Fent v. Oklahoma Natural Gas Co.

Decision Date17 April 2001
Docket NumberNo. 88,213.,88,213.
PartiesMargaret B. FENT and Jerry R. Fent, wife and husband, on behalf of themselves and all other persons of the class who are similarly situated, Appellants, v. OKLAHOMA NATURAL GAS COMPANY, a division of Oneok Inc., a corporation, Appellee.
CourtOklahoma Supreme Court

James M. Little, Little, Miner & Petersen, Oklahoma City, OK, for Appellants.

Vivian C. Hale, Stuart D. Campbell, GABLE & GOTWALS, Tulsa, OK, for Appellee.

WINCHESTER, J.

¶ 1 On July 26, 1996, the trial court granted the motion of the appellee, Oklahoma Natural Gas Company (ONG), to strike as moot the motion of the appellants, Margaret B. Fent and Jerry R. Fent (Fents) to certify this suit as a class action. In addition, the trial court found that the Fents' motion to certify this matter as a class action should be denied. The Court of Civil Appeals, Division 2,1 affirmed the trial court's interlocutory order. This Court has previously granted certiorari.

¶ 2 This is the third appeal by the Fents in their lawsuit against ONG. In 1988, the Fents, husband and wife, as landowners and customers of ONG, a public utility, brought an individual and class action on behalf of themselves and other similarly situated customers of ONG. The controversy began when the Fents had reported to ONG that gas was leaking in the pipeline in their back yard. ONG denied ownership and responsibility for the pipeline, which ran from its easement behind the Fents' property, through the Fents' back yard to ONG's gas meter located in the basement of the Fents' home. ONG disconnected the gas service, removed the properly operating gas meter from the Fents' basement, leaving a ten-inch gap in the pipeline where the old meter was removed, and refused to repair or replace the yard line2 where the gas had been leaking. Before ONG would restore gas service, ONG required that the Fents repair the gap in their basement, and install another yard line to connect to a new meter that ONG installed in the Fents' back yard utility easement. The Fents made the required repairs and then filed this individual and class-action suit3 against the utility company. The Fents claim that there are 140,202 total ONG gas meters on private property, all having a yard line and ten-inch gap to be repaired when ONG pulls its gas meter for relocation. The Fents seek the following relief in their lawsuit: injunctive and declaratory relief, damages for repair of the ten-inch gap left when ONG pulls a meter off private property, and damages for repair and replacement of yard lines.

I. FENT I

¶ 3 Before the issue of whether the class should be certified was litigated, ONG moved to dismiss, arguing that the district court had no subject matter jurisdiction and the Fents failed to state a claim upon which relief could be granted. The district court granted ONG's motion to dismiss. The Court of Civil Appeals, Division III, reversed, and this Court denied ONG's petition for certiorari. The Court of Civil Appeals reiterated that the Corporation Commission is not a court of general jurisdiction and cannot enter a money judgment against any party. Fent v. Oklahoma Natural Gas, 1990 OK CIV APP 70, ¶ 1, 804 P.2d 1146, 1147 (Fent I). That court held that the threshold question of which party is responsible for the yard line had been determined by the rules of the Corporation Commission. The court determined that pursuant to Rule 6(a) of the Commission's Rules and Regulations Prescribing Standards for Gas Service and Providing for the Testing of Gas Meters and Otherwise Regulating the Service or Natural Gas Utilities,4 ONG was clearly responsible for the maintenance of the gas pipeline from its easement to the output side of the pipeline coming from the meter in the Fents' basement. The court continued that ONG had a duty to repair the ten-inch gap left from removal of the meter and the leaking gas pipeline coming from its easement. Fent I, 1990 OK CIV APP 70, ¶¶ 6, 7, 804 P.2d at 1148.

II. FENT II

¶ 4 On remand, but before the merits of the case were decided, ONG filed an application with the Corporation Commission requesting an interpretation of the applicable rule and an order that ONG customers are responsible for installing, replacing and maintaining pipeline from ONG's easement to the customers' point of consumption, regardless of the meter's location. The Fents, who were parties to the agency proceeding, objected. They asserted that their dispute with the utility had been resolved by Fent I, and the Corporation Commission lacked power to decide the issues placed in controversy. Fent v. Oklahoma Natural Gas, 1994 OK 108, ¶ 5, 898 P.2d 126, 130 (Fent II). The Commission ruled that it had jurisdiction and that regardless of the gas meter's original location away from the utility easement, the gas utility customer was financially responsible for the installation, maintenance, repair or replacement of the gas yard line, which is the line extending between the utility easement and the premises served. Fent II, 1994 OK 108, ¶ 6,898 P.2d at 131. The Fents appealed, arguing that Fent I settled ONG's liability for the costs of the reinstallation. The Court of Civil Appeals, Division IV, affirmed. This Court granted certiorari, vacated the opinion of the Court of Civil Appeals, and reversed the Corporation Commission's order.

¶ 5 This Court held that ONG's attempt to bring the issues settled in Fent I before the Corporation Commission was an impermissible collateral attack barred from agency relitigation by the doctrine of issue preclusion. Fent II, 1994 OK 108, ¶ 12, 898 P.2d at 133. This Court determined that Fent I settled three issues: (1) the district court had cognizance of the Fents' claim; (b) the Commission rules governed the parties' liability for the repair and maintenance of the gas pipeline on the Fents' premises; and (3) Rule 6(a) applied to the Fents' claim and its construction was not inconsistent with ONG's liability. None of those issues could be relitigated in a collateral proceeding before the Commission. Fent II, 1994 OK 108, ¶ 16, 898 P.2d at 133-134. But Fent I did not settle the ultimate issue of liability because the facts have not yet been resolved by the trial court. Fent II, 1994 OK 108, ¶ 18, 898 P.2d at 134.

¶ 6 However, Fent I did decide the threshold question of which party is responsible for the pipeline access across ONG's easement to the Fents' residence. The Court of Civil Appeals held: "Pursuant to Rule 6a, ONG was clearly responsible for the maintenance of the gas pipeline from its easement to the output side of the pipeline coming from the meter in the Appellants' basement." Fent I, 1990 OK CIV APP 70, ¶ 7, 804 P.2d at 1148. Issue preclusion bars relitigation of that issue in some other forum, specifically, the Corporation Commission. The construction of Rule 6(a) and that rule's effect on the claim was fully and fairly settled. Fent II, 1994 OK 108, ¶ 22, 898 P.2d at 135.

III. JENKS

¶ 7 After the Fent II decision, ONG alleged that it received several customer requests for reimbursement for costs the customers incurred in repairing or replacing their yard lines. On September 7, 1995, ONG filed a new application to the Corporation Commission for a determination of its financial responsibility, if any, for installation, maintenance, repair and replacement of yard lines of its customers. It claimed an uncertainty existed as a consequence of Fent I, and Fent II. The application excluded the Fents, and sought this ruling to determine ONG's responsibilities to all other customers having yard lines.

¶ 8 The Fents and Harold Jenks filed pleadings including a Motion to Continue the hearing on the merits, which the Corporation Commission granted. They then filed an Application to Assume Original Jurisdiction and a Petition for Writ of Prohibition in this Court, asking that the Commission be prohibited from proceeding in the cause for lack of jurisdiction. As authority, they cited Fent I and Fent II. They also requested that the Commission proceedings be stayed pending the decision on their application and petition. Although the Court had granted the temporary stay, it denied the Application to Assume Original Jurisdiction, and the stay was lifted. Jenks v. Oklahoma Natural Gas, Case No. 87,666, slip op. at 6 (OK CIV APP, Div. III, Nov. 17, 1997). ¶ 9 ONG presented testimony regarding the Commission's Rules that since 1922 the customer had always been responsible for the yard line, regardless of the location of the meter. The Commission's staff conceded that ONG had operated under such interpretation of the Rules since 1922. ONG asked the Commission to reaffirm its interpretation of its Rules governing yard lines it had consistently maintained since at least 1922, except as it relates to the Fents. Jenks, slip op. at 7. In Order No. 402102, the Commission found that it had jurisdiction of the subject matter and of the parties, and that according to the Rules of the Commission, with the exception of the Fents, the customer was financially responsible for the installation, maintenance, repair or replacement of yard lines, regardless of meter location. The Commission specifically found that Rule 6(a) did not control the financial responsibility for the repair or replacement of yard lines, and that such responsibility could only be determined by the application of all relevant rules, specifically Rules 6, 7 and 8. Jenks, slip op. at 8.

¶ 10 On appeal, the Court of Civil Appeals, Division III, concluded that ONG was, in effect, attempting to secure an order from the Commission exempting it from liability on future, unknown claims. The court observed that the Commission has rule-making authority, but that this issue was not a rule-making matter. The court held that the Commission order must fall because it was an attempt to pre-judge future disputes. The court, on November 17, 1997, reversed the...

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