                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


               WARREN WOODWARD, Plaintiff/Appellant,

                                        v.

ARIZONA CORPORATION COMMISSION; BOB BURNS; TOM FORESE;
  DOUG LITTLE; SUSAN SMITH; BOB STUMP, Defendants/Appellees.

                             No. 1 CA-CV 15-0825
                               FILED 11-8-2016


           Appeal from the Superior Court in Maricopa County
                      No. LC2015-000274-001 DT
            The Honorable Crane McClennen, Judge, Retired

                                  AFFIRMED


                               APPEARANCES

Warren Woodward, Sedona
Appellant

Arizona Corporation Commission, Legal Division, Phoenix
By Maureen A. Scott, Janet F. Wagner, Wesley C. Van Cleve
Counsel for Defendants/Appellees
                       WOODWARD v. AZCC et al.
                         Decision of the Court



                      MEMORANDUM DECISION

Chief Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Margaret H. Downie joined.


B R O W N, Chief Judge:

¶1            Warren Woodward appeals the superior court’s order
dismissing his action challenging an Arizona Corporation Commission
decision. Woodward asserts he timely filed his action under Arizona
Revised Statutes (“A.R.S.”) section 40-254 and thus the court erred in
finding it lacked jurisdiction over the appeal. Although we agree that
Woodward’s action was timely filed, for the reasons set forth below, we
conclude the court did not err in dismissing the action and therefore affirm.

                             BACKGROUND

¶2            In 2013, Arizona Public Service Electric Company (“APS”)
filed an application with the Commission to establish “opt-out” charges for
customers who continued to use older “analog meters” (requiring
traditional meter reading) instead of newer “smart meters” (allowing direct
electronic communication between APS and customers’ premises).
Woodward intervened in the proceeding and opposed the application. In
Decision No. 74871, the Commission granted the application, approving a
one-time setup fee and a monthly charge for customers who choose to opt
out of smart metering.

¶3            Woodward filed an application for rehearing pursuant to
A.R.S. § 40-253, which the Commission granted in January 2015 “for the
limited purpose of further consideration.” On April 30, 2015, the
Commission issued Decision No. 75047, rescinding Decision No. 74871 and
granting Woodward’s application for rehearing.           The Commission
explained that the issues related to APS’s proposed opt-out charges
“attracted significant public attention” and “would benefit from the type of
comprehensive review that is conducted in a general rate case.” The




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                       WOODWARD v. AZCC et al.
                         Decision of the Court

Commission therefore decided to grant relief “on an interlocutory basis”
and ordered a stay of APS’s application until its next general rate case.1

¶4             On May 12, 2015 Woodward submitted an application for
rehearing on Decision No. 75047. The Commission did not respond, and
Woodward filed an action in superior court pursuant to A.R.S. § 40-254,
asserting in part that the Commission’s decision was arbitrary and
capricious. After requesting briefing from the parties on whether
Woodward’s action was timely filed, the court dismissed the action for lack
of jurisdiction.2 Woodward then appealed to this court.

                               DISCUSSION

¶5            Woodward argues the superior court had jurisdiction to
consider his challenge to the Commission decision because his action was
timely under A.R.S. § 40-254. Whether the superior court had jurisdiction
over this matter is a question of law, which we review de novo. See In re
Marriage of Crawford, 180 Ariz. 324, 326 (App. 1994).

¶6             The right to appeal an administrative decision “exists only by
force of statute and is limited by the terms of the statute.” Guminski v. Ariz.
State Veterinary Med. Examining Bd., 201 Ariz. 180, 182, ¶ 8 (App. 2001). Any
party to a final order or decision made by the Commission may request a
rehearing of any matter determined in the action within twenty days.
A.R.S. § 40-253(A). If the party remains dissatisfied with the order, the
party may institute an action in superior court against the Commission
within thirty days of the date the rehearing was either granted or denied.
A.R.S. § 40-254(A). An application for rehearing is considered denied if the
Commission does not grant it within twenty days. A.R.S. § 40-253(A).



1      A rate case filing is a detailed application of any proposed rate
increases that is reviewed by the Commission for approval. Ariz. Admin.
Code (“A.A.C.”) R14-2-103 (defining filing requirements for an application
in support of proposed rate increases or charges by an electrical utility).
APS’s application to establish opt-out charges was filed under the more
abbreviated process listed in A.A.C. R14-2-107 (defining filing
requirements for an alternative application which is available on a limited
basis for less substantial rate changes).

2      Prior to the court’s ruling, the Commission filed its answer, asserting
in part that Decision No. 75047 was a non-final interlocutory order and that
the action was not ripe for review.


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                       WOODWARD v. AZCC et al.
                         Decision of the Court

¶7             The Commission argues that the second decision, Decision
No. 75047, specifically granted Woodward’s application for rehearing of its
first decision, Decision No. 74871. Accordingly, the Commission contends
that the thirty-day period within which Woodward was required to file his
action in superior court under § 40-254(A) started on April 30, 2015, the day
the second decision was issued. This interpretation would mean that
Woodward’s superior court action, filed on June 25, 2015, was untimely as
being outside the thirty-day limitation.

¶8             Citing State ex rel. Church v. AZCC, the Commission argues
that a party is precluded from filing a second application for rehearing and
must file an action in superior court after the initial application for
rehearing is granted or denied. 94 Ariz. 107 (1963). Because Church
addressed whether a party could be excused from filing a second
application for rehearing when a second decision is issued, and not whether
that party was precluded from filing another application for rehearing, it
does not support the Commission’s position. See id. at 110 (adopting
workers’ compensation principle that “[w]hile a party has the privilege of
applying for a second rehearing, he is not compelled to do so in order to
exhaust his administrative remedies”) (quoting Wammack v. Indus. Comm’n,
83 Ariz. 321, 327 (1958)).

¶9              The most plausible reading of the statute allows a second
application for rehearing. Thus, although not required, it was within the
scope of the statute for Woodward to file a second application for rehearing,
particularly when the Commission’s first decision did nothing more than
indicate the issue needed further consideration. See Church, 94 Ariz. at 111
(“When a party is aggrieved by a decision or order of the corporation
commission, he must apply for a rehearing before the commission. . . . “)
(emphasis added). The thirty-day period for filing an action in superior
court under § 40-254(A) did not begin to run until June 1, 2015, twenty days
after he filed an application for rehearing of the second decision because the
application was deemed denied at that point in time. See A.R.S. § 40-253(A).
Thus, the superior court erred in concluding that Woodward’s action was
untimely under § 40-254(A).

¶10            Notwithstanding our conclusion that Woodward’s action was
timely filed, we must consider whether other issues raised by the
Commission support the superior court’s dismissal order. See Peterson v.
Newton, 232 Ariz. 593, 595, ¶ 4 (App. 2013) (recognizing that appellate
courts will affirm the superior court for any reason that supports the
decision). The Commission argues that because Decision No. 75047 is not
a final order, and defers APS’s application for opt-out charges to a rate case


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                        WOODWARD v. AZCC et al.
                          Decision of the Court

filing under A.A.C. R14-2-103, Woodward’s action is neither final nor ripe
for judicial review. We agree.

¶11            Section 40-253(A) allows any party to a final order or decision
by the commission to apply for a rehearing. In interpreting statutes, we
give the words used their plain meaning unless the context demands
otherwise. See City of Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544,
559, ¶ 71 (2005). A “final order or decision” plainly implies a ruling that
disposes of the issues, leaving the litigant no remaining avenue of relief. See
A.R.S. § 40-253(A). Such a decision was not reached by the Commission in
Decision No. 75047, which states both that relief is granted “on an
interlocutory basis” and that APS’s application is “stay[ed]” until further
proceedings can decide the matter. Until the Commission makes such a
final decision regarding APS’s proposed opt-out charges, it would be
premature and even disruptive for this court to render a decision. See
Kunkle Transfer & Storage Co. v. Superior Court In & For Maricopa Cty., 22 Ariz.
App. 315, 318 (1974) (explaining that the “legislature intended to protect the
jurisdiction of the Commission when properly invoked by permitting
judicial review only after the Commission has had an opportunity to rule”);
cf. Barassi v. Matison, 130 Ariz. 418, 421 (1981) (noting the “underlying
rationale of requiring a final judgment . . . is to avoid the constant disruption
of the trial process, to prevent appellate courts from considering issues that
may be addressed later . . . and to promote efficiency . . . .”).

¶12           Furthermore, Woodward’s action is not ripe for review. The
ripeness doctrine prevents a court from deciding an issue that may later be
rendered moot by a pending question. See U.S. West Commc’ns, Inc. v.
AZCC, 198 Ariz. 208, 214-15, ¶ 15 (App. 2000), vacated on other grounds, 201
Ariz. 242 (2001); Arizona Downs v. Turf Paradise, Inc., 140 Ariz. 438, 444-45
(App. 1984). When reviewing an administrative decision, the ripeness
doctrine prevents courts from interfering until the decision “has been
formalized and its effects felt in a concrete way by the challenging parties.”
Arizona Downs, 140 Ariz. at 445 (quoting Abbott Laboratories v. Gardner, 387
U.S. 136, 148-49 (1967)).

¶13           Woodward maintains that his action is ripe because the
Commission’s delay in reaching a conclusive ruling on APS’s application,
caused by the decision to proceed under A.A.C. R14-2-103, has caused him
hardship. However, it is well within the Commission’s authority to require
the matter to be considered as part of a full rate case under A.A.C. R14-2-
107(T) after review of APS’s original application for opt-out charges.
Furthermore, while hardship of the parties can be considered by a court in
evaluating ripeness for judicial review, such hardship must also be paired


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                      WOODWARD v. AZCC et al.
                        Decision of the Court

with a final and conclusive decision. Phelps Dodge Corp. v. Arizona Elec.
Power Co-op., Inc., 207 Ariz. 95, 118, ¶ 94 (App. 2004).

¶14           Based on the record before us, the Commission has not taken
conclusive action with regard to APS’s application. If the Commission were
to deny the application at APS’s future rate case, Woodward’s action in this
case would be rendered moot. Thus, Woodward’s claim can ripen only
after the Commission takes final and conclusive action on APS’s pending
application.3

                              CONCLUSION

¶15         Based on the foregoing, we affirm the superior court’s order
dismissing Woodward’s appeal.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




3      Based on our conclusion that Woodward attempted to challenge a
non-final decision and because the issue is not ripe for decision, we need
not address the other grounds for dismissal raised by the Commission.


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