Yoby v. City of Cleveland

• Docket Number: 112013
• Decision Date: 29 June 2023
• Citation: 2023 Ohio 2180
• Parties: CLINT YOBY, ET AL., Plaintiffs-Appellees, v. CITY OF CLEVELAND, ET AL., Defendants-Appellants.
• Court: Ohio Court of Appeals

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2023-Ohio-2180

CLINT YOBY, ET AL., Plaintiffs-Appellees, v. CITY OF CLEVELAND, ET AL., Defendants-Appellants.

No. 112013

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 29, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-852708

Appearances:

Merriman Legando Williams & Klang, LLC, Drew Legando, Tom Merriman, and Edward S. Jerse; Bashein & Bashein Co. LPA, W. Craig Bashein, and John Hurst; Scott+Scott LLP Geoffrey M. Johnson, and Deborah Clark-Weintraub (pro hac vice); Meyers, Roman, Friedberg & Lewis, and Peter Turner; Brakey Law LLC, and Carolyn Brakey, for appellees.

Mark Griffin, Director of Law, and Delante Spencer Thomas, Chief Assistant Director of Law; Zashin & Rich Co., L.P.A Stephen J. Zashin, Sarah J. Moore, and Jzinae N. Jackson; Carpenter Lipps & Leland LLP, Jeffrey A. Lipps, Kimberly W. Bojko, Angela Paul Whitfield, and Jonathan Wygonski, for appellant.

JOURNAL ENTRY AND OPINION

MARY J. BOYLE, JUDGE

{¶ 1} This case arises from a class action lawsuit filed by plaintiffs-appellees, Clint Yoby, et al. (collectively "appellees"), against defendant-appellant, the city of Cleveland ("the City"), regarding whether the City was authorized to assess certain adjustments on appellees' Cleveland Public Power ("CPP") electric bills. Seven years into this litigation, the City enacted Ordinance No. 472-2022, which amended appellees' CPP contracts and provided that arbitration shall be the exclusive forum to resolve disputes regarding rates and services provided by CPP. The City then sought to stay the proceedings and compel arbitration against appellees, basing its motion on the recently enacted ordinance. We are now asked to determine whether the trial court erred in denying the City's motion to stay proceedings and compel arbitration against appellees. For the reasons set forth below, we reverse and remand for a trial as set forth in R.C 2711.03(B).

I. Facts and Procedural History

{¶ 2} This is the second appeal in this case, and the background was previously set forth by this court in the prior appeal, Yoby v. Cleveland, 2020-Ohio- 3366, 155 N.E.3d 258, (8th Dist.), discretionary appeal not allowed, 162 Ohio St.3d 1411, 2021-Ohio-961, 65 N.E.3d 338 (Mar. 30, 2021):

The city's municipally owned utility [CPP] sells electric power to customers in Cleveland, including residential, commercial, and industrial customers such as the [plaintiffs] in this case.

In the 1970s, CPP generated electric power and distributed it to its customers.

* * *

By 1977, CPP essentially ceased generating power and became an electricity reseller. The parties admit that between 1974 and 1984, CPP did not assess any costs that would qualify for recoupment under the Environmental and Ecological Adjustment (hereinafter "EEA").

In 1984, CPP began levying adjustments to customers' electric bills under the authority of an EEA. It is stipulated that between 1984 and 2013, CPP generated $188 million in revenue by making these adjustments. When these adjustments were assessed, the charges were not separately delineated or identified on the bills. Instead, the amounts were combined with the other city council-approved adjustment - the Energy Adjustment Charge (hereinafter "EAC"). Accordingly, customer bills would list the base-rate charges and an additional "Energy Adjustment Charge," which would include adjustments under both the EAC and EEA.

[Plaintiffs] brought suit against the city contending (1) that CPP was not authorized to adjust customer bills pursuant to [Cleveland Codified Ordinances ("C.C.O.") 523.17] to recover the EEA costs incurred because those costs were not authorized under the ordinance; and (2) CPP was required to separately identify on customer bills the amounts assessed for an EEA, instead of embedding them into a single line item identified as "Energy Adjustment Charge." According to [plaintiffs], the city's actions constituted a breach of contract and fraud.

Both parties moved for summary judgment. The city sought full and complete summary judgment on all claims [breach of contract, fraud, declaratory judgment, injunction, and unjust enrichment], and [plaintiffs] sought partial summary judgment on their breach of contract cause of action. The trial court granted the city's motion for summary judgment, denied [plaintiffs'] motion for partial summary judgment, and entered judgment in favor of the city on all claims of the complaint.

Id. at ¶ 2-3, 5-8.

{¶ 3} On appeal, this court considered whether the City was authorized to assess these adjustments on the plaintiffs' electric bills. We concluded that the City was not entitled to summary judgment on plaintiffs' breach-of-contract claim because there was a "material question of fact whether the aggregate revenues collected under the base rates and the authorized adjustment charges exceeded that permitted by both the base rates and the other ordinances." Id. at ¶ 76. We further found that the city was entitled to immunity on the plaintiffs' claims for fraud because the plaintiffs "presented no evidence that their fraud claims fell within any of the exceptions in R.C. 2744.02(B)." Id. at ¶ 87. With regard to the plaintiffs' claims for restitution, unjust enrichment, and declaratory relief, we found that these claims were based upon the same facts as those supporting their claim for breach of contract. Id. at ¶ 79. As a result, summary judgment was inappropriate as to these causes of action and the matter was remanded to the trial court for further proceedings. Id. at ¶ 79, 110.

{¶ 4} Following our remand, the matter was set for a jury trial in October 2021, which was ultimately rescheduled for trial in October 2022. The October 2022 trial date was set at a May 11, 2022 telephone conference regarding the case management schedule. Two weeks later, on May 25, 2022, the City enacted Ordinance No. 472-2022, which contained amendments to C.C.O. Chapter 523 -Rules and Rates. This ordinance was "[a]n emergency ordinance to clarify and amend various sections of Chapter 523 of the Codified Ordinances of Cleveland, Ohio, 1976, as amended or supplemented by various ordinances; and to supplement the codified ordinances by enacting new Sections 523.115 and 523.27." Cleveland City Ordinance No. 472-2022.

{¶5} Relevant to the instant case, the ordinance contained a new section, C.C.O. 523.115 - Cleveland Public Power Arbitration Panel, which provides arbitration as the exclusive forum to handle all disputes arising under C.C.O. Chapter 523. It states, "The Arbitration Panel has the exclusive authority to review all disputes under this Chapter and to make determinations with regard to the matters presented to it. These determinations shall be binding on the City and the petitioning customer, except that the Commissioner shall have the authority to order that electric service not be terminated." C.C.O. 523.115(b). The ordinance also amended C.C.O. 523.19(b) - Electric Service Agreement, by adding the following: "ART. 8: The Consumer agrees that the exclusive forum for all disputes regarding rates and charges for service provided by the Division of Cleveland Public Power or other issues arising from Chapter 523 or this agreement shall be resolved by the Arbitration Panel as set forth in Section 523.115."

{¶ 6} The change of terms provision in the ESA provide:

ART. 3: For the electric service furnished under this contract, the Consumer agrees to pay the City in accordance with the terms, conditions and applicable rate schedule(s) established by or as may be amended from time to time by the City and approved by City Council, and said rates, terms and conditions are hereby made a part of this agreement the same as if incorporated herein.

ART. 4: The Consumer agrees to comply with all the rules and regulations as may be established by the City, including the rules and regulations associated with all rates, terms and conditions of the applicable rate schedule(s), as may be amended from time to time by the City and approved by City Council, all of which are by reference made a part of this agreement.

C.C.O. 523.19(b). The ordinance also included a provision stating that "it is Council's intent to make this Ordinance retroactive to the fullest extent permitted by law[.]" Cleveland City Ordinance No. 472-2022.

{¶ 7} On June 21, 2022, the City filed a motion to stay proceedings and compel arbitration. The City, relying on C.C.O. 523.115 and Pivonka v. Corcoran, 162 Ohio St.3d 326, 2020-Ohio-3467, 165 N.E.3d 1098, argued that the CPP Arbitration Panel has exclusive authority and jurisdiction to preside over all disputes arising under C.C.O. Chapter 523.^[1] The appellees' opposed arbitration, arguing that: (1) the City does not have the power to limit the trial court's jurisdiction; (2) Pivonka is distinguishable; (3) there is no proof of an agreement to arbitrate; (4) under the terms of the ordinance itself, the City does not have a right to compel; (5) the City's modification of the contract is procedurally unconscionable; (6) the City's arbitration panel is substantively unconscionable; and (7) the City waived any right to arbitrate. The trial court scheduled an oral argument to hear the parties' respective positions on the motion in September 2022. At the beginning of the argument, the court stated:

At this particular time the Court is going to make sure that we all understand what we're doing here today, so we're going to set the parameters. Number one, this is not an evidentiary hearing. Each of the parties have presented to this Court filings, pleadings. The Court has had an opportunity to review them. We have the motion of the defendant, City of Cleveland, to stay proceedings and compel arbitration, which was filed on June 21, 2022.

The

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