IN RE COMPLAINT OF BUCKEYE ENERGY BROKERS, INC., APPELLANT, v. PALMER ENERGY COMPANY, INTERVENING APPELLEE; PUBLIC UTILITIES COMMISSION OF OHIO, APPELLEE.
No. 2012-0668
Supreme Court of Ohio
April 15, 2014
139 Ohio St.3d 284, 2014-Ohio-1532
LANZINGER, J.
Submitted January 7, 2014
{11} This is an appeal of an order of the Public Utilities Commission of Ohio (“the commission” or “PUCO“) that determined that intervening appellee, Palmer Energy Company, an energy-management and consulting firm, did not violate
{12} 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
{13} 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.
{14} 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.
{15}
{16} 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
{17} Palmer answered the allegations, denying that it had violated
{18} While the case was pending before the commission, Palmer filed applications to become certified under
{19} 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.
{110} The commission interpreted the definitions of “electric services company” in
{111} 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.
{112} The commission first noted that the word “arranging” is not defined in
{113} 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.
{114} Buckeye timely applied for rehearing, which was denied. Buckeye then filed this appeal challenging the commission‘s orders.
{115} ”
{116} 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
{117} 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
I. Buckeye has failed to show that the order has a prejudicial effect
{118} 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.
{119} 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. 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
{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.
{123} 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) (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
{125} 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.