Case Background
On May 23, 2018,
Gulf Coast Electric Cooperative (GCEC) filed a complaint against Gulf Power
Company (Gulf Power) seeking expedited enforcement of their Territorial Agreement. GCEC claims that Gulf Power violated the Territorial
Agreement by failing to properly notify GCEC of a customer’s request for
service as required by the agreement. Gulf Power countered that it did notify
GCEC pursuant to the Territorial Agreement, and, consequently, GCEC “is foreclosed
from objecting to Gulf Power honoring its customer’s request for service, and
there is no requirement or need to compare costs or take any additional actions
under the remaining terms of the Territorial Agreement.”
Shortly after
filing its answer to the complaint, Gulf Power filed a Motion for Summary Final
Order arguing that the matter could be decided on the pleadings alone. Gulf
Power contends that, at its core, the territorial dispute presented the
Commission with a simple issue of contractual interpretation, and because the
terms of the Territorial Agreement were plain and unambiguous, construing the
agreement was a pure question of law that could be decided on a motion for
summary final order. Specifically, Gulf Power claimed the parties agreed that
GCEC received notice from Gulf Power on October 20, 2017, and the only
remaining issue is whether Gulf Power’s notice was sufficient under the terms
of the Territorial Agreement.
GCEC responded
in opposition to this Motion for Summary Final Order on June 13, 2018, arguing
that a summary final order was premature and should be denied because numerous genuine
issues of fact remained and there was pending discovery regarding whether “GCEC
waived the right to contest Gulf Power providing service.” GCEC argued that the
parties disputed whether Gulf Power could notify GCEC by email; whether Gulf
Power could notify GCEC through Peyton Gleaton, GCEC’s Vice President for
Engineering; and whether the email contained “all relevant information about
the request” as required by the Territorial Agreement. Lastly, GCEC argued that
it did not knowingly and intentionally waive its right to serve the customer
because Gulf Power’s email did not contain enough information to alert GCEC
that it had a right to serve the customer. Put simply, GCEC could not waive a
right it did not know it had. According to GCEC, these disputes raised issues
of material fact that precluded entry of a summary final order.
On July 23,
2018, the Prehearing Officer issued an Order Setting Procedure, which stated
that “the threshold question for this dispute is whether the October 20, 2017,
email was sufficient notice under the terms of the Territorial Agreement.”[2] The Procedural Order allowed for limited
discovery and the filing of briefs regarding this issue and whether the
Commission should grant Gulf Power’s Motion for Summary Final Order.
Both parties
filed briefs on September 11, 2018, in which they restated many of the arguments
they raised in their previous filings. GCEC also included in its brief its own
Motion for Summary Final Order and a separate request for oral argument. In its
Motion for Summary Final Order, GCEC argued that it is entitled to a summary
final order on the issue of waiver. Specifically, GCEC argued that although
waiver is not typically decided on summary final order, the undisputed facts
show that Gulf Power’s notice was insufficient; thus, GCEC did not know enough
about the customer request to knowingly and intentionally waive its right to
serve that customer.
On September 18,
2018, Gulf Power responded in opposition to GCEC’s Motion for Summary Final
Order. Gulf Power argued that GCEC’s position in its Motion for Summary Final
Order was inconsistent with its previous position that waiver was a factual
issue that could not be decided in a summary final order. Gulf Power also
argued that waiver is not an issue in this case. Lastly, Gulf Power restated
its argument that the notice was sufficient.
On November 29,
2018, staff filed a recommendation on the parties’ motions for summary final
order. Staff recommended that the Commission grant Gulf Power’s motion, deny
GCEC’s motion, and close the docket.
On December 10,
2018, the day before the issue was to be heard at the Agenda Conference, GCEC
filed a Notice of Supplemental Authority citing a recent decision from the
First District Court of Appeal, Holmes v.
Florida A&M University, 260 So. 3d 400 (Fla. 1st DCA 2018).
At the December
11, 2018 Agenda Conference, the Commission heard oral argument from Gulf Power
and GCEC on staff’s recommendation. When asked about the applicability of Holmes at the Agenda Conference, staff
stated that it was inapplicable to this case because Holmes dealt with the interpretation of a contract; the Commission,
however, was dealing with the interpretation of one of its own orders. The
Commission granted Gulf Power’s Motion for Summary Final Order and denied
GCEC’s Motion for Summary Final Order as moot. The Commission has yet to issue
a Final Order.
Upon
further review, staff believes it incorrectly advised the Commission on Gulf
Power’s Motion for Summary Final Order. This recommendation addresses whether
the Commission should vacate its December 11, 2018, votes to grant Gulf Power’s
Motion for Summary Final Order, deny GCEC’s Motion for Summary Final Order, and
close the docket. The Commission previously voted to allow oral argument, and
staff is not recommending that the Commission vacate that vote. Participation
is still at the Commission’s discretion.
The Commission
has jurisdiction pursuant to Section 366.04, Florida Statutes (F.S.).
Discussion
of Issues
Issue 1:
Should the Commission vacate three previous votes in
this docket by which it granted Gulf Power’s Motion for Summary Final Order,
denied GCEC’s Motion for Summary Final Order, and closed the docket?
Recommendation:
Yes. The Commission should vacate its previous
votes. (A. King)
Staff Analysis:
Staff is recommending that the Commission vacate its
votes made at the December 11, 2018 Agenda Conference that granted Gulf Power’s
Motion for Summary Final Order, denied GCEC’s Motion for Summary Final Order,
and closed the docket. Below is staff’s explanation as to why the votes should
be vacated.
Staff’s Recommendation Caused the Commission to
Make a Mistake of Law
General Description of the Motion Originally
Before the Commission
Gulf Power filed its Motion for Summary Final Order just
days after answering GCEC’s complaint, which alleged that Gulf Power had
violated the parties’ Territorial Agreement. Gulf Power claimed the dispute
boiled down to “a single issue involving a simple matter of contract
interpretation” that could be decided on the pleadings alone. It argued that
the terms of the Territorial Agreement were plain and unambiguous, Gulf Power’s
email to GCEC was sufficient notice under those plain terms, and GCEC was
foreclosed from challenging Gulf Power’s decision to fulfill the customer’s
request for service because GCEC failed to timely respond to Gulf Power’s
notice as required by the Territorial Agreement.
GCEC responded to Gulf Power’s motion, arguing, among
other things, that a summary final order was inappropriate because there were
several genuine issues of material fact. Chief among those issues was whether
Gulf Power’s notice included “all relevant information about the request” as
required by the terms of the Territorial Agreement.
Staff Incorrectly Applied the Standard for
Summary Final Order
In its November 29, 2018, recommendation, staff correctly recited
the standard for granting a motion for summary final order contained in Section
120.57(1)(h), F.S. That standard mirrors the standard used in civil cases for
motions for summary judgment. Essentially, the Commission can grant a motion
for summary final order only if there
are no genuine issues of material fact and the moving party is entitled to the
entry of a final order as a matter of law. Staff noted that the Commission has
previously observed that the standard for granting a summary final order is
very high. The motion cannot be granted unless the moving party has conclusively
demonstrated that there is no material issue of fact, and in granting the
order, the Commission must draw every possible inference in favor of the
nonmoving party. Staff still believes this is the correct standard applicable
to the parties’ motions for summary final order.
Staff also relied upon Jaar
v. University of Miami, 474 So. 2d 239, 242 (Fla. 3d DCA 1985), for the proposition
that the “interpretation of a written document, such as the Territorial
Agreement here, presents a question of law.” However, this proposition was an
incomplete statement of the rule in that case. As the court correctly and
completely stated in Jaar, “the
construction of a written document, such as the contract before us, presents a
question of law if its language is clear
and unambiguous.” Id. (emphasis
added) (citations omitted). Staff’s incomplete analysis and misapprehension of
the law in Jaar was a foundational
flaw in staff’s previous recommendation, the result of which will be discussed
in more depth in Issue 2.
Applicability of Contract Law
The day before the Agenda Conference, GCEC filed a notice
of supplemental authority that cited Holmes
v. Florida A&M University, 260 So. 3d 400 (Fla. 1st DCA 2018). Holmes dealt with a contractual dispute
between the University and two members of its coaching staff. Id. at 402. At the Agenda Conference,
staff was asked about the effect of Holmes
on the case. Staff advised the Commission that the case was inapplicable because
contract law did not apply to this case. Further research by staff after the
Agenda Conference has led staff to conclude that it incorrectly analyzed the
applicability of contract law to the matter at hand.
Staff originally believed
contract principles did not apply based on Public
Service Commission v. Fuller, 551 So. 2d 1210, 1212 (Fla. 1989). In Fuller, the Florida Supreme Court held
that a territorial “agreement has no existence apart from the PSC order
approving it.” Id. In other words,
the territorial agreement merges with and becomes part of the order approving
it. Id. A Court of Appeals of Indiana
made a similar finding: “a settlement agreement that must be filed with and approved
by a regulatory agency ‘loses its status as a strictly private contract and
takes on a public interest gloss.’” Ind.
Bell Tel. Co. v. Office of Util.
Consumer Counselor, 725 N.E.2d 432,435 (Ind. Ct. App. 2000) (quoting
Citizens Action Coal. of Ind., Inc. v. PSI Energy, Inc., 664 N.E.2d 401,
406 (Ind. Ct. App. 1996)). “[S]uch an agreement is ‘more closely akin to an
order of the Commission . . . .’” Id. (quoting Cajun Elec. Power Coop., Inc. v. F.E.R.C., 924 F.2d
1132, 1135 (D.C. Cir. 1991)). Staff originally believed that because the
Territorial Agreement was subsumed into the Commission order that approved it,
it was no longer a contract and contract law was therefore not applicable.
Upon further review and research, it appears that staff
incorrectly concluded that contract law did not apply after the Territorial
Agreement became part of the order that approved it. When a territorial
agreement is approved by the Commission, it takes on two natures. It has
characteristics of both a contract and a Commission order. Because a
territorial agreement takes on both of these natures, it is subject to both
contract law and the law surrounding Commission orders. City of Homestead v.
Beard, 600 So. 2d 450, 453 (Fla. 1992); see
City of Homestead v. Johnson, 760 So. 2d 80, 84 (Fla. 2000). The Beard Court specifically held that
though the law of contracts applies to the interpretation of territorial
agreements, the law surrounding Commission orders applies to the modification
or termination of those agreements. Beard,
600 So. 2d at 453.
In Johnson, 760
So. 2d at 84, the Court acknowledged and impliedly approved of the Commission’s
use of “well-settled principles of contractual construction” to resolve an
ambiguity in a territorial agreement between the city of Homestead and Florida
Power & Light Company. Thus, even though territorial agreements become part
of the order that approved them, the Commission still applies contract law if
it is asked to interpret those agreements.
The Commission
Should Vacate its Previous Votes and Reconsider the Parties’ Motions
The Commission is permitted
to reconsider an action that was based upon a mistake of law.
Staff believes that under its guidance, the Commission’s previous votes in this
docket were based on a mistake of law. Therefore, staff recommends that the
Commission vacate its
votes to grant Gulf Power’s Motion for Summary Final Order, deny GCEC’s Motion
for Summary Final Order, and close the docket so that it might reconsider those
motions under the proper legal standard.
The Doctrine of Administrative Finality is not
yet Applicable
The doctrine of administrative finality attaches to agency
orders that by the passing of time have become final and are no longer within
the Commission’s control. See Peoples Gas Sys., Inc. v. Mason, 187
So. 2d 335, 337–39 (Fla. 1966). Because the Commission has yet to issue a final
order memorializing its previous votes, the issue is still within the
Commission’s control and the doctrine of administrative finality is not yet
applicable.
Conclusion
Because the Commission’s previous votes in this docket are
based on a mistake of law, staff recommends that the Commission vacate these
votes in order to reassess them under the correct legal standard.
Issue 2:
Should the Commission deny Gulf Power’s Motion for
Summary Final Order?
Recommendation:
Yes. The Commission should deny Gulf Power’s Motion
for Summary Final Order. (A. King)
Staff Analysis:
Staff is recommending that the Commission deny Gulf
Power’s Motion for Summary Final Order because the parties’ dispute about the
meaning of the Territorial Agreement raises an issue of material fact.
The Procedural Order specified three issues for
consideration on whether to grant Gulf Power’s Motion for Summary Final Order:
(1) Whether Section 2.3 of the
Territorial Agreement is the proper procedure, pursuant to the Territorial
Order, to determine which utility should provide electric service to the lift
facility.
(2) If Section 2.3 is the proper
procedure, whether the October 20, 2017, email notice provided by Gulf Power to
GCEC under Section 2.3 of the Territorial Agreement concerning electric service
to the lift facility was sufficient for Gulf Power to provide service.
(3) Should Gulf Power’s Motion
for Summary Final Order be granted?
Standard for Summary Final Order Where Contracts
are Involved
A summary final order may be granted only where there are no genuine issues of material fact and the
moving party is entitled to the entry of a final order as a matter of law.
Section 120.57(1)(h), F.S.; see
Thomas v. Eckerd Drugs, 987 So. 2d 1262, 1263 (Fla. 1st DCA 2008) (applying
the same standard that is used for summary judgment in civil cases to motions
for summary final order). “A material fact is a fact that is essential to the
resolution of the legal questions raised in the case.” State of Fla. Dep’t of Envtl. Reg. v. C.P. Developers, Inc., 512
So. 2d 258, 261 (Fla. 1st DCA 1987). The Commission has previously recognized
that “the standard for granting a summary final order is very high.”[8] “[E]ven if
the facts are not in dispute, ‘issues as to the interpretation of such facts
may be such as to preclude the award of summary judgment.’”
When a dispute is based on a contractual agreement, what
the parties intended the agreement to mean becomes a material fact. E.g., Holmes, 260 So. 3d at 407; Fecteau
v. Se. Bank, NA, 585 So. 2d 1005, 1009 (Fla. 4th DCA 1991). The best
evidence of their intentions is the plain meaning of the contractual terms. Fecteau, 585 So. 2d at 1007. As long as
the terms of the contract are unambiguous, the court’s interpretation of those
terms is a pure question of law. Jaar v. Univ. of Miami, 474 So. 2d 239,
242 (Fla. 3d DCA 1985). “However, ‘[w]here the terms of the written instrument
are disputed and reasonably susceptible to more than one construction, an issue
of fact is presented as to the parties’ intent [that] cannot properly be
resolved by summary judgment.’” Strama v.
Union Fid. Life Ins. Co., 793 So. 2d 1129, 1132 (Fla. 1st DCA 2001)
(quoting Universal Underwriters Ins. Co. v. Steve Hull Chevrolet, Inc.,
513 So. 2d 218, 219 (Fla. 1st DCA 1987)), cited
in Holmes, 260 So. 3d at 404.
A contract term is ambiguous when it “may be fairly
understood in more ways than one.” Friedman v. Va. Metal Prods. Corp.,
56 So. 2d 515, 517 (Fla. 1952). When determining whether contractual language
is ambiguous, the language at issue should be read in the context of the
document as a whole. Discover Prop. &
Cas. Ins. Co. v. Beach Cars of W. Palm, Inc., 929 So. 2d 729, 732 (Fla. 4th
DCA 2006). The plain meaning of a term may also be ascertained by referencing a
dictionary. Debaun v. State, 213 So. 3d 747, 751 (Fla. 2017).
The Parties’ Arguments
Gulf Power’s Motion for Summary Final Order
Gulf Power argues that the terms of the Territorial
Agreement are plain and unambiguous, and there are no issues of material fact.
It asserts that Gulf Power’s email to GCEC satisfied its duty to “notify” GCEC
of the customer’s request and provide “all relevant information about the
request.” It further argues that GCEC failed to timely respond to Gulf Power’s
request, so Gulf Power could fulfill the customer’s request. Thus, based on the
plain meaning of the Territorial Agreement and the undisputed facts, Gulf Power
concludes that it is entitled to a judgment as a matter of law.
GCEC’s Response
GCEC responded to Gulf Power’s motion by arguing that a
summary final order was inappropriate for several reasons. It claims there were
several issues of material fact, and discovery had not yet been completed.
GCEC’s main argument was that the email notice did not contain all the
information required by the Territorial Agreement. GCEC also disputed whether
the terms of the Territorial Agreement permitted Gulf Power to notify GCEC by
emailing Peyton Gleaton. GCEC also argued that it did not waive its right to
serve the Lift Facility, and waiver “involves factual issues that are not appropriate for decision by summary
final order.”
Interpreting the Territorial Agreement
Summary of the Territorial Agreement
To properly determine whether the term “all relevant
information” is ambiguous, the Commission should first consider the context of
the entire document. The Territorial Agreement was designed to prevent the
“uneconomic duplication of [one utility’s] facilities” by the other. According
to the Territorial Agreement, uneconomic duplication of the other utility’s
facilities is primarily dependent upon whether there is a significant difference
in the cost of service for each of the utilities. In turn, “The likelihood of
there being a significant difference in the Cost of Service is primarily a
function of the size of the Load and the difference in distances between the
Point of Delivery and the Existing Facilities of each Utility.” In sum, there
are two driving factors that will determine which utility can serve: (1) the
difference in the distances between each utility’s existing facilities and the
customer and (2) the requested load size.
Section 2.1 of the Territorial Agreement provides that, “upon
receiving a bona-fide request for service from a Customer, a Utility may agree
to provide the requested service if the conditions of either Section 2.2 or
Section 2.3 below are met. Otherwise, the Utility should direct the Customer to
request service from the other utility.” Section 2.2 lays out different load
size and distance thresholds within which the requested utility can provide
service without consulting or notifying the other utility. Section 2.3 states:
In any instance where the Load and distance criteria
of Section 2.2 are not met but the requested Utility believes that its Cost of
Service would not be significantly
more than that of the other
Utility, the following procedure shall be used to determine if the requested
Utility may agree to provide service:
(a)
The requested Utility is to notify the other Utility of
the Customer’s request, providing all
relevant information about the request.
(b)
If the other Utility believes that its facilities would
be uneconomically duplicated if the request is honored, it has five (5) working
days from receipt of notice to request a meeting or other method to be
conducted within ten (10) working days for the purpose of comparing each
Utility’s Cost of Service. Absent such a
request or upon notification from the other Utility of no objection to
the requested Utility’s providing the service, the requested Utility may agree
to provide service.
(Emphasis added). Section 2.4 provides that the “requested
Utility bears the primary responsibility in determining whether or not the
provisions of Sections 2.2 or Section 2.3 above have been met or if it
otherwise believes that service can be provided to a Customer without
uneconomic duplication of the other utility’s facilities.”
Interpreting “All Relevant Information”
The parties agree that Gulf Power had to comply with Section
2.3 in order to serve the Lift Facility. They also agree that Joshua Rogers at
Gulf Power sent Peyton Gleaton at GCEC an email notifying him that Gulf Power
had received a request for service. They also agree to the substance of the
email. However, they dispute, among other things, whether Gulf Power’s email to
GCEC contained “all relevant information” about the request for service. The
parties’ arguments are based on different interpretations of that term, and as
previously discussed, if the Commission determines that “all relevant
information” is ambiguous, an issue of material fact exists, and a summary
final order is inappropriate.
On its face, the phrase “all relevant information” is
vague, because the reader has no indication of what information is relevant.
However, the phrase must be considered in context of the Territorial Agreement.
First, the phrase “about the request” immediately follows “all relevant
information.” Since the Territorial Agreement is about customer requests for
electrical service, the information will be relevant to a customer request for
electrical service. The Territorial Agreement also contains other language that
can help determine what information is relevant to the customer’s request. But
even with the help of those other provisions, the term is susceptible to at
least three different meanings and is therefore ambiguous.
GCEC argues that “all relevant information” includes three
pieces of information: (1) the precise location for the point of delivery, (2)
the load size requested, and (3) the precise location of the requested
utility’s existing facilities. GCEC claims this information is vitally
important for determining whether its facilities would be uneconomically
duplicated if the requested utility were to fulfill the customer’s request.
On the other hand, Gulf Power argues that “all relevant
information” only includes that information necessary to alert GCEC to the
existence of a request that triggers the provisions of Section 2.3 of the
Territorial Agreement. Gulf Power argues that it gave GCEC enough information
to know it had a duty under Section 2.3 to request a meeting within five days
if it objected to Gulf Power fulfilling the request.
Additionally, one might also argue that “all relevant
information” simply means any and all information the requested utility has
that pertains to the request for service.
All of these interpretations are reasonable, and there may
be other reasonable interpretations as well. Because this term may be fairly
understood in more than one way, it is ambiguous.
Conclusion
The ambiguity in the terms of the Territorial Agreement
raises an issue of fact, and that fact is material because Gulf Power relies on
its own interpretation of “all relevant information” in its argument that it is
entitled to a final order as a matter of law. Because both parties dispute the
meaning of “all relevant information,” they have raised a genuine issue of
material fact, and Gulf Power’s Motion for Summary Final Order cannot be
granted. Staff recommends the Commission vote to deny Gulf Power’s Motion for
Summary Final Order.
Issue 3:
Should GCEC’s Motion for Summary Final Order be
denied?
Recommendation:
Yes. The Commission should deny GCEC’s Motion for
Summary Final Order. (A. King)
Staff Analysis:
Staff is recommending that the Commission deny GCEC’s
Motion for Summary Final Order because the parties’ dispute about the meaning
of the Territorial Agreement raises an issue of material fact.
GCEC’s Motion and Gulf Power’s Response
GCEC filed its own Motion for Summary Final Order in its
September 11, 2018, brief on Gulf Power’s Motion for Summary Final Order. In
this motion, GCEC argued that the undisputed facts demonstrate that it did not
waive its right to serve the Lift Facility under the Territorial Agreement and
GCEC is therefore entitled to a summary final order on that threshold issue.
GCEC admitted that issues of waiver are typically not resolved on a motion for
summary final order, but it claimed the undisputed facts in this case
demonstrate that Gulf Power’s notice was insufficient under the terms of the
Territorial Agreement. It asserts that because Gulf Power’s notice was
insufficient, GCEC never knew it had the right to serve the Lift Facility. Because
GCEC did not know it had the right to serve the Lift Facility, it could not
have knowingly and intentionally waived that right.
Gulf Power responded to this Motion by pointing out that
“[o]n one hand, GCEC claims in its Brief in Opposition that the ‘waiver’ issue
is not susceptible to summary adjudication. On the other hand, GCEC’s Motion
asserts that the ‘waiver’ issue is susceptible to summary adjudication.” Gulf
Power also argues that waiver is not at issue in this case as it “has not
raised a defense of ‘waiver’ in this proceeding.” It also argues that waiver is
an affirmative defense that must be pleaded and established by a defendant.
Finally, Gulf Power re-states its arguments that the “plain language” of the
Territorial Agreement must control, that the “Territorial Agreement does not
specify that any of the elements identified by GCEC are essential for inclusion
in notices issued under the Agreement,” and that GCEC was sufficiently placed on
notice of Gulf Power’s intent to invoke the notice provisions of Section 2.3 of
the Territorial Agreement.
Legal Standard for Waiver
“‘Waiver’ is the ‘intentional relinquishment or
abandonment of a known right or privilege, or conduct that warrants an
inference of the intentional relinquishment of a known right.’ . . . Waiver
does not arise merely from forbearance for a reasonable time.” Hale v. Dep’t
of Rev., 973 So. 2d 518, 522 (Fla. 1st DCA 2007) (citations omitted).
Waiver is an affirmative defense raised by a defendant at the pleading stage of
proceedings. Derouin v. Universal Am. Mortg. Co., LLC, 254 So. 3d 595,
600 (Fla. 2d DCA 2018). “An ‘affirmative defense’ is any defense that assumes the complaint or charges to be
correct but raises other facts that, if true, would establish a valid
excuse or justification or a right to engage in the conduct in question.” State
v. Cohen, 568 So. 2d 49, 51 (Fla. 1990) (emphasis added). Issues of waiver
typically involve issues of fact that are inappropriate for summary final
order. Scheibe v. Bank of Am., N.A., 822 So. 2d 575, 575 (Fla. 5th DCA
2002).
GCEC’s Motion is
Dependent on a Disputed Material Fact
GCEC’s entitlement to a
summary final order rests on the finding that Gulf Power’s notice was
insufficient under the terms of the Territorial Agreement. That finding is
dependent on the interpretation of the term “all relevant information,” which,
as previously discussed, is ambiguous and raises an issue of material fact.
Because GCEC’s entitlement to a summary final order is dependent on the
resolution of an issue of material fact, it should be denied.
Conclusion
GCEC’s Motion for Summary Final Order should be denied
because it is dependent on at least one material fact that is in dispute. The
existence of an issue of material fact precludes the issuance of a summary
final order. Thus, staff recommends the Commission deny GCEC’s Motion for Summary
Final Order.
Issue 4:
Should this docket be closed?
Recommendation:
No. The docket should remain open. (A. King)
Staff Analysis:
Should the Commission vote to deny both parties’
Motions for Summary Final Order, the docket should remain open so this matter
may proceed to hearing.
