{ "id": 8914643, "name": "STATE OF NORTH CAROLINA ex rel. UTILITIES COMMISSION; DUKE ENERGY CORPORATION; PUBLIC STAFF-NORTH CAROLINA UTILITIES COMMISSION; and WELLS EDDLEMAN, Pro Se, Petitioners v. CAROLINA UTILITY CUSTOMERS ASSOCIATION, INC. (Intervenor) Respondent v. DUKE ENERGY CORPORATION, Cross-Appellant", "name_abbreviation": "State ex rel. Utilities Commission v. Carolina Utility Customers Ass'n", "decision_date": "2004-02-17", "docket_number": "No. COA03-440", "first_page": "1", "last_page": "12", "citations": [ { "type": "official", "cite": "163 N.C. App. 1" } ], "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." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 62-15", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "446 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "holding that the defendant customers association's interest in the supplier refunds used to fund the expansion of natural gas lines was nothing more than a mere expectation of receiving those refunds and not a property right" } ], "opinion_index": 0 }, { "cite": "336 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535852 ], "year": 1994, "pin_cites": [ { "parenthetical": "holding that the defendant customers association's interest in the supplier refunds used to fund the expansion of natural gas lines was nothing more than a mere expectation of receiving those refunds and not a property right" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0657-01" ] }, { "cite": "592 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "225" }, { "page": "225" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 46", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8914952 ], "year": 2004, "pin_cites": [ { "page": "51" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0046-01" ] }, { "cite": "540 S.E.2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "321", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135912 ], "year": 2000, "pin_cites": [ { "page": "155", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0142-01" ] }, { "cite": "542 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "253", "parenthetical": "holding that CUCA was not a \"party aggrieved\" and thus, lacked standing to appeal \"because the Commission's order did not impact rates and because any rate increases [would] be effectuated at subsequent rates cases\"" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 127", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439747 ], "year": 2001, "pin_cites": [ { "page": "136", "parenthetical": "holding that CUCA was not a \"party aggrieved\" and thus, lacked standing to appeal \"because the Commission's order did not impact rates and because any rate increases [would] be effectuated at subsequent rates cases\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0127-01" ] }, { "cite": "408 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "holding CUCA was not an aggrieved party and dismissing its appeal of an order by the Commission for lack of standing because CUCA had failed to show that its interest in person, property, or employment has been substantially adversely affected, directly or indirectly" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 216", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520916 ], "year": 1991, "pin_cites": [ { "parenthetical": "holding CUCA was not an aggrieved party and dismissing its appeal of an order by the Commission for lack of standing because CUCA had failed to show that its interest in person, property, or employment has been substantially adversely affected, directly or indirectly" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0216-01" ] }, { "cite": "516 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 44247 ], "year": 1999, "pin_cites": [ { "page": "184", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/va-app/30/0176-01" ] }, { "cite": "133 N.C. App. 485", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11220348 ], "year": 1999, "pin_cites": [ { "page": "496", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0485-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 62-90", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "20 S.E.2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "pin_cites": [ { "parenthetical": "where the North Carolina Supreme Court similarly interpreted the phrase \"party affected\" from former Section 1097 of the North Carolina Consolidated Statutes" } ], "opinion_index": 0 }, { "cite": "221 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627821 ], "year": 1942, "pin_cites": [ { "parenthetical": "where the North Carolina Supreme Court similarly interpreted the phrase \"party affected\" from former Section 1097 of the North Carolina Consolidated Statutes" } ], "opinion_index": 0, "case_paths": [ "/nc/221/0359-01" ] }, { "cite": "65 S.E.2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1951, "pin_cites": [ { "page": "767" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "233 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615583 ], "year": 1951, "pin_cites": [ { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0649-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 62-37", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(a)", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "503 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "699", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 636", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11469526 ], "year": 1998, "pin_cites": [ { "page": "638", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0636-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 62-94", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2003, "pin_cites": [ { "page": "(e)" }, { "page": "(b)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 998, "char_count": 26430, "ocr_confidence": 0.766, "pagerank": { "raw": 9.465808649716015e-08, "percentile": 0.5175931106408134 }, "sha256": "56f389842e2ce7cf82b55fc1d8a9706197de776e510f7b062eb9d4eb52345fac", "simhash": "1:a0ba846cdb47260f", "word_count": 4094 }, "last_updated": "2023-07-14T15:27:37.331987+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge GEER concur.", "Chief Judge Eagles concurred in this case prior to 30 January 2004." ], "parties": [ "STATE OF NORTH CAROLINA ex rel. UTILITIES COMMISSION; DUKE ENERGY CORPORATION; PUBLIC STAFF\u2014NORTH CAROLINA UTILITIES COMMISSION; and WELLS EDDLEMAN, Pro Se, Petitioners v. CAROLINA UTILITY CUSTOMERS ASSOCIATION, INC. (Intervenor) Respondent v. DUKE ENERGY CORPORATION, Cross-Appellant" ], "opinions": [ { "text": "HUNTER, Judge.\nCarolina Utility Customers Association, Inc. (\u201cCUCA\u201d) appeals an order of the North Carolina Utilities Commission (\u201cthe Commission\u201d) approving a settlement agreement regarding accounting irregularities at Duke Power, a division of Duke Energy Corporation (\u201cDuke\u201d). Wells Eddleman (\u201cEddleman\u201d) cross-appeals this order by writ of certiorari for the same reason. In turn, Duke cross-appeals the Commission\u2019s decision to allow CUCA and Eddleman to intervene in this matter. For the reasons stated herein, we affirm the Commission\u2019s order on the basis that CUCA and Eddleman are not \u201cparties affected\u201d by the settlement agreement as contemplated by applicable statutory authority and thus, have no standing to appeal.\nIn July of 2001, the Commission initiated a joint investigation with the South Carolina Public Service Commission (\u201cSCPSC\u201d) and the North Carolina Public Staff (\u201cthe Public Staff\u2019) regarding accounting irregularities at Duke alleged by a then anonymous whistleblower. A 5 September 2001 news release announced the investigation, and the State Commissions subsequently selected Grant Thornton, L.L.P. (\u201cGT\u201d) to audit Duke as a part of that investigation. Prior to the news release, Duke conducted its own internal investigation and provided a written report of its findings to both State Commissions on 28 August 2001.\nOn 5 October 2001, CUCA wrote a letter to the Commission requesting permission to participate in the investigation of Duke. As an association representing many of North Carolina\u2019s largest industrial manufacturers, CUCA wanted to insure that the interests of its rate-paying manufacturers who may have suffered disproportionately from any excessive charges for electrical power were protected. CUCA also requested that the Commission \u201cinitiate a general rate proceeding to allow interested parties to fully investigate Duke\u2019s revenues, costs, and rate design and to work with the Commission in setting rates of return that are appropriate for the current economic climate.\u201d In response to CUCA\u2019s requests, the Commission (1) stated that it was conducting the investigation pursuant to its authority under Sections 62-34 and 62-37 of the North Carolina General Statutes, which gives the Commission the discretion to proceed with or without a public hearing; (2) declined to allow CUCA to participate in the investigation; and (3) denied CUCA\u2019s request to initiate a general rate proceeding at that time.\nOn 8 October 2002, the Commission received GT\u2019s report regarding its audit of Duke. The report provided an \u201cOverview of Findings\u201d as follows:\nOn Tuesday, December 8, 1998, [SCPSC] reduced the rates which South Carolina Electric and Gas (SCANA) was allowed to charge its customers after SCANA reported earnings over its allowed rate of return for the twelve month period ending September 30, 1998. [GT\u2019s] investigation has found that, in reaction to the December 1998 SCANA decision, a number of Duke mid to senior level managers met and developed a plan to identify expense and revenue items which could serve as a basis for accounting adjustments which could be made to \u201cavoid reporting over-earnings to regulators\u201d .... A focus of the plan was the identification and formulation of year-end 1998 entries which would minimize Duke\u2019s earned return as reported to the State Commissions, but would not impact or lower Duke Energy\u2019s consolidated earnings as reported to its investors or the Securities and Exchange Commission.\n[GT] has identified a number of entries made by Duke in the course of Duke\u2019s dealing[s] with its \u201callowed return problem\u201d, as it was characterized by some Duke managers. The entries identified included some of the fourteen entries pointed out by the whistleblower and addressed in the Duke Report, as well as other 1998 year-end entries, and some that affected the utility operating results for 1999 and 2000.\n[GT] has identified entries, pre-income taxes (except for the RAR Tax Entry), totaling more than $64 million that inappropriately reduced Duke\u2019s 1998 pre-tax utility operating income as reported to the State Commissions. In addition, [GT] noted entries, pre-income taxes, that inappropriately reduced Duke\u2019s reported pre-tax earned return by $23,958,348 for fiscal 1999 and $35,198,605 for fiscal 2000.\nBefore the report was made public, Duke responded and contested several of the conclusions and opinions reached by GT. Duke also requested settlement negotiations in an effort to resolve the contested conclusions and opinions. Thus, the staffs of the State Commissions and Duke negotiated a proposed settlement agreement dated 22 October 2002, in which Duke agreed to the following:\n1. To file for informational purposes, no later that December 1, 2002, certain regulatory reports and a reconciliation, for the years 1998, 1999, 2000 and 2001, to reflect the impact of the recommended entries set forth in the [GT] Report;\n2. To restore in fiscal year 2002 the nuclear insurance reserve account to a level it would have reached had Duke not changed its accounting for nuclear insurance distributions in 1998, an adjustment of $50 million;\n3. To correct in 2002 an erroneous 1998 accounting entry in the amount of $1.75 million related to its Price Anderson Act nuclear liability reserve;\n4. To make a one-time $25 million credit in 2002 to its deferred fuel amounts in North Carolina and South Carolina (North Carolina in the amount of $18.75 million and South Carolina in the amount of $6.25 million) to be incorporated into the next fuel cost proceedings in the respective states;\n5. To implement all of the remedial actions set forth in the Duke report of August 28, 2001;\n6. To \u201cacknowledge and regret\u201d that communications with the two State Commissions failed to adequately detail significant changes to prior accounting practices; and\n7. To charge the cost of the [GT] review to non-utility operations.\nIf approved by the State Commissions, the settlement agreement would \u201cformally and positively resolve all matters within the scope of the accounting review without further controversy.\u201d A news release was issued later that same day (22 October 2002) stating that GT\u2019s report, Duke\u2019s response, and the proposed settlement agreement were available for public review and that the settlement agreement would be considered by the Commission at a Commission Staff Conference (\u201cthe Conference\u201d) on 28 October 2002.\nThe Conference was an informal forum at which no testimony was pre-filed and no formal hearing or pre-hearing procedures were used. The Commission staff simply presented and explained the proposed settlement agreement and recommended its approval by the Commission. The Public Staff also recommended approval. Duke customer Eddleman and counsel for CUCA spoke in opposition to the settlement agreement, as did the whistleblower. Also, CUCA presented the Commission with a motion requesting further investigation and hearing. Nevertheless, the Commission denied CUCA\u2019s motion and voted unanimously to approve the settlement agreement. However, the vote did not immediately constitute a final order because the Commission had to await approval by the SCPSC.\nIn November of 2002, after the Commission\u2019s initial vote on the settlement agreement, CUCA and Eddleman filed petitions to intervene, additional motions for further investigation and hearing (arguing they were not afforded sufficient notice and hearing and that the proposed settlement agreement was inadequate), as well as exceptions and notices of appeal. In turn, Duke wrote the Commission requesting that both petitions either be ignored or denied because the Conference was not a formal evidentiary hearing allowing for intervention, and the petitions were not timely filed since the Commission had already voted to approve the settlement agreement.\nThe Commission subsequently issued a final order on 11 December 2002. In that order, the Commission majority granted the petitions to intervene of CUCA and Eddleman after concluding that \u201cas ratepayers, CUCA [and] Eddleman . . . are affected by the level of Duke\u2019s rates and have an interest in this matter.\u201d The Commission majority further denied the motions for further investigation and hearing after concluding (1) the parties affected had received a proper hearing, i.e. the Conference, and adequate notice of that hearing; and (2) the results detailed in the GT report were based on a \u201cthorough, complete and competent\u201d investigation conducted in a manner the Commission found appropriate. Finally, the Commission majority also formally approved the settlement agreement. Two Commissioners, Lorinzo L. Joyner and James Y. Kerr, II (\u201cCommissioners Joyner and Kerr\u201d), agreed with the majority\u2019s decision to approve the settlement agreement, but concurred with the decision to deny the motions for further investigation and hearing because, unlike the majority, they did not believe Eddleman and CUCA were \u201cparties affected\u201d as required by Section 62-37 and therefore, did not have standing to \u201ccomplain about the adequacy of the notice and hearing afforded.\u201d Finally, the order opened a case sub-docket in the matter for the first time and declared the matter closed.\nCUCA filed notice of appeal on 17 December 2002. Duke filed notice of cross-appeal on 6 January 2003, assigning as error the Commission\u2019s decision to allow the intervention of CUCA and Eddleman. On 13 January 2003, Eddleman also filed notice of cross-appeal, which was dismissed by the Commission as untimely. Eddleman then petitioned this Court for writ of certiorari. His petition was granted on 16 April 2003 (COAP03-293) thereby allowing his appeal to be heard in conjunction with CUCA\u2019s appeal of the Commission\u2019s order.\nBy this appeal, CUCA and Eddleman raise issues regarding the investigation of Duke and the Commission\u2019s subsequent order approving the settlement agreement resulting from that investigation. However, by its cross-appeal, Duke contends CUCA and Eddleman were not actually \u201cparties affected\u201d by the settlement agreement\u2019s approval thereby making their intervention in this matter improper. Duke further contends that, assuming their intervention was proper, the petitions to intervene filed by CUCA and Eddleman were untimely. Having concluded that CUCA and Eddleman are not \u201cparties affected\u201d by the order and as such have no standing to appeal the Commission\u2019s approval of the settlement agreement by that order, we do not reach the issues raised by CUCA and Eddleman.\nAt the outset, we note that the investigation of Duke was conducted by the Commission pursuant to its powers and duties defined under Article 3 of our General Statutes, particularly Section 62-37, and not pursuant to the Commission\u2019s judicial functions outlined in Article 4. As such, we are presented with a case of first impression because we have found no case law where the Commission has exercised its investigative authority under this statute. Nevertheless, since the Commission issued an order resulting from that investigation, that order is considered \u201cprima facie just and reasonable.\u201d N.C. Gen. Stat. \u00a7 62-94(e) (2003). \u201c \u2018Judicial reversal of an order of the Utilities Commission is a serious matter for the reviewing court,\u2019 which may be justified only by strict adherence to the statutory guidelines governing appellate review.\u201d State ex rel. Util. Comm\u2019n v. Carolina Indus. Group, 130 N.C. App. 636, 638, 503 S.E.2d 697, 699 (1998) (citation omitted). The applicable statute provides as follows:\n(b) So far as necessary to the decision and where presented, the court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning and applicability of the terms of any Commission action. The court may affirm or reverse the decision of the Commission, declare the same null and void, or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the appellants have been prejudiced because the Commission\u2019s findings, inferences, conclusions or decisions are:\n(1) In violation of constitutional provisions, or\n(2) In excess of statutory authority or jurisdiction of the Commission, or\n(3) Made upon unlawful proceedings, or\n(4) Affected by other errors of law, or\n(5) Unsupported by competent, material and substantial evidence in view of the entire record as submitted, or\n(6) Arbitrary or capricious.\nN.C. Gen. Stat. \u00a7 62-94(b).\nBy its cross-appeal, Duke argues CUCA and Eddleman were not \u201cparties affected\u201d within the meaning of Section 62-37 and therefore, should not have been allowed to intervene in this matter.\nSection 62-37 provides, in pertinent part:\nThe Commission may, on its own motion and whenever it may be necessary in the performance of its duties, investigate and examine the condition and management of public utilities or of any particular public utility. In conducting such investigation the Commission may proceed either with or without a hearing as it may deem best, but shall make no order without affording the parties affected thereby notice and hearing.\nN.C. Gen. Stat. \u00a7 62-37(a) (2003) (emphasis added). Here, the Commission allowed CUCA and Eddleman to intervene in this matter after concluding \u201cas ratepayers, CUCA [and] Eddleman . . . are affected by the level of Duke\u2019s rates and have an interest in this matter\u201d pursuant to Section 62-37. With respect to intervention under the Commission Procedural Rules: \u201cAny person having an interest in the subject matter of any hearing or investigation pending before the Commission may become a party thereto and have the right to call and examine witnesses, cross-examine opposing witnesses, and be heard on all matters relative to the issues involved-\u201d N.C.U.C. Rule Rl-19(a). Thus, the Commission majority concluded that CUCA and Eddleman not only had an \u201cinterest in the subject matter\u201d but were also \u201cparties affected\u201d by the order arising out of the investigation and Conference conducted by the Commission. However, in their concurring opinion, Commissioners Joyner and Kerr addressed this particular conclusion as follows:\nThe majority essentially equates \u201cthe parties affected\u201d with persons \u201chaving an interest,\u201d and allows CUCA [and] Eddleman . . . to intervene because they represent Duke ratepayers or are Duke ratepayers themselves. The majority applies the same, very liberal view of intervention that the Commission follows in its other proceedings. While we adhere to that view ourselves for purposes of intervention in those other types of Commission proceedings, we do not think that it is required in a G.S. 62-37(a) investigation under Article 3.\nWe think that when acting pursuant to G.S. 62-37(a), the Commission has broad discretion to define the \u201cparties affected\u201d and to prescribe the kind of \u201chearing\u201d that must precede issuance of an order. The conclusions reached by the Commission on both of these matters will necessarily depend upon the unique facts and circumstances of the case. The subject of the investigation in the instant case was whether Duke had violated Commission rules or accounting practices in the way in which it reported its regulated income to the Commission. The injury was to the authority of the Commission, not to any individual ratepayer. We think that the only party \u201caffected\u201d in this proceeding is Duke, the utility being investigated. Therefore, only Duke is entitled to the notice and hearing required by G.S. 62-37(a), and only Duke has standing to complain about the adequacy of the notice and hearing afforded. We do not object to the Commission\u2019s allowing others an opportunity to be heard at the Staff Conference. However, in doing so, we think that the Commission afforded those persons greater participation than is required by G.S. 62-37(a). We would deny the motions of CUCA [and] Eddleman ... on the grounds that they were not \u201cparties affected\u201d and thus lacked standing.\nDuke\u2019s cross-appeal essentially relies on the concurring opinion to support the following contentions: (1) CUCA and Eddleman were not \u201cparties\u201d during the Conference at which the settlement agreement was initially approved; and (2) they were not \u201caffected\u201d by that approval in the sense contemplated by Section 62-37. We agree.\n\u201cParties to proceedings before the Commission are designated as applicants, petitioners, complainants, defendants, respondents, protestants, or interveners, according to the nature of the proceeding and the relationship of the parties thereto.\u201d N.C.U.C. Rule Rl-3(a). At the time of the Conference, CUCA and Eddleman had not been given any of these party designations; they were merely members of the public who, as Duke customers or representatives of Duke customers, were allowed to voice their disapproval over the settlement agreement. The only party at that time was Duke and, \u201c[i]n proceedings in which there is only one party, hearings [such as the Conference] may be held at any time convenient to the Commission and to the party to the proceeding, with or without a public notice, in the discretion of the Commission.\u201d N.C.U.C. Rule Rl-21(b)(l). CUCA and Eddleman were not recognized as parties, i.e. interveners, until their petitions to intervene, filed after the Conference, were granted as part of the Commission majority\u2019s final order approving the settlement agreement \u2014 filed approximately one month after the Conference. However, the Commission majority\u2019s decision to recognize CUCA and Eddleman as interveners and thus \u201cparties affected\u201d pursuant to Section 62-37 was an abuse of its discretion.\nThe phrase \u201cparties affected\u201d has not previously been defined for purposes of Section 62-37. Nevertheless, our Supreme Court has defined this phrase with respect to a party\u2019s right to appeal a decision of the Commission. In In re Housing Authority, 233 N.C. 649, 657, 65 S.E.2d 761, 767 (1951), an interpretation of former Section 62-26.6 of the North Carolina General Statutes was required, which provided \u201cfor an appeal from a determination or decision made by the Utilities Commission by any party affected thereby.\u201d (Emphasis added.) Our Supreme Court defined \u201cparty affected\u201d in that statute as follows: \u201c[A] party is not affected by a ruling of the Utilities Commission unless the decision \u2018affects or purports to affect some right or interest of a party to the controversy and in some way determinative of some material question involved.\u2019 \u201d Id. (citation omitted). See also Utilities Com. v. Kinston, 221 N.C. 359, 20 S.E.2d 322 (1942) (where the North Carolina Supreme Court similarly interpreted the phrase \u201cparty affected\u201d from former Section 1097 of the North Carolina Consolidated Statutes).\nSection 62-90 has since replaced Section 62-26.6 and uses the phrase \u201cparty aggrieved\u201d instead of \u201cparty affected.\u201d N.C. Gen. Stat. \u00a7 62-90(a) (2003). Generally, \u201c[a] \u2018party aggrieved\u2019 is one whose rights have been directly and injuriously affected by the judgment entered .... Where a party is not aggrieved, his appeal will be dismissed.\u201d Hoisington v. ZT-Winston-Salem Assocs., 133 N.C. App. 485, 496, 516 S.E.2d 176, 184 (1999) (citations omitted). This Court\u2019s interpretation of \u201cparty aggrieved\u201d as it relates to an appeal of an order by the Commission also suggests that more than a generalized interest in the subject matter is required. See State ex rel. Utilities Comm. v. Carolina Utility Cust. Assn., 104 N.C. App. 216, 408 S.E.2d 876 (1991) (holding CUCA was not an aggrieved party and dismissing its appeal of an order by the Commission for lack of standing because CUCA had failed to show that its interest in person, property, or employment has been substantially adversely affected, directly or indirectly); State ex rel. Utils. Comm\u2019n v. Carolina Util. Customers Ass\u2019n, 142 N.C. App. 127, 136, 542 S.E.2d 247, 253 (2001) (holding that CUCA was not a \u201cparty aggrieved\u201d and thus, lacked standing to appeal \u201cbecause the Commission\u2019s order did not impact rates and because any rate increases [would] be effectuated at subsequent rates cases\u201d).\nThe Supreme Court\u2019s previous definition of \u201cparty affected,\u201d as well as the Courts\u2019 definitions of \u201cparty aggrieved,\u201d are instructive and relevant to the present case. Here, an investigation of Duke\u2019s alleged accounting irregularities was conducted by the Commission pursuant to Section 62-37 of Article 3. Duke was the only party recognized by the Commission throughout the investigation, as well as the only party directly and substantially affected by any subsequent order arising therefrom in the sense envisioned by the statute. As such, only Duke was entitled to receive notice and hearing pursuant to Section 62-37 to protect its due process rights. While CUCA and Eddleman may have had an interest in the matter, their interest was only generalized and unsubstantial \u2014 not specific to them as individual Duke customers. The settlement agreement itself supports this conclusion by providing that Duke was to make a one-time credit of $18.75 million to the State of North Carolina, which would be incorporated into the state\u2019s next fuel cost proceeding. (We note that the fuel cost proceeding was subsequently filed by Duke on 10 March 2003. CUCA petitioned to intervene in that proceeding and was allowed to do so and subsequently made no objection to the incorporation of the $18.75 million credit in the calculation of the fuel cost adjustment approved by the Commission in its 25 June 2003 order.)\nNevertheless, CUCA and Eddleman essentially contend that they were interested and affected parties because the settlement agreement directly forecloses their property interests as ratepayers to receive adequate and reasonable relief for any excessive charges by Duke for electrical power. They further contend that their intervention was proper because there was no other party participating in the investigation and settlement agreement to adequately represent those interests. See Bailey v. State, 353 N.C. 142, 155, 540 S.E.2d 313, 321 (2000) (citation omitted) (providing that intervention is a matter of right \u201c \u2018[w]hen the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant\u2019s interest is adequately represented by existing parties\u2019 \u201d).\nCUCA raised a similar argument regarding its \u201ccommon law property interest to just and reasonable utilities rates[,]\u201d in State ex rel. Utilities Commission v. Carolina Utility Customers Assoc., 163 N.C. App. 46, 51, 592 S.E.2d 221, 225 (2004). In that case we held\nwe have found no North Carolina case law recognizing the property interest alleged by CUCA in this appeal. On the contrary, our case law appears to suggest otherwise. See State ex rel. Utilities Comm. v. Carolina Utility Cust. Assn., 336 N.C. 657, 446 S.E.2d 332 (1994) (holding that the defendant customers association\u2019s interest in the supplier refunds used to fund the expansion of natural gas lines was nothing more than a mere expectation of receiving those refunds and not a property right).\nId. at 51, 592 S.E.2d at 225. Moreover, CUCA and Eddleman fail to recognize that the Public Staff participated in the investigation of Duke and subsequently recommended approval of the settlement agreement at the Conference. The Public Staff acts independently of the Commission, and was created \u201cto represent [the interests of] the using and consuming public\u201d in matters before the Commission, such at the one in the instant case. See N.C. Gen. Stat. \u00a7 62-15(b) (2003). Thus, the Public Staff represented CUCA and Eddleman, as well as all of Duke\u2019s rate-paying customers.\nIn conclusion, while they may have had an interest in the matter sufficient for intervention in a hearing or investigation pending before the Commission pursuant to Article 4, Article 3 requires the prospective interveners to also be \u201cparties affected\u201d pursuant to Section 62-37. CUCA and Eddleman were never made parties to the investigation by the Commission. Furthermore, since approval of the settlement agreement only had a generalized and unsubstantial affect on CUCA and Eddleman, they were not \u201cparties affected.\u201d Had they been so affected, their intervention would have been proper and they would have been entitled to notice and hearing, as well as the opportunity to \u201ccall and examine witnesses, cross-examine opposing witnesses, and be heard on all matters relative to the issues involved . . . .\u201d N.C.U.C. Rule Rl-19(a). Accordingly, the Commission abused its discretion in granting the petitions to intervene of CUCA and Eddleman. Therefore, the Commission\u2019s order is affirmed.\nAffirmed.\nChief Judge EAGLES and Judge GEER concur.\nChief Judge Eagles concurred in this case prior to 30 January 2004.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Karen E. Long, for petitioner-appellee State of North Carolina ex rel. Utilities Commission.", "Executive Director Robert P. Gruber, by Chief Counsel Antoinette R. Wike, for petitioner-appellee Public Staff \u2014 North Carolina Utilities Commission.", "No brief for petitioner-appellee F Barron Stone.", "Wells Eddleman, petitioner-appellant, pro se.", "West Law Offices, P.C., by James P. West, for respondent-intervenor-appellant.", "Kennedy Covington Lobdell & Hickman, L.L.P., by Clarence W. Walker and Kiran H. Mehta; Law Office of Robert W. Kaylor, PA., by Robert W. Kaylor; Paul R. Newton and William Larry Porter, for petitioner-cross-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA ex rel. UTILITIES COMMISSION; DUKE ENERGY CORPORATION; PUBLIC STAFF\u2014NORTH CAROLINA UTILITIES COMMISSION; and WELLS EDDLEMAN, Pro Se, Petitioners v. CAROLINA UTILITY CUSTOMERS ASSOCIATION, INC. (Intervenor) Respondent v. DUKE ENERGY CORPORATION, Cross-Appellant\nNo. COA03-440\n(Filed 17 February 2004)\nUtilities\u2014 settlement agreement \u2014 standing of interveners\nThe interveners in a settlement agreement between Duke Power and the Utilities Commission in an investigation of Duke Power\u2019s accounting practices pursuant to N.C.G.S. \u00a7 62-37 were not parties affected by the Commission\u2019s order approving the settlement and had no standing to appeal the Commission\u2019s order.\nAppeal by respondent, petitioner Wells Eddleman, and cross-appellant from an order entered 11 December 2002 by the North Carolina Utilities Commission. Heard in the Court of Appeals 27 October 2003.\nAttorney General Roy A. Cooper, III, by Special Deputy Attorney General Karen E. Long, for petitioner-appellee State of North Carolina ex rel. Utilities Commission.\nExecutive Director Robert P. Gruber, by Chief Counsel Antoinette R. Wike, for petitioner-appellee Public Staff \u2014 North Carolina Utilities Commission.\nNo brief for petitioner-appellee F Barron Stone.\nWells Eddleman, petitioner-appellant, pro se.\nWest Law Offices, P.C., by James P. West, for respondent-intervenor-appellant.\nKennedy Covington Lobdell & Hickman, L.L.P., by Clarence W. Walker and Kiran H. Mehta; Law Office of Robert W. Kaylor, PA., by Robert W. Kaylor; Paul R. Newton and William Larry Porter, for petitioner-cross-appellant." }, "file_name": "0001-01", "first_page_order": 31, "last_page_order": 42 }