Satterfield v. Ameritech Mobile Commc'ns, Inc.

155 Ohio St.3d 463

122 N.E.3d 144

2018 Ohio 5023

SATTERFIELD et al.; Intermessage Communications, Appellee,

v.AMERITECH MOBILE COMMUNICATIONS, INC., et al.; Cincinnati SMSA Limited Partnership, Appellant.

No. 2017-0684

Supreme Court of Ohio.

Submitted July 18, 2018

Decided December 18, 2018

Hahn, Loeser & Parks, L.L.P., Robert J. Fogarty, Dennis R. Rose, and Royce R. Remington, Cleveland; Gary, Naegele & Theado, L.L.C., and Thomas R. Theado, Lorain; Randy J. Hart, L.L.P., and Randy J. Hart ; Tricarichi & Carnes, L.L.C., and Carla M. Tricarichi, Cleveland; and Law Offices of Mark Griffin and Mark D. Griffin, for appellee.

Tucker Ellis, L.L.P., Irene C. Keyse-Walker, and Benjamin C. Sassé ; and Calfee, Cleveland, Halter & Griswold, L.L.P., and James F. Lang, Cleveland, for appellant.

Bricker & Eckler, L.L.P., Anne Marie Sferra, Drew Campbell, and Bryan Smeenk, Columbus, urging reversal for amici curiae Ohio Counsel of Retail Merchants, Ohio Insurance Institute, Ohio Alliance for Civil Justice, and Ohio Association of Civil Trial Attorneys.

Mac Murray & Shuster, L.L.P., Betty D. Montgomery, Columbus, and Patrick W. Skilliter, New Albany, urging reversal for amicus curiae Betty D. Montgomery, former Attorney General of Ohio.

K & L Gates, L.L.P., and J. Nicholas Ranjan; and Donald T. Boyd, urging reversal for amici curiae Chamber of Commerce of the United States of America and Ohio Chamber of Commerce.

Steven T. Nourse, Columbus, urging reversal for amicus curiae Ohio Power Company, d.b.a. AEP Ohio.

Rocco O. D'Ascenzo, urging reversal for amicus curiae Duke Energy Ohio, Inc.

Joshua R. Eckert, urging reversal for amici curiae Ohio Edison Company, Cleveland Electric Illuminating Company, and Toledo Edison Company.

Michael J. Schuler, urging reversal for amicus curiae Dayton Power and Light Company.

Kennedy, J.{¶ 1} In this discretionary appeal from a judgment of the Eighth District Court of Appeals, we consider the parameters established by R.C. 4905.61 regarding the parties that have standing to bring a treble-damages action pursuant to that statute. Here, appellee, Intermessage Communications ("Intermessage"), and members of a proposed class of retail cellular-telephone-service subscribers seek to recover treble damages under R.C. 4905.61 for regulatory violations committed in the mid-1990s when those regulatory violations—as determined by the Public Utilities Commission of Ohio ("PUCO")—related to the wholesale cellular-service market.

{¶ 2} Because the language of R.C. 4905.61 limits recovery of treble damages to the "person, firm, or corporation" directly injured as a result of the "violation, failure, or omission" found by the PUCO, we hold that Intermessage and the proposed class of retail cellular-service subscribers lack standing to bring an action pursuant to R.C. 4905.61. Moreover, because the resolution of the first proposition of law asserted by appellant, Cincinnati SMSA Limited Partnership (operating under the trade name Ameritech Mobile) ("Ameritech"), resolves this case, we decline to address Ameritech's other proposition of law. We therefore reverse the judgment of the Eighth District and order the matter dismissed.

FACTS AND PROCEDURAL HISTORY

{¶ 3} The origins of the current action arose in October 1993, when Westside Cellular, Inc., d.b.a. Cellnet ("Cellnet"), filed a multicount complaint with the PUCO against Ameritech and other wholesale cellular-service providers. See In re Complaint of Westside Cellular, Inc. v. New Par Cos. , Pub. Util. Comm. No. 93-1758-RC-CSS, 2001 Ohio PUC LEXIS 18, *1-2, 96-100, 133-137, 230-233 (Jan. 18, 2001) ("the Cellnet order"). We will focus on only the allegations against Ameritech and the resolution of those allegations in the Cellnet order because Ameritech is the only wholesale cellular-service provider involved in the current dispute.

{¶ 4} Cellnet, a cellular-telephone-service reseller, had purchased cellular service on a wholesale basis from Ameritech, rebranded the service, and marketed it on a retail basis. Westside Cellular, Inc. v. Pub. Util. Comm. , 98 Ohio St.3d 165, 2002-Ohio-7119, 781 N.E.2d 199, ¶ 1. Cellnet alleged that Ameritech had engaged in rate discrimination against it. More specifically, Cellnet claimed that Ameritech had failed to offer cellular service, equipment, and features to Cellnet on a wholesale basis at the same rate Ameritech had charged its own retail businesses. Id. ; see also the Cellnet order, 2001 Ohio PUC LEXIS 18, at *230-233. Cellnet also claimed that Ameritech had failed to maintain separate operations and records for its wholesale and retail businesses. The Cellnet order at *96-100.

{¶ 5} In 2001, the PUCO issued the Cellnet order, finding that Ameritech had engaged in numerous practices that were prohibited by R.C. Chapter 4905. The PUCO found that Ameritech had failed to maintain its records in a manner that satisfied the PUCO's overriding purpose to ensure that wholesale cellular-service providers were providing access on a nondiscriminatory basis. Id. at *108-112. The PUCO further found that Ameritech had violated R.C. 4905.33 by charging Cellnet a higher rate than Ameritech's retail affiliate paid for the same service under substantially the same circumstances and conditions. Id. at *151.

{¶ 6} Ameritech appealed the findings of the PUCO in the Cellnet order as of right to this court. We affirmed. Cincinnati SMSA Ltd. Partnership v. Pub. Util. Comm. , 98 Ohio St.3d 282, 2002-Ohio-7235, 781 N.E.2d 1012, ¶ 8.

{¶ 7} Based upon the PUCO's ruling regarding Ameritech's activities in the wholesale cellular-service market, Intermessage and two other named plaintiffs who are no longer involved in this litigation—Cindy Satterfield and Cindy Satterfield, Inc., a.k.a. Highland Speech Services, Inc.—filed the instant class-action complaint against Ameritech and other parties in December 2003. Because only the claims of Intermessage and the proposed class against Ameritech are at issue in this case as it comes to us, we will limit our discussion of the facts to those parties.

{¶ 8} Intermessage was a retail purchaser of cellular-telephone service from Ameritech. It entered into contracts with Ameritech for cellular-telephone numbers and used the accompanying service to back up alarm systems that Intermessage sold to its customers. Intermessage paid Ameritech for the retail cellular service and then passed those costs on to its customers.

{¶ 9} Intermessage initially sought to define the class as "all subscribers to Ameritech Mobile service from 1993-1998" and sought recovery under several different theories of relief, including under R.C. 4905.61. Intermessage claimed that the practices Ameritech had engaged in—practices for which the PUCO had already found Ameritech liable—included preventing cellular-service resellers from entering the Ohio market and from increasing the resellers' market shares. Intermessage further alleged that these practices caused each member of the proposed class to pay more for cellular-telephone service than the retail market otherwise would have charged.

{¶ 10} The trial court in 2006 and 2008 made several rulings that limited Intermessage's class action against Ameritech to recovery only under R.C. 4905.61 and only for the period October 18, 1993, through September 8, 1995.

{¶ 11} The trial court eventually granted Intermessage's motion for class certification, certifying a class under Civ.R. 23(A) and (B)(3) consisting of "all retail subscribers of [Ameritech] who purchased service with an Ohio area code within geographic areas in which the PUCO decision found wholesale price discrimination during the period October 18, 1993 through September 8, 1995" upon its finding that the statutory prerequisites for class certification had been satisfied.

{¶ 12} The Eighth District Court of Appeals affirmed, concluding that the trial court had not abused its discretion in certifying the class. 2017-Ohio-928, 86 N.E.3d 830, ¶ 30.

{¶ 13} We accepted the following two propositions of law:

1. A claimant lacks standing to sue under R.C. 4905.61 for "treble the amount of damages sustained in consequence of the violation" absent a prior determination by the Public Utilities Commission that the claimant's rights under a specific public utilities statute or commission order were violated.

2. Where a plaintiff relies upon a damages model to establish that common issues would predominate, the model must demonstrate that injury-in-fact and damages can be proven on a class-wide basis.

See 151 Ohio St.3d 1501, 2018-Ohio-365, 90 N.E.3d 945.

ARGUMENTS OF THE PARTIES

{¶ 14} Ameritech contends that Intermessage's class action cannot survive because the plain meaning of R.C. 4905.61 provides standing to sue only to those persons or entities whose rights the PUCO has expressly found were violated. In other words, Ameritech maintains that the statutory language unequivocally limits standing to persons or entities directly injured by the violations found by the PUCO. Ameritech asserts that there is no language in R.C. 4905.61 that authorizes a class-action lawsuit for indirect harms allegedly caused by a violation of the rights of some other person or entity. Intermessage counters that this court should not adopt Ameritech's interpretation, because Ameritech seeks to have the court ignore the actual language of the statute—which gives standing to "the person * * * injured" by a violation—and Ameritech also seeks to have us insert the phrase "whose rights the PUCO expressly finds to have been violated" into the statute.

ANALYSIS

{¶ 15} As set forth above, Ameritech's first proposition of law asserts that a claimant lacks standing to bring an action under R.C. 4905.61 when the PUCO has never made a determination that that claimant's rights under a specific statute or PUCO order were violated. Because the language of R.C. 4905.61 is controlling, we begin in a familiar place—the principles of statutory construction.

{¶ 16} The interpretation of a statute is a question...