DUKE POWER COMPANY, Defendant-Appellant\nNo. COA96-674\n(Filed 20 May 1997)\n1. Energy \u00a7 9 (NCI4th)\u2014 water treatment facility \u2014 \u201cone premises\u201d \u2014 right to choose electric supplier\nA water treatment facility constructed outside of a municipality is located on one tract or contiguous tracts of land which constitute one \u201cpremises\u201d within the meaning of N.C.G.S. \u00a7 62-110.2(a)(1), and operators of the facility have the right under N.C.G.S. \u00a7\u00a7 62-110.2(b)(4) and (6) to choose between two electric suppliers, where the water treatment plant is located in territory assigned to plaintiff electric supplier; the water compressor intake building and vacuum pump building are located in unassigned territory; portions of the facility are within 300 feet of defendant electric supplier\u2019s existing lines and also within 300 feet of plaintiff electric supplier\u2019s existing lines; and a city owns fee simple title to all of the land upon which the building and structures for the facility are located with the exception of two easements.\nAm Jur 2d, Energy \u00a7\u00a7 169, 170, 183-191.\n2. Energy \u00a7 9 (NCI4th)\u2014 electric service \u2014 choice of suppliers \u2014 duplication of services \u2014 legislative prerogative\nThe legislature unequivocally set forth in N.C.G.S. \u00a7 62-110.2(b) the situations in which an electric consumer has a right to choose between competing suppliers, and it is not for the appellate court to determine the advisability of duplication of electric facilities so long as the specific facts of the case bring it within the scope of the statute.\nAm Jur 2d, Energy \u00a7\u00a7 169, 170, 183-191.\nAppeal by defendant from order entered 12 February 1996 by Judge Loto Greenlee in Mecklenburg County Superior Court. Heard in the Court of Appeals 20 February 1997.\nCrisp, Page & Currin, L.L.P., by Cynthia M. Currin and Tyrus H. Thompson, and William R. Pope, for plaintiff-appellee.\nJeff D. Griffith, III, and Adams Kleemeier Hagan Hannah & Pouts, L.L.P. by W. Winbume King, III and D. Beth Langley, for defendant-appellant."
  },
  "file_name": "0344-01",
  "first_page_order": 382,
  "last_page_order": 387
}