LAWSON STEEL SLITTING, INC. v. CLEVELAND ELECTRIC ILLUMINATING CO.
No. 96845
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 12, 2012
[Cite as Lawson Steel Slitting, Inc. v. Cleveland Elec. Illum. Co., 2012-Ohio-83.]
BEFORE: Rocco, J., Blackmon, A.J., and Celebrezze, J.
JOURNAL ENTRY AND OPINION; Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-748061
JUDGMENT: REVERSED AND REMANDED
Marcel C. Duhamel
Bryan J. Farkas
Natalia Steele
Vorys, Sater, Seymour & Pease, LLP
2100 One Cleveland Center
1375 East 9th Street
Cleveland, Ohio 44114-1724
ATTORNEYS FOR APPELLEE
Jeffrey J. Lauderdale
Gabrielle Kelly
Thomas I. Michals
Calfee, Halter & Griswold, LLP
1400 Keybank Center
800 Superior Avenue
Cleveland, Ohio 44114-2688
KENNETH A. ROCCO, J.:
{¶ 1} Plaintiff-appellant Lawson Steel Slitting, Inc. (“LSS“) appeals from the trial court order that granted defendant-appellee the Cleveland Electric Illuminating Company‘s (“CEI“)
{¶ 2} LSS presents one assignment of error, arguing the trial court‘s action was improper. This court agrees. Consequently, LSS‘s assignment of error is sustained and this case is remanded for further proceedings.
{¶ 4} CEI responded to the complaint by filing a motion to dismiss pursuant to
{¶ 5} According to CEI‘s motion, LSS already had attempted to bring claims based on the alleged conduct that formed the basis of the complaint, and those claims had been dismissed “with prejudice” in a “pending” case, viz., Cleveland Elec. Co. v. Lawson Steel Slitting, Inc., Cuyahoga C.P. No. CV 10-732590 (Feb. 10, 2011). CEI referred to this pending case as “Lawson I.” CEI additionally asserted that LSS‘s claims fell within the exclusive jurisdiction of the Public Utilities Commission of Ohio (the “PUCO“), and that LSS did not adequately plead its claim of “misrepresentation.”
{¶ 7} LSS filed a brief in opposition to CEI‘s motion to dismiss. LSS did not supply the trial court with any evidentiary material.
{¶ 8} Subsequently, the trial court issued a lengthy journal entry in which it granted CEI‘s motion to dismiss the complaint. In pertinent part, the trial court stated, “Having reviewed the factual allegations in Lawson I and the facts alleged in the present case, the Court determines that the facts of this case arose out of the occurrence that was the subject matter in Lawson I — the damage caused to [LSS]‘s machinery by the exploding transformer.” The court decided that since the cases shared “a common nucleus of operative facts,” LSS‘s “complaint in this matter [was] therefore barred by res judicata and the Court [was] bound by well-established precedent to dismiss the complaint.”
{¶ 9} LSS appeals from the trial court‘s order with one assignment of error.
{¶ 10} “I. The Court of Common Pleas erred as a matter of law when it granted [CEI]‘s motion to dismiss pursuant to [
{¶ 11} LSS argues the trial court acted improperly in dismissing its complaint. Based upon the record, this court agrees.
{¶ 13} In this case, CEI argued LSS‘s complaint should be dismissed pursuant to separate sections of
{¶ 14}
{¶ 15} Moreover, in its effort to establish its argument, CEI attached to its motion a pleading it claimed was filed in Lawson I. CEI thus implicitly recognized that the defense of res judicata requires evidence outside the pleadings; such a defense, therefore, is properly raised in a motion for summary judgment rather than a
{¶ 17} CEI also argued that the trial court lacked subject matter jurisdiction over the claims LSS raised in its complaint. The standard to apply to a
{¶ 18} When determining its subject matter jurisdiction, the trial court is not confined to the allegations of the complaint, and it may consider material pertinent to such inquiry without converting the motion into one for summary judgment. Southgate Dev. Corp. v. Columbia Gas Transm. Corp. (1976), 48 Ohio St.2d 211, 358 N.E.2d 526, at paragraph one of the syllabus. With respect to a claim against a public utility, the supreme court noted:
{¶ 19} “The General Assembly has created a broad and comprehensive statutory scheme for regulating the business activities of public utilities.
{¶ 21} If the answer to either question is negative, the claim is not within the PUCO‘s exclusive jurisdiction. Allstate Ins. Co. v. Cleveland Elec. Illum. Co., 119 Ohio St.3d 301, 2008-Ohio-3917, 993 N.E.2d 824. It follows that if the answer to either question is uncertain, the trial court must allow the parties to present further evidence on the issue. Pro Se Commercial Props., ¶13-15, citing Pacific Indem. Ins. Co. v. The Illum. Co., Cuyahoga App. No. 82074, 2008-Ohio-3954.
{¶ 22} In this case, LSS alleged certain CEI employees informed it that, since CEI was responsible for the damage to LSS‘s equipment, CEI would provide compensation. It is impossible on the face of the record to determine whether this was a “practice normally authorized” by CEI; hence, the issue of subject matter jurisdiction cannot be resolved. Pacific Indem., ¶22; cf., Rafalski v. Dominion E. Ohio Co., Cuyahoga App.
{¶ 23} CEI finally argued LSS‘s claim of “misrepresentation” was a proper subject for dismissal pursuant to
{¶ 24} LSS alleged in Count 2 of its complaint that CEI‘s employees informed it that CEI was responsible for the damage done to LSS‘s machinery, so LSS had only to submit proof of the loss to be compensated. LSS also alleged that it reasonably relied upon this information to its detriment. These allegations were sufficient to withstand a
{¶ 25} For the foregoing reasons, LSS‘s assignment of error is sustained.
{¶ 26} The trial court‘s order, accordingly, is reversed, and this case is remanded for further proceedings.
It is ordered that appellant recover from appellee costs herein taxed.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO, JUDGE
PATRICIA ANN BLACKMON, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR