DATE:	February 27, 2014
TO:	Office of Commission Clerk (Stauffer)
FROM:	Office of the General Counsel (Klancke) Division of Economics (Daniel, Hudson, Roberts) Division of Engineering (Watts)
RE:	Docket No. 130086-SU – Complaint of K W Resort Utilities Corp. against Monroe County, Florida for alleged entitlement to collect certain capacity reservation fees for excess capacity used.
AGENDA:	03/13/14 – Regular Agenda – Notice of Voluntary Dismissal – Interested Persons May Participate
COMMISSIONERS ASSIGNED:			All Commissioners
PREHEARING OFFICER:			Graham
CRITICAL DATES:			None
SPECIAL INSTRUCTIONS:			None

 

 Case Background

On April 18, 2013, KW Resort Utilities Corporation’s (KWRU) initiated this docket by filing its complaint against Monroe County, Florida (County) for alleged entitlement to collect certain capacity reservation fees for excess capacity used.  On May 8, 2013, the County filed an Unopposed Motion for the Extension of Time to Respond to KWRU’s Complaint which was granted via Order No. PSC-13-0221-PCO-SU.  Additional extensions of time were granted by separate orders issued on June 7, 2013, July 10, 2013, September 10, 2013, and December 12, 2013.[1]  During this period, the County and KWRU prepared a Settlement Agreement which KWRU executed and which the County Commission approved at the County Commission meeting on November 20, 2013.

 

On January 14, 2014, KWRU filed a Corrected Notice of Voluntary Dismissal With Prejudice (Dismissal) advising the Commission of its intent to voluntarily dismiss its complaint with prejudice and requesting that the Commission close Docket No. 130086-SU. 

 

Discussion of Issues

Issue 1: 

 Should the Commission acknowledge KW Resort Utilities Corporation’s voluntary dismissal with prejudice of its complaint against Monroe County, Florida for alleged entitlement to collect certain capacity reservation fees for excess capacity used?

Recommendation: 

  Yes, the Commission should acknowledge KW Resort Utilities Corporation’s voluntary dismissal with prejudice of its complaint against Monroe County, Florida as a matter of right. (Klancke)

Staff Analysis: 

   It is a well established legal principle that the plaintiff’s right to take a voluntary dismissal is absolute.[2]  Once a voluntary dismissal is taken, the trial court loses all jurisdiction over the matter, and cannot reinstate the action for any reason.[3]  Both of these legal principles have been recognized in administrative proceedings.[4]  In Saddlebrook Resorts, Inc. v. Wiregrass Ranch, Inc., 630 So. 2d 1123, 1128 (Fla. 2d DCA 1993), the court concluded that “the jurisdiction of any agency is activated when the permit application is filed . . . . [and] is only lost by the agency when the permit is issued or denied or when the permit applicant withdraws its application prior to completion of the fact-finding process.” 

In the instant case, no hearing in this matter was scheduled or undertaken.  Thus, KWRU has requested the dismissal of the complaint in this matter prior to the completion of the fact-finding process.  Staff therefore recommends that the Commission acknowledge KWRU’s voluntary dismissal of its complaint with prejudice as a matter of right, which is in accord with past Commission decisions.[5]  Staff notes that in the instant case, the Commission is not evaluating the prudence of the Settlement Agreement involved herein.  Moreover, the Commission reserves the right to evaluate the Settlement Agreement in conjunction with any future rate case proceedings involving KWRU. 

Issue 2: 

 Should this docket be closed?

Recommendation: 

  Yes.  If the Commission approves staff’s recommendation in Issue 1, the docket should be closed.  (Klancke)

Staff Analysis: 

 If the Commission approves staff’s recommendation in Issue 1, the docket should be closed.