Satterfield v. Ameritech Mobile Communications, Inc. (Slip Opinion) , 155 Ohio St. 3d 463 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Satterfield v. Ameritech Mobile Communications, Inc., Slip Opinion No. 2018-Ohio-5023.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2018-OHIO-5023SATTERFIELD ET AL.; INTERMESSAGE COMMUNICATIONS, APPELLEE, v.
AMERITECH MOBILE COMMUNICATIONS, INC., ET AL.; CINCINNATI SMSA
LIMITED PARTNERSHIP, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Satterfield v. Ameritech Mobile Communications, Inc., Slip
Opinion No. 2018-Ohio-5023.]
Damages—Class actions—Attempted recovery under R.C. 4905.61 of treble
damages from public utility based on prior order of the Public Utilities
Commission—R.C. 4905.61 limits recovery of treble damages to the
“person, firm, or corporation” directly injured as a result of the “violation,
failure, or omission” found by the Public Utilities Commission.
(No. 2017-0684—Submitted July 18, 2018—Decided December 18, 2018)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 104211, 2017-Ohio-928.
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SUPREME COURT OF OHIO
KENNEDY, J.
{¶ 1} In this discretionary appeal from a judgment of the Eighth District
Court of Appeals, we consider the parameters established by R.C. 4905.61
regarding the parties that have standing to bring a treble-damages action pursuant
to that statute. Here, appellee, Intermessage Communications (“Intermessage”),
and members of a proposed class of retail cellular-telephone-service subscribers
seek to recover treble damages under R.C. 4905.61 for regulatory violations
committed in the mid-1990s when those regulatory violations—as determined by
the Public Utilities Commission of Ohio (“PUCO”)—related to the wholesale
cellular-service market.
{¶ 2} Because the language of R.C. 4905.61 limits recovery of treble
damages to the “person, firm, or corporation” directly injured as a result of the
“violation, failure, or omission” found by the PUCO, we hold that Intermessage
and the proposed class of retail cellular-service subscribers lack standing to bring
an action pursuant to R.C. 4905.61. Moreover, because the resolution of the first
proposition of law asserted by appellant, Cincinnati SMSA Limited Partnership
(operating under the trade name Ameritech Mobile) (“Ameritech”), resolves this
case, we decline to address Ameritech’s other proposition of law. We therefore
reverse the judgment of the Eighth District and order the matter dismissed.
FACTS AND PROCEDURAL HISTORY
{¶ 3} The origins of the current action arose in October 1993, when
Westside Cellular, Inc., d.b.a. Cellnet (“Cellnet”), filed a multicount complaint with
the PUCO against Ameritech and other wholesale cellular-service providers. See
In re Complaint of Westside Cellular, Inc. v. New Par Cos., Pub. Util. Comm. No.
93-1758-RC-CSS, 2001 Ohio PUC LEXIS 18, *1-2, 96-100, 133-137, 230-233
(Jan. 18, 2001) (“the Cellnet order”). We will focus on only the allegations against
Ameritech and the resolution of those allegations in the Cellnet order because
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Ameritech is the only wholesale cellular-service provider involved in the current
dispute.
{¶ 4} Cellnet, a cellular-telephone-service reseller, had purchased cellular
service on a wholesale basis from Ameritech, rebranded the service, and marketed
it on a retail basis. Westside Cellular, Inc. v. Pub. Util. Comm., 98 Ohio St.3d 165,
2002-Ohio-7119, 781 N.E.2d 199, ¶ 1. Cellnet alleged that Ameritech had engaged
in rate discrimination against it. More specifically, Cellnet claimed that Ameritech
had failed to offer cellular service, equipment, and features to Cellnet on a
wholesale basis at the same rate Ameritech had charged its own retail businesses.
Id.; see also the Cellnet order, 2001 Ohio PUC LEXIS 18 at *230-233. Cellnet also
claimed that Ameritech had failed to maintain separate operations and records for
its wholesale and retail businesses. Id. at *96-100.
{¶ 5} In 2001, the PUCO issued the Cellnet order, finding that Ameritech
had engaged in numerous practices that were prohibited by R.C. Chapter 4905. The
PUCO found that Ameritech had failed to maintain its records in a manner that
satisfied the PUCO’s overriding purpose to ensure that wholesale cellular-service
providers were providing access on a nondiscriminatory basis. Id. at *108-112.
The PUCO further found that Ameritech had violated R.C. 4905.33 by charging
Cellnet a higher rate than Ameritech’s retail affiliate paid for the same service under
substantially the same circumstances and conditions. Id. at *151.
{¶ 6} Ameritech appealed the findings of the PUCO in the Cellnet order as
of right to this court. We affirmed. Cincinnati SMSA Ltd. Partnership v. Pub. Util.
Comm., 98 Ohio St.3d 282, 2002-Ohio-7235, 781 N.E.2d 1012, ¶ 8.
{¶ 7} Based upon the PUCO’s ruling regarding Ameritech’s activities in the
wholesale cellular-service market, Intermessage and two other named plaintiffs
who are no longer involved in this litigation—Cindy Satterfield and Cindy
Satterfield, Inc., a.k.a. Highland Speech Services, Inc.—filed the instant class-
action complaint against Ameritech and other parties in December 2003. Because
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only the claims of Intermessage and the proposed class against Ameritech are at
issue in this case as it comes to us, we will limit our discussion of the facts to those
parties.
{¶ 8} Intermessage was a retail purchaser of cellular-telephone service from
Ameritech. It entered into contracts with Ameritech for cellular-telephone numbers
and used the accompanying service to back up alarm systems that Intermessage
sold to its customers. Intermessage paid Ameritech for the retail cellular service
and then passed those costs on to its customers.
{¶ 9} Intermessage initially sought to define the class as “all subscribers to
Ameritech Mobile service from 1993-1998” and sought recovery under several
different theories of relief, including under R.C. 4905.61. Intermessage claimed
that the practices Ameritech had engaged in—practices for which the PUCO had
already found Ameritech liable—included preventing cellular-service resellers
from entering the Ohio market and from increasing the resellers’ market shares.
Intermessage further alleged that these practices caused each member of the
proposed class to pay more for cellular-telephone service than the retail market
otherwise would have charged.
{¶ 10} The trial court in 2006 and 2008 made several rulings that limited
Intermessage’s class action against Ameritech to recovery only under R.C. 4905.61
and only for the period October 18, 1993, through September 8, 1995.
{¶ 11} The trial court eventually granted Intermessage’s motion for class
certification, certifying a class under Civ.R. 23(A) and (B)(3) consisting of “all
retail subscribers of [Ameritech] who purchased service with an Ohio area code
within geographic areas in which the PUCO decision found wholesale price
discrimination during the period October 18, 1993 through September 8, 1995”
upon its finding that the statutory prerequisites for class certification had been
satisfied.
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{¶ 12} The Eighth District Court of Appeals affirmed, concluding that the
trial court had not abused its discretion in certifying the class. 2017-Ohio-928, 86
N.E.3d 830, ¶ 30.
{¶ 13} We accepted the following two propositions of law:
A claimant lacks standing to sue under R.C. 4905.61 for
“treble the amount of damages sustained in consequence of the
violation” absent a prior determination by the Public Utilities
Commission that the claimant’s rights under a specific public
utilities statute or commission order were violated.
Where a plaintiff relies upon a damages model to establish
that common issues would predominate, the model must
demonstrate that injury-in-fact and damages can be proven on a
class-wide basis.
151 Ohio St.3d 1501, 2018-Ohio-365, 90 N.E.3d 945.
ARGUMENTS OF THE PARTIES
{¶ 14} Ameritech contends that Intermessage’s class action cannot survive
because the plain meaning of R.C. 4905.61 provides standing to sue only to those
persons or entities whose rights the PUCO has expressly found were violated. In
other words, Ameritech maintains that the statutory language unequivocally limits
standing to persons or entities directly injured by the violations found by the PUCO.
Ameritech asserts that there is no language in R.C. 4905.61 that authorizes a class-
action lawsuit for indirect harms allegedly caused by a violation of the rights of
some other person or entity. Intermessage counters that this court should not adopt
Ameritech’s interpretation, because Ameritech seeks to have the court ignore the
actual language of the statute—which gives standing to “the person * * * injured”
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by a violation—and Ameritech also seeks to have us insert the phrase “whose rights
the PUCO expressly finds to have been violated” into the statute.
ANALYSIS
{¶ 15} As set forth above, Ameritech’s first proposition of law asserts that
a claimant lacks standing to bring an action under R.C. 4905.61 when the PUCO
has never made a determination that that claimant’s rights under a specific statute
or PUCO order were violated. Because the language of R.C. 4905.61 is controlling,
we begin in a familiar place—the principles of statutory construction.
{¶ 16} The interpretation of a statute is a question of law that we review de
novo. State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9.
A court’s main objective is to determine and give effect to the legislative intent.
State ex rel. Solomon v. Police & Firemen’s Disability & Pension Fund Bd. of
Trustees, 72 Ohio St.3d 62, 65, 647 N.E.2d 486 (1995).
{¶ 17} The intent of the General Assembly must be determined primarily
from the language of the statute itself. Stewart v. Trumbull Cty. Bd. of Elections,
34 Ohio St.2d 129, 130, 296 N.E.2d 676 (1973). “When the statutory language is
plain and unambiguous, and conveys a clear and definite meaning, we must rely on
what the General Assembly has said.” Jones v. Action Coupling & Equip., Inc., 98
Ohio St.3d 330, 2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12, citing Symmes Twp. Bd.
of Trustees v. Smyth, 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000).
{¶ 18} “Where a statute defines terms used therein, such definition controls
in the application of the statute * * *.” Good Samaritan Hosp. of Dayton v.
Porterfield, 29 Ohio St.2d 25, 30, 278 N.E.2d 26 (1972), citing Terteling Bros., Inc.
v. Glander, 151 Ohio St. 236, 241, 85 N.E.2d 379 (1949), and Woman’s Internatl.
Bowling Congress, Inc. v. Porterfield, 25 Ohio St.2d 271, 275, 267 N.E.2d 781(1971). Terms that are undefined in a statute are accorded their common, everyday
meaning. R.C. 1.42.
{¶ 19} The public-utility treble-damages statute, R.C. 4905.61, provides:
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If any public utility * * * does, or causes to be done, any act
or thing prohibited by Chapters 4901., 4903., 4905., 4907., 4921.,
4923., and 4927. of the Revised Code, or declared to be unlawful,
or omits to do any act or thing required by the provisions of those
chapters, or by order of the public utilities commission, the public
utility * * * is liable to the person, firm, or corporation injured
thereby in treble the amount of damages sustained in consequence
of the violation, failure, or omission. Any recovery under this
section does not affect a recovery of the state for any penalty
provided for in the chapters.
{¶ 20} We have construed this provision to require that before a suit may
be brought for treble damages, there must have been a prior declaration by the
PUCO that the public utility violated one of the statutes enumerated within R.C.
4905.61 or an order of the PUCO. Milligan v. Ohio Bell Tel. Co., 56 Ohio St.2d
191, 194, 383 N.E.2d 575 (1978). With this understanding in mind, we turn to the
question of the statute’s construction.
{¶ 21} Ameritech’s argument focuses on the legislature’s use of the word
“the”—instead of a word such as “a” or “any”—in the phrase “the person, firm, or
corporation.” It contends that the General Assembly’s choice to use “the” to
precede “person” demonstrates the legislative intent to confer standing only on
those persons or entities whose rights the PUCO has expressly found were violated.
However, this is not where our focus lies. Instead, resolution of this matter centers
upon the phrases “injured thereby” and “in consequence of the violation, failure, or
omission.” The General Assembly did not define “injure,” “thereby,” or
“consequence” for purposes of R.C. 4905.61. Therefore, we first consider the
dictionary definitions of these terms.
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{¶ 22} “Injure” is defined as “[t]o violate the legal right of another or inflict
an actionable wrong.” Black’s Law Dictionary 785 (6th Ed.1990). “Thereby” is
defined as “by that,” “by that means,” “in consequence of that,” “connected with
that,” or “with reference to that.” Webster’s Third New International Dictionary
2372 (2002). “Consequence” is defined as “something that is produced by a cause
or follows from a form of necessary connection or from a set of conditions” or “a
natural or necessary result.” Id. at 482.
{¶ 23} Applying these definitions, R.C. 4905.61 is susceptible of only one
interpretation. “Thereby” and “in consequence of” express that the phrase “the
person, firm, or corporation injured” specifically relates to the violation, failure, or
omission declared by the PUCO. This reflects the General Assembly’s intention to
limit the recovery of treble damages to only “the person, firm, or corporation” that
was injured as a consequence of the violation declared by the PUCO. In other
words, the ambit of “the person, firm, or corporation” that can bring a treble-
damages action after legal rights have been violated depends on the terms of the
PUCO’s finding or order declaring a violation. Therefore, to determine the persons
or entities that have standing to bring a treble-damages action under the statute, the
relevant order or finding of the PUCO must be examined.
{¶ 24} In this matter, the violations found in the Cellnet order were related
to Ameritech’s failure to maintain separate wholesale and retail operations and the
corresponding discriminatory impact on nonaffiliated resellers. The PUCO stated
in the Cellnet order that the duty to maintain separate operations was not solely
owed to the PUCO but was necessary to protect unaffiliated resellers from
discriminatory and anticompetitive conduct:
“[I]t is necessary that Cellular licensees provide access to * * *
cellular service pursuant to terms, conditions, and prices that are
universally available on a nondiscriminatory basis to all customers,
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affiliated and non-affiliated alike” in order to prevent frustration of
the public policy respecting resale.
(Emphasis added.) 2001 Ohio PUC LEXIS 18 at *112-113, quoting In re
Commission’s Investigation into Implementation of Sections 4927.01 through
4927.05, Revised Code, as They Relate to Competitive Telecommunications Servs.,
Pub. Util. Comm. No. 89-563-TP-COI, at 22 (Oct. 22, 1993). Moreover, the PUCO
recognized the specific impact to Cellnet that resulted from Ameritech’s
discriminatory practices:
[T]he record clearly demonstrates that Cellnet was treated less
favorably, at least in some cases, than Ameritech Mobile’s retail arm
and, in some cases, retail customers. * * * [T]he Commission points
to the comparisons provided relative to the terms, and conditions
offered to Cellnet and those extended by Ameritech Mobile retail
* * *. In addition, the Commission considers the comparison
between the rates offered to Cellnet to the rates, terms, and
conditions reflected in [certain] Cellnet Exhibits. * * * These
differences exist despite the fact that [two of] the Commission’s
* * * [past] orders [have] required that cellular licensees provide
access pursuant to terms, conditions, and prices that are universally
available on a nondiscriminatory basis.
Id. at *145-146.
{¶ 25} The Cellnet order reveals that pursuant to R.C. 4905.61, the parties
injured by the violations—Ameritech’s discriminatory behavior—were
nonaffiliated cellular-telephone-service resellers in the wholesale market, i.e.,
direct purchasers of wholesale cellular service from Ameritech. Intermessage was
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not a cellular-telephone-service reseller in the wholesale market. Intermessage was
a purchaser of cellular service. It was a retail customer of Ameritech that purchased
cellular service to back up its alarm systems, and any injuries it suffered were
qualitatively different from those found in the Cellnet order, meaning that
Intermessage’s injuries were indirect and remote. The fact that Intermessage
simply passed those costs on to its customers does not make Intermessage a reseller
in the wholesale market. Intermessage’s customers were not purchasing cellular
service from Intermessage. Intermessage’s customers were purchasing an alarm
system with backup features that relied on Ameritech’s cellular service. Therefore,
Intermessage and the other retail customers of Ameritech in the proposed class that
were similarly indirectly injured are unable to bring an action for treble damages
pursuant to R.C. 4905.61 based upon the violations found in the Cellnet order.
CONCLUSION
{¶ 26} Because the language of R.C. 4905.61 limits recovery of treble
damages to the “person, firm, or corporation” directly injured as a result of the
“violation, failure, or omission” found by the PUCO, we hold that Intermessage
and members of the proposed class of retail cellular-service subscribers lack
standing to bring an action pursuant to R.C. 4905.61. We therefore reverse the
judgment of the court of appeals and order the trial court to dismiss this matter.
Judgment reversed.
O’CONNOR, C.J., and O’DONNELL, FRENCH, FISCHER, DEWINE, and
DEGENARO, JJ., concur.
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Hahn, Loeser & Parks, L.L.P., Robert J. Fogarty, Dennis R. Rose, and
Royce R. Remington; Gary, Naegele & Theado, L.L.C., and Thomas R. Theado;
Randy J. Hart, L.L.P., and Randy J. Hart; Tricarichi & Carnes, L.L.C., and Carla
M. Tricarichi; and Law Offices of Mark Griffin and Mark D. Griffin, for appellee.
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January Term, 2018
Tucker Ellis, L.L.P., Irene C. Keyse-Walker, and Benjamin C. Sassé; and
Calfee, Halter & Griswold, L.L.P., and James F. Lang, for appellant.
Bricker & Eckler, L.L.P., Anne Marie Sferra, Drew Campbell, and Bryan
Smeenk, urging reversal for amici curiae Ohio Counsel of Retail Merchants, Ohio
Insurance Institute, Ohio Alliance for Civil Justice, and Ohio Association of Civil
Trial Attorneys.
Mac Murray & Shuster, L.L.P., Betty D. Montgomery, and Patrick W.
Skilliter, urging reversal for amicus curiae Betty D. Montgomery, former Attorney
General of Ohio.
K&L Gates, L.L.P., and J. Nicholas Ranjan; and Donald T. Boyd, urging
reversal for amici curiae Chamber of Commerce of the United States of America
and Ohio Chamber of Commerce.
Steven T. Nourse, urging reversal for amicus curiae Ohio Power Company,
d.b.a. AEP Ohio.
Rocco O. D’Ascenzo, urging reversal for amicus curiae Duke Energy Ohio,
Inc.
Joshua R. Eckert, urging reversal for amici curiae Ohio Edison Company,
Cleveland Electric Illuminating Company, and Toledo Edison Company.
Michael J. Schuler, urging reversal for amicus curiae Dayton Power and
Light Company.
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