Filed: May 02, 2018
Latest Update: Mar. 03, 2020
Summary: United States Court of Appeals For the Eighth Circuit _ No. 17-1091 _ Smoky Hills Wind Project II, LLC Plaintiff - Appellant v. City of Independence, Missouri Defendant - Appellee _ No. 17-1171 _ Smoky Hills Wind Project II, LLC Plaintiff - Appellee v. City of Independence, Missouri Defendant - Appellant _ Appeals from United States District Court for the Western District of Missouri - Kansas City _ Submitted: December 14, 2017 Filed: May 2, 2018 _ Before SMITH, Chief Judge, KELLY and ERICKSON,
Summary: United States Court of Appeals For the Eighth Circuit _ No. 17-1091 _ Smoky Hills Wind Project II, LLC Plaintiff - Appellant v. City of Independence, Missouri Defendant - Appellee _ No. 17-1171 _ Smoky Hills Wind Project II, LLC Plaintiff - Appellee v. City of Independence, Missouri Defendant - Appellant _ Appeals from United States District Court for the Western District of Missouri - Kansas City _ Submitted: December 14, 2017 Filed: May 2, 2018 _ Before SMITH, Chief Judge, KELLY and ERICKSON, ..
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-1091
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Smoky Hills Wind Project II, LLC
Plaintiff - Appellant
v.
City of Independence, Missouri
Defendant - Appellee
___________________________
No. 17-1171
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Smoky Hills Wind Project II, LLC
Plaintiff - Appellee
v.
City of Independence, Missouri
Defendant - Appellant
____________
Appeals from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: December 14, 2017
Filed: May 2, 2018
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Before SMITH, Chief Judge, KELLY and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
This case involves a “Renewable Energy Purchase Agreement” (“REPA”) that
resulted from arms-length bargaining between parties with longstanding experience
and expertise in the generation and marketing of electrical energy. Smoky Hills Wind
Project II, LLC (“Smoky II”), operates a wind farm generating wind energy which it
supplies to various customers, known in the energy business as “off-takers.” Smoky
II is an indirect subsidiary of Enel Green Power North America, Inc., whose parent
company is Enel Green Power, SpA., headquartered in Italy. The City of
Independence, Missouri (“Independence”), owns and operates Independence Power
& Light, a municipal electric system that distributes electricity to its customers.
Independence generates electricity from its own generators but also purchases
wholesale energy from various suppliers, including Smoky II. Smoky II brought suit
for breach of contract when it did not receive payment from Independence on
invoices related to curtailed energy. Curtailed energy is wind energy that is not
actually produced because the producer is directed to reduce production either
because: (1) an off-taker like Independence requests that its share of the production
be reduced, or (2) because the regional regulator (in this case Southwest Power Pool)
directs reduction based on regional market conditions. Independence counterclaimed.
After a five-day bench trial, the district court1, having jurisdiction pursuant to
28 U.S.C. § 1332, held Independence liable for certain charges that it found to be
“timely-billed” and denied the counterclaims. Having jurisdiction under 28 U.S.C.
1
The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.
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§ 1291, we affirm the judgment of the district court, but for our own reasons as stated
below.
I. BACKGROUND
As is apparent to people only vaguely aware of the energy business, the
production and delivery of electricity is a highly regulated industry. The regulatory
context governing the relationship between the parties is described in the stipulation
of facts provided to the district court prior to trial. The United States electrical energy
grid is made up of interconnected transmission systems and local distribution
systems. Higher-voltage transmitting facilities deliver electricity to load centers over
long distances, while lower-voltage facilities are used to deliver energy to the local
consumers. The Federal Energy Regulatory Commission (“FERC”) has exclusive
jurisdiction under the Federal Power Act, 16 U.S.C. §§ 791-828, to regulate the rates,
terms, and conditions of electrical transmission service in interstate commerce.
FERC, in recent years, has encouraged the creation of non-profit entities called
Regional Transmission Organizations (“RTOs”) to manage the operation of these
systems and the wholesale markets for the energy transmitted by these systems. The
North American Electrical Reliability Corporation (“NERC”) is a non-profit
regulatory authority overseen by FERC. NERC establishes and enforces mandatory
reliability standards for the electricity industry, including transmission grid operators.
Southwest Power Pool, Inc. (“SPP”), is a FERC-approved RTO that manages
transmission systems and the wholesale energy market in the central United States on
behalf of a group of utilities and transmission companies in fourteen states, including
Kansas and portions of Missouri. SPP and other RTOs commonly operate on a
conservative contingency, or N-1, basis. SPP is a NERC regional electric reliability
council member and is a NERC Reliability Coordinator. In these capacities SPP is
responsible for maintaining reliability of the bulk electric power system in the region
in which Independence and Smoky II are located.
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On August 14, 2008, the parties entered into a REPA setting forth the terms
and conditions for the sale of energy from Smoky II to Independence. Independence
is just one of five off-takers who buy portions of the wind energy produced and sold
by Smoky II.2 The parties agree that the REPA is a valid and enforceable contract,
supported by adequate consideration.
The Smoky II wind project was only possible with the involvement of tax
equity investors. Tax investors are by nature very concerned about minimizing risk
and were heavily involved in the negotiation of the REPA. Frank Costanza, the
executive vice president of TradeWind Energy, the primary start-up developer of the
Smoky II project before it was bought by Enel, testified that his focus “was to make
sure that in that contract that the terms and conditions that we agreed on with our
counterpart, the utility, would be found acceptable to the tax equity financiers.”
Costanza stressed that the investors made it plain that they were not interested in
absorbing the risk of curtailment, stating “we need to get paid” and “we need to get
paid for curtailments.”
The parties anticipated curtailment and included provisions in the REPA that
govern the allocation of costs associated with curtailment. Under the REPA,
curtailments fall into two categories: (1) Economic Curtailments, and (2) Emergency
Curtailments.
Specifically, section 7.3(B) provides: “SPP, Interconnection Provider, or
Transmission Owner may curtail all or a portion of the delivery of Test Energy or
Renewable Energy to Buyer from the Facility. If such curtailment is not an
Emergency, then such curtailment shall be considered an Economic Curtailment.”
2
The other off-takers are the City of Springfield, Missouri; Midwest Energy,
Inc.; Sunflower Electric Power Corporation; and Enel Green Power North America,
Inc.
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Section 7.3(C) provides that Independence is “obligated to pay for Renewable Energy
or Test Energy not delivered due to an Economic Curtailment at the rate set forth in
Section 8.2.” Section 8.2 provides:
Payment during Economic or Emergency Curtailment. If
Seller is unable to deliver energy to the Delivery Point due to an
Emergency Curtailment or an Economic Curtailment, (A) the parties
shall use reasonable efforts to determine the quantity of Renewable
Energy that would have been produced by the Facility had its generation
not been subject to Emergency Curtailment or an Economic Curtailment
and (B) Buyer shall pay to Seller;
(1) all amounts that Seller would have received from Buyer under
this REPA had production not been so curtailed, and
(2) the amount of any Tax Benefits to which Seller would have
been entitled but does not receive, adjusted upwards for taxes based on
the marginal federal and Kansas tax rates.
Seller shall install sufficient measuring equipment at the Facility
to collect data necessary to reasonably determine the amount of Facility
generation subject to the Emergency Curtailment or Economic
Curtailment. Seller shall install sufficient meteorological towers around
the Site or in conjunction with the Wind Turbines to provide the
capability of measuring and recording representative wind data twenty
four (24) hours per day, which wind data shall be used to calculate any
amounts due Seller under this Section 8.2.
Section 1.3(U) of the REPA defines “Emergency Curtailment” as “a
curtailment ordered by SPP, Interconnection Provider, or Transmission Owner due
to an Emergency.” Under section 1.3(T), “‘Emergency’ means an emergency
condition as defined as ‘TLR Level 6 – Emergency Procedures’ in the SPP OATT
Attachment R Transmission Loading Relief Procedure.” In the stipulated facts, the
parties agree that “[t]he SPP OATT Attachment R Transmission Loading Relief
Procedure, referred to in the definition of an Emergency in the REPA, refers to
NERC’s Transmission Loading Relief (‘TLR’) Procedures.”
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Article 9 of the REPA governs the parties’ billing and payment process.
Section 9.1 provides:
Billing Invoices. The monthly billing period shall be the calendar
month. No later than fifteen (15) Business Days after the end of each
calendar month, Seller shall provide to Buyer, by first-class mail, an
invoice for the amount due Seller by Buyer for the Renewable Energy
provided by Seller and purchased by Buyer, under this REPA, during the
previous calendar month billing period. Seller’s invoice will show all
billing parameters, rates and factors, and any other data reasonably
pertinent to the calculation of monthly payments due to Seller.
Section 9.3 specifies:
Refunds in Event of Emergency Curtailment. Upon the
occurrence of an Emergency Curtailment, Buyer shall submit to Seller
documentation reasonably satisfactory to Seller evidencing the date and
duration of such Emergency Curtailment. Upon acceptance by Seller of
such documentation, Seller shall refund to Buyer such payment related
to the Emergency Curtailment on the next monthly invoice.
The REPA specifically notes that the REPA was negotiated at arms length
between parties of equal bargaining power by stating at section 1.1(E): “This REPA
was negotiated and prepared by both Parties with the advice and participation of
counsel. The Parties have agreed to the wording of this REPA and none of the
provisions hereof shall be construed against one Party on the ground that such Party
is the author of this REPA or any part hereof.” Section 1.1(F) requires the parties to
“act reasonably and in accordance with the principles of good faith and fair dealing
in the performance of this REPA.”
Smoky Hills II began delivering energy to Independence in late 2008 or early
2009. From the start the parties followed the billing and payment schedule outlined
in Article 9. For some time the parties did not experience any curtailment orders.
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Beginning in March 2012, Smoky II began to receive orders from SPP to curtail.
Smoky II was aware of the curtailments at the time they occurred but failed to bill for
curtailed energy as the curtailments occurred. In the fall of 2012 Smoky II noticed
that the curtailments were becoming more significant and representatives of the
company began to look into the reasons for the curtailments. Smoky II contacted SPP
to attempt to discern whether the curtailments were “Emergency Curtailments” as
defined by the REPA. On January 3, 2013, Smoky II sent Independence a letter
informing it that Smoky II had received “an increased number of curtailment
directives” and that Independence “may incur some, possibly significant, financial
obligations.”
On March 12, 2013, Smoky II followed up by telling Independence that it
intended to issue revised invoices for 2012 because it believed the curtailments were
not the result of an emergency under the REPA and that Independence was obligated
to pay for the curtailed energy. On March 26, 2013, Smoky II issued the first invoice
to Independence for curtailments. The invoice was for curtailments from March
through December 2012, and totaled $331,990.91. This invoice along with eleven
subsequent invoices are the subjects disputed at trial. The following chart reflects the
twelve disputed invoices:
Curtailment Date Invoice Date Amount Invoiced for
Curtailments
1. March - December March 26, 2013 $331,990.91
2012
2. January - March 2013 April 18, 2013 $110,832.56
3. April 2013 May 7, 2013 $11,097.22
4. May 2013 June 7, 2013 $7,581.56
5. June 2013 July 9, 2013 $6,303.41
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6. September 2013 October 9, 2013 $4,004.60
7. November 2013 January 7, 2014 $10,111.58
8. December 2013 January 8, 2014 $8,784.92
9. January 2014 February 7, 2014 $42,074.16
10. February 2014 June 9, 2014 $17,294.41
11. January 2014
adjustments August 15, 2004 $8,638.00
12. July 2014 September 3, 2014 $4,487.93
At the end of the trial the district court concluded that none of the curtailments
at issue was an emergency curtailment as defined in the REPA’s plain language. As
a result, the trial court concluded that Independence was liable to Smoky Hills II for
the timely-billed invoices.
The court denied Independence’s counterclaim for breach of contract for
untimely billing, concluding: “Based upon the plain language of the Purchase
Agreement, Section 9.1 does not apply to curtailed energy. Rather, the Purchase
Agreement contains no express time limit with respect to invoices for curtailments.”
The court then applied Kansas law requiring that performance must occur
within a “reasonable” time. The court weighed the evidence and found that the
invoices that were issued more than fifteen days after the month in which the
curtailments occurred were not issued within a reasonable time. In a footnote to its
conclusions of law, the district court indicated that while it had rejected the
application of section 9.1 to billing for curtailed energy, it “ultimately determined that
fifteen business days is a reasonable time to submit invoices for curtailments.” Thus,
the court decided that Independence must pay that portion of the invoice described
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at No. 2 attributable to curtailments in March 2013 and the total amounts of the
invoices described at Nos. 3, 4, 5, 6, 8, and 9.
II. DISCUSSION
A. TIMELINESS UNDER THE REPA
Smoky II primarily contends that the district court “negated” the intent of the
parties when it implied a “reasonable time” deadline for billing Independence for the
curtailment costs. It also objects to the court’s apparent equating of a “reasonable
time” with the fifteen-day timely-billing requirement found in the contract.
Independence took the position at trial that the billing requirements of Article
9 of the REPA applied to billing for both curtailed energy and energy actually
delivered. On appeal, Independence appears to abandon this argument by stating in
its brief that “after concluding that the REPA’s express fifteen-day deadline did not
apply to curtailment invoices,” the trial court’s finding that Smoky II had a duty to
bill in a reasonable time was supported by the law and the facts. However, later in
the brief, Independence takes issue with Smoky II’s contention that “REPA section
9.1 applies only to energy invoices, not curtailment invoices.” Independence
specifically argues:
First, there is no basis for reading the “Renewable Energy” limitation
that appears in the second sentence of section 9.1 into the first sentence
of section 9.1. If the parties had intended to have monthly billing
periods for energy invoices only, they could have easily said so by
simply adding “for Renewable Energy” after “monthly billing period”
in the first sentence. And they chose not to do so. Second, the argument
ignores the other evidence of the parties’ intent that a monthly billing
period should apply to curtailment invoices (e.g., the importance of the
revenue stream to Smoky Hills and Smoky Hills’ course of conduct),
evidence that the trial court found persuasive.
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The parties agree that the REPA’s choice-of-law provision at section 19.13
requires that the REPA “shall be governed and construed in accordance with the laws
of the State of Kansas.” Accord Gateway Customer Solutions, LLC v. GC Services
Ltd. P’ship, 825 F.3d 502 (8th Cir. 2016) (applying Delaware law to interpret and
construe contract provisions pursuant to the parties agreement and the choice-of-law
provision in the contract).
“We may affirm the judgment of the district court ‘on any basis disclosed in the
record, whether or not the district court agreed with or even addressed that ground.’”
Warner Bros. Entertainment, Inc. v. X One X Productions, 644 F.3d 584, 591 (8th
Cir. 2011) (quoting PFS Distribution Co. v. Raduechel,
574 F.3d 580, 591 (8th Cir.
2009). Under Kansas law, appellate courts “exercise unlimited review over the
interpretation and legal effect of written instruments, and . . . are not bound by the
lower courts’ interpretations of those instruments.” Prairie Land Elec. Co-op v.
Kansas Elec. Power Co-op, Inc.,
323 P.3d 1270, 1274 (Kan. 2014) (citing Osterhaus
v. Toth,
249 P.3d 888, 896 (Kan. 2011)). “The primary rule for interpreting written
contracts is to ascertain the parties’ intent” and when the terms of the contract are
clear, “the intent of the parties is to be determined from the language of the contract
without applying rules of construction.” Anderson v. Dillard’s, Inc.,
153 P.3d 550,
554 (Kan. 2007) (citing Liggatt v. Employers Mutual Casualty Co.,
46 P.3d 1120,
1125 (Kan. 2002)). “A document’s meaning should be gleaned from the document
as a whole rather than ‘the critical analysis of a single or isolated provision.’” Water
District No. 1 of Johnson County v. Prairie Center Development, L.L.C., et al.,
375
P.3d 304, 312 (Kan. 2016) (quoting Marquis v. State Farm Fire & Cas. Co.,
961 P.2d
1213, 1219 (Kan. 1998)).
The REPA is a detailed document that precisely indicates the responsibilities
of the Seller (Smoky II) and the Buyer (Independence). The entirety of the billing
and payment responsibilities of the parties is found in Article 9 of the REPA, which
is entitled, “Billing and Payment.” Section 9.1 specifically provides for calendar
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month billing. That section further requires that “Seller shall provide to Buyer, by
first-class mail, an invoice for the amount due Seller by Buyer for the Renewable
Energy provided by Seller and purchased by Buyer, under this REPA, during the
previous calendar month billing period.” If this were the sole content of Article 9, we
might be sympathetic to Smoky II’s contention that section 9.1 applies only to actual
renewable energy delivered to Independence and that it does not apply to curtailed
energy. However, Kansas law requires us to look at the contract as a whole and not
isolate a single provision and interpret it out of context. The rest of the REPA,
including the rest of 9.1, leads us to conclude that Article 9 controls.
Section 9.1 specifically requires that “Seller’s invoice will show all billing
parameters, rates and factors, and any other data reasonably pertinent to the
calculation of monthly payments due to Seller.” Further, section 9.3 specifically
addresses curtailments. That section anticipates that in the event of an “Emergency
Curtailment” Independence “shall submit to Seller documentation reasonably
satisfactory to Seller evidencing the date and duration” of the emergency curtailment
and then be entitled to a refund “on the next monthly invoice.” The inclusion of
language requiring that the invoices show “all billing parameters, rates and factors,
and other data” in section 9.1 and the inclusion of the refund provision in 9.3 make
it clear that the parties intended that the monthly billing invoices would include all
payments owed to Smoky II, for renewable energy, for curtailed energy, or for
anything else within the billing parameters.3
Smoky II argues the court erred by not considering that Independence was not
prejudiced by the delay in billing. This argument lacks merit. The trial court
carefully weighed the evidence, including the importance of monthly billing and the
3
The evidence at trial, including the testimony of Enel’s Associate Vice
President, Mark McGrail, plainly established that Smoky II was able to meet the
fifteen business day deadline once it satisfactorily performed its duties under section
8.2 of the REPA.
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importance of reasonable performance of contractual obligations. The court
specifically noted that the contract required a twenty-year commitment of the parties
and the dramatically high billing amounts resulting from delayed billing. These
findings of fact are not clearly erroneous.
B. NATURE OF CURTAILMENTS: ECONOMIC OR EMERGENCY
In its cross-appeal, Independence contends that the district court erred in its
interpretation of the meaning of “Emergency Curtailment” in the REPA. We
disagree. The plain language of the REPA supports the district court’s conclusion.
The language in the REPA defining economic and emergency curtailments is
precise and clearly incorporates known terms and standards in the power production
and distribution industry. The language specifically defines an emergency
curtailment as one ordered by SPP due to an emergency which “means an emergency
condition as defined as ‘TLR Level 6 - Emergency Procedures’ in the SPP OATT
Attachment R Transmission Loading Relief Procedure.” At trial, Smoky II argued
that a curtailment was not an emergency curtailment unless SPP declared it to be a
TLR Level 6 curtailment. Independence argued that emergency curtailments were
any curtailments of Smoky II’s generation or any curtailment incident to certain
circumstances listed in one section of TLR Level 6 - Emergency Procedures. The
district court was correct in rejecting these arguments.
The district court looked to the plain language of the contract and to NERC’s
definition of TLR Level 6 - Emergency Procedures. The court recognized that the
term “‘TLR Level 6 - Emergency Procedures’ is defined in NERC’s procedures,
outside of the contract, and is generally understood within the electric industry to be
a procedure used when there is a critical condition on the bulk electric grid.” The
court concluded:
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that the proper interpretation of Emergency Curtailment given the
Purchase Agreement’s plain language and TLR Level 6's accepted use
within the electric industry is any SPP curtailment that is due to a critical
condition on the bulk electric grid. Further, SPP, as the entity
responsible for implementing NERC’s TLR Procedures, describes
critical condition to mean “cascading outages” and a “doomsday”
scenario where generation is immediately curtailed to zero.
C. ENERGY ALLOCATION
Independence further argues on appeal that the district court erred when it
failed to find that Smoky II had over-allocated energy to Independence beyond the
10.1 per cent share provided in the REPA. We disagree. “Whether a contract has
been breached is a question of fact.” Waste Connections of Kansas, Inc. v. Ritchie
Corp., 298 P.3d 250, 265 (Kan. 2013). We review the district court’s findings of fact
for clear error, but we review de novo mixed questions of law and fact that require
consideration of legal concepts. Stine Seed Co. v. A & W Agribusiness, LLC,
862
F.3d 1094, 1099 (8th Cir. 2017) (“In an ‘appeal from a civil bench trial, we review
the trial court’s findings of fact for clear error. Its conclusions of law are subject to
de novo review. Mixed questions of law and fact that require the consideration of
legal concepts . . . are also reviewed de novo.’”) (quoting Darst-Webbe Tenant Ass’n
Bd. v. St. Louis Housing Auth.,
339 F.3d 702, 710-11 (8th Cir. 2003)).
The evidence at trial did not support a finding that Smoky II was permitted to
adjust the allocation of energy to Independence if another off-taker curtailed its
allotment. The court specifically found that “[t]he evidence shows that the parties
were aware that they would have to agree on additional day-to-day operating
procedures, and the parties filled in the gaps related to their curtailment procedures
so that Independence’s allocation of energy would be unaffected by a curtailment
ordered by another off-taker during times of negative LMP, or otherwise, and would
not result in a reduction of Independence’s megawatt share of energy to a strict
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percentage of the remaining output.” The court further noted that “Independence paid
all of its invoices, except for those for the Curtailments, with full knowledge of the
exact amount of energy it was allocated, how much other off-takers were allocated,
the total wind project production for each allocation, and had access to the level of
LMP at the given times.”
The district court further recognized that “the procedure now advocated by
Independence would leave Independence at the mercy of the other off-takers” when
the REPA’s clear intent was to allow Independence to control “its own allocation of
energy from Smoky II so that it can make an economic decision about what it wants
to do with Smoky II’s output—whether to receive the energy or self-curtail.” The
trial evidence clearly supports the district court’s rejection of Independence’s theory
regarding over-allocation of energy.
D. SUBSTANTIAL PERFORMANCE
For the first time on appeal, Smoky II alleges that the district court erred by not
considering its substantial performance under the contract. We do not ordinarily
consider arguments raised for the first time on appeal. United States Securities and
Exchange Commission v. Collyard, 861 F.3d 760, 765 (8th Cir. 2017). Smoky II has
not persuaded us to abandon this general rule. Accord
id. Because Smoky II has
waived the issue of substantial performance, we do not address it.
III. CONCLUSION
We affirm the judgment of the district court.
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