State ex rel. Columbia Gas of Ohio, Inc. v. Henson

• Decision Date: 07 July 2004
• Docket Number: Case No. 2004-0353.
• Citation: 810 NE 2d 953,102 Ohio St.3d 349
• Parties: The State ex rel. Columbia Gas of Ohio, Inc. v. Henson, Judge.
• Court: Ohio Supreme Court

102 Ohio St.3d 349

2004-Ohio-3208

810 NE 2d 953

2004-Ohio-3208

The State ex rel. Columbia Gas of Ohio, Inc. v. Henson, Judge.

Case No. 2004-0353.

In the Supreme Court of Ohio.

Submitted May 25, 2004.

Decided July 7, 2004.

PER CURIAM.

{¶1} Relator, Columbia Gas of Ohio, Inc. ("Columbia Gas"), is a public-utility corporation that supplies natural gas to both commercial and residential Ohio customers. Prime Business Properties ("Prime Business") is a Columbia Gas customer in Richland County, Ohio.

{¶2} On January 28, 2003, Columbia Gas shut off gas to two commercial property units owned by Prime Business because of the customer's failure to pay for service in November and December 2002. Columbia Gas sent invoices for natural-gas service to Prime Business for the two units covering billing periods ending November 15, 2002, December 18, 2002, and January 21, 2003. These invoices detailed balances due to Columbia Gas and advised Prime Business to pay these past-due accounts to "avoid possible termination of service." According to Columbia Gas, it gave Prime Business written notice of termination of natural-gas service for the two units on January 14, 2003. Seven hours after its termination of service on January 28, 2003, Columbia Gas restored service to the two units.

{¶3} On January 30, 2003, Prime Business filed a complaint against Columbia Gas in the Richland County Court of Common Pleas. In its complaint, Prime Business alleged that Columbia Gas had breached its legal duty in terminating service to the property without 24-hours' notice, in violation of R.C. 4933.12(A).¹ Prime Business also alleged that Columbia Gas had tortiously interfered with Prime Business's business relationship with its tenants by "shutting off the gas service to the property without just cause and without the required notice, then compounding the problem by misrepresenting to the property owner about when it would restore gas service to the property." It further alleged that this conduct constitutes "grossly negligent and intentional tortious misconduct."

{¶4} On March 12, 2003, Columbia Gas moved to dismiss the complaint for lack of subject-matter jurisdiction. Columbia Gas claimed that the matters alleged in Prime Business's complaint were within the exclusive jurisdiction of the Public Utilities Commission of Ohio ("commission").

{¶5} On June 10, 2003, respondent, Judge James D. Henson of the common pleas court, denied the motion. Judge Henson concluded that Prime Business's complaint sounded in tort and was "not about service or rates." He further found that the commission had no power to "determine legal rights and liabilities or to determine and award damages."

{¶6} In August 2003, Prime Business submitted interrogatories and a request for document production to Columbia Gas. In these discovery requests, Prime Business sought information concerning Columbia Gas's compliance with commission regulations, directives, and policies concerning customer service and service-termination procedures. Columbia Gas moved for a protective order, which Judge Henson granted.

{¶7} From October 2003 until February 2004, the parties discussed settlement. On February 23, 2004, Columbia Gas filed this action for a writ of prohibition to prevent Judge Henson from proceeding further on the Prime Business complaint. On February 27, the court granted the motion of Columbia Gas for expedited consideration and an alterative writ. State ex rel. Columbia Gas of Ohio, Inc. v. Henson, 101 Ohio St.3d 1463, 2004-Ohio-862, 804 N.E.2d 37.

{¶8} This cause is now before the court for its S.Ct.Prac.R. X(5) determination and to address the motion of Prime Business to intervene as a respondent. Prime Business also filed a merit brief as an intervenor, or in the alternative, as an amicus curiae in support of Judge Henson.

Motion of Prime Business to Intervene

{¶9} Prime Business moves to intervene as a respondent. It claims entitlement to intervene as of right under Civ.R. 24(A) or permissively pursuant to Civ.R. 24(B). See S.Ct.Prac.R. X(2) ("All original actions shall proceed under the Ohio Rules of Civil Procedure, unless clearly inapplicable").

{¶10} Prime Business, however, failed to satisfy the requirements of Civ.R. 24(C), which mandates that the motion "be accompanied by a pleading * * * setting forth the claim or defense for which intervention is sought." Prime Business did not file any pleading with its motion to intervene.

{¶11} Therefore, consistent with precedent, we deny the motion to intervene. See State ex rel. Geauga Cty. Bd. of Commrs. v. Milligan, 100 Ohio St.3d 366, 2003-Ohio-6608, 800 N.E.2d 361, ¶ 13; see, also, State ex rel. Wilkinson v. Reed, 99 Ohio St.3d 106, 2003-Ohio-2506, 789 N.E.2d 203, fn. 1, and cases cited therein.

{¶12} Nevertheless, because Prime Business was entitled to file an amicus curiae brief without leave of court, we will consider its brief in our determination. See S.Ct.Prac.R. VI(6).

Prohibition

{¶13} Columbia Gas requests a writ of prohibition to prevent Judge Henson from proceeding on Prime Business's complaint. In order to be entitled to the writ, Columbia Gas must establish that (1) Judge Henson is about to exercise judicial power, (2) the exercise of that power is not authorized by law, and (3) denial of the writ will cause injury for which no other adequate remedy in the ordinary course of law exists. See Campaign to Elect Larry Carver Sheriff v. Campaign to Elect Anthony Stankiewicz Sheriff, 101 Ohio St.3d 256, 2004-Ohio-812, 804 N.E.2d 419, ¶ 9.

{¶14} Columbia Gas asserts that Judge Henson patently and unambiguously lacks jurisdiction over the claims raised by Prime Business. "If a lower court patently and unambiguously lacks jurisdiction to proceed in a cause, prohibition * * * will issue to prevent any future unauthorized exercise of jurisdiction and to correct the results of prior jurisdictionally unauthorized actions." State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 12. Consequently, "in cases of a patent and unambiguous lack of jurisdiction, the requirement of a lack of an adequate remedy of law need not be proven because the availability of alternate remedies like appeal would be immaterial." State ex rel. State v. Lewis, 99 Ohio St.3d 97, 2003-Ohio-2476, 789 N.E.2d 195, ¶ 18.

{¶15} Therefore, the dispositive issue is whether, as Columbia Gas contends, Judge Henson patently and unambiguously lacks jurisdiction over Prime Business's claims because these claims are within the commission's exclusive jurisdiction. For the following reasons, Judge Henson patently and unambiguously lacks jurisdiction over these claims. Thus, Columbia Gas is entitled to a writ of prohibition.

{¶16} R.C. 4905.22 specifies that "every public utility shall furnish necessary and adequate service * * *." But " the commission has exclusive jurisdiction over various matters involving public utilities, such as rates and charges, classifications, and service, effectively denying to all Ohio courts (except this court) any jurisdiction over such matters." (Emphasis added.) State ex rel. Cleveland Elec. Illum. Co. v. Cuyahoga Cty. Court of Common Pleas (2000), 88 Ohio St.3d 447, 450, 727 N.E.2d 900. R.C. 4905.26 confers exclusive jurisdiction on the commission to determine whether any service rendered by a public utility "is in any respect unjust, unreasonable, * * * or in violation of law."

{¶17} Moreover, the commission's exclusive jurisdiction includes complaints regarding the termination of service by public utilities. See Milligan v. Ohio Bell Tel. Co. (1978), 56 Ohio St.2d 191, 10 O.O.3d 352, 383 N.E.2d 575, paragraph two of the syllabus ("A Court of Common Pleas is without jurisdiction to hear a claim alleging that a utility has violated R.C. 4905.22 by * * * wrongfully terminating service, since such matter is within the exclusive jurisdiction of the Public Utilities Commission"); Higgins v. Columbia Gas of Ohio, Inc. (2000), 136 Ohio App.3d 198, 202, 736 N.E.2d 92 ("refusal or termination of service by a public utility is a matter which is in the exclusive jurisdiction of the commission, subject to an appeal to the Ohio Supreme Court").

{¶18} Judge Henson concluded, however, that the Prime Business complaint sounded in tort: tortious interference with a business relationship based upon an intentional, fraudulent act. Judge Henson and Prime Business are correct that "courts retain limited subject-matter jurisdiction over pure common-law tort and certain contract actions involving utilities regulated by the commission." State ex rel. The Illuminating Co. v. Cuyahoga Cty. Court of Common Pleas, 97 Ohio St.3d 69, 2002-Ohio-5312, 776 N.E.2d 92, ¶ 20, and cases cited therein.

{¶19} But the mere fact that Prime Business cast its allegations in the underlying case to sound in tort is insufficient to confer jurisdiction upon the common pleas court. Id. at ¶ 21.

{¶20} Instead, the substance of Prime Business's claims involve Columbia Gas's termination and restoration of natural-gas service. These claims are manifestly service-related complaints, which are within the exclusive jurisdiction of the commission. Milligan, 56 Ohio St.2d 191, 10 O.O.3d 352, 383 N.E.2d 575, paragraph two of the syllabus; Higgins, 136 Ohio App.3d at 202, 736 N.E.2d 92; Tongren v. D & L Gas Marketing, Ltd., 149 Ohio App.3d 508, 2002-Ohio-5006, 778 N.E.2d 76, ¶ 21 ("The commission possesses exclusive jurisdiction over consumer complaints concerning quality of service"); see, also, Suleiman v. Ohio Edison Co. (2001), 146 Ohio App.3d 41, 764 N.E.2d 1098 (claims for damages from negligence in replacing a meter and fraud in adjusting a customer's bill to compensate for a nonworking meter are acts relating to service and are within the exclusive jurisdiction of the commission).

{¶21} Prime Business's complaint concerned Columbia Gas's alleged wrongful termination of service as well as its alleged delay in restoring servi...