Ohio Consumers' Counsel v. Pub. Util. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Ohio Consumers' Counsel v. Pub. Util. Comm., 105 Ohio St.3d 1211, 2005-Ohio-
1023.]

OHIO CONSUMERS' COUNSEL, APPELLANT, v. PUBLIC
UTILITIES COMMISSION OF OHIO, APPELLEE.
[Cite as Ohio Consumers' Counsel v. Pub. Util. Comm.,
105 Ohio St.3d 1211, 2005-Ohio-1023.]
Motions to dismiss granted.
(No. 2004-1227 -- Submitted January 18, 2005 -- Decided March 23, 2005.)
APPEAL from the Public Utilities Commission, Nos. 03-1459-GA-ATA,
94-987-GA-AIR, 96-1113-GA-ATA, and 98-222-GA-GCR.
ON MOTION TO INTERVENE and MOTIONS TO DISMISS.
__________________
{¶ 1} The motion to intervene as appellee by Columbia Gas of Ohio,
Inc., is granted.
{¶ 2} On July 29, 2004, appellant filed a notice of appeal. The notice of
appeal did not include the certificate of filing required by S.Ct.Prac.R.
XIV(2)(C)(2). Accordingly,
{¶ 3} IT IS ORDERED by the court, sua sponte, that appellant's notice
of appeal be, and hereby is, stricken.
{¶ 4} IT IS FURTHER ORDERED by the court that the motions to
dismiss of the Public Utilities Commission and Columbia Gas of Ohio, Inc. be,
and hereby are, granted.
{¶ 5} ACCORDINGLY, IT IS FURTHER ORDERED by the court that
this cause be, and hereby is, dismissed.

MOYER, C.J., LUNDBERG STRATTON, O'CONNOR, O'DONNELL and
LANZINGER, JJ., concur.

RESNICK and PFEIFER, JJ., concur in part and dissent in part.
__________________

SUPREME COURT OF OHIO

PFEIFER, J., concurring in part and dissenting in part.
{¶ 6} Ohio Consumers' Counsel ("OCC") filed a notice of appeal with
this court and with the Public Utilities Commission's ("PUCO") docketing
division on July 29, 2004. OCC failed to include a certificate of filing as required
by S.Ct.Prac.R. XIV(2)(C)(2) and a case-information statement as required by
S.Ct.Prac.R. II(6). PUCO contends that OCC's failure to include the certificate of
filing and the case-information statement should result in the dismissal of the
case. OCC contends that its failure is technical and did not prejudice PUCO and,
therefore, should be overlooked in this instance.
{¶ 7} "[T]he fundamental tenet of judicial review in Ohio [is] that courts
should decide cases on their merits." State ex rel. Wilcox v. Seidner (1996), 76
Ohio St.3d 412, 414, 667 N.E.2d 1220, citing DeHart v. Aetna Life Ins. Co.
(1982), 69 Ohio St.2d 189, 192, 23 O.O.3d 210, 431 N.E.2d 644. "Judicial
discretion must be carefully--and cautiously--exercised before this court will
uphold an outright dismissal of a case on purely procedural grounds." DeHart, at
192, 23 O.O.3d 210, 431 N.E.2d 644. Unfortunately, this court today comes
down on the side of hypertechnical obeisance.
{¶ 8} S.Ct.Prac.R. XIV(2)(C)(2) states, "In an appeal from the Public
Utilities Commission * * *, the notice of appeal shall also contain a certificate of
filing to evidence that the appellant filed a notice of appeal with the docketing
division of the Public Utilities Commission * * *." OCC should have included a
certificate of filing; it didn't. The reason for the certificate, however, is to ensure
that a notice of appeal was filed with the docketing division of the PUCO; the
notice of appeal was so filed.
{¶ 9} PUCO was on notice of the appeal and has not argued that it was
prejudiced by OCC's failure to include the certificate of filing. This case should
serve as an opportunity for this court to remind parties to routinely check for new
rules. S.Ct.Prac.R. XIV(2)(C)(2) had been in effect less than a month when OCC
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January Term, 2005
failed to follow it. See 101 Ohio St.3d CLXI. At most, we should rule that
S.Ct.Prac.R. XIV(2)(C)(2) will be strictly enforced from this date forward.
Unfortunately, this case will illustrate this court's slavish devotion to a
nonsubstantive rule.
{¶ 10} S.Ct.Prac.R. II(6) states, "In all appeals filed in the Supreme Court,
the appellant shall file, in addition to the other documents required by these rules,
a case information statement at the time the notice of appeal is filed. The
statement shall identify the issues and applicable law presented for review * * *."
Again, OCC should have complied with the rule; it did not. Again, PUCO was
not prejudiced, and, again, we should not slavishly apply technical requirements
that do not entrench on substantive issues.
{¶ 11} Finally, PUCO did not raise these technical arguments until over
four months had passed. This fact alone suggests that PUCO was not prejudiced,
as any real prejudice would have been apparent months earlier. It also suggests
that PUCO may have delayed asserting these violations until after they could have
been corrected. Because of the technical nature of the violations, they could have
been easily and quickly corrected had OCC been informed of the violations by
either this court or PUCO.
{¶ 12} Cases should be resolved on the merits; that is a fundamental tenet
of Ohio case law. I would overlook the technical violations in this case because
they did not prejudice the adverse party.
{¶ 13} I concur with the court's decision to grant the motion to intervene.
Accordingly, I concur in part and dissent in part.

RESNICK, J., concurs in the foregoing opinion.
__________________

Janine L. Migden-Ostrander, Ohio Consumers' Counsel, Colleen L.
Mooney, Larry S. Sauer, and Joseph P. Serio, Assistant Consumers' Counsel, for
appellant.
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SUPREME COURT OF OHIO

Jim Petro, Attorney General, Duane Luckey, Senior Deputy Attorney
General, Anne L. Hammerstein, and Stephen L. Reilly, Assistant Attorneys
General, for appellee.

Stephen B. Seiple and Stanley J. Sagun, for intervening appellee Columbia
Gas of Ohio, Inc.

Chester, Willcox & Saxbe, L.L.P., John W. Bentine, and Bobby Singh, for
intervening appellees Interstate Gas Supply, Inc. and WPS Energy Services, Inc.

Thompson Hine, L.L.P. and Thomas E. Lodge, urging affirmance for
amicus curiae, Ohio Telecom Association.
_____________________
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