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139541, 139542, 139544, 139545 - Great Wolf Lodge v M

Great Wolf Lodge of Traverse City, LLC
 
 
 
Plaintiff-Appellee,
 
v
(Appeal from Ct of Appeals)
 
 
(Ingham – Draganchuk, J.)
 
Michigan Public Service Commission,
 
Vincent J. Leone
Ann M. Uitvlugt
 
Defendant-Appellant,
 
and
 
 
Cherryland Electric Cooperative,
 
Gary P. Gordon
Shaun M. Johnson
_____________________________
Defendant-Appellee.
 
Great Wolf Lodge of Traverse City, LLC
 
 
 
Plaintiff-Appellee,
 
v
 
 
Michigan Public Service Commission,
 
Vincent J. Leone
Ann M. Uitvlugt
 
Defendant-Appellee,
 
and
 
 
Cherryland Electric Cooperative,
Defendant-Appellant.
Gary P. Gordon
Shaun M. Johnson

​139541-2 and 139544-5 - Plaintiff-Appellee's Brief on Appeal>>

139541-2 - Defendant-Appellant's Brief on Appeal>>
139541-2 - Defendant-Appellant's Reply Brief>>

139544-5 - Defendant-Appellant's Brief on Appeal>>
139544-5 - Defendant-Appellant's Reply Brief>>

Association of Businesses Advocating Tariff Equality's Amicus Curiae Brief>>

Michigan Electric Cooperative Association and Michigan Electric & Gas Association's
Amici Curiae Brief>>

Michigan Municipal Electric Association's Amicus Curiae Brief>>

Summary

Great Wolf Lodge’s water park resort is located on 48 acres in the Traverse City area. The land is part of a 120-acre parcel that was previously farmed by the Oleson family. Cherryland Electric Cooperative claims that it has provided electrical service at that location since the 1940s. Cherryland Electric had an electrical line, known as a service drop, running to one building when Great Wolf Lodge bought the property in 2001, but no electricity was being provided to the property at that time. Great Wolf Lodge solicited bids for electric services from Cherryland Electric, Traverse City Light & Power, and Consumers Power. Traverse City Light & Power won the bidding process, and it entered into a contract with Great Wolf Lodge in December 2001. But when construction of the resort was about to begin, Cherryland Electric asserted that it was entitled to provide electricity to the resort. Accordingly, in 2002 and again in 2003, Great Wolf Lodge entered into an agreement with Cherryland Electric to provide electricity. But Great Wolf Lodge later filed a complaint with the Michigan Public Service Commission, claiming that Cherryland Electric had overcharged Great Wolf Lodge. Great Wolf Lodge asserted that it was entitled to a refund of the excess charge, and also disputed that Cherryland Electric had the right to provide electricity to the resort. An administrative law judge ordered Cherryland Electric to refund the overpayment with interest, but he agreed with Cherryland Electric that it had a right to furnish electricity to the resort. The MPSC reviewed the administrative law judge’s ruling and vacated the award of interest and the fine, but affirmed all other aspects of the ruling. Cherryland Electric had the right to service the resort, the MPSC said, because the “site itself,” rather than the property owner or a particular building, was the “customer” for purposes of MPSC’s Rule 411. Accordingly, the MPSC explained, neither a change in ownership nor the loss or addition of a building creates a new customer. The MPSC observed that “once a utility has extended service to a customer, the utility then has the right to serve the entire premises . . . .”

Great Wolf Lodge appealed to the circuit court. The circuit court remanded the case to the MPSC, directing it to impose a fine and interest on Cherryland Electric, but affirmed the administrative decision in all other respects. Both Great Wolf Lodge and the MPSC appealed to the Court of Appeals. In a published per curiam opinion, the Court of Appeals held that Great Wolf Lodge was not obligated to obtain electrical services from Cherryland Electric. Rule 411 defined “customer” as the buildings and facilities served by a provider; in this case, there was no such building or facility, the appellate panel stated. The Court of Appeals remanded the case for further factual development and also affirmed the circuit court’s ruling that a fine and interest must be imposed on Cherryland Electric. Cherryland Electric and the MPSC appeal.