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Industrial Energy Users-Ohio et al. v. The Public Utilities Commission of Ohio, Case no. 2006-1594
Nancy Stoner v. Allstate Insurance Company, Case no. 2006-1749
5th District Court of Appeals (Morrow County)
A. J. Borkowski, Jr. v. Charles D. Abood, Case no. 2006-1913
6th District Court of Appeals (Lucas County)
Todd Development Co., Inc., et al. v. Sonny D. Morgan et al., Case no. 2007-0041
12th District Court of Appeals (Warren County)
Disciplinary Counsel v. Honorable George Matthew Parker, Case no. 2007-1157
Warren County
Industrial Energy Users-Ohio et al. v. The Public Utilities Commission of Ohio, Case no. 2006-1594
ISSUE: Did the Public Utilities Commission of Ohio (PUCO) exceed its authority and act contrary to state laws deregulating Ohio's electric power generation industry when it issued an order allowing two utility companies to recover their anticipated research and development costs of new power generation technology by increasing the rates they charge their customers for noncompetitive power distribution service?
BACKGROUND: In 1999, the General Assembly adopted R.C. Chapter 4928, legislation setting terms and conditions for a staged transition of Ohio's electric power industry from a regulated monopoly environment to market competition. In the competitive retail market for electricity generating service developed under the new law, customers have the option to continue paying their traditional local electric company for power generation service or to select a new “competitive retail electric service” (CRES) provider. Regardless of which generation service provider the customer selects, the electricity generated by the provider is still delivered to end users over wires owned and maintained by the traditional electric utility, and the utility continues to charge customers for distribution service at PUCO-regulated rates.
In April 2006, the Public Utilities Commission of Ohio (PUCO) issued an order allowing Columbus Southern Power and Ohio Power, two Ohio electric utilities that are owned by American Electric Power (AEP), to increase the rates they charge their power distribution customers in order to cover AEP's projected costs of initial research and development of a new type of electric power generation plant that uses technology called integrated gasification combined cycle (IGCC).
A number of organizations representing the interests of electric energy users and CRES providers, including Industrial Energy Users-Ohio and the state's Office of Consumers' Counsel, filed objections to the PUCO's order. The commission overruled those objections and authorized the AEP companies to increase their distribution rates to all customers to cover first-stage IGCC research and development costs effective July 1, 2006. The user groups have exercised their right to challenge the legality of the PUCO order through a direct appeal to the Supreme Court.
The user groups argue that the PUCO order is contrary to a specific requirement in the deregulation statutes that traditional utility companies must “unbundle” all costs associated with their competitive power generation operations from the rates they charge customers of their noncompetitive distribution service. By allowing the AEP companies to recover their costs of developing a new power generation technology through increases in their distribution rates, rather than building those costs into the rates they charge for generation service, the opponents assert that the commission has allowed those companies to quote artificially low rates for their generation service and thereby has given them a significant advantage over their competitors. They also assert that the commission acted without reliable cost data on which to base the amount of the granted distribution rate increases, and did not follow mandatory notice and comment procedures required by law before any increase in distribution service rates may be approved.
Attorneys for the PUCO and the AEP companies argue that the commission acted within its discretion and its order should be affirmed. They contend that research and development of new technologies such as IGCC is essential to the AEP companies' ability to meet their current and future statutory responsibilility to serve as “provider of last resort” (PLR) to all electric energy consumers in their service area if competitive providers of generation service go out of business or abandon the market. They assert that the companies' current power generation and distribution infrastructure is outdated and inadequate to meet their projected future PLR obligations, and that the commission has authority to allow rate adjustments necessary to guarantee ongoing availability of electricity to all Ohio citizens.
Contacts
Samuel Randazzo, 614.469.8000, for
Industrial Energy Users-Ohio.
Jeffrey Small, 614.466.8574, for the Office of Consumers' Counsel.
Thomas McNamee, 614.466.4396, for the Public Utilities Commission of Ohio.
Nancy Stoner v. Allstate Insurance Company, Case no. 2006-1749
5th District Court of Appeals (Morrow County)
ISSUE: When a jury makes an award to a plaintiff based on a finding that he was entitled to recover damages under the uninsured/underinsured motorist (UM/UIM) coverage in an insurance policy, is the plaintiff entitled to pre-judgment interest on the full amount of UM/UIM benefits awarded by the jury, or may the trial court deny pre-judgment interest for some or all of the jury award?
BACKGROUND: In September 1994, Nancy Stoner was injured in a traffic accident caused by an uninsured driver. In December 1995, Stoner filed a personal injury lawsuit in the Morrow County Court of Common Pleas asserting claims for various categories of damages from both the at-fault driver and Allstate Insurance under the UM/UIM provisions of her own Allstate auto insurance policy. While her claim against Allstate was in litigation, Stoner received a settlement of $30,000 from another insurer for claims arising from the same accident.
In January 2005, a jury found that Stoner was entitled to recover a total of $69,000 under the UM/UIM coverage in her Allstate policy. The judgment was broken down into separate awards of $15,000 for past pain and suffering, $10,000 for future pain and suffering, $14,000 in medical expenses, $24,000 for lost wages and $5,900 for loss of ability to perform usual activities. When the settlement Stoner had already collected from the other insurer was offset from her total damages, the jury verdict resulted in an award to Stoner against Allstate of $39,000.
Stoner filed a motion asking the trial court to order Allstate to pay her pre-judgment interest on the $39,000 jury award from the date of the accident. The court made an award of pre-judgment interest, but ruled that Stoner was entitled to interest only on the $15,000 portion of the jury award that compensated her for past pain and suffering, and that no prejudgment interest was payable on the portions of the jury award for medical expenses (which had been paid directly to health care providers by Allstate) and for future pain and suffering. Stoner appealed the trial court's limitation of pre-judgment interest. On review, the 5th District Court of Appeals reversed the trial court. The appellate panel held that the jury award was based on a finding that Allstate was contractually obligated by its policy to pay Stoner $39,000, and that the Ohio statute applicable to judgments in contract cases, R.C. 1343.03(A), mandates an award of pre-judgment interest on the full amount of such judgments.
Attorneys for Allstate now ask the Supreme Court to overrule the 5th District. They argue that the assessment of pre-judgment interest mandated in R.C. 1343.03(A) applies only to cases in which one party denies payment of a contractual obligation to the other party. In this case, they assert, Allstate did not dispute that its policy provided Stoner with UM/UIM coverage or that her accident was a covered event, but the parties could not agree on the amount of Stoner's damages. Allstate argues that the dispute in this case was not a question of contract interpretation but rather a question of tort law, and as such was subject to a different statutory provision, R.C. 1343.03(C) that limits awards of pre-judgment interest in tort cases to amounts that are necessary for the winning party to be “made whole” for actual losses he or she suffered prior to the date of judgment.
Attorneys for Stoner assert that the Supreme Court of Ohio's 1998 ruling in Landis v. Grange Mutual Ins. Co. established that a claim for coverage under the UM/UIM provisions of an insurance policy is a contract claim, and that a successful litigant asserting such a claim is therefore entitled to pre-judgment interest on the full amount of the court's award under R.C. 1343.03(A). They argue that a ruling in favor of Allstate will undermine the legislative intent of the pre-judgment interest statute, which they say is to motivate insurers and others to promptly honor their contractual obligations rather than engaging in prolonged litigation during which they continue to enjoy the benefit of funds that should have been paid to deserving claimants. They also contend that nothing in R.C. 1343.03(A) gives trial courts discretion to exclude any type or category of damages from an award of pre-judgment interest.
Contacts
Paul E. Hoeffel, 419.562.4075, for
Allstate Insurance Company.
Jay D. Wagner, 419.468.1131, for Nancy Stoner.
A. J. Borkowski, Jr. v. Charles D. Abood, Case no. 2006-1913
6th District Court of Appeals (Lucas County)
ISSUE: When a state court judge who has subject-matter jurisdiction over a case receives notice that a party has filed a petition to remove the case to federal court, but conducts proceedings and issues a judgment in the case despite that pending petition, does the judge act “in the clear absence of all jurisdiction” and thereby forfeit his immunity from personal liability for actions taken in his capacity as a judge?
BACKGROUND: In this case, while serving as a visiting judge in the Fulton County Court of Common Pleas, Judge Charles D. Abood scheduled an evidentiary hearing in a civil case requesting the eviction of A.J. Borkowski from a property owned by his daughter, Jennifer Borkowski, based on Mr. Borkowski's failure to make monthly rent payments. On May 12, 2004, more than three months after the eviction complaint was filed in state court and one day before the scheduled hearing, Mr. Borkowski filed a petition in U.S. District Court asking that the case be removed to federal jurisdiction, and filed a copy of that petition with the common pleas court. When the parties appeared for trial the following day, Mr. Borkowski made no argument in opposition to the requested eviction order, but instead asserted that his filing with the federal court had divested Judge Abood of jurisdiction to conduct any proceedings or issue any order in the case.
Judge Abood rejected Mr. Borkowski's assertion and proceeded to issue a judgment finding in favor of Ms. Borkowski and ordering eviction proceedings to go forward. On May 24, 2004, seven days after Judge Abood's order was journalized, the U.S. District Court issued an entry rejecting Mr. Borkowski's removal petition and remanding the case to the common pleas court. Mr. Borkowski subsequently appealed the validity of the eviction order entered by Judge Abood, arguing that his filing of a removal petition in federal court had temporarily divested Judge Abood of jurisdiction over the case during the 12 day period between the filing date and the date
on which the case was remanded. The 6th District Court of Appeals ruled in favor of Mr. Borkowski and voided Judge Abood's judgment and eviction order.
In August 2005, Mr. Borkowski filed a civil lawsuit alleging that Judge Abood had violated Borkowski's rights under the state and federal constitutions by issuing a judgment in the eviction case when he had no jurisdiction to do so, and seeking a personal judgment against Judge Abood for $1 million. Judge Abood filed a motion to dismiss the claim, asserting that even if Borkowski's allegations were true, Ohio judges are absolutely immune from personal liability for all judicial acts other than an act undertaken “in the complete absence of all jurisdiction.” The trial court held that Judge Abood was immune and dismissed the complaint. On review, however, the 6th District reversed and reinstated Borkowski's claim, ruling that because of the pendency of a petition for removal to federal court, Judge Abood's judgment and eviction order were undertaken “without any jurisdiction,” and therefore were not protected by judicial immunity.
Attorneys for Judge Abood now ask the Supreme Court to reverse the 6th District and affirm the ruling of the trial court that he is immune from personal liability for his actions in the Borkowski case. They argue that because Judge Abood clearly had subject-matter jurisdiction to hear and decide eviction actions in Fulton County, the 6th District erred in finding that he acted “without any jurisdiction.” They assert that if Judge Abood acted incorrectly in deciding the case while a motion to remove to federal court was pending, that action was at worst “in excess” of his jurisdiction as opposed to an action over which he or his court never had and could not have proper jurisdiction. They cite state and federal cases holding that judicial immunity remains in force where a judge who properly exercised jurisdiction over a case at any point in its history took actions that exceeded his jurisdiction. They also argue that because Borkowski's motion to remove was dated more than 90 days after the deadline for entering such motions, Judge Abood did not act incorrectly in rejecting it on its face and proceeding with the scheduled hearing in his court.
Mr. Borkowski argues that the governing federal statute, 28 U.S.C. Section 1446, divests a state court of all jurisdiction over a case while a motion to remove to federal court is pending. Because Judge Abood had notice of his petition to remove, and ignored the requirement that he take no action until the federal court had ruled on that petition, Mr. Borkowski argues that the Supreme Court must affirm the ruling of the 6th District that Judge Abood acted “without any jurisdiction,” and therefore is not shielded by judicial immunity from Borkowski's claim for damages arising from the eviction order.
Contacts
Kimberly Vanover Riley, 513.241.4722, for
Judge Charles Abood.
A.J. Borkowski Jr. pro se, 419.237.7017.
Todd Development Co., Inc., et al. v. Sonny D. Morgan et al., Case no. 2007-0041
12th District Court of Appeals (Warren County)
ISSUE: In a civil case, does a party moving for summary judgment granting affirmative relief on its own claims bear the initial burden of addressing and disproving in its summary judgment motion affirmative defenses that could be raised by the opposing party?
BACKGROUND: This case involves a dispute between a group of homeowners in a Warren County subdivision and a developer who purchased multiple undeveloped lots in the subdivision from the original developer and sought a declaratory judgment that it was not required to abide by restrictions in the original subdivision covenants in developing those lots.
However the legal issue on which the Supreme Court has agreed to hear arguments does not involve the substance of the dispute between the parties, but is strictly procedural in nature. Because the 12th District Court of Appeals certified a conflict between its ruling on a summary judgment motion in this case and a ruling by the 3rd District on a similar motion in another case, the Court has asked the parties to brief the issue stated above.
Attorneys for the homeowners, whose motion for summary judgment on some disputed issues in the case was initially granted by the trial court but later denied by the court of appeals, argue that a party moving for summary judgment on a specific issue is only required in its brief supporting that motion to show that the opposing party's pleadings have raised no “genuine issue of material fact” that would support a judgment in the opponent's favor on the issue for which summary judgment is sought. They assert that the 12th District's ruling reversing the trial court's grant of summary judgment in their favor was contrary to Ohio's rules of civil procedure because it effectively held that the homeowners were required not only to address the defenses actually raised by the developer in its pleadings on the continuing enforceability of the original covenants, but also were required to disprove an affirmative defense of laches (excessive delay in asserting a claim) that the developer did not raise in its pleadings on the issue in which summary judgment was sought.
Attorneys for the developer urge the Court to hold that a party moving for summary judgment has the initial burden of demonstrating the absence of a genuine issue of material fact on the movant's claim and on the affirmative defenses that are available to the opposing party. They also argue that, because the developer raised the issue of laches in its own summary judgment motion in the case, the trial court erred by not applying that defense in its analysis of the homeowners' summary judgment motion.
Contacts
Gary J. Leppla, 937.294.5959, for
Sonny Morgan and other homeowners.
James A. Matre, 513.671.6333, for Todd Development Co.
Disciplinary Counsel v. Honorable George Matthew Parker, Case no. 2007-1157
Warren County
The Board of Commissioners on Grievances & Discipline has recommended that the Supreme Court suspend the law license of Mason Municipal Court Judge George M. Parker for 18 months, with six months of that term stayed on conditions, for multiple violations of state attorney and judicial disciplinary rules. Judge Parker has filed objections to the board's findings and urges the Court to impose a less severe sanction.
Following a hearing before a three-member panel of board members and review of the panel's findings by the full board, the board found that in seven separate incidents Judge Parker committed 31 violations of the Code of Judicial Conduct and Rules of Professional Conduct in his dealings with defendants, attorneys, courthouse staff and others who appeared in his court. In a number of those incidents the board found that Judge Parker directed undignified and improper comments and gestures toward parties and attorneys in cases, attempted to coerce prosecutors defense attorneys and criminal defendants into plea agreements that they did not wish to accept, and threatened to use his contempt powers and sentencing prerogatives to force parties and attorneys to take other actions which they did not believe were appropriate.
The board found violations of eight canons of judicial ethics including those that require judges to uphold the integrity and independence of the judiciary, to dispose of judicial matters promptly and fairly, to be “patient, dignified and courteous” to litigants and attorneys during court proceedings, and to avoid engaging in improper communications with parties and attorneys in cases before his court. The board also found violations of the state attorney discipline rules that prohibit conduct involving dishonesty, fraud, deceit or misrepresentation; conduct prejudicial to the administration of justice; and conduct that adversely reflects on an attorney's fitness to practice law. In recommending an appropriate sanction for this misconduct, the board noted the aggravating factors that Judge Parker engaged in a pattern of misconduct, violated multiple disciplinary rules, and made frequent contradictory, false and deceptive statements during the disciplinary proceedings to justify his own actions and divert responsibility for his improper conduct to others.
Judge Parker points out that a psychiatric assessment he agreed to undergo at the board's request diagnosed him with narcissistic personality disorder (NPD), and found that the condition was at least partially responsible for his misconduct. He asserts that in recommending a sanction, the board failed to give sufficient weight to this condition as a mitigating factor. He also disputes the board's finding that his changing and contradictory explanations of his conduct during the disciplinary process were deliberate attempts to evade responsibility for his actions. Instead, he urges the court to note that he agreed to written stipulations acknowledging his wrongdoing prior to his hearing, and give weight to expert testimony that persons with NPD often create and believe alternative explanations for their past actions because they are unable to deal with the reality that they have made mistakes or acted inappropriately.
Contacts
Joseph M Caligiuri, 614.461.0256, for
the Office of Disciplinary Counsel.
George D. Jonson, 513.768.5220, for Judge George M. Parker.
These summaries are prepared by the Office of Public Information solely to help news reporters determine if they want to cover the arguments. The summaries are not part of the case record and are not considered by the Court at any point during its deliberations.
Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.