Ohiotelnet.com, Inc. v. Windstream Ohio, Inc. , 2012 Ohio 5969 ( 2012 )

[Cite as Ohiotelnet.com, Inc. v. Windstream Ohio, Inc., 2012-Ohio-5969.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
OHIOTELNET.COM, INC., ET AL : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellant : Hon. William B. Hoffman, J.
:
-vs- :
: Case No. 2012-CA-29
WINDSTREAM OHIO, INC. :
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Licking County Court
of Common Pleas, Case No. 11CV00485
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 14, 2012
APPEARANCES:
For Plaintiffs-Appellants For Defendant-Appellee
JAMES COOPER WILLIAM ADAMS
MATTHEW J. KUNSMAN Bailey Cavalieri LLC
Morrow, Gordon & Byrd, Ltd 10 West Broad Street, Suite 2100
33 W. Main Street, P.O. Box 4190 Columbus, OH 43215
Newark, OH 43058-4190
[Cite as Ohiotelnet.com, Inc. v. Windstream Ohio, Inc., 2012-Ohio-5969.]
Gwin, J.,
{¶1} Plaintiffs Ohiotelnet (OTN) and Midwest Service Management (MSM)
appeal two judgments, a partial dismissal and a summary judgment, of the Court of
Common Pleas of Licking County, Ohio, finding lack of jurisdiction. Defendant-appellee
is Windstream Ohio, Inc. formerly known as ALLTEL Ohio, Inc. Appellants assign two
errors:
{¶2} “I. THE TRIAL COURT ERRED BY GRANTING WINDSTREAM'S
MOTION TO DISMISS BECAUSE THE TRIAL COURT HAD SUBJECT MATTER
JURISDICTION OVER THE CLAIMS IN APPELLANTS' COMPLAINT.
{¶3} “II. THE TRIAL COURT ERRED IN GRANTING WINDSTREAM'S
MOTION FOR SUMMARY JUDGMENT BECAUSE SEVERAL GENUINE ISSUES OF
MATERIAL FACT EXIST AND REASONABLE MINDS CANNOT COME TO BUT ONE
CONCLUSION IN FAVOR OF WINDSTREAM.”
{¶4} The record indicates Windstream, the successor in interest of ALLTEL
Ohio, Inc. is an Ohio public utility providing wholesale telephone, telecommunications,
and broadband services. Windstream is subject to various state and federal laws and
regulations, including marketing opening provisions and tariffs. OTN is an Ohio
corporation that provides local telephone service to Licking County, Ohio. MSM is an
Ohio corporation which provides telecommunications and information services
technology.
{¶5} OTN entered into an agreement with Windstream for the interconnection
of the parties’ telecommunications networks within the state of Ohio. Windstream was to
provide wholesale services to OTN, which in turn would supply services to local
Licking County, Case No. 2012-CA-29 3
customers. Subsequently, the parties have engaged in billing disputes, leading to this
action as well as an action filed with the PUCO. At the time of this writing, an appeal
from the decision of the PUCO was pending before the Ohio Supreme Court.
{¶6} In its judgment entry of August 30, 2011, the court found appellants raised
four claims. The first claim alleges breach of the interconnection agreement and
includes statements that the court found are presumably meant to allege interference
with the business relationship. The second claim alleges Windstream had made false
statements to OTN’s customers, inducing them to terminate their business relationships
with OTN. The court presumed these allegations were intended to state a claim for
interference with business relationships, although they were not labeled as such. The
trial court characterized the third claim as a claim for breach of the interconnection
agreement, various unfair billing practices, prices, and service complaints. The court
found the fourth claim alleged Windstream breached an agreement with MSM. In the
August 30, 2011 entry, the court dismissed appellants’ first, second and third claims, but
found under the allegations set forth, it could not determine whether the fourth claim
was a pure contract claim over which it could take jurisdiction. Accordingly, the court did
not dismiss the fourth claim at that time.
{¶7} Subsequently, on February 27, 2012, the trial court found the fourth claim
must also be dismissed for lack of jurisdiction.
I.
{¶8} In their first assignment of error, appellants argue the trial court should not
have dismissed claims one, two and three because it had jurisdiction over the matter.
Licking County, Case No. 2012-CA-29 4
Appellants correctly note this court reviews the issue de novo because it involves a
question of law. Helfrich v. City of Patalaska, 5th Dist. No. 02-CA-38, 2003-Ohio-847.
{¶9} R.C. 4905.26 confers exclusive jurisdiction on the PUCO to review any
service rendered by a public utility to determine if it is unjust or unreasonable, or
violates the law. PUCO also has exclusive jurisdiction over complaints regarding the
termination of service by public utilities. The Supreme Court has held, however, that
courts retain limited subject matter jurisdiction over a matter that is pure common-law
tort or contract action involving utilities that are regulated by the PUCO. State ex rel.
Illuminating Company v. Cuyahoga County Court of Common Pleas, 97 Ohio St. 3d 69,
(2002). In cases involving public utilities, jurisdiction is not conferred based solely on the
pleadings. State ex rel. Columbia Gas of Ohio, Inc. v. Henson, 102 Ohio St. 3d 349,
2004-Ohio-3208, 810 N.E.2d 953, ¶ 19.
{¶10} The Supreme Court has set out a test courts should apply to determine
whether the PUCO has exclusive jurisdiction. “‘First, is PUCO’s administrative expertise
required to resolve the issue in dispute? Second, does the act complained of constitute
a practice normally authorized by the utility?’ If the answer to either question is in the
negative, the claim is not within PUCO’s exclusive jurisdiction.” Allstate Insurance
Company v. Cleveland Electric Illuminating Company, 119 Ohio St. 3d 301, 2008-Ohio-
3917, 893 N.E.2d 824 ¶5.
{¶11} The Allstate opinion sets out examples of common law claims over which
the common pleas court has jurisdiction: Milligan v. Ohio Bell Tel. Co., 56 Ohio St.2d
191, 195, 383 N.E.2d 575 (1978) (claim that the telephone company invaded its
customer's privacy was actionable in common pleas court); Kohli v. Pub. Util. Comm.,
Licking County, Case No. 2012-CA-29 5
18 Ohio St.3d 12, 14, 18 OBR 10, 479 N.E.2d 840 (1985) (failure to warn landowners
of dangers regarding voltage can be litigated in common pleas court.) The Supreme
Court also cautioned that the PUCO is not a court and has no power to judicially
ascertain and determine legal rights and liabilities.
{¶12} The court found OTN’s contract claims and tort claims were not pure
common-law claims, but had to do with providing services that were regulated by the
PUCO. We agree with the trial court appellants’ claims are subject to the PUCO’s
exclusive jurisdiction.
{¶13} The first assignment of error is overruled.
II.
{¶14} In their second assignment of error, appellants argue the court improperly
awarded summary judgment in favor of Windstream because there are genuine issues
of material fact, and because reasonable minds could come to different conclusions.
{¶15} In finding the matter was appropriate for summary judgment, the trial
court found the disputes related to practices authorized by the utility, namely providing
lines and services. The court found the issues of tariffs are regulated by the PUCO, and
require the expertise of the PUCO to construe.
{¶16} We agree all of appellants’ causes of action are directly related to the
provision of utility services, which is vested exclusively in the PUCO
{¶17} The second assignment of error is overruled.
Licking County, Case No. 2012-CA-29 6
{¶18} For the foregoing reasons, the judgment of the Court of Common Pleas of
Licking County, Ohio, is affirmed.
By Gwin, J.,
Delaney, P.J., and
Hoffman J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. WILLIAM B. HOFFMAN
WSG:clw 1119
[Cite as Ohiotelnet.com, Inc. v. Windstream Ohio, Inc., 2012-Ohio-5969.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
OHIOTELNET.COM, INC., ET AL :
:
Plaintiffs-Appellants :
:
:
-vs- : JUDGMENT ENTRY
:
WINDSTREAM OHIO, INC. :
:
:
Defendant-Appellee : CASE NO. 2012-CA-29
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas of Licking County, Ohio, is affirmed. Costs to appellants.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. WILLIAM B. HOFFMAN