Grubbs v. Kan. Corp. Comm'n

1

Elvis J. Grubbs, Appellant, v. Kansas Corporation Commission, Appellee.

No. 125,311

Court of Appeals of Kansas

June 9, 2023

NOT DESIGNATED FOR PUBLICATION

Appeal from Shawnee District Court; THOMAS G. LUEDKE, JUDGE.

Elvis J. Grubbs, appellant pro se.

David G. Cohen, assistant general counsel, Kansas Corporation Commission, for appellee.

Before GREEN, P.J., HURST, J., and TIMOTHY G. LAHEY, S.J.

MEMORANDUM OPINION

PER CURIAM:

After Westar Energy, now known as Evergy Kansas Central, Inc. (Evergy), required Elvis J. Grubbs to pay a security deposit in connection with his Evergy account, Grubbs filed an administrative complaint with the Kansas Corporation Commission (KCC). Grubbs' complaint alleged that Evergy failed to provide the five-day advance notice of the security deposit as required by Evergy's terms of service, and he asked for the return of his security deposit. Based on the written submissions of the parties, the KCC found Evergy gave the required five-day notice and dismissed Grubbs' complaint. The Shawnee County District Court upheld the dismissal, and Grubbs now appeals to this court. We find no error by the district court and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts giving rise to this case are not disputed. Grubbs was an existing Evergy customer but was billed for and required to pay, a security deposit in order to continue receiving utility services. The reason for the security deposit was Grubbs' failure on two occasions to comply with payment agreements he made with Evergy. Grubbs did not contest that he had failed to make the promised payments. Instead, Grubbs challenged the security deposit because Evergy did not provide the five-day advance notice as required by Evergy's terms of service. When Grubbs could not achieve a satisfactory resolution of the security deposit issue with Evergy, he filed a formal complaint with the KCC.

The KCC exercises regulatory authority over Evergy, including its interactions with customers and the utility's application of its written "General Terms and Conditions" (GT&C) which govern various aspects of the utility's operation. GTC 3.02.02 permits the imposition of a security deposit on a customer who, like Grubbs, fails to twice comply with a payment agreement, but it requires that Evergy provide the customer with the five-day notice before it is assessed. Grubbs contends he never received that notice.

Acting pro se, Grubbs filed his initial formal complaint with the KCC on April 9, 2019. It was dismissed for failing to meet regulatory standards for formal complaints set forth in K.A.R. 82-1-220(b)-the specific defects being the failure to provide a narrative of the circumstances giving rise to his complaint and for failure to state the relief he was seeking. Under the terms of the dismissal, Grubbs was given 30 days to amend his complaint. He did so, but his first amended complaint was rejected, as was his second amended complaint. The amended complaints were dismissed for the same reasons as the original complaint. Grubbs persevered on his second amended complaint by filing a petition for reconsideration which was granted. The KCC accepted Grubbs' second amended complaint for filing and directed Evergy to file a response. Significantly, the only claim contained in Grubbs' second amended complaint was that Evergy failed to give the five-day notice of the security deposit, and the only relief he sought was for the return of his $395 security deposit.

In its answer to Grubbs' complaint, Evergy admitted assessing a security deposit and asserted that it provided notice to Grubbs by email on January 25, 2019. Evergy issued the bill containing the first installment of the security deposit on February 21, 2019. It was due in late March. On March 28 2019, Grubbs contacted Evergy's customer service to question the imposition of a security deposit during the Cold Weather Rule period. During the same phone call, Grubbs replaced email contact with phone contact as his preferred method of communication with the utility service provider.

When Grubbs requested a copy of the security deposit email, Evergy could not provide it to him. Evergy explained that it had a document retention policy under which it only maintained emails for 60 days, so it no longer had a copy of the actual email. And Evergy never provided the KCC with a copy of the actual email. Instead, in its answer to the complaint, Evergy provided a customer contact log printout from Grubbs' account with the following line-item entry:

"01/25/19 AW SYSTEM DEPOSIT EMAIL SENT-2 BROKEN PAY AGMTS."

Grubbs filed three pro se responses after Evergy filed its answer. The first response disputed Evergy's assertion that it had provided him with notice before imposing the security deposit. The second response from Grubbs was a "Petition for Perjury" alleging that Evergy made intentionally false statements concerning the email notification. He asked the KCC to find Evergy "guilty of perjury and pay the amount of $49,000." Finally, after receiving a copy of the KCC staff report recommending dismissal of his complaint Grubbs filed another "answer" in which he contended Evergy had no proof of sending any email to him and it violated its GT&C. The only relief sought in Grubbs' third response was that "the Commission deny the petition" of Evergy.

The KCC issued an order denying Grubbs' request for reimbursement of his $395, concluding that Evergy had complied with the notice requirement before assessing the security deposit. The KCC acknowledged that Evergy did not produce the actual email, but it found Evergy's explanation, along with the customer log indicating an email notice was sent to Grubbs, to be sufficient evidence to establish that Evergy complied with the five-day notice requirement in its GT&C. The order also noted that Grubbs' original complaint, which had been dismissed, alleged that Evergy also violated the CAN-SPAM Act, K.S.A. 12-822, and K.S.A. 50-6,107. But when Grubbs filed his amended complaints in June 2019, he did not include these claims. He only alleged Evergy violated its GT&C and sought the return of his security deposit.

In its order denying Grubbs' complaint, in a section of the order entitled "Claims Not Before the Commission," the KCC noted that Grubbs' original complaint alleged a CAN-SPAM Act violation as a basis for requiring the return of his deposit, and that Grubbs had accused Evergy of perjury. And the KCC acknowledged that when Grubbs filed his answers to Evergy's response to the complaint and to the KCC staff recommendation, Grubbs again mentioned the CAN-SPAM Act violations and accused Evergy of perjury. The KCC ruled that the only allegation properly before it was the one contained in his formal complaint-whether Evergy provided timely notice of the security deposit requirement.

Grubbs filed a timely petition for reconsideration with the KCC. He again challenged whether notice was provided, raising a new hearsay argument based on the Federal Rules of Evidence, and he complained that the KCC failed to address his perjury allegations. Again, Grubbs' prayer for relief only asked that Evergy "return the security deposit in the amount of $395.00." The KCC denied Grubbs' motion, finding his motion to be an expression of "his general dissatisfaction with the Commission's determination," and "incomplete, general, and unsupported statements" that fail to meet the requirements of K.S.A. 77-529(a). The KCC also noted that Grubbs' "answers," in which he raised his additional complaints, were simply responses which did not require any KCC action.

Grubbs next filed a "Notice of Appeal" in the Shawnee District Court challenging the KCC decision dismissing his complaint. At this point, Grubbs' claims expanded beyond those contained in his administrative complaint. As to Evergy, Grubbs alleged breach of contract, perjury, wrongful assessing the security deposit, and failure to timely file an answer to Grubbs' complaint. He asked the district court to award $900,395 in damages against Evergy. Also for the first time, Grubbs accused the KCC of perjury, breach of contract, unspecified violations of due process, abuse of power, race harassment, and discrimination, and he asked the district court to award him the sum of $3,000,000.

The KCC filed a motion to dismiss without prejudice Grubbs' petition, contending that the petition failed to set forth a basis for relief under the Kansas Judicial Review Act (KJRA). The KCC also sought permission to file the documents related to Grubbs' account under seal. The district court granted both motions, but the court allowed Grubbs 14 days to file an amended petition complying with K.S.A. 77-614(b).

When Grubbs filed his amended notice of appeal, he referenced that Evergy violated the Privacy Act of 1974 and noted he and his wife intended to file a complaint with the "Office of Civil Rights" for the Privacy Act violation, race harassment, and discrimination. He also added an $11,000 damage claim to his initial $900,000 claim, and explained he was seeking damages for "all actual, incidental and consequential damages, past, present and future pain and suffering, lost past household contributions, for costs incurred in filing this action, and for such other and future relief as this Court deems just and proper under the circumstances." Grubbs' claim against the KCC remained largely the same, though he added $150,000 to his damage claim and clarified that the KCC had violated his equal protection rights under the Fourteenth Amendment.

On Evergy's motion, the district court dismissed it from the proceedings as an improper party to a KJRA proceeding. The district court ordered Grubbs and the KCC to provide briefs and then issued...