In re Complaints of Lycourt-Donovan v. Columbia Gas of Ohio, Inc. (Slip Opinion) , 152 Ohio St. 3d 73 ( 2017 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re Complaints of Lycourt-Donovan v. Columbia Gas of Ohio, Inc., Slip Opinion No. 2017-Ohio-
7566.]
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
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2017-OHIO-7566
IN RE COMPLAINTS OF LYCOURT-DONOVAN ET AL., APPELLANTS, v. COLUMBIA
GAS OF OHIO, INC., INTERVENING APPELLEE; PUBLIC UTILITIES COMMISSION,
APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re Complaints of Lycourt-Donovan v. Columbia Gas of
Ohio, Inc., Slip Opinion No. 2017-Ohio-7566.]
Public utilities—R.C. 4905.20 and 4905.21—Natural-gas provider did not abandon
customers—Natural-gas provider intended to restore service to its
customers when dangerous condition was remedied—R.C. 4905.22—
Natural-gas provider did not provide inadequate service—Orders of Public
Utilities Commission affirmed.
(No. 2016-0080—Submitted May 17, 2017—Decided September 13, 2017.)
APPEAL from the Public Utilities Commission, Nos. 12-2877-GA-CSS, 13-124-
GA-CSS, and 13-667-GA-CSS.
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SUPREME COURT OF OHIO
O’CONNOR, C.J.
{¶ 1} This appeal is from orders issued by the Public Utilities Commission
of Ohio (“PUCO”). Appellants, Katherine Lycourt-Donovan, Seneca Builders,
L.L.C., and Ryan Roth are owners of residential property in the Toledo area who
filed complaints against intervening appellee, Columbia Gas of Ohio, Inc., after it
discontinued natural-gas service to their properties. Columbia Gas discontinued
service upon discovering “stray gas”1 near the homes.
{¶ 2} Natural gas occurs underground and can migrate into the basement of
a home through cracks in the foundation, drain lines, sewer lines, or other conduits.
If stray gas migrates into a confined area in sufficient concentrations, it can cause
a flash fire or explosion when it makes contact with an ignition source. It is
undisputed that Columbia Gas’s system is not the source of the stray gas found near
the homes owned by appellants and that Columbia Gas has no responsibility to
remediate the stray gas.
{¶ 3} The PUCO found that the presence of stray gas near the appellants’
properties created a verifiable safety hazard that justified Columbia Gas’s
discontinuing gas service to the homes.
{¶ 4} In their appeal from that order, the property owners assert two
propositions of law. They claim that Columbia Gas unlawfully abandoned service
and furnished inadequate service. Both claims lack merit. Although we are
sympathetic to the property owners’ plight, we are not persuaded that Ohio’s laws
are intended to fault a utility for taking reasonable steps to protect the safety of its
customers and others who live near those customers. We therefore affirm the
PUCO’s orders.
1
“Stray gas” is a term Columbia Gas uses to describe natural gas of an unknown source that is not
from its facilities.
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I. RELEVANT BACKGROUND
A. Stray gas is discovered at Oakside Road and Columbia Gas discontinues
service
{¶ 5} On May 24, 2012, the owner of a home on Oakside Road in Toledo
called Columbia Gas to report the presence of dead vegetation in her yard. Dead
vegetation can indicate a natural-gas leak. Columbia Gas conducted testing at the
house, which confirmed the presence of a 3 percent concentration of natural gas at
the home’s foundation. A natural-gas-in-air mixture in concentrations of 4 to 14
percent can be flammable, so Columbia Gas discontinued natural-gas service to the
home while it attempted to determine the nature and source of the stray gas.
Columbia Gas performed additional testing on May 25, 2012, to determine whether
the house lines and service lines were leaking, but testing by a third-party lab
showed that the natural-gas sample taken from the homeowner’s yard did not match
the natural gas in Columbia Gas’s lines.
{¶ 6} On May 29, 2012, the homeowner called Columbia Gas again, this
time to report an odor inside her home that she thought might be natural gas.
Testing performed that day showed the presence of natural gas in the basement.
During a follow-up inspection on May 31, 2012, Columbia Gas detected stray gas
near the foundations of 13 homes on Oakside Road, which prompted it to interrupt
service to those homes. Based on the follow-up inspection, and a supplemental
leak survey performed a few weeks later, Columbia Gas concluded that the stray-
gas problem was limited to Oakside Road.
B. Columbia Gas communicates with the customers of Oakside Road and
conducts more tests
{¶ 7} On the day of the follow-up inspection, Columbia Gas’s manager of
communications and community relations, Chris Kozak, and its operations-center
manager for the Toledo area, Curtis Anstead, went door-to-door to speak with
Oakside Road residents about the stray-gas issue. For those not home, Columbia
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Gas left a letter on the door explaining that it was stopping natural-gas service for
safety reasons. The letter explained that Columbia Gas would restore service once
the issue was resolved.
{¶ 8} On June 11, 2012, Kozak met with several Oakside Road residents to
discuss the situation. The residents presented Kozak with a list of 33 questions,
which Columbia Gas answered the next day. The answers described how Columbia
Gas had detected natural gas in the soil, why service had been interrupted, and what
could be done to reestablish service.
{¶ 9} On June 15, 2012, Columbia Gas sent another letter to the residents
of Oakside Road in which it reiterated the reasons that it had interrupted service
and stated that service would be restored once there was a clear indication that no
safety concerns were present. Attached to each letter was (1) a diagram showing
the locations and results of testing performed at each house the day before, (2) a
form for the governmental authority having jurisdiction over the stray-gas issue to
sign, assuring that a remediation system had been installed that made it safe for
Columbia Gas to restore service and consenting to the restoration of service by
Columbia Gas, and (3) a consent form for the property owner to sign, which
likewise assured that a remediation system had been installed that made it safe for
Columbia Gas to restore service. The diagrams showed that on June 14, 2012,
Columbia Gas obtained high readings of 9 percent around the foundation of
Lycourt-Donovan’s home, 8 percent around the foundation of Ryan Roth’s rental
property, which is operated and maintained by appellant R&P Investments, Inc.,
and 8 percent around the foundation of the home owned by Seneca Builders. The
detected concentrations were all within the flammability range of a natural-gas-in-
air mixture.
{¶ 10} On June 28, 2012, Columbia Gas again tested around the
foundations of the Lycourt-Donovan, Roth, and Seneca homes and obtained high
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readings of 4 percent, 11 percent, and 3 percent, respectively. Another home tested
that day registered a high reading of 16 percent.
{¶ 11} By September 25, 2012, the stray gas was dissipating. That day,
Columbia Gas obtained high readings around the foundations of the Lycourt-
Donovan, Roth, and Seneca Builders homes of 0 percent, 4 percent, and 1.5 percent,
respectively.
C. Columbia Gas removes customer accounts, disconnects the line serving
Oakside Road, and offers to meet again with the residents
{¶ 12} On August 23, 2012, Columbia Gas sent letters advising appellants
that their accounts were being removed from Columbia Gas’s system. The letters
also stated, “Once the stray gas situation has been abated, and consent has been
given that conditions are safe, we look forward to restoring the natural gas service
to your home.”
{¶ 13} On the same day, Columbia Gas conducted pressure testing on its
system to determine whether there were any leaks. The results of the pressure test
showed that none of the lines were leaking. Field notes from the pressure test show
that Columbia Gas recorded the main line serving Oakside Road as “retired.”
{¶ 14} Kozak had further communications with Lycourt-Donovan and other
residents, including explaining that it was declining to reestablish service, given the
test results obtained a few months earlier. In a letter to Lycourt-Donovan,
Columbia Gas again explained that to reestablish service, a customer must (1)
install a remediation system, (2) obtain from a governmental authority having
jurisdiction over the stray-gas issue written assurance that it is safe to restore service
and consent to the restoration of service, and (3) obtain written consent from the
property owner.
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D. Columbia Gas communicates with state and local entities
{¶ 15} During the time that Columbia Gas was communicating with the
property owners, it was also communicating with state and local entities about the
stray-gas problem on Oakside Road.
{¶ 16} In May 2012, Columbia Gas notified the Toledo Fire Department,
Toledo Environmental Services, the Ohio Environmental Protection Agency
(“Ohio EPA”), and the PUCO of the problem. That same month, Columbia Gas
was joined by members of the Toledo Fire Department and the Ohio EPA in
investigating the extent and possible source of the stray gas.
{¶ 17} In June 2012, Columbia Gas participated in a conference call with
the Toledo Fire Department, Toledo Environmental Services, the Ohio EPA, and
the PUCO to discuss the stray-gas situation. Also that month, Toledo’s deputy
mayor asked Columbia Gas to have a representative appear before city council to
address the situation, which it did.
{¶ 18} In July and October 2012, Columbia Gas representatives met with
the PUCO to further discuss the issue. And Columbia Gas also corresponded with
a state representative’s office in October 2012. None of these entities, however,
challenged Columbia Gas’s actions.
E. Proceedings before the PUCO
{¶ 19} Lycourt-Donovan, Seneca, and Roth (jointly with R&P Investments,
Inc.) filed complaints with the PUCO asserting that Columbia Gas had committed
numerous violations in discontinuing their natural-gas service. The PUCO
consolidated the complaints and held a three-day hearing to address the claims. The
PUCO ruled that the property owners had failed to sustain their burden of proof,
and it decided the matter in favor of Columbia Gas. Specifically, the PUCO
determined that Columbia Gas (1) had not violated the complaint-handling
procedures established by Ohio Adm.Code 4901:1-13-10, (2) had not violated R.C.
4905.22’s prohibition against rendering inadequate service, (3) had not violated
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R.C. 4905.35’s proscription against providing discriminatory service, and (4) had
not abandoned service in violation of R.C. 4905.20 and 4905.21.
{¶ 20} The PUCO did, however, find that Columbia Gas had acted
unreasonably in failing to articulate a standard that had to be met before it would
reestablish service. The PUCO thus set the reconnection standard at a 4 percent
concentration of natural-gas-in-air mixture and directed Columbia Gas to “provide
the parameters on where and when the measurements must be taken to meet this
standard and to restore service.” Although the PUCO declared that Columbia Gas
had acted unreasonably in articulating its reconnection standard, the PUCO
observed that this alone did not constitute inadequate service.
{¶ 21} All parties sought rehearing of the PUCO’s order. The PUCO denied
the multiple grounds for rehearing asserted by the property owners, but granted
Columbia Gas’s request to set the reconnection standard at a 0 percent
concentration of natural gas in air. In setting this more stringent standard, the
PUCO recognized that this standard would place a hardship on the property owners,
but stated, “[O]n balance, we choose the safety of the residents of [Oakside Road]
as paramount in this matter.”
{¶ 22} This appeal by the property owners followed.
II. STANDARD OF REVIEW
{¶ 23} R.C. 4903.13 provides that a PUCO order shall be reversed, vacated,
or modified by this court only when, upon consideration of the record, the court
finds the order to be unlawful or unreasonable. We will not reverse or modify a
PUCO decision as to questions of fact when the record contains sufficient probative
evidence to show that the PUCO’s determination is not manifestly against the
weight of the evidence and is not so clearly unsupported by the record as to show
misapprehension, mistake, or willful disregard of duty. Monongahela Power Co.
v. Pub. Util. Comm., 104 Ohio St. 3d 571, 2004-Ohio-6896, 820 N.E.2d 921, ¶ 29.
The appellant bears the burden of demonstrating that the PUCO’s determination is
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against the manifest weight of the evidence or is clearly unsupported by the record.
Id.
{¶ 24} Although this court has “complete and independent power of review
as to all questions of law” in appeals from the PUCO, Ohio Edison Co. v. Pub. Util.
Comm., 78 Ohio St. 3d 466, 469, 678 N.E.2d 922 (1997), we may rely on the
expertise of a state agency in interpreting a law when “highly specialized issues”
are involved and when “agency expertise would, therefore, be of assistance in
discerning the presumed intent of our General Assembly,” Consumers’ Counsel v.
Pub. Util. Comm., 58 Ohio St. 2d 108, 110, 388 N.E.2d 1370 (1979).
III. DISCUSSION
A. The property owners’ first proposition of law
{¶ 25} The property owners contend that the PUCO misinterpreted R.C.
4905.20 and 4905.21 by permitting Columbia Gas to withdraw natural-gas service
without filing an abandonment application. Before addressing this contention,
however, we must first determine whether the property owners forfeited it by failing
to raise it below.
1. The property owners’ abandonment argument
is properly before the court
{¶ 26} Columbia Gas asserts that the property owners forfeited their
abandonment argument by not timely raising it before the PUCO. This assertion is
without merit. The PUCO found that the issue of unlawful abandonment was
clearly set forth in the complaints filed by Seneca Builders and Roth and was
implied in the complaint by Ms. Lycourt-Donovan, and it further found that the
issue had been contested at the hearing. Pub. Util. Comm. Nos. 12-2877GA-CSS,
13-124-GA-CSS, and 13-667-GA-CSS, 2015 Ohio PUC LEXIS 39, at *6-7 (Jan.
14, 2015). The record supports this finding. Roth’s complaint alleged that
Columbia Gas had “effectively abandoned the service to [his property] in violation
of Ohio law.” The appendix to Lycourt-Donovan’s complaint alleged that
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Columbia Gas had “abandoned the neighborhood.” And Seneca’s complaint
alleged that Columbia Gas had “ceased” to provide service. Even if Seneca did not
use the optimal term of art to describe its grievance, Columbia Gas cannot claim
that it lacked notice. Moreover, the briefs submitted to the PUCO contained a
thorough discussion of the issue. Thus, the issue was timely raised.
2. The Miller Act does not apply to Columbia Gas’s actions
{¶ 27} The property owners’ abandonment argument is based on the Miller
Act, R.C. 4905.20 and 4905.21. R.C. 4905.20 provides:
[N]o public utility * * * furnishing service or facilities within this
state, shall abandon or be required to abandon or withdraw any
* * * main pipe line [or] gas line * * * or any portion thereof * * *
or the service rendered thereby that has once been * * * used for
public business, nor shall any such facility be closed for traffic or
service * * * except as provided in section 4905.21 of the Revised
Code.
And R.C. 4905.21 provides:
[A]ny public utility * * * desiring to abandon or close, or have
abandoned, withdrawn, or closed for traffic or service all or any part
of any line * * * referred to in section 4905.20 of the Revised Code,
shall make application to the public utilities commission in writing.
The commission shall thereupon cause reasonable notice of the
application to be given, stating the time and place fixed by the
commission for the hearing of the application.
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{¶ 28} These provisions “protect[] existing utility customers from having
their service terminated without commission approval.” State ex rel. Toledo Edison
Co. v. Clyde, 76 Ohio St. 3d 508, 513, 668 N.E.2d 498 (1996). Under the act, the
mere “whims of a public utility” cannot justify the termination of service. Grafton
v. Ohio Edison Co., 77 Ohio St. 3d 102, 109, 671 N.E.2d 241 (1996).
{¶ 29} The Miller Act does not define the word “abandon.” In the absence
of a controlling definition, we construe the word according to the rules of grammar
and common usage, paying heed to any technical or particular meaning it has
acquired. R.C. 1.42. See also Union Rural Elec. Coop., Inc. v. Pub. Util. Comm.,
52 Ohio St. 3d 78, 80, 555 N.E.2d 641 (1990). Various sources agree on the
meaning of “abandon.” By rule, the PUCO has defined “abandoned” pipe as “pipe
that was not intended to be used again for supplying of gas or natural gas, including
a deserted pipe that is closed off to future use.” Ohio Adm.Code 4901:1-13-
05(A)(3)(d). We have defined “abandon” as “ ‘[t]o relinquish or give up with intent
of never again resuming one’s right or interest. * * * To give up absolutely; to
forsake entirely; to renounce utterly; to relinquish all connection with or concern
in; to desert.’ ” (Ellipsis sic.) Fulmer v. Insura Property & Cas. Co., 94 Ohio St. 3d
85, 95, 760 N.E.2d 392 (2002), quoting Black’s Law Dictionary 2 (6th Ed.1990).
Webster’s Third New International Dictionary defines “abandon” as “to cease to
assert or exercise an interest, right, or title to esp. with the intent of never again
resuming or reasserting it.” Id. at 2 (2002).
{¶ 30} Taking these definitions together, it is plain that in order to abandon,
there must be a relinquishment coupled with an intent to never again assert a right
or interest. Columbia Gas’s actions clearly do not fit within the meaning of
“abandon.”
{¶ 31} The PUCO made a factual determination that Columbia Gas
intended to continue to serve the property owners after remedial measures were
completed. Record evidence supports this finding. Columbia Gas’s manager of
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communications and community relations testified, “[throughout] the entire course
of this process our desire was to have [the property owners] have their natural gas
service restored.” In written correspondence dated May 31, 2012, June 15, 2012,
and August 23, 2012, Columbia Gas repeatedly affirmed its intention to restore
service once the stray-gas issue was remedied. Columbia Gas’s Toledo-area
operations-center manager explained that even though the line that provided service
to the property owners had been disconnected from the rest of Columbia Gas’s
system, it could be “tied back in at any time.”
{¶ 32} Moreover, the PUCO’s order emphasized that Columbia Gas
maintained an obligation to provide service once the property owners remedied the
situation. Columbia Gas’s intention to restore service, coupled with its continuing
obligation to provide service upon remediation, negates the property owners’
assertion that Columbia Gas abandoned service and was required to file an
abandonment application.
{¶ 33} Indeed, R.C. 4905.21 speaks of a utility “desiring” to abandon. It is
clear from the record that Columbia Gas did not desire to abandon service to the
property owners. All else equal, there seems to be no economic benefit for a utility
to stop serving numerous customers. And the PUCO did not find that Columbia
Gas’s actions were financially motivated. The mere “whims of a public utility” did
not deprive the property owners of their natural-gas service, Grafton, 77 Ohio St. 3d
at 109, 671 N.E.2d 241; rather, the culprit was a hazardous condition unassociated
with Columbia Gas’s system. This set of circumstances does not put Columbia
Gas’s actions within the scope of the Miller Act.
{¶ 34} The property owners challenge the PUCO’s factual determinations,
pointing to other evidence in the record that they believe shows that Columbia Gas
abandoned service. For example, they cite Columbia Gas’s disconnection of the
main line serving Oakside Road, Columbia Gas’s removal of the customers’
accounts from its system, and e-mails among Columbia Gas personnel regarding
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whether to pursue abandonment if the stray-gas problem could not be fixed. But in
making this argument, the property owners are essentially asking us to overturn the
PUCO’s factual finding that Columbia Gas intended to restore service once
remedial measures were complete.
{¶ 35} Our function on appeal is not to reweigh the evidence or second-
guess the PUCO on questions of fact. Ohio Consumers’ Counsel v. Pub. Util.
Comm., 114 Ohio St. 3d 340, 2007-Ohio-4276, 872 N.E.2d 269, ¶ 29. Mindful of
our role, it suffices that probative evidence in the record supports the PUCO’s
finding that Columbia Gas intended to reestablish service to the property owners
upon the completion of remedial measures. Luntz Corp. v. Pub. Util. Comm., 79
Ohio St. 3d 509, 511, 684 N.E.2d 43 (1997) (We will not “reweigh evidence or
substitute our judgment for that of the commission on factual questions where there
is sufficient probative evidence in the record to show that the commission’s
decision is not manifestly against the weight of the evidence and is not so clearly
unsupported by the record as to show misapprehension, mistake, or willful
disregard of duty”).
{¶ 36} The interests of safety underscore the problems with the home
owners’ interpretation of the Miller Act. The PUCO’s “broad” authority to act in
the interest of safety is well established. Akron v. Pub. Util. Comm., 149 Ohio St.
347, 359, 78 N.E.2d 890 (1948). And we have previously noted the potential
hazards involving natural gas: “[N]atural gas is dangerous unless it is handled
properly. It is noxious, flammable, invisible, and naturally odorless. Natural gas
is potentially lethal to persons and destructive of property. We have long
recognized its dangers.” Util. Serv. Partners, Inc. v. Pub. Util. Comm., 124 Ohio
St.3d 284, 2009-Ohio-6764, 921 N.E.2d 1038, ¶ 14 (collecting cases).
{¶ 37} This case involves the verifiable safety hazard of stray gas from an
unknown source present around the foundations of the homes at issue. Fortunately,
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the stray gas at the Oakside Road properties did not result in a tragedy. But other
communities have not been so lucky.
{¶ 38} A March 21, 2015 explosion caused by a release of natural gas in
Upper Arlington serves as a powerful reminder that situations like the one presented
here should be taken very seriously. A PUCO staff report on that incident found
that a natural-gas release caused a home to explode.2 And a newspaper reported
that the explosion was felt and heard “as far as a mile away,” the home was reduced
to a “few sticks of wood” and a partial chimney column, “[d]ebris rained down,”
“[f]lames shot into the air,” and “[a]s many as 30 houses may have been damaged.”3
{¶ 39} Given the fluid nature of the situation and the threats posed to
people, animals, and property under the facts presented here, we cannot endorse a
reading of the Miller Act that faults a utility for taking reasonable steps to protect
the safety interests of its customers. We agree with the PUCO that the General
Assembly could not have intended the result urged by the property owners, which
would subordinate safety to the convenience of the property owner.
{¶ 40} The PUCO and Columbia Gas also persuasively argue that Columbia
Gas’s actions fell within other safety-related provisions in the law. Under R.C.
4933.122(A) and (B), “[n]o natural gas, gas, or electric light company shall
terminate service, except for safety reasons * * * at any time to a residential
consumer, except pursuant to procedures that provide for” such things as reasonable
prior notice and a reasonable opportunity to dispute the service termination.
2
Staff of the Public Utilities Commission of Ohio, In re the Investigation of Columbia Gas of Ohio
Relative to its Compliance with the Natural Gas Pipeline Safety Standards and Related Matters at
1, Case No. 15-1351-GA-GPS (Aug. 28, 2015), https://dis.puc.state.oh.us/TiffToPDf/
A1001001A15H28B42038H04086.pdf (accessed Aug. 15, 2017).
3
The Columbus Dispatch, House Explodes in Upper Arlington (Mar. 22, 2015),
http://www.dispatch.com/content/stories/local/2015/03/21/House_explosion.html (accessed Aug.
15, 2017).
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(Emphasis added.) And under Ohio Adm.Code 4901:1-18-03(D), a natural-gas
utility may discontinue service to residential customers
[w]hen supplying * * * natural gas creates a safety hazard to
consumers or their premises [or] the public * * * or where, because
of conditions beyond the consumer’s premises, disconnection of the
supply of * * * natural gas is reasonably necessary. The company
shall not restore service until the hazardous condition(s) has been
corrected.
{¶ 41} Here, the PUCO determined, “The evidence of record reveals that
the levels of methane gas recorded around the foundations of [the property owners’]
residential dwellings, albeit varying from time to time, represents a verifiable safety
hazard that warrants the interruption of natural gas service until such time as
remediation occurs.” This hazard posed a threat, at the very least, to the residents
of Oakside Road. The property owners offer no argument to dispute that the
conditions satisfied the elements of the statute and the rule.
B. The property owners’ second proposition of law
{¶ 42} In their second proposition of law, the property owners argue that
the PUCO erred in determining that Columbia Gas did not violate R.C. 4905.22’s
prohibition against furnishing inadequate service. As with the first proposition of
law, before addressing the merits of this argument, we must decide whether we
have jurisdiction to consider it.
1. The property owners’ inadequate-service argument
is properly before the court
{¶ 43} R.C. 4905.22 provides that “[e]very public utility shall furnish
necessary and adequate service and facilities, and every public utility shall furnish
and provide with respect to its business such instrumentalities and facilities, as are
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adequate and in all respects just and reasonable.” The property owners assert in
their notice of appeal that PUCO violated the “just and reasonable” standard set
forth in R.C. 4905.22. The property owners’ second proposition of law, however,
alleges that PUCO erred in failing to find that Columbia Gas furnished “inadequate
service” in violation of R.C. 4905.22. In Columbia Gas’s view, even though the
property owners cited R.C. 4905.22 in both their notice of appeal and their second
proposition of law, the property owners’ shift in phraseology—from “just and
reasonable” to “inadequate service”—created a different argument entirely, barring
the court’s consideration of it. We are unconvinced.
{¶ 44} R.C. 4903.13 provides that the procedure for challenging a PUCO
order is through a notice of appeal “setting forth the order appealed from and the
errors complained of.” The assignments of error enumerated in a notice of appeal
“delimit the issues” for the court’s consideration. Cincinnati Gas & Elec. Co. v.
Pub. Util. Comm., 103 Ohio St. 3d 398, 2004-Ohio-5466, 816 N.E.2d 238, ¶ 21. A
claim not set forth in the notice of appeal deprives the court of jurisdiction to
consider it. In re Complaint of Smith v. Ohio Edison Co., 137 Ohio St. 3d 7, 2013-
Ohio-4070, 996 N.E.2d 927, ¶ 28.
{¶ 45} The parties cite no authority that addresses the precise level of detail
R.C. 4903.13 requires in a notice of appeal. Instructive, however, is our precedent
on R.C. 5717.04, which governs appeals from the Board of Tax Appeals to this
court (as well as to the courts of appeals). The relevant text of R.C. 5717.04, which
is almost identical to R.C. 4903.13, provides that “[a] notice of appeal shall set forth
the decision of the board appealed from and the errors therein complained of.”
Hypertechnical jurisdictional objections are disfavored under R.C. 5717.04. Cruz
v. Testa, 144 Ohio St. 3d 221, 2015-Ohio-3292, 41 N.E.3d 1213, ¶ 21. The
sufficiency of a notice of appeal is judged not merely by the form of the words used
but also their context. Id.
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{¶ 46} The circumstances do not support Columbia Gas’s view that the shift
in phraseology from the property owners’ notice of appeal to their second
proposition of law deprives us of jurisdiction to consider the issue of inadequate
service. In the proceedings below, (1) the PUCO addressed the inadequate-service
claim in its January 14, 2015 order, (2) the property owners’ rehearing applications
articulated an inadequate-service claim, (3) Columbia Gas responded to this claim
in its memorandum contra on rehearing, and (4) the PUCO addressed the claim on
rehearing. Viewed in this light, the property owners’ notice of appeal suffices to
put the court, Columbia Gas, and the PUCO on notice as to the inadequate-service
dispute. We now proceed to consider the merits.
2. The property owners have not established a violation of R.C. 4905.22
{¶ 47} The property owners first assert that the PUCO erred when it ruled
that Columbia Gas did not violate the proscription in R.C. 4905.22 against
inadequate service because, according to the property owners, unauthorized
abandonment equates to inadequate service.
{¶ 48} Even assuming, without deciding, that an unauthorized
abandonment of service equates to the provision of inadequate service, the property
owners’ argument fails because, as discussed above, the PUCO correctly concluded
that Columbia Gas did not effect an unauthorized abandonment of service.
{¶ 49} The property owners next rely on the PUCO’s statement that
Columbia Gas acted unreasonably in communicating its reconnection standard to
support the argument that Columbia Gas had furnished inadequate service. In its
order, the PUCO found that Columbia Gas had not provided inadequate service,
even though the PUCO found that Columbia Gas had acted “unreasonably” in its
“unwillingness to articulate a standard that must be met before reconnecti[ng]
* * * service” to the Oakside Road residents. 2015 Ohio PUC LEXIS 39, at *39
(Jan. 14, 2015). In support of its conclusion that Columbia Gas had acted
unreasonably, the PUCO observed, “Columbia has failed to provide any
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information as to the level and duration of such level that the residents must meet
in order for the Company to consider the situation resolved so as to enable the
restitution of natural gas service.” Id. at *38-39.
{¶ 50} On the surface, there is a logical appeal to the property owners’
argument that Columbia Gas furnished inadequate service: if a utility behaves
unreasonably in its dealings with customers, it follows that such unreasonable
conduct might equate to the provision of inadequate service. But the property
owners do not move past this perfunctory level of analysis. They cite no authority
for their proposition and do not establish that Columbia Gas’s actions constitute a
violation of R.C. 4905.22. This alone is reason to reject their argument. In re
Complaint of Toliver v. Vectren Energy Delivery of Ohio, Inc., 145 Ohio St. 3d 346,
2015-Ohio-5055, 49 N.E.3d 1240, ¶ 30 (explaining that an undeveloped legal
argument does not establish reversible error).
{¶ 51} Another problem is that the property owners misconstrue what the
PUCO did in its order. In analyzing whether Columbia Gas furnished inadequate
service, the PUCO looked at several factors: “the number, severity, and duration of
the service problems; whether the service could have been corrected; and whether
the service problems likely are caused by the company’s facilities.” 2015 Ohio
PUC LEXIS 39, at *36 (Jan. 14, 2015). Applying these factors, the PUCO
determined that Columbia Gas did not furnish inadequate service. True, the PUCO
ruled that Columbia Gas had acted unreasonably in communicating its reconnection
standard. But the PUCO ruled that “[t]his one factor alone, when considered with
all the other facts and circumstances in this case, do[es] not rise to the level of
legally inadequate service as contemplated by R.C. 4905.22.” 2015 Ohio PUC
LEXIS 993, at *8. The property owners do not challenge the factors that the PUCO
took into account, nor do they allege that the PUCO misapplied the factors. The
property owners’ failure to challenge the PUCO’s findings defeats the argument
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that Columbia Gas violated R.C. 4905.22. In re Comm. Rev. of Capacity Charges
of Ohio Power Co., 147 Ohio St. 3d 59, 2016-Ohio-1607, 60 N.E.3d 1221, ¶ 47.
C. The property owners’ remaining arguments cannot be considered
{¶ 52} The property owners make two additional arguments, but neither is
properly before us. First, they insist that the PUCO’s order has the effect of flipping
the burden of proof from the utility to the customer. In the property owners’ view,
this controversy should have been litigated through an abandonment proceeding, a
proceeding at which the utility has the burden of proof. R.C. 4905.21. Because
Columbia Gas did not file an abandonment application, the property owners aver,
they were left with no other choice than to file a complaint under R.C. 4905.26,
which in turn required them to shoulder the burden of proof. But this argument was
not asserted in an application for rehearing,4 and thus we lack jurisdiction under
R.C. 4903.10 to address it. In re Complaint of Reynoldsburg, 134 Ohio St. 3d 29,
2012-Ohio-5270, 979 N.E.2d 1229, ¶ 54. Further, even if the argument were
properly before us, it would fail. We have established that Columbia Gas did not
intend to abandon service to the property owners, therefore it had no obligation to
file an abandonment application. Because this case is properly a complaint
proceeding, the PUCO correctly placed the burden of proof on the complainants,
the property owners. See Grossman v. Pub. Util. Comm., 5 Ohio St. 2d 189, 190,
214 N.E.2d 666 (1966).
{¶ 53} Second, the property owners maintain that the PUCO established a
reconnection standard that is impossible to meet. The PUCO’s initial order stated
that the standard for reconnection should be a 4 percent natural-gas-in-air mixture.
But on rehearing, the PUCO modified this to 0 percent. The property owners have
4
During the proceedings below, a few of the property owners asserted on rehearing that the PUCO
erred in ruling that they had failed to meet their burden of proof. But the argument presented here
is a separate issue involving not whether the property owners had met their burden of proof but
whether Columbia Gas should have had the burden of proof.
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January Term, 2017
forfeited any challenge to this latter standard because they did not challenge it in a
second rehearing application. See In re Application of Columbus S. Power Co., 147
Ohio St. 3d 439, 2016-Ohio-1608, 67 N.E.3d 734, ¶ 56.
IV. CONCLUSION
{¶ 54} Because the property owners have not shown that the PUCO erred,
we affirm.
Orders affirmed.
O’DONNELL, KENNEDY, FRENCH, O’NEILL, and FISCHER, JJ., concur.
DEWINE, J., concurs in judgment only.
_________________
The Law Office of Robert Dove and Robert Dove, for appellants.
Michael DeWine, Attorney General, and William L. Wright, Robert
Eubanks, and Thomas McNamee, Assistant Attorneys General, for appellee.
Porter Wright Morris & Arthur, L.L.P., Eric B. Gallon, and L. Bradfield
Hughes; and Stephen B. Seiple and Brooke E. Leslie, for intervening appellee.
___________________
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