{
  "id": 2645695,
  "name": "STATE OF NORTH CAROLINA ex rel. UTILITIES COMMISSION; NORTH CAROLINA TEXTILE MANUFACTURERS ASSOCIATION, INC.; THE CITY OF DURHAM; CAROLINA ACTION; KUDZU ALLIANCE; GREAT LAKES CARBON CORPORATION; and RUFUS L. EDMISTEN, Attorney General v. DUKE POWER COMPANY",
  "name_abbreviation": "State ex rel. Utilities Commission v. Duke Power Co.",
  "decision_date": "1981-05-05",
  "docket_number": "No. 8010UC1157",
  "first_page": "698",
  "last_page": "701",
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      "cite": "51 N.C. App. 698"
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "163 S.E. 2d 526",
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      "year": 1968,
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      "cite": "246 N.C. 392",
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    {
      "cite": "272 N.C. 591",
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      "cite": "259 N.C. 449",
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      "cite": "N.C. Gen. Stat. \u00a7 61-133",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
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        {
          "page": "(b)(l) and (c)"
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    {
      "cite": "221 S.E. 2d 322",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1976,
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    {
      "cite": "289 N.C. 286",
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  "analysis": {
    "cardinality": 387,
    "char_count": 6161,
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  "last_updated": "2023-07-14T20:24:29.581265+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Whichard and Becton concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA ex rel. UTILITIES COMMISSION; NORTH CAROLINA TEXTILE MANUFACTURERS ASSOCIATION, INC.; THE CITY OF DURHAM; CAROLINA ACTION; KUDZU ALLIANCE; GREAT LAKES CARBON CORPORATION; and RUFUS L. EDMISTEN, Attorney General v. DUKE POWER COMPANY"
    ],
    "opinions": [
      {
        "text": "MARTIN (Robert M.), Judge.\nOn 30 December 1980, Duke filed a motion with this Court for an accelerated hearing on appeal. In that motion Duke cited three reasons in support of its request for an accelerated hearing and decision in this case as follows:\n(a) The two issues in this appeal, i.e., rate base and rate of return, are integral components of any and every general rate case.\n(b) G.S. \u00a77A-30 provides for appeals of right to the North Carolina Supreme Court from decisions of this Court in general rate cases, and all general rate cases in the last ten years, to the best of counsels\u2019 knowledge, have been appealed to the Supreme Court.\n(c) Unless the Supreme Court has time to hear and decide the issues in this appeal prior to the time the Commission issues a final order in Duke\u2019s next rate case, these important issues may be rendered moot under the doctrine set forth by the Supreme Court in Utilities Commission v. Southern Bell Telephone & Telegraph Co., 289 N.C. 286, 221 S.E. 2d 322 (1976).\nThis Court, by an order dated 13 January 1981 granted Duke\u2019s motion for an accelerated hearing. At oral argument, counsel for Duke again stated: \u201c[w]e are convinced, as we said in our motion, that this case will be appealed to the Supreme Court regardless of what the decision [of this Court] is.\u201d\nIt is reasonably certain that the final disposition of this appeal will be determined by the Supreme Court. We, therefore, will not attempt to recapitulate the evidence or set out a detailed statement of the reasoning that leads us to the conclusion that the order of the Utilities Commission must be affirmed.\nWith regard to the first question presented in the appellant\u2019s brief, in our opinion, the Commission was correct in reducing Duke\u2019s rate base by increasing its depreciation reserve by $3,879,000 due to the fact that Duke had made similar adjustments to its depreciation and amortization expenses for the test year without making corresponding adjustments to its accumulated depreciation account. The adjustments did not contravene N.C. Gen. Stat. \u00a7 61-133(b)(l) and (c). Moreover, we believe that without such adjustments, Duke\u2019s rates would have been artificially high, thereby allowing it to earn more than a fair rate of return.\nWith regard to the second question presented in appellant\u2019s brief, in our opinion, the Commission\u2019s determination that 14.1% is a fair rate of return on common equity is fully supported by the record and was not arbitrary and capricious. In its order, the Commission made findings supported by competent evidence and adequately stated the reasons for its determination that 14.1% should be the rate of return on Duke\u2019s common equity.\nFindings of fact by the Commission are conclusive and binding upon the reviewing court when supported by competent, material and substantial evidence in view of the entire record. Utilities Commission v. Champion Papers, Inc., 259 N.C. 449, 130 S.E. 2d 890; Utilities Commission v. Radio Service, Inc., 272 N.C. 591, 158 S.E. 2d 855.\n\u201cThe determination is presumed to be valid and is not to be disturbed unless it is made to appear that it is clearly unreasonable and unjust.\u201d In re Department of Archives & History, 246 N.C. 392, 98 S.E. 2d 487.\nUtilities Comm. v. Petroleum Transportation, Inc., 2 N.C. App. 566, 568, 163 S.E. 2d 526, 528 (1968).\nFor the reasons stated, the order of the Utilities Commission is affirmed.\nAffirmed.\nJudges Whichard and Becton concur.",
        "type": "majority",
        "author": "MARTIN (Robert M.), Judge."
      }
    ],
    "attorneys": [
      "Jerry B. Fruitt and Paul L. Lassiter for Public Staff, North Carolina Utilities Commission, appellee.",
      "Byrd, Byrd, Ervin, Blanton & Whisnant by Robert B. Byrd for Great Lakes Carbon Corporation, intervenor appellee.",
      "Thomas R. Eller, Jr. for North Carolina Textile Manufacturers Association, Inc., intervenor appellee.",
      "W.I. Thornton, Jr. for City of Durham, intervenor appellee.",
      "W. Travis Payne for Kudzu Alliance, intervenor appellee.",
      "Steve C. Griffith, Jr., Edward L. Flippen, Clarence W. Walker, and Stephen K. Rhyne, for the appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA ex rel. UTILITIES COMMISSION; NORTH CAROLINA TEXTILE MANUFACTURERS ASSOCIATION, INC.; THE CITY OF DURHAM; CAROLINA ACTION; KUDZU ALLIANCE; GREAT LAKES CARBON CORPORATION; and RUFUS L. EDMISTEN, Attorney General v. DUKE POWER COMPANY\nNo. 8010UC1157\n(Filed 5 May 1981)\nElectricity \u00a7 3; Utilities Commission \u00a7\u00a7 25, 41- rates for electricity - increase in depreciation reserve - fair rate of return\nIn this proceeding to determine a power company\u2019s rates for retail electric service, the Utilities Commission was correct in reducing the power company\u2019s rate base by increasing its depreciation reserve by $3,879,000 due to the fact that the power company had made similar adjustments to its depreciation and amortization expenses for the test year without making corresponding adjustments to its accumulated depreciation account, and the Commission\u2019s determination that 14.1% was a fair rate of return on common equity was fully supported by the record.\nAppeal by applicant in Docket No. E-7, Sub. 289 from an order of North Carolina Utilities Commission dated 7 October 1980. Heard in the Court of Appeals 3 April 1981.\nOn 29 February 1980, Duke Power Company [hereinafter \u201cDuke\u201d], the appellant herein, filed with the North Carolina Utilities Commission [hereinafter \u201cthe Commission\u201d] an application to increase its rates for retail electric service in North Carolina by an average of approximately 9.6%, or $91,600,000. The Commission, by an order dated 21 March 1980, suspended the proposed rate increase, declared the application to be a general rate case and set the matter for public hearings on the basis of a test year consisting of the twelve months ending 31 December 1979.\nPublic hearings were conducted and on 7 October 1980 the Commission issued its final order which, among other things, disallowed $34,122,000 of the total increase applied for by Duke and allowed $57,450,000 (63%) of such increase. Commissioner Tate dissented from the final order on the ground that there was no evidence to support the Commission\u2019s determination as to a fair rate of return on equity.\nOn 16 November 1980 Duke filed notice of appeal and exceptions.\nJerry B. Fruitt and Paul L. Lassiter for Public Staff, North Carolina Utilities Commission, appellee.\nByrd, Byrd, Ervin, Blanton & Whisnant by Robert B. Byrd for Great Lakes Carbon Corporation, intervenor appellee.\nThomas R. Eller, Jr. for North Carolina Textile Manufacturers Association, Inc., intervenor appellee.\nW.I. Thornton, Jr. for City of Durham, intervenor appellee.\nW. Travis Payne for Kudzu Alliance, intervenor appellee.\nSteve C. Griffith, Jr., Edward L. Flippen, Clarence W. Walker, and Stephen K. Rhyne, for the appellant."
  },
  "file_name": "0698-01",
  "first_page_order": 726,
  "last_page_order": 729
}