                                   NO. 07-08-0453-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                   JANUARY 16, 2009

                          ______________________________


                 IN RE CANO PETROLEUM, INC., W.O. ENERGY OF
                 NEVADA, INC., W.O. OPERATING COMPANY, LTD.
                        AND WO ENERGY, INC., RELATORS

                        _________________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                         OPINION


       Relators, Cano Petroleum, Inc.; W.O. Energy of Nevada, Inc.; W.O. Operating

Company, LTD.; and W.O. Energy, Inc., petition this court to grant a writ of mandamus

directing the honorable Paul Davis, visiting Judge in the 100th District Court of Carson

County, Texas, to enter an order abating the proceedings and staying the trial in Cause No.

9994 until such time as the Public Utilities Commission of Texas (PUCT) makes a

determination of the matters pending before it. We deny the relief requested.


                                        Background


       As a result of wildfires that occurred in the Texas Panhandle on or about March 12,

2006, Southwestern Public Service d/b/a Xcel Energy (SPS), real party in interest, filed suit
against relators alleging that the fires that damaged transportation and distribution

equipment owned by SPS were the result of the negligence of relators. SPS filed a second

amended petition that alleged both a negligence cause of action and a breach of contract

cause of action against relators on September 14, 2007. On February 8, 2008, SPS filed

a third amended petition. Relators filed their answers to the allegations contained in SPS’s

third amended petition and, on March 7, 2008, filed traditional and no-evidence motions

for summary judgment as to SPS’s claims against them for negligence and breach of

contract. SPS filed its response to the motions for summary judgment on April 29, 2008.

Relators then filed a motion to abate on June 4, 2008, which contained copies of a petition

for declaratory relief and complaint filed with the PUCT on May 30, 2008. SPS filed its

response to the plea in abatement on June 11, 2008, and the trial court held a hearing on

the abatement issue on June 12, 2008. On June 24, 2008, the trial court’s order denying

the first plea in abatement was filed. On September 11, 2008, the trial court entered its

order remanding SPS’s action against relators back to the 100th District Court of Carson

County, Texas, in Cause No. 9994.1 On October 21, 2008, relators filed a second motion

to abate the proceedings, which was overruled by the trial court on October 28, 2008.


       During the time period that the various motions and requests were pending and

being acted upon by the trial court, relators pursued relief through the aegis of the PUCT.

On May 30, 2008, relators filed a petition requesting declaratory relief and a customer

complaint, PUCT docket number 35737, with the PUCT. On or about June 17, 2008, SPS


       1
        The case before the Court was one of 11 lawsuits that arose out of the wildfires
of March 2006. All cases were transferred to the 200th District Court of Travis County,
Texas, acting as the multidistrict litigation pre-trial court.

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filed a response to relators’ request for declaratory relief and complaint. Subsequently, on

October 22, 2008, relators filed a notice of PUCT filings in the 100th District Court of Carson

County, Texas. In this notice, relators set forth, through various exhibits, the numerous

filings with the PUCT, to include relator W.O. Operating Company’s intervention into a

different rate case pending before the PUCT, PUCT docket number 35763, indicated that

these matters were pending before the PUCT, and asserted that PUCT’s resolution of

these matters were material to SPS’s suit.


        After the trial court denied the second motion for abatement, relators filed this

original petition for mandamus relief. For the reasons set out below, we deny the request

for relief.


                                    Standard of Review


        Mandamus is available when a trial court clearly abuses its discretion and the

normal appellate process does not provide an adequate remedy. See In re Prudential Ins.

Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). A failure of a trial

court to properly analyze or apply the law is an abuse of discretion. See In re Kuntz, 124

S.W.3d 179, 181 (Tex. 2003) (orig. proceeding). In a case such as the one before the

Court, there is no adequate remedy by appeal if permitting a trial to go forward “would

interfere with the important legislatively mandated function and purpose of the PUC[T].”

In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007) (orig. proceeding).




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                                           Analysis


       Relators are requesting this court to order the trial court to abate further proceedings

and stay the trial of this case until such time as the PUCT makes a determination of certain

alleged threshold issues pending before it. It is the position of relators that the PUCT has

primary jurisdiction over this matter.


       Primary jurisdiction “allocate[s] power between courts and agencies when both have

authority to make initial determinations in a dispute.” Subaru of Am. v. David McDavid

Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002). Trial courts are to defer to the appropriate

administrative agency when 1) the agency is staffed with experts trained in handling

complex problems within the agency’s purview, and 2) great benefit is derived from the

agency’s uniform interpretation of laws within its purview and the agency’s rules and

regulations when courts and juries might reach differing results under similar fact

situations. In re Sw. Bell Tel. Co., 226 S.W.3d at 403; Subaru of Am., 84 S.W.3d at 221.

In attempting to determine whether the administrative agency has primary jurisdiction, we

are instructed to ascertain whether the action under consideration is inherently judicial in

nature. See Amarillo Oil Co. v. Energy-Agri Prods., Inc., 794 S.W.2d 20, 26 (Tex. 1990).

If the action is inherently judicial, the court retains jurisdiction to determine the controversy

unless the legislature, by valid statute, has expressly granted exclusive jurisdiction to the

administrative agency. Id.


       Relators assert that the PUCT has primary jurisdiction based on the fact that SPS’s

petition refers to the requirement that relators maintain their electrical distribution system


                                               4
in accordance with the National Electric Safety Code (NESC). The requirement to follow

the NESC is allegedly set forth in the contract for services between the parties and is

authorized by a tariff previously approved by the PUCT. Finally, SPS’s petition alleges that

not only were relators negligent, but by their actions they also breached the contract for

services between the parties.


       The question then becomes what about this action requires a determination by the

agency’s experts, who are trained in handling complex problems within the agency’s

purview. The answer, as far as we can determine, is nothing. SPS’s petition attempts to

set forth a standard of care required of any customer similarly situated to relators. The

determination of the standard of care in a negligence action is a question of law for the

court. Golden Spread Council, Inc., #562 of the Boy Scouts of Am. v. Akins, 926 S.W.2d

287, 289-90 (Tex. 1996). Likewise, the other cause of action alleged against relators is a

breach of contract claim. While the factual determination of what actions were taken is for

the fact finder, whether those actions constitute a breach of contract is a question of law

for the court. BACM 2001-1 San Felipe Rd. Limited Partnership v. Trafalgar Holdings I,

Ltd., 218 S.W.3d 137, 146 (Tex.App.–Houston [14th Dist.] 2007, pet. denied). The matters

which relators contend are exclusively or primarily within the PUCT’s authority are matters

routinely heard and decided by trial courts and must be considered inherently judicial in

nature. Amarillo Oil Co., 794 S.W.2d at 26. Further, unlike in In re Sw. Bell Tel. Co.,

where the authority to interpret and enforce the contractual dispute had been specifically

delegated to the administrative agency, see In re Sw. Bell Tel. Co., 226 S.W.3d at 403,




                                             5
in the present case, we can find no express grant of authority to the administrative agency

to interpret and enforce the contract in question nor have we been cited to any.


      Finally, we must look at the relief that SPS is requesting, which is damages for

negligence and breach of contract. The award of damages in negligence and breach of

contract actions are routinely heard and decided by trial courts and must be considered

inherently judicial in nature. Amarillo Oil Co., 794 S.W.2d at 26. Further, we can find no

express grant of authority to the PUCT to award damages for common law causes of

action nor have we been cited to any. See Dolenz v. Sw. Bell Tel. Co., 730 S.W.2d 44, 45

(Tex.App.–Houston [14th Dist.] 1987, no writ). Under these circumstances, we cannot say

that the PUCT has primary jurisdiction over these matters. Therefore, we cannot find that

the trial court was bound to defer to the administrative agency.


                                       Conclusion


      We find that the trial court did not clearly abuse its discretion when it refused to

abate this matter. Therefore, we deny the requested relief.2




                                    Mackey K. Hancock
                                         Justice




      2
          Based on our ruling, Cano’s motion for temporary relief is denied.

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