United States Court of Appeals

For the Eighth Circuit 

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No. 23-1293

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Associated Electric Cooperative, Inc.

 Plaintiff - Appellant

v.

Southwest Power Pool, Inc.

 Defendant - Appellee

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No. 23-2627

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Associated Electric Cooperative, Inc.

 Plaintiff - Appellee

v.

Southwest Power Pool, Inc.

 Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Springfield

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Submitted: June 13, 2024

Filed: August 5, 2024

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Before COLLOTON, Chief Judge, MELLOY and GRUENDER, Circuit Judges. 

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MELLOY, Circuit Judge.

In today’s companion opinion, Associated Elec. Coop. v. FERC, Nos. 22-

3593, 23-1285, --- F.4th --- (8th Cir. Aug. 5, 2024), we denied Associated Electric 

Cooperative, Inc.’s (“the Cooperative”) petition for review of the Federal Energy 

Regulatory Commission’s (“FERC”) decision to exercise primary jurisdiction over 

a contract dispute between Southwest Power Pool, Inc. (“Southwest”) and the 

Cooperative. Additionally, we concluded that Southwest had compensated the 

Cooperative in accordance with the contract. At issue now is an appeal from the 

district court’s1 order in related proceedings. The district court agreed with FERC as 

to both jurisdiction and compensation. The Cooperative appeals. We affirm. 

Additionally, the district court denied Southwest’s motion for contractual attorneys’ 

fees and costs, which Southwest appeals. We affirm.

I. 

During Winter Storm Uri, weather-related electricity shortages caused 

Southwest to contact the Cooperative to purchase emergency energy. The 

Cooperative provided Southwest with emergency energy, and afterwards, Southwest 

provided the Cooperative with payment in accordance with the parties’ existing 

written contract, or “Tariff,” on file with FERC.2 The Cooperative claimed that 

Southwest’s payment was insufficient and not in accordance with a separate oral 

agreement the Cooperative personnel had entered into with Southwest personnel 

1

The Honorable Brian C. Wimes, United States District Judge for the Western

District of Missouri.

2

For brevity we refer only to the Tariff, though the agreement between the 

parties also included a Market Participant Agreement and Joint Operating 

Agreement. See Associated Elec. Coop., Inc. v. FERC, Nos. 22-3593, 23-1285, ---

F.4th --- (8th Cir. Aug. 5, 2024).
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during Winter Storm Uri. Nonetheless, Southwest refused to pay more than the rate 

in the Tariff, and thereafter, the Cooperative brought suit in federal district court, 

claiming state law breach of contract and equitable claims. 

Before the district court made any determinations, Southwest petitioned 

FERC for a declaratory order that the agency had primary jurisdiction over the 

contract dispute and that Southwest had properly compensated the Cooperative for 

the emergency energy transaction in accordance with the Tariff and filed rate. FERC 

agreed that it had primary jurisdiction over the emergency energy transaction and 

that Southwest had appropriately compensated the Cooperative in accordance with 

the Tariff. The Cooperative petitioned FERC for rehearing, which the agency denied.

The Cooperative then petitioned us for review of FERC’s orders. We denied the 

Cooperative’s petitions in today’s companion opinion, Associated Elec. Coop. v. 

FERC, Nos. 22-3593, 23-1285, --- F.4th --- (8th Cir. Aug. 5, 2024). In the opinion, 

we concluded that, applying either de novo or arbitrary and capricious review, FERC 

had primary jurisdiction, the Tariff on file with the agency controlled the dispute, 

and therefore the rate in the Tariff controlled Southwest’s payment for emergency 

energy.

While Southwest’s petition was pending before the Commission, Southwest

moved in district court to dismiss the Cooperative’s complaint. After FERC issued 

its order, the district court granted Southwest’s motion, agreeing with FERC’s 

determination that the agency had primary jurisdiction and that the Tariff controlled 

the parties’ agreement and payment for the emergency energy transaction. 

Southwest then moved for reasonable attorneys’ fees and costs, which the district 

court denied in part. The Cooperative now appeals the district court’s grant of 

Southwest’s motion to dismiss (No. 23-1293), and Southwest appeals the district 

court’s denial of contractual attorneys’ fees and costs (No. 23-2627). We affirm.
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II. 

 

We review the district court’s grant of a motion to dismiss de novo, viewing 

all facts in the light most favorable to the Cooperative as the nonmoving party. Ahern 

Rentals, Inc. v. EquipmentShare.com, Inc., 59 F.4th 948, 953 (8th Cir. 2023).

The Cooperative first argues that the district court erred by deferring to 

FERC’s determination that it had primary jurisdiction. The Cooperative argues that 

“the only reasonable interpretation of the district court’s language is that it intended 

to defer to FERC’s legal conclusions under res judicata principles.” But the district 

court did not apply res judicata; the district court conducted “an independent review 

of the record” and concluded that FERC appropriately assumed primary jurisdiction. 

The district court further found that, regardless of which adjudicator assumed 

jurisdiction, the Tariff controlled the terms of the emergency energy transaction, and 

therefore the filed rate applied to the emergency energy payment. As already noted, 

we denied the Cooperative’s petitions for review of FERC’s orders in today’s 

companion opinion after reviewing these issues de novo. Accordingly, we affirm the 

district court’s determination that FERC had primary jurisdiction, the Tariff 

controlled the terms of the emergency energy transaction, and the filed rate applied.

The Cooperative argues that, alternatively, it is entitled to relief under theories 

of promissory estoppel, quasi contract, and unjust enrichment, as well as restitution 

and the doctrine of emergency assistance. Because this was a diversity action, the 

district court applied Missouri law. Under Missouri law, “implied contract claims 

arise only where there is no express contract.” Lowe v. Hill, 430 S.W.3d 346, 349 

(Mo. Ct. App. 2014). Thus, “a plaintiff cannot recover under an equitable theory 

when she has entered into an express contract for the very subject matter for which 

she seeks to recover.” Id. “Instead, ‘the plaintiff’s rights are limited to the express 

terms of the contract.’” Grisham v. Mission Bank, 531 S.W.3d 522, 539 (Mo. Ct. 

App. 2017) (quoting R & R Land Dev., L.L.C. v. Am. Freightways, Inc., 389 S.W.3d 

234, 243 (Mo. Ct. App. 2012)). The district court found that the Tariff, as an express 

contract, precluded the Cooperative from recovering under alternative equitable 
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theories. We agree. The Tariff defeats the Cooperative’s equitable claims because it 

is a contract for the exact subject matter for which the Cooperative seeks to recover. 

Lowe, 430 S.W.3d at 349. Accordingly, we affirm.

III. 

 

The final issue before the Court is whether Southwest is entitled to attorneys’ 

fees and costs pursuant to the parties’ Joint Operating Agreement. The Court reviews 

the district court’s denial of attorneys’ fees for abuse of discretion. Agrifund, LLC v. 

Heartland Co-op, 8 F.4th 660, 667 (8th Cir. 2021). We review the district court’s 

contract interpretation de novo. Jacobson Warehouse Co. v. Schnuck Mkts., Inc., 13 

F.4th 659, 681 (8th Cir. 2021). 

Southwest argues that Article Ten, Section 10.1.4 of the Joint Operating 

Agreement requires the Cooperative to reimburse Southwest for attorney’s fees and 

costs. Article Ten is titled “Dispute Resolution Procedures.” Subsections 10.1.1 

through 10.1.3 detail the steps the parties agree to take in the event of a dispute. 

Section 10.1.4 states: 

Exceptions. In the event of disputes involving Confidential 

Information, infringement or ownership of Intellectual Property or 

rights pertaining thereto, or any dispute where a Party seeks temporary 

or preliminary injunctive relief to avoid alleged immediate and 

irreparable harm, the procedures stated in this Article shall apply, but 

shall not preclude a Party from seeking such temporary or preliminary 

injunctive relief. If a Party seeks such judicial relief but fails to obtain 

it, the Party seeking such relief shall pay the reasonable attorneys’ fees 

and costs of the other Party or Parties incurred with respect to opposing 

such relief.

The district court found that the plain language of Section 10.1.4 allowing for 

attorneys’ fees did not apply to this dispute, and we agree. Section 10.1.4 is an 

exception to Article Ten’s dispute resolution procedures. The plain language makes 
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clear that Section 10.1.4 applies only to “disputes involving Confidential 

Information, infringement or ownership of Intellectual Property or rights pertaining 

thereto, or any dispute where a Party seeks temporary or preliminary injunctive relief 

to avoid alleged immediate and irreparable harm.” For the disputes enumerated in 

Section 10.1.4, a party may seek temporary or preliminary injunctive relief from a 

court in addition to following the dispute resolution procedures. The last sentence of 

Section 10.1.4 explains that where a party seeks injunctive relief from a district 

court, but fails to obtain “such” relief, that party must cover the other party’s 

attorneys’ fees and costs incurred defending that relief. The plain language does not 

extend the availability of attorneys’ fees beyond litigating the exceptions enumerated 

in Section 10.1.4. 

Southwest attempts to portray the last sentence of Section 10.1.4 as providing 

for attorneys’ fees and costs in any dispute, but the only way to arrive at this 

conclusion is to ignore the plain meaning of “such,” which refers back to temporary 

or preliminary injunctive relief sought for the disputes enumerated in Section 10.1.4. 

Such, Black’s Law Dictionary (12th ed. 2024) (defining “such” as, “That or those; 

having just been mentioned”). Because the enumerated disputes are not present in 

the instant case, Southwest cannot recover attorneys’ fees and costs under Article 

10, Section 10.1.4.

Southwest alternatively argues that it is entitled to attorneys’ fees under 

Arkansas and Missouri law. Arkansas Code § 16-22-308 and Missouri case law both 

provide prevailing parties with a right to reasonable attorneys’ fees “when attorneys’ 

fees are provided for by contract.” Jacobson Warehouse Co., 13 F.4th at 680 (citing

Essex Contracting, Inc. v. Jefferson Cnty., 277 S.W.3d 647, 657 (Mo. 2009) (en 

banc)). Thus, Arkansas and Missouri law are only relevant if Southwest has a claim 

under Section 10.1.4 of the Joint Operating Agreement. Id.; Ark. Code Ann. § 16-

22-308. As we have already explained, Section 10.1.4 does not apply to the instant 

dispute, and therefore, the existence of Arkansas and Missouri law authorizing 

contracted-for attorneys’ fees is irrelevant. Finally, although the Arkansas statute 

provides that a district court may award attorneys’ fees and costs at its discretion, 
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the district court declined to do so here, and Southwest does not argue the district 

court abused its discretion in doing so. Ark. Code Ann. § 16-22-308; see also Nat’l 

Am. Ins. Co. v. Hogan, 173 F.3d 1097 (8th Cir. 1999) (applying abuse of discretion 

standard to review of district court’s determination as to attorneys’ fees). 

Accordingly, we find the district court did not abuse its discretion in denying 

Southwest discretionary attorneys’ fees and affirm.

IV. 

For the foregoing reasons, we affirm the district court’s grant of Southwest’s 

motion to dismiss and its denial of Southwest’s motion for contractual attorneys’ 

fees and costs.

GRUENDER, Circuit Judge, concurring.

In the companion case, we denied the Cooperative’s petitions for review of 

FERC’s decision to assert primary jurisdiction and its ruling that Southwest had 

properly compensated the Cooperative. See Associated Elec. Coop. v. FERC, Nos. 

22-3593, 23-1285, --- F.4th --- (8th Cir. Aug. 5, 2024). Having done so, we likely 

could affirm the district court’s decision to dismiss this case on the alternative 

ground that this suit has now become an “impermissible collateral attac[k] upon, and 

de novo litigation between the same parties of issues determined by, the final 

judgment of the court of appeals” denying the petitions for review. City of Tacoma 

v. Taxpayers of Tacoma, 357 U.S. 320, 341 (1958); see also All. Pipeline L.P. v. 

4.360 Acres of Land, 746 F.3d 362, 366 (8th Cir. 2014). Congress “necessarily 

precluded” such collateral attacks because the petition-for-review process serves as 

the “specific, complete and exclusive mode for judicial review of the Commission’s 

order[s].” City of Tacoma, 357 U.S. at 336; see also 16 U.S.C. § 825l(b). Yet 

Southwest did not defend the judgment on this ground, and the parties did not brief 

the issue. So the court instead decides this case by reviewing the FERC orders de 

novo for the purpose of rejecting the Cooperative’s arguments in this appeal. See 

ante at 4. That hypothetical reasoning works here because the Cooperative’s 
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arguments fail on their merits. But the court’s opinion should not be misread as 

endorsing any proposition contrary to City of Tacoma. With that understanding, I 

concur.

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