Fent v. Oklahoma Natural Gas Co., a Div. of Oneok Inc.

• Decision Date: 04 October 1994
• Docket Number: No. 79243,79243
• Citation: 1994 OK 108,898 P.2d 126
• Parties: Margaret B. FENT and Jerry R. Fent, Appellants, v. OKLAHOMA NATURAL GAS COMPANY, a DIVISION OF ONEOK INC., a corporation, and The Corporation Commission of The State of Oklahoma, and the State of Oklahoma, Appellees.
• Court: Oklahoma Supreme Court

Page 126

898 P.2d 126

1994 OK 108

Margaret B. FENT and Jerry R. Fent, Appellants, v. OKLAHOMA NATURAL GAS COMPANY, a DIVISION OF ONEOK INC., a corporation, and The Corporation Commission of The State of Oklahoma, and the State of Oklahoma, Appellees.

No. 79243.

Supreme Court of Oklahoma.

Oct. 4, 1994.

Rehearing Denied Jan. 31, 1995.

On Certiorari to the Court of Appeals, Div. 4.

In a proceeding before the Corporation Commission brought by a public utility to declare that agency rules require its customer to install and maintain all gas pipelines between the customer's property and the point of gas consumption, regardless of the meter's location, the agency decided (a) that it had jurisdiction of the issue (notwithstanding a prior district court suit with the same customer, in which an appellate court had upheld district court cognizance of the controversy), and (b) that the respondent/landowners were responsible for replacing the gas pipeline on their property as well as for repairing the gap in the line caused by the utility's removal of a section. The Court of Appeals affirmed. On certiorari previously granted upon customers' petition,

THE COURT OF APPEALS' OPINION IS VACATED; AND THE CORPORATION COMMISSION'S ORDER IS REVERSED.

Jerry R. Fent, Oklahoma City, for appellants.

John M. Sharp, Robert A. Huffman, Jr., Huffman, Arrington, Kihle, Gaberino & Dunn, Tulsa, for appellee Oklahoma Natural Gas Co.

Lindil C. Fowler, Jr., Leslie Wilson Pepper, Kent Douglas Talbot, Oklahoma City, for appellee Corp. Com'n.

OPALA, Justice.

The dispositive issue on certiorari is whether the appellate court's earlier pronouncement in Fent I ¹ operates as a bar against relitigation before the Oklahoma Corporation Commission [Commission] of these issues: (a) the district court's cognizance of the customers' claim against Oklahoma Natural Gas Company [ONG], (b) the controlling effect of the Commission rules on the parties' liability for the repair and maintenance of the landowners' gas pipeline and (c) the construction and applicability of Commission Rule 6a to the customers' pending district court claim? We answer in the affirmative.

I THE ANATOMY OF LITIGATION

Margaret B. and Jerry R. Fent [Fents], appellants, live in a house upon a lot platted in 1922. When the house was built, gas meters were usually installed in a protected location, either inside the house, garage, or within some other sheltering structure. At the time the Fents purchased the house in 1966, their gas meter was located in the basement. The Fents and ONG had no written agreement specifying either the location of the gas meter or the point where gas consumption would take place.

On June 6, 1988 the Fents reported the presence of natural gas odor in their backyard. A leak was located in the gas line at a place between the meter in their basement and ONG's easement behind their home. ONG disconnected gas service to the Fents' home, removed the properly-working gas meter from their basement and replaced the original indoor meter with a new one which came to be installed in the backyard utility easement area. Before ONG would restore gas service, the Fents were required (a) to repair a ten-inch gap in the basement pipeline

left by ONG when the old meter was removed and (b) to install another yard line to connect with the new meter.

Fent I Litigation

Upon ONG's refusal to reimburse them for the replacement yard line and for the repair of the gap in the piping where the original meter had been, the Fents brought a district court suit against ONG on October 6, 1988. ² ONG moved to dismiss the action, contending that the Commission had exclusive jurisdiction over the subject matter and that the Fents had failed to state a claim upon which relief could be granted. The trial court dismissed the Fents' amended petition (a) for lack of jurisdiction and (b) for failure to state a cause of action. The Court of Appeals reversed the nisi prius decision, remanding the case for further proceedings. ³ The appellate tribunal held that the trial court erred (a) in ruling that it was without jurisdiction of the action (since the Commission is not a court of general jurisdiction with power to adjudicate claims for money damages from a public utility's negligent acts) and (b) in concluding the Fents failed to state a cause of action (because, under the terms of Commission Rule 6a [Standards for Gas Service], ONG was responsible for the maintenance of the pipeline up to the output side of the meter in the Fents' basement and was under a duty to repair the gap in the basement line as well as the leak in the yard line). The cause so remanded remains pending before the district court.

Fent II Litigation

While the district court action was pending on remand, ONG filed an application with the Commission requesting (a) an interpretation of the applicable rules and (b) an order that ONG customers are responsible for installing and maintaining all piping between the customers' property or curb lines and the customers' point of consumption, regardless of the meter's location upon the premises. The Fents, who were parties to the agency proceeding, objected to ONG's quest, asserting that (a) their dispute with the utility had been resolved by Fent I and (b) the Commission lacked power to decide the issues placed in controversy.

The administrative law judge [ALJ], who heard the case, concluded that the Commission had jurisdiction to hear the dispute and recommended that ONG be declared responsible for maintaining yard lines located away from utility easements. ⁴ The Fents, ONG and the Commission's Public Utility Division [Division] all appealed to the Commission en banc. ⁵ The utility customers represented their objection to the Commission's cognizance, arguing that the issue sought to be tendered had been settled by Fent I. ONG excepted to certain ALJ findings and recommendations on the grounds that they were contrary to the established rules' interpretation as well as unsupported by evidence. ⁶

The Commission ruled that it has jurisdiction and the gas utility customer is financially responsible for the installation, maintenance, repair or replacement of the gas yard line--the line extending between the utility easement and the premises served--regardless of the meter's original location away from the utility easement.

The Fents appealed, urging that Fent I had settled ONG's liability for the costs of the re-installation. In support of their position they direct us to some excerpts from Fent I which indicate that under Commission Rule 6a ONG is responsible for the maintenance of the Fents' gas pipeline as well as for the repair of the ten-inch gap left in the aftermath of the removal of the meter and of the leaking gas pipeline section. The Fents argued that the appellate court pronouncement bars ONG from relitigating its liability before the agency forum. The Court of Appeals held that (a) no language in Fent I raises a barrier to the Commission's consideration of ONG's application and (b) the agency has jurisdiction to interpret its own rules. When called upon to construe an administrative rule, the opinion explains, courts generally show great deference to agency interpretation of its own language. Moreover, the appellate court observed, the Commission's ruling would be useful in the post-remand district court proceedings directed by Fent I.

II THE RELITIGATION BAR

The Fents assert that in Fent I the Court of Appeals determined that (a) the trial court had subject matter jurisdiction of their private dispute with ONG, and (b) their petition had stated a claim upon which relief could be granted. In resolving the latter issue, the Fents urge, the appellate court settled ONG's liability, under the terms of Commission Rule 6a, for the maintenance and repair of their gas pipeline.

ONG and Commission counter by explaining that the issues in Fent I and Fent II are different. In Fent I, they urge, the reviewing tribunal was called upon to determine whether the district court erred in giving ONG summary judgment for want of subject-matter jurisdiction. According to ONG, the appellate court neither interpreted the Commission rule now in issue, nor did it decide that the Fents' claim was governed by any rule; it simply concluded summary judgment could not stand because there were fact issues to be tried. ONG adds that its sole purpose in bringing this proceeding before the agency was to assist the district court in identifying the rules that govern public utility liability in contest between these parties.

A. ONG's Argument For Treating Fent I As Summary Judgment's Reversal That Settles No More Than The Presence Of Fact Issues To Be Tried Must Fail Because Post-Appeal Construction Of The Meaning And Effect Of The Decisional Process On Review Is Governed Solely By The Face Of The District Court's Judgment Roll Viewed Together With The Appellate Pronouncement

In support of their position that in Fent I the dismissal quest was treated as one for summary judgment under 12 O.S.Supp.1984 § 2012(B), ⁷ ONG and the Commission appear to rely on evidentiary material tendered to the district court in its decisional stages. These materials were not incorporated into the appellate record before us. But even if they had been included, we could not consider them in pronouncing what was settled by Fent I. Evidence lies outside the Once a ruling has become final, either for want of an appeal or, as in Fent I, in consequence of an appellate court's decision, any controversy over the meaning and effect of that decision must be resolved by resort solely to the face of the judgment roll. ¹⁰ The court's inquiry into a judgment's meaning cannot extend beyond the instruments that are comprised within the record proper ¹¹ of the case. Proceedings dehors the judgment roll, i.e., those not apparent from its four corners, may not be examined. There can be but one appellate review on the full transcript of...