In re Complaint of Smith v. Ohio Edison Co. , 137 Ohio St. 3d 7 ( 2013 )

[Cite as In re Complaint of Smith v. Ohio Edison Co., 137 Ohio St.3d 7, 2013-Ohio-4070.]
IN RE COMPLAINT OF SMITH, APPELLANT, v. OHIO EDISON COMPANY,
INTERVENING APPELLEE; PUBLIC UTILITIES COMMISSION, APPELLEE.
[Cite as In re Complaint of Smith v. Ohio Edison Co., 137 Ohio St.3d 7,
2013-Ohio-4070.]
Public utilities—Disconnection of electrical service—Unsafe conditions—Orders
affirmed.
(No. 2011-1828—Submitted April 23, 2013—Decided September 26, 2013.)
APPEAL from the Public Utilities Commission of Ohio, No. 10-340-EL-CSS.
____________________
O’CONNOR, C.J.
SUMMARY
{¶ 1} Appellant, C. Richard Smith, filed a complaint and an amended
complaint pursuant to R.C. 4905.26 before the Public Utilities Commission
against intervening appellee, Ohio Edison Company, a public utility under R.C.
4905.02. The complaint alleged that Ohio Edison had unlawfully removed the
electric meter from Smith’s property and disconnected his electric service.
{¶ 2} The commission held that Ohio Edison was justified in removing the
meter and terminating the electric service. Under Ohio Edison’s tariff, an
application for new service is required before electric service can be established.
The commission found that Smith had never made an application for new service
at the property in question and, therefore, was not a customer of Ohio Edison.
The commission further found that Ohio Edison had properly removed the electric
meter from Smith’s property without prior notice because the meter had been
tampered with and was a safety hazard.
{¶ 3} Smith appealed to this court, raising three propositions of law. None
has merit. Therefore, we affirm the commission’s orders.
SUPREME COURT OF OHIO
FACTS AND PROCEDURAL BACKGROUND
{¶ 4} Smith is a customer of Ohio Edison at his residence, which is
located at 7051 Kinsman-Nickerson Road in Kinsman, Ohio. In August 2008,
Smith purchased a residential property at a sheriff’s sale. Smith intended to
renovate the residence and resell the property. He took possession of the
property—located at 1930 Mahoning Avenue in Warren, Ohio—in September
2008. Shortly after taking possession, Smith discovered that the electricity was
on at the residence.
{¶ 5} On September 10, 2008, Smith contacted Ohio Edison and talked
with Shawntae Tucker, a customer-service representative. Smith informed
Tucker that he had purchased the Mahoning Avenue property and wanted to put
the electric service in his name. Smith gave Tucker his billing address (the
Kinsman-Nickerson Road address) and telephone number. He also told Tucker
that the electricity was on. Tucker responded that Ohio Edison’s system showed
that the power had been disconnected for over three years and that the power
would be on only if someone had tampered with the meter. Tucker advised Smith
that the company could verify when he had purchased the property so he would
not be held responsible for tampering. Tucker also told Smith that the meter
would need to be inspected before power could be restored and that she would
have to transfer him to the New Service Upgrades Department in order to have
electric service placed in his name. She then transferred Smith to Ohio Edison
representative Tilwana Jennings.
{¶ 6} When Smith spoke with Jennings, he repeated his contact
information, that he had recently purchased the Mahoning Avenue property, and
that the power was on at that residence. Jennings confirmed that Smith would
need to have a safety inspection before the power could be used, and she advised
him to contact the building inspector for Warren, Ohio, to inspect the electrical
system. Jennings further explained that once Ohio Edison received the inspection
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approval, an order to restore the power could be scheduled. Jennings offered to
place an order for Smith that day, but Smith said that he would call Ohio Edison
back after he had scheduled his inspection with the city of Warren. Jennings told
Smith to ask for “new service” when he called back, to reach the proper person to
take his order.
{¶ 7} Nearly two months later, Smith called Ohio Edison on November 5,
2008, but he did not ask to speak to the new-service department. Instead, he
spoke with customer-service representative Kathleen Fox. Smith stated his name,
that his residence was in Kinsman, and that he had purchased a home in Warren
that he was renovating. Smith informed Fox that the city of Warren had inspected
the electrical system and that the electric service was on at the property. He said
that he was waiting for someone to read the meter and that he had called back
because no one had sent him a bill. Fox stated that Ohio Edison had received a
release form from the city inspector advising that the premises could be
reconnected to the system but that no application for service had been made. Fox
said no bill was sent because the service at the Mahoning Avenue address was not
in Smith’s name. She then transferred Smith to another representative, Dawn
Partello.
{¶ 8} Smith repeated his name and contact information to Partello, as well
as the information about the purchase and inspection of the property. Smith also
told Partello that vagrants had lived at the residence before he purchased the
property and that they had “pulled the meter off and removed the sleeve and used
the electricity.” Smith informed Partello that he too had been using the electricity
and thought that he had done everything necessary to have Ohio Edison read the
meter and send him a bill.
{¶ 9} Partello responded that the inspection had been received and that
Smith would be required to pay for the electricity he had used. Partello then told
Smith that she would need to transfer him to the new-service department, which
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was the department that would be “able to tie the order and the inspection together
* * * [to] get the service put in your name for you.” But rather than wait for the
call to transfer, Smith apparently hung up the phone.
{¶ 10} Almost three months later, on January 30, 2009, Smith contacted
Ohio Edison and spoke with customer-service representative Jaleia Johnson.
Smith told Johnson that the power was off at the Mahoning Avenue residence and
that Ohio Edison had removed the electric meter and placed a sticker on the meter
base stating that the base was damaged. Smith asked if Ohio Edison was going to
replace the meter that day because the water lines in the house would freeze and
break.
{¶ 11} Johnson stated that it appeared that the company was charging
Smith with tampering and that the charge would have to be resolved before
electric service could be restored. Johnson told Smith that a “Dear Occupant”
letter had gone to the Mahoning Avenue address notifying Smith to call Ohio
Edison to open an account. Smith stated that the Mahoning Avenue property was
unoccupied and recited his billing address in Kinsman, Ohio. Johnson explained
that Smith had not placed an order for new service and that as far as the company
was concerned, the electric service has not been on since 2005. At this point in
the conversation, Smith asserted that an Ohio Edison representative had told him
that the company would not be sending a bill until he had finished renovating the
property; after that, the company would send him a “construction bill.” Johnson
reiterated that Ohio Edison had disconnected the electric service in 2005 and since
then the company had never authorized having the service reconnected. Johnson
said Ohio Edison believed that tampering had occurred and that Smith would need
to discuss the matter with the company’s revenue-protection department. The call
was then transferred to customer-service representative Alicia Allen.
{¶ 12} After the transfer, Smith asked Allen when Ohio Edison was going
to replace the meter base and turn the power back on. Allen informed Smith that
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he would have to replace the meter base himself and once that was done, the
company would reconnect the meter. Allen noted that when Smith called in
September 2008, his call had been transferred to the new-service department, but
Smith never talked with anyone from that department. Smith responded that he
had called two different times and had done everything the company asked to
receive service but that he had never received a bill.
{¶ 13} Smith called Ohio Edison back later that same day and spoke with
company representative Nelson Rodriguez. Smith explained that he was ready to
replace the meter base and needed to know if the power had been disconnected
from the utility pole to the house. Smith also asked to be put in contact with
someone from the company so he could give them his billing address. Smith
wanted the company to send him a bill so he could pay whatever money he owed.
Rodriguez said the company had his billing address listed at Kinsman-Nickerson
Road but that the service at Mahoning Avenue was not in Smith’s name.
Rodriguez asked if Smith had been using electricity without the company’s
permission and if he had cleared the tampering charge with the revenue-protection
department. In response, Smith stated that the city inspector had approved the
work needed to have the power turned on. Rodriguez explained to Smith that the
company needed an application for service in addition to the inspection approval.
Rodriguez then transferred Smith to the revenue-protection department.
{¶ 14} Company representative Debbie Jones received Smith’s call.
Smith requested that Jones send him a bill so his account could be made current.
Jones stated that Smith would need to pay $306.44 before power would be
restored and that this amount included his meter usage, a security deposit, a
reconnection fee, and a tampering charge. When Smith denied having tampered
with the meter, Jones said she would have a supervisor with the tampering
department contact him. The record indicates that no Ohio Edison supervisor
ever contacted Smith about his dispute.
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{¶ 15} On February 11, 2009, Smith again contacted Ohio Edison and
spoke with Laura Miller. Smith gave Miller a history of his dispute with Ohio
Edison and requested a face-to-face meeting with Ohio Edison to resolve the
problem. Miller informed Smith that no meeting could be scheduled because
Ohio Edison no longer has walk-in offices. Smith and Miller subsequently agreed
that he was responsible for electric usage only from the date he took possession of
the property. Miller also confirmed that Smith had not paid for his usage and had
yet to confirm the possession date with Ohio Edison. Miller then gave Smith
information on how to dispute the tampering charge.
{¶ 16} On February 12, 2009, Smith sent a fax to Ohio Edison verifying
his purchase of the property and outlining his dispute of the tampering charge.
Ohio Edison admitted receiving the fax, but no one from the company contacted
Smith to resolve the matter.
{¶ 17} Over a year later, on March 17, 2010, Smith filed a pro se
complaint against Ohio Edison with the commission pursuant to R.C. 4905.26.
Smith subsequently retained counsel and filed an amended complaint on August
9, 2010. The amended complaint alleged, among other things, that Smith had
established residential electric service to his Mahoning Avenue property through
his repeated phone calls to Ohio Edison. Smith further alleged that Ohio Edison
had terminated the electric service to this property without warning or proper
notification to him, in violation of the Ohio Administrative Code. Smith claimed
injury and requested that Ohio Edison pay damages.
{¶ 18} The commission held an evidentiary hearing on February 23, 2011.
Following the filing of posthearing briefs, the commission issued its opinion and
order on July 6, 2011. The commission first held that Smith was not a customer
of Ohio Edison at the Mahoning Avenue property because he had not made a
proper application for new service. The commission also found that Ohio Edison
took the correct action when it disconnected the meter without prior notice to
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Smith because the tampered meter and damaged meter base created an unsafe
condition.
{¶ 19} On the other hand, the commission held that Ohio Edison’s refusal
to establish service until Smith paid tampering charges was not justified under the
circumstances. The commission found that Smith was a customer of Ohio Edison
at his residence in Kinsman and that the company did not provide adequate
service when it failed to investigate and act diligently to resolve Smith’s
consumer complaint.
{¶ 20} Smith and Ohio Edison each sought rehearing before the
commission. On August 31, 2011, the commission denied both applications for
rehearing. Smith filed the instant appeal challenging the commission’s orders.
Ohio Edison declined to pursue an appeal to this court.
STANDARD OF REVIEW
{¶ 21} “R.C. 4903.13 provides that a [Public Utilities Commission] order
shall be reversed, vacated, or modified by this court only when, upon
consideration of the record, the court finds the order to be unlawful or
unreasonable.” Constellation NewEnergy, Inc. v. Pub. Util. Comm., 104 Ohio
St.3d 530, 2004-Ohio-6767, 820 N.E.2d 885, ¶ 50. We will not reverse or modify
a commission decision as to questions of fact when the record contains sufficient
probative evidence to show that the commission’s decision was not manifestly
against the weight of the evidence and was not so clearly unsupported by the
record as to show misapprehension, mistake, or willful disregard of duty.
Monongahela Power Co. v. Pub. Util. Comm., 104 Ohio St.3d 571, 2004-Ohio-
6896, 820 N.E.2d 921, ¶ 29. An appellant bears the burden of demonstrating that
the commission’s decision is against the manifest weight of the evidence or is
clearly unsupported by the record. Id.{¶ 22} Although this court has “complete and independent power of
review as to all questions of law” in appeals from the Public Utilities
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Commission, 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 “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).
ANALYSIS
{¶ 23} The question on appeal is whether the commission erred in finding
that Ohio Edison properly disconnected the electric service to Smith’s Mahoning
Avenue property. After review, we find that the commission’s orders are lawful
and reasonable.
Proposition of Law No. 1
{¶ 24} Smith first asserts that the commission erred in determining that he
did not become a customer of Ohio Edison at the Mahoning Avenue property,
which he claims would have entitled him to notice before having the electric
service disconnected. Smith raises two separate claims under his first proposition
of law. Smith’s primary claim is that he was a customer of Ohio Edison based on
an oral contract with Ohio Edison. He also challenges the commission’s
determination that he failed to properly apply for new service with Ohio Edison.
We reject Smith’s claims for the following reasons.
I. Smith’s contract claim was not raised in his
notice of appeal and is forfeited
{¶ 25} According to Smith’s primary argument, he is a customer of Ohio
Edison because he entered into an oral contract to purchase electricity from Ohio
Edison for the Mahoning Avenue property. This, Smith argues, makes him a
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customer under the Ohio Administrative Code,1 which, according to Smith,
defines a “customer” of a public utility by the existence of a contract or
agreement.
{¶ 26} Smith raised this contract argument for the first time in his
application for rehearing at the commission. Smith claimed on rehearing that he
was not required to apply for service because he could be supplied service based
upon an oral agreement, which he claims was established during the telephone
calls with Ohio Edison’s customer-service representatives that occurred on
September 10 and November 5, 2008.
{¶ 27} Smith’s first assignment of error in his notice of appeal reads as
follows: “The Commission erred in finding that C. Richard Smith did not succeed
in making an application for new service in his telephone calls on either
September 10, 2008 or November 5, 2008.” This assignment of error suggests
that application was required to establish new service. In contrast, Smith’s
contract claim expressly denies that a formal application for service is required
because electric service can be established by contract. Yet Smith’s notice of
appeal does not even mention the word “contract,” let alone claim error relating to
the formation of a valid contract.
{¶ 28} R.C. 4903.13 establishes that the procedure for seeking reversal of
a commission order is through a notice of appeal “setting forth the order appealed
from and the errors complained of.” We lack jurisdiction to consider Smith’s
contract claim because he failed to set forth the alleged error in his notice of
appeal. Cincinnati Gas & Elec. Co. v. Pub. Util. Comm., 103 Ohio St.3d 398,
2004-Ohio-5466, 816 N.E.2d 238, ¶ 21; Ohio Partners for Affordable Energy v.
1. Smith’s counsel repeatedly cites the current versions of the Ohio Administrative Code, not the
versions in effect at the time that Smith was seeking to establish service. We will identify the
applicable versions when appropriate.
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Pub. Util. Comm., 115 Ohio St.3d 208, 2007-Ohio-4790, 874 N.E.2d 764, ¶ 14-
18.
II. The commission did not err when it found that Smith
had failed to apply for new service
{¶ 29} Smith also challenges the commission’s finding that he did not
succeed in applying to establish new service at the Mahoning Avenue address.
Smith claims that Ohio Edison never informed him of the need to apply. He also
asserts that the relevant Ohio Administration Code sections do not require a
formal application to become a customer of a public utility.
A. Ohio Edison did inform Smith that he needed to apply for new service
{¶ 30} Contrary to Smith’s claim, there is evidence that Ohio Edison did
inform Smith that he needed to apply to establish service in his name. Ohio
Edison’s representatives informed Smith during his first telephone call on
September 10, 2008, that he needed to place an order to establish electric service.
Ohio Edison witness Carlos Vidal testified during the hearing that an order “in
essence is the application.” For his part, Smith declined an offer from Ohio
Edison representative Jennings during that first call to place an order on his
behalf.
{¶ 31} During the second call on November 5, 2008, Ohio Edison told
Smith that he needed to apply for new service. Representatives also informed
Smith on more than one occasion that he needed to talk with Ohio Edison’s new-
service department in order to establish electric service in his name. But Smith
ignored the instructions to contact the new-service department, and he even failed
to continue his telephone call when he was transferred that department.
{¶ 32} In the end, the evidence demonstrates that Smith failed to properly
apply for new service. Accordingly, we affirm the commission’s factual finding.
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B. Smith misconstrues former Ohio Adm.Code 4901:1-10-12(B)(5);
Ohio Edison was not required to provide a written summary
of customer rights and obligations
{¶ 33} Smith also contends that he met the definition of “applicant” under
Ohio Adm.Code 4901:1-10-01(A).2 Smith maintains that because he made an
application for service, Ohio Edison was required under Ohio Adm.Code 4901:1-
10-12(B)(5) to provide an explanation of what he was required to do in order to
receive service.
{¶ 34} Smith’s argument that he met the definition of applicant does not
advance his claim. Former Ohio Adm.Code 4901:1-10-12 did require that electric
distribution utilities provide to new customers a written summary of their rights
and obligations. But this provision applied only “upon application for service.”
2007-2008 Ohio Monthly Record 2-2515, effective Feb. 11, 2008. As noted,
Smith never properly applied for new service. Smith was also not a “new
customer” under this rule. Ohio Adm.Code 4901:1-10-12 defined “new
customer” as “a customer who opens a new account.” Smith, however, never
opened a new account. Accordingly, Ohio Edison was not required to provide to
Smith a written summary of his rights and obligations.
C. Smith was required to apply for new service
{¶ 35} Smith further maintains that he was not required to complete a
formal application to receive service from Ohio Edison. While his argument is
not entirely clear, Smith apparently contends that completion of the application
process was not necessary to become an Ohio Edison customer because he met
the definition of “customer” in the Ohio Administrative Code.
{¶ 36} At the time that Smith attempted to establish service with Ohio
Edison, former Ohio Adm.Code 4901:1-18-01(E), in the chapter dealing with the
2. Ohio Adm.Code 4901:1-10-01(A) defines “[a]pplicant” as “a person who requests or makes
application for service.”
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disconnection of residential service, defined “customer” as “any person who
enters into a contractual agreement with the company to receive residential
electric or gas service.” 2004-2005 Ohio Monthly Record 243-244, effective
Sept. 1, 2004. Former Ohio Adm.Code 4901:1-10-01(H) similarly defined
“customer” as “any person who has an agreement, by contract and/or tariff with
an [electric distribution utility] * * * to receive service.” 2007-2008 Ohio
Monthly Record 2-1278/1279, effective Oct. 22, 2007. Smith has not shown that
he was a customer of Ohio Edison under either definition. First, Smith forfeited
his claim that he was a “contract” customer of Ohio Edison by failing to preserve
the issue in his notice of appeal. Second, as to whether Smith was a customer
under an agreement by tariff, Smith made no claim that he established service
under Ohio Edison’s tariff.
{¶ 37} In the end, Smith’s failure to submit an application for new service
defeats his claim that he was a customer of Ohio Edison at the Mahoning Avenue
address.
Proposition of Law No. 2
{¶ 38} Former Ohio Adm.Code 4901:1-10-20(B)(1)(a), in effect at the
time Smith contacted Ohio Edison, allowed an electric utility to “disconnect
service for safety reasons without prior notice to a customer when” the meter had
been “damaged, interfered with, displaced, bypassed, or otherwise tampered
with.” 2003-2004 Ohio Monthly Record 1697, effective Jan. 1, 2004. Smith
contends in his second proposition of law that the commission erred when it
found that Ohio Edison, without prior notice, had properly disconnected electric
service for safety reasons pursuant to Ohio Adm.Code 4901:1-10-20.
I. The record established that Ohio Edison disconnected
Smith’s electricity for safety reasons
{¶ 39} Smith asserts that the testimony of Ohio Edison witness Rick
Padovan “established that Ohio Edison did not disconnect the electrical service
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* * * for safety reasons.” This is a factual argument, but Smith has failed to
marshal any evidence to support it. The pertinent section of Smith’s brief
contains no citations to the record. This alone is grounds to reject Smith’s claim.
Allnet Communications Serv., v. Pub. Util. Comm., Inc., 70 Ohio St.3d 202, 206,
638 N.E.2d 516 (1994) (rejecting argument where appellant “provided no further
reasoning or record citations to support” its argument); Util. Serv. Partners, Inc.
v. Pub. Util. Comm., 124 Ohio St.3d 284, 2009-Ohio-6764, 921 N.E.2d 1038,
¶ 39 (“unsupported legal conclusions” do not establish error); State ex rel.
Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees,
108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 13, quoting Day v. N.
Indiana Pub. Serv. Corp., 164 F.3d 382, 384 (7th Cir.1999) (“Appellate attorneys
should not expect the court ‘to peruse the record without the help of pinpoint
citations’ to the record”).
{¶ 40} Moreover, the evidence supported the commission’s order that
tampering that created a safety issue had occurred. The commission found that
“[b]oth parties agreed that there was tampering in connection with the meter at
1930 Mahoning Avenue and that the meter base was damaged, creating an unsafe
condition.” Smith v. Pub. Util. Comm., Pub. Util. Comm. No. 10-340-EL-CSS, at
19 (July 6, 2011), available at http://dis.puc.state.oh.us/DocumentRecord.aspx
?DocID=f8867bdf-8763-41d8-b19c-7c14b2b8f07c, last accessed September 16,
2013. Witnesses from each party did indeed testify to this. Smith testified that
the meter had been tampered with, that the meter base was broken, and that it was
not safe for Ohio Edison to provide service through a broken meter base. And
Padovan testified that the meter had been tampered with, the meter base was
broken, and a tampered meter was a danger to the public.
II. Smith’s argument is not persuasive
{¶ 41} Smith offers one argument in response to the commission’s finding
that Ohio Edison disconnected Smith’s electricity for safety reasons: the company
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could not have disconnected for safety reasons, because it was aware that electric
service was on at a vacant property for four months before it disconnected service.
That is, Smith contends that the delay in disconnecting service undermines Ohio
Edison’s claim that it was done for safety.
{¶ 42} Despite Smith’s contention, Ohio Edison’s failure to disconnect
service before January 2009 does not prove that it did not disconnect service for
safety reasons. Indeed, the argument itself is logically flawed: the absence of one
thing (prompt disconnection) does not, by itself, prove the absence of another
(lack of a safety issue). Moreover, Smith’s claim that Ohio Edison should act
promptly to disconnect service when a safety issue arises is undermined by his
concession that “Ohio Edison should not be limited to acting within a specific or
limited period time * * * [because this] would defeat the very purpose of
disconnecting residential service for safety reasons.”
{¶ 43} In sum, there is ample evidence in the record to support the
commission’s finding. See Ohio Consumers’ Counsel v. Pub. Util. Comm., 117
Ohio St.3d 301, 2008-Ohio-861, 883 N.E.2d 1035, ¶ 50 (a factual determination
made by the commission will not be disturbed by this court absent a showing that
it is clearly unsupported by the record). Accordingly, we reject Smith’s second
proposition of law.
Proposition of Law No. 3
{¶ 44} Smith’s final proposition of law asserts error in the commission’s
refusal to grant rehearing on his claim that the audio recordings of the telephone
conversations between Smith and Ohio Edison were altered. The audio
recordings were played during the evidentiary hearing. Smith’s application for
rehearing requested that the commission grant rehearing in order to investigate
and compare the original disc recordings with the recordings played during the
hearing and to allow Smith to develop the issue further.
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{¶ 45} The commission denied rehearing on two grounds. First, the
commission noted that the parties had stipulated that the recordings were
authentic. Second, the commission observed that Smith’s counsel received the
audio recordings from Ohio Edison six days before the evidentiary hearing, but
counsel provided no explanation in his rehearing application for his failure to
challenge the recordings at the hearing.
{¶ 46} On appeal, Smith claims that the commission should have granted
his rehearing application because he provided “some evidence” to support his
claim that the recordings were altered. For the following reasons, we find no
error in the commission’s decision to deny rehearing.
{¶ 47} First, Smith’s counsel completely ignores that he signed a
stipulation before the hearing that the recordings were authentic. The stipulation
states that “[t]he tape recorded telephone conversations between C. Richard Smith
and Ohio Edison personnel * * * are authentic recordings of those conversations
made at the time of the telephone conversations in the ordinary course of business
by Respondent Ohio Edison Company.” Yet on appeal, Smith’s counsel makes
no mention of the stipulation, let alone offers an explanation that would serve as a
reason to invalidate the stipulation at this late date.
{¶ 48} Second, the commission did not deny rehearing based on a lack of
evidence. Rather, it found that the alleged error had been waived. We agree with
this conclusion. As noted, Smith did not raise any complaint regarding the audio
recordings until he filed his application for rehearing, long after the evidentiary
hearing where those recordings were played. Smith did not object to the fact that
he received the compact discs only six days before the hearing or argue that he
had insufficient time before the hearing to review the recordings. He also waited
until after the hearing to hire an audio expert, instead of seeking to have the
hearing continued so he could retain an expert to review the recordings before the
hearing. By failing to take any of these steps, Smith deprived the commission of
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an opportunity to cure any error when it reasonably could have. Therefore, the
commission correctly found that the issue had been waived. See Parma v. Pub.
Util. Comm., 86 Ohio St.3d 144, 148, 712 N.E.2d 724 (1999) (“we do not accept
* * * objections” when appellant has “deprived the commission of an opportunity
to redress any injury or prejudice that may have occurred”); In re Application of
Am. Transm. Sys., Inc., 125 Ohio St.3d 333, 2010-Ohio-1841, 928 N.E.2d 427,
¶ 31 (same).
CONCLUSION
{¶ 49} Smith has failed to show that the commission erred in finding that
he was not a customer of Ohio Edison at the Mahoning Avenue property. He has
not demonstrated any error in the commission’s finding that Ohio Edison had
lawfully disconnected electric service to that property. Therefore, we affirm the
commission’s orders.
Orders affirmed.
PFEIFER, O’DONNELL, LANZINGER, KENNEDY, FRENCH, and O’NEILL, JJ.,
concur.
____________________
Bruce M. Broyles Co., L.P.A., and Bruce M. Broyles, for appellant.
Michael DeWine, Attorney General, and William L. Wright, John H.
Jones, and Steven L. Beeler, Assistant Attorneys General, for appellee Public
Utilities Commission of Ohio.
Jones Day, Alison E. Haedt, and David A. Kutik; and Carrie M. Dunn, for
intervening appellee Ohio Edison Company.
________________________
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