In re Complaint of Buckeye Energy Brokers v. Palmer Energy Co. (Slip Opinion) , 139 Ohio St. 3d 284 ( 2014 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re Complaint of Buckeye Energy Brokers v. Palmer Energy Co., Slip Opinion No. 2014-Ohio-
1532.]
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. 2014-OHIO-1532
IN RE COMPLAINT OF BUCKEYE ENERGY BROKERS, INC., APPELLANT, v.
PALMER ENERGY COMPANY, INTERVENING APPELLEE; PUBLIC UTILITIES
COMMISSION OF OHIO, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets,
it may be cited as In re Complaint of Buckeye Energy Brokers v. Palmer
Energy Co., Slip Opinion No. 2014-Ohio-1532.]
Public Utilities Commission—Certification for providing competitive retail
electric or natural-gas services—Standing for complaint against
uncertified competitor.
(No. 2012-0668—Submitted January 7, 2014—Decided April 15, 2014.)
APPEAL from the Public Utilities Commission of Ohio,
No. 10-693-GE-CSS.
____________________
LANZINGER, J.
SUMMARY
{¶ 1} This is an appeal of an order of the Public Utilities Commission of
Ohio that determined that intervening appellee, Palmer Energy Company, an
SUPREME COURT OF OHIO
energy-management and consulting firm, did not violate R.C. 4928.08 and
4929.20. These provisions require any entity that intends to provide competitive
retail service for electricity or natural gas to obtain a certificate to operate before
providing that service. R.C. 4928.08(B) (certification for competitive retail
electric service) and 4929.20(A) (certification for competitive retail natural-gas
service). The laws are designed to ensure that companies are credible and capable
of delivering the services they offer and to protect customers and incumbent
distribution utilities from default. R.C. 4928.08(B) and (C) and 4929.20(A) and
(B).
{¶ 2} Appellant, Buckeye Energy Brokers, Inc., a certified provider of
competitive retail electric service and competitive retail natural-gas service, filed
a complaint and an amended complaint with the commission against Palmer,
which was one of its alleged competitors. Buckeye alleged that Palmer had
violated R.C. 4928.08 and 4929.20 by acting without a certificate as a broker in
arranging for the supply of competitive retail electric and natural-gas services in
Ohio.
{¶ 3} The commission held that Buckeye failed to prove its allegations
and specifically found that Palmer had provided services to its clients as a
consultant—not as a broker.
{¶ 4} Buckeye appealed to this court, raising six propositions of law.
Because Buckeye has not demonstrated prejudice, as it must to obtain reversal of
the order, we dismiss Buckeye’s appeal without reaching the merits.
CASE BACKGROUND
{¶ 5} R.C. 4928.08(B) provides: “No * * * electric services company * * *
shall provide a competitive retail electric service to a consumer in this state * * *
without first being certified by the public utilities commission * * *.” Likewise,
R.C. 4929.20(A) provides: “No * * * retail natural gas supplier shall provide a
competitive retail natural gas service * * * to a consumer in this state without first
2
January Term, 2014
being certified by the public utilities commission * * *.” The provisions require
the entity seeking certification to demonstrate its “managerial, technical, and
financial capability to provide that service” and also to provide a “financial
guarantee” or “reasonable financial assurances” that are “sufficient to protect
customers” and “electric distribution utilities” or “natural gas companies” from
default.
{¶ 6} Buckeye alleged that Palmer held itself out and acted as a broker in
arranging for the supply of competitive retail services without obtaining the
required certification. Buckeye sought the following remedies from the
commission: (1) rescission of Palmer’s contracts to provide competitive retail
electric and natural-gas services, (2) restitution to customers receiving service
under those contracts, and (3) forfeiture to the state for each violation. See R.C.
4928.16(B) and 4929.24(B).
{¶ 7} Palmer answered the allegations, denying that it had violated R.C.
4928.08 or 4929.20. Palmer maintained that it was acting as a consultant and not
as a broker that arranged for the supply of competitive services. Thus it was not
required to become certified, because it was not providing competitive retail
electric or natural-gas services in Ohio.
{¶ 8} While the case was pending before the commission, Palmer filed
applications to become certified under R.C. 4928.08 and 4929.20, which were
granted in September 2010. The commission therefore appropriately limited its
review of Palmer’s conduct to the period before it became certified.
{¶ 9} After an evidentiary hearing, the commission held that Buckeye had
failed to prove that Palmer had arranged for the supply of competitive retail
electric and natural-gas services before being certified. The commission held that
Palmer had provided services to clients as a consultant—not as a broker that
arranged for the supply of competitive services.
3
SUPREME COURT OF OHIO
{¶ 10} The commission interpreted the definitions of “electric services
company” in R.C. 4928.01(A)(9)1 and “retail natural gas supplier” in R.C.
4929.01(N). They are similarly worded and provide that an entity falls under the
applicable definition by being in “the business of supplying or arranging for the
supply of” a competitive service. In turn, the term “broker” is included in the
statutory definitions of “electric services company” and “retail natural gas
supplier.” R.C. 4928.01(A)(9) (defining “electric services company” to include
“power broker”) and 4929.01(N) (defining “retail natural gas supplier” to include
“broker”).
{¶ 11} Because no evidence was submitted that Palmer was involved in
“supplying” gas or electricity, the commission focused its review on whether
Palmer was engaged in the business of “arranging” for the supply of competitive
retail services to consumers.
{¶ 12} The commission first noted that the word “arranging” is not
defined in R.C. Title 49 or the Ohio Adm.Code Chapter 4901 and that neither
Buckeye nor Palmer offered a specific definition. “For purposes of properly
defining the term ‘arrange,’ ” the commission recognized that it had previously
determined that an entity may operate as a consultant without being certified. It
then determined that “to be involved in ‘arranging’ for the supply of CRES
[competitive retail electric service] or CRNGS [competitive retail natural-gas
service], an entity must be engaged in activity that exceeds the level of
involvement of a consultant.” Pub. Util. Comm. No. 10-693-GE-CSS, 18 (Nov.
1, 2011). The commission did not define “consultant.” Nor did it explain what
activities would constitute performing as a consultant or describe the type of
activities that would be deemed to go beyond consulting. Instead, the commission
reviewed the evidence to determine whether Palmer acted as a consultant or if its
1
The commission cited R.C. 4928.01(A)(27), which defines “retail electric service.” Presumably
the commission meant to refer to R.C. 4928.01(A)(9), which defines “electric services company.”
4
January Term, 2014
actions went beyond consulting and “constitute the performance of a competitive
service.” Id.
{¶ 13} The commission reviewed the services that Palmer had provided to
its clients, primarily certified government aggregators and local government
entities seeking to operate as certified aggregators.2 The commission found that
those services provided by Palmer for government clients were performed in the
capacity of a consultant. According to the commission, Palmer was not
“arranging” for the supply of a competitive service under the applicable statutes
when it assisted clients, because it did not engage in the “ultimate decision
making process and enter[] into contractual obligations on behalf of its clients
with respect to the provision of a competitive service.” Id. at 18-19.
{¶ 14} Buckeye timely applied for rehearing, which was denied. Buckeye
then filed this appeal challenging the commission’s orders.
STANDARD OF REVIEW
{¶ 15} “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.” Constellation
NewEnergy, Inc. v. Pub. Util. Comm., 104 Ohio St. 3d 530, 2004-Ohio-6767, 820
N.E.2d 885, ¶ 50. We will not reverse or modify a PUCO decision on questions
of fact if the record contains sufficient probative evidence to show that the
commission’s decision was not manifestly against the weight of the evidence and
was not so clearly unsupported by the record as to show misapprehension,
mistake, or willful disregard of duty. Monongahela Power Co. v. Pub. Util.
2
R.C. 4928.20(A) permits certain governmental authorities to “aggregate * * * the retail electrical
loads located” within their jurisdictions and to “enter into service agreements to facilitate for those
loads the sale and purchase of electricity.” Such authorities are known as “governmental
aggregators.” R.C. 4928.01(A)(13). The goal of aggregation is to form large buying groups with
leverage to negotiate lower power rates with generators that compete with the utility. Customers
in aggregated communities still receive noncompetitive services, such as distribution service, from
the local utility.
5
SUPREME COURT OF OHIO
Comm., 104 Ohio St. 3d 571, 2004-Ohio-6896, 820 N.E.2d 921, ¶ 29. The
appellant bears the burden of demonstrating that the commission’s decision is
against the manifest weight of the evidence or is clearly unsupported by the
record. Id.
{¶ 16} Although the 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).
DISCUSSION
{¶ 17} Buckeye’s primary argument on appeal is that the commission
construed the certification statutes too narrowly when it found that Palmer was
not required to be certified under R.C. 4928.08(B) and 4929.20(A) because it was
not engaged in the business of “arranging” for the supply of competitive services.
Buckeye contends that “arranging” in R.C. 4928.01(A)(9) and 4929.01(N) means
more than “engaging in the ultimate decision making process and entering into
contractual obligations on behalf of its clients with respect to the provision of a
competitive service.”
I. Buckeye has failed to show that the order has a prejudicial effect
{¶ 18} The commission asserts that Buckeye’s appeal should be dismissed
because Buckeye did not suffer any harm from the commission’s order and has
failed to allege or identify any evidence that it was harmed by Palmer’s failure to
become certified. We agree.
{¶ 19} It is well settled that this court will not reverse an order of the
commission unless the party seeking reversal shows that it has been or will be
harmed or prejudiced by the order. Cincinnati v. Pub. Util. Comm., 151 Ohio St.
6
 January Term, 2014
353, 86 N.E.2d 10 (1949), paragraph six of the syllabus; Holladay Corp. v. Pub.
Util. Comm., 61 Ohio St. 2d 335, 402 N.E.2d 1175 (1980), syllabus; Myers v. Pub.
Util. Comm., 64 Ohio St. 3d 299, 302, 595 N.E.2d 873 (1992); Ohio Consumers’
Counsel v. Pub. Util. Comm., 121 Ohio St. 3d 362, 2009-Ohio-604, 904 N.E.2d
853, ¶ 12. In this appeal, there is nothing to show any harm or injury to Buckeye
stemming from Palmer’s lack of certification. Buckeye’s failure to demonstrate
that it was prejudiced by the commission’s order is fatal to its appeal.
II. Buckeye’s counterarguments are not persuasive
{¶ 20} Buckeye’s arguments do not have merit.
{¶ 21} First, Buckeye argues that the commission cannot make this
argument for the first time in this court, citing R.C. 4903.10 and cases interpreting
that provision. Although R.C. 4903.10(B) bars us from considering issues that
were not raised in an application for rehearing before the commission, In re
Complaint of Reynoldsburg, 134 Ohio St. 3d 29, 2012-Ohio-5270, 979 N.E.2d
1229, ¶ 60, the statute does not bar the commission’s prejudice argument. R.C.
4903.10 applies only to parties who “urge * * * reversal, vacation, or
modification” of a commission order and states, “No cause of action arising out of
any order of the commission, other than in support of the order, shall accrue in
any court to any person * * * unless such person * * * has made a proper
application to the commission for a rehearing.” The commission is defending the
order on appeal, which is its role in every appeal from one of its orders. See R.C.
4903.13 (the proceeding to obtain reversal of a commission order “shall be by
notice of appeal, filed * * * against the commission”); Consol. Rail Corp. v. Pub.
Util. Comm., 40 Ohio St. 3d 252, 254, 533 N.E.2d 317 (1988) (“In an appeal from
an order of the Public Utilities Commission, the commission is ‘the appellee’ ”).
Therefore, R.C. 4903.10(B) does not bar the commission’s claim of lack of
prejudice.
7
SUPREME COURT OF OHIO
{¶ 22} Second, Buckeye argues that it need not show harm attributable to
Palmer’s alleged violations. Buckeye maintains that a violation of the certification
statutes causes inherent harm and that the statutes themselves do not require any
showing of harm or prejudice. But the prejudice requirement stems from this
court’s case law rather than the certification statutes. Case law is clear that an
allegedly aggrieved party must show that it suffered prejudice from a commission
order to warrant reversal.
{¶ 23} Third, Buckeye argues that it has shown a generalized harm based
on Palmer’s failure to obtain certification. According to Buckeye, the lack of
certification meant that Palmer had failed to demonstrate its proficiency and
financial stability, as the statutes require. But even if this were true, a showing of
generalized harm does not help Buckeye, because as the party seeking reversal,
Buckeye must show harm to itself. See Ohio Edison Co. v. Pub. Util. Comm., 173
Ohio St. 478, 184 N.E.2d 70 (1962), paragraph ten of the syllabus; Ohio Contract
Carriers Assn., Inc. v. Pub. Util. Comm., 140 Ohio St. 160, 42 N.E.2d 758 (1942),
syllabus; Indus. Energy Consumers v. Pub. Util. Comm., 63 Ohio St. 3d 551, 553,
589 N.E.2d 1289 (1992).
{¶ 24} Fourth, Buckeye argues that it suffered harm because it was
competing against Palmer while being certified when Palmer was not. According
to Buckeye, this fact put Buckeye at a competitive disadvantage. But these
unsubstantiated statements are not enough to show prejudice. There is no
explanation or evidence as to how Palmer’s lack of certification adversely
affected Buckeye competitively. Buckeye bears the “burden of demonstrating
* * * that it has been or will be prejudiced by the error.” AK Steel Corp. v. Pub.
Util. Comm., 95 Ohio St. 3d 81, 88, 765 N.E.2d 862 (2002). Buckeye, however,
has failed to make an argument or draw our attention to any evidence that
demonstrates error, let alone prejudicial error. See, e.g., Allnet Communications
Servs., Inc. v. Pub. Util. Comm., 70 Ohio St. 3d 202, 206, 638 N.E.2d 516 (1994)
8
January Term, 2014
(rejecting argument because appellant “provided no further reasoning or record
citations to support” it); Elyria Foundry Co. v. Pub. Util. Comm., 114 Ohio St. 3d
305, 2007-Ohio-4164, 871 N.E.2d 1176, ¶ 67 (rejecting claim that, “in addition to
being speculative,” “is supported by no argument or evidence as to how the
alleged [error] prejudices [appellant]”).
CONCLUSION
{¶ 25} This court “will not reverse an order of the commission absent a
showing of prejudice by the party seeking reversal.” Myers v. Pub. Util. Comm.,
64 Ohio St. 3d at 302, 595 N.E.2d 873. Buckeye has failed to show that it suffered
prejudice or harm from the commission’s orders. Therefore, we dismiss this
appeal.
Appeal dismissed.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
____________________
Day Ketterer, Ltd., Matthew Yackshaw, and John S. Kaminski, for
appellant.
Michael DeWine, Attorney General, William L. Wright, Section Chief,
and Devin D. Parram and Thomas W. McNamee, Assistant Attorneys General, for
appellee.
Vorys, Sater, Seymour & Pease, L.L.P., M. Howard Petricoff, and Stephen
M. Howard, for intervening appellee.
_________________________
9