author: O'Connor, C.J.

text:
    IN RE Application of DAYTON POWER AND LIGHT COMPANY to Establish a Standard Service Offer in the Form of an Electric Security Plan, etc.;
    Office of Ohio Consumers' Counsel et al., Appellants; v. Dayton Power & Light Company, Intervening Appellee; Public Utilities Commission, Appellee.
    No. 2017-0241
    Supreme Court of Ohio.
    Submitted December 6, 2017 Decided October 4, 2018
    Bruce Weston, Ohio Consumers' Counsel, and Maureen R. Willis, and Terry Etter, Assistant Consumers' Counsel, for appellant Office of the Ohio Consumers' Counsel.
    Carpenter, Lipps & Leland, L.L.P., Washington, and Angela Paul Whitfield, Columbus, for appellant Kroger Company.
    Robert Brundrett, for appellant Ohio Manufacturers' Association Energy Group.
    Michael DeWine, Attorney General, and William L. Wright, Thomas W. McNamee, and Werner L. Margard III, Assistant Attorneys General, for appellee.
    Faruki, Ireland, Cox, Rhinehart & Dusing, P.L.L., Cincinnati, D. Jeffrey Ireland, Jeffrey S. Sharkey, and Christopher C. Hollon, Dayton, for intervening appellee.
   O'Connor, C.J.

{¶ 1} In this appeal, appellants, the Office of Ohio Consumers' Counsel ("OCC"), the Kroger Company ("Kroger"), and the Ohio Manufacturers' Association Energy Group ("OMAEG"), challenge appellee Public Utility Commission's, decision to allow intervening appellee, Dayton Power and Light Company ("DP&L"), to withdraw and terminate its second electric-security plan ("ESP II"). On October 27, 2017, the court sua sponte ordered the parties to file supplemental briefs addressing whether this appeal should be dismissed as moot. 151 Ohio St.3d 1404, 2017-Ohio-8338, 84 N.E.3d 1045. The question was prompted by the commission's approval of third electric-security plan ("ESP III"), which replaced ESP II. Pub. Util. Comm. Nos. 16-0395-EL-SSO, 16-396-EL-ATA, and 16-397-EL-AAM, ¶ 1, 131, 141 (Oct. 20, 2017). Because we determine that the approval of ESP III renders this case moot, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

{¶ 2} In 2013, the commission issued an order that modified and approved DP&L's application for ESP II. Pub. Util. Comm. Nos. 12-426-EL-SSO, 12-427-EL-ATA, 12-428-EL-AAM, 12-429-EL-WVR, and 12-672-EL-RDR, 2013 Ohio PUC LEXIS 193 (Sept. 4, 2013). Although DP&L challenged some of the commission's modifications on rehearing, it ultimately accepted the modified ESP II and began collecting rates under the plan. In the approved ESP II, DP&L included a transition charge known as the Service Stability Rider or SSR.

{¶ 3} On June 20, 2016, this court reversed the commission's decision approving ESP II. In re Application of Dayton Power & Light Co. , 147 Ohio St.3d 166, 2016-Ohio-3490, 62 N.E.3d 179 (" In re DP&L "). In a one-sentence decision, the court reversed on the authority of In re Application of Columbus S. Power Co. , 147 Ohio St.3d 439, 2016-Ohio-1608, 67 N.E.3d 734, which had found a nearly identical stability charge unlawful under R.C. 4928.38 because it allowed an electric utility to receive transition revenues after the period allowed by statute.

{¶ 4} On July 27, 2016, DP&L moved the commission to allow it to withdraw its application to approve ESP II. R.C. 4928.143(C)(2)(a) allows an electric-distribution utility to withdraw and terminate an electric-security-plan application in the event the commission modifies and approves the application. DP&L argued that the commission should grant the motion to withdraw the ESP II application-which was filed on December 12, 2012-because the commission had modified and approved the application in September 2013. DP&L also asserted that withdrawal of the ESP II application was warranted because this court's decision reversing the commission's approval of ESP II constituted a rejection of the entire electric-security plan.

{¶ 5} On August 26, 2016, the commission granted DP&L's motion to withdraw and terminate ESP II, albeit for reasons different from those advanced by DP&L. First, the commission concluded that this court had rejected only the SSR. As a result, the commission modified ESP II to eliminate the SSR charge. Second, the commission concluded that removing the SSR in response to this court's decision constituted a modification to a proposed electric-security plan, under R.C. 4928.143(C)(1) and thereby triggered DP&L's right to withdraw and terminate its electric-security-plan application under R.C. 4928.143(C)(2)(a). Pub. Util. Comm. Nos. 12-426-EL-SSO, 12-427-EL-ATA, 12-428-EL-AAM, 12-429-EL-WVR, and 12-672-EL-RDR, ¶ 12-15 (Aug. 26, 2016); Seventh rehearing entry, ¶ 14-15, 23-25 (Dec. 14, 2016).

{¶ 6} In a separate case, the commission determined that DP&L could replace the withdrawn ESP II with the company's first electric-security plan ("ESP I"). The commission ordered that ESP I would remain in effect until the commission approved a new electric-security plan. Pub. Util. Comm. No. 08-1094-EL-SSO, 08-1095-EL-ATA, 08-1096-EL-AAM, and 08-1097-EL-UNC, ¶ 20 (Aug. 26, 2016).

{¶ 7} On October 20, 2017, the commission issued an order approving ESP III. ESP III replaced ESP I (and in effect ESP II) effective November 1, 2017, and is to remain in place for six years, through October 31, 2023. Pub. Util. Comm. Nos. 16-0395-EL-SSO, 16-396-EL-ATA, and 16-397-EL-AAM, ¶ 1, 131, 141 (Oct. 20, 2017).

ANALYSIS

{¶ 8} The ESP II rate plan and its SSR charge are no longer in effect because they have been replaced by ESP III. Because ESP II is no longer in effect, we cannot order effective relief and the appeal is moot.

{¶ 9} This appeal is on all fours with Ohio Consumers' Counsel v. Pub. Util. Comm. , 121 Ohio St.3d 362, 2009-Ohio-604, 904 N.E.2d 853. In Ohio Consumers' Counsel , we held that the expiration of a utility's rate plan was grounds for dismissing the challenge to the rates charged under that plan. Id. at ¶ 19-22. Under review in that case were certain terms and charges of Duke Energy Ohio Inc.'s rate-stabilization plan. OCC argued that certain charges under the rate-stabilization plan were unlawful and unsupported by the record. Id. at ¶ 19-20. While the case was pending before us on appeal, however, the rate-stabilization plan expired and was replaced with a new rate plan. Id. at ¶ 2. Because the rate structure under appeal was no longer in effect, we determined that we could not remand the case to the commission to implement lower prospective rates under the rate-stabilization plan. We further held that we could not order a refund of excessive rates already collected by Duke Energy, because OCC did not preserve the refund issue for appeal and because any refund order would be contrary to our precedent against retroactive ratemaking. As a result, we dismissed the rate-stabilization-plan portion of the appeal as moot. Id. at ¶ 2, 21-22 ; see also Cincinnati Gas & Elec. Co. v. Pub. Util. Comm. , 103 Ohio St.3d 398, 2004-Ohio-5466, 816 N.E.2d 238, ¶ 14-27 (dismissing appeal as moot due to lack of any available remedy); Lucas Cty. Commrs. v. Pub. Util. Comm. , 80 Ohio St.3d 344, 348-349, 686 N.E.2d 501 (1997) (finding that there was no revenue remaining in the discontinued program against which the commission could order a credit or refund of the alleged overpayments and holding that absent such revenue, ordering a credit or a refund would essentially be ordering the utility to set a different future rate, and such orders are prohibited retroactive ratemaking).

{¶ 10} The dissent disagrees with our conclusion that this appeal is moot, because, according to the dissenting opinion, in In re DP&L , 147 Ohio St.3d 166, 2016-Ohio-3490, 62 N.E.3d 179, we "reversed the commission's approval of ESP II and granted a remedy * * *, which the commission ignored." Dissenting opinion at ¶ 49. But ESP II is no longer in effect. And contrary to the dissenting opinion's assertion that there was an implicit holding in In re DP&L , the court did not specify a remedy in its order reversing the commission's approval of ESP II; we issued a one-sentence decision stating only that the decision approving ESP II was reversed on the authority of Columbus S. Power , 147 Ohio St.3d 439, 2016-Ohio-1608, 67 N.E.3d 734. We gave no instructions to the commission for proceedings on remand, let alone an order for the commission to do what the dissenting opinion describes: "to determine the amount of transition revenue improperly collected by DP&L, estimated to be $285 million, and to eliminate the overcompensation by offsetting the balance of DP&L's revenue by the amount of the improperly collected revenue," dissenting opinion at ¶ 50. Nonetheless, the dissenting opinion insists that the commission "plainly ignored our judgment" and "failed to comport with our reversal mandate" on remand. Id . at ¶ 37.

{¶ 11} "The function and jurisdiction of this court in an appeal from an order of the commission is limited." Cleveland Elec. Illum. Co. v. Pub. Util. Comm. , 46 Ohio St.2d 105, 108, 346 N.E.2d 778 (1976). Specifically, "[o]ur task is not to set rates; it is only to [ensure] that the rates are not unlawful or unreasonable, and that the rate-making process itself is lawfully carried out." Id. Here, the only rates now in effect are in ESP III, which is not before us.

{¶ 12} The opinion concurring in judgment agrees only that dismissal is appropriate but disagrees with our characterization of this appeal as being "on all fours with" Ohio Consumers' Counsel. According to the concurrence, the difference between this case and Ohio Consumers' Counsel is that, here, our remand order in In re DP&L was incomplete because it did not include specific instructions for the commission. Concurring opinion at ¶ 18. Contrary to the concurring opinion's suggestion, however, the lack of remand instructions in In re DP&L does not distinguish this appeal from Ohio Consumers' Counsel , because the remand instructions in Ohio Consumers' Counsel played no role in our decision to dismiss that appeal as moot. And regardless of whether the remand orders in either case included instructions, the material fact is that new rates were put into effect. In Ohio Consumers' Counsel , we dismissed the appeal because the rate plan being appealed from had expired and had been replaced by a new rate plan. 121 Ohio St.3d 362, 2009-Ohio-604, 904 N.E.2d 853, at ¶ 21-22. That exact situation is present in this appeal.

{¶ 13} Finally, the concurring opinion implicitly places unwarranted blame on the court by referring to our entry in In re DP&L as "vague" and "imprecise." Concurring opinion at ¶ 20, 22. (Notably, only one justice dissented from that judgment. In re DP&L , 147 Ohio St.3d 166, 2016-Ohio-3490, 62 N.E.3d 179 (Lanzinger, J., dissenting) ). In the end, the event that renders this appeal moot is not the court's resolution of In re DP&L. The appeal is moot because of events that occurred since that time -namely, the approval of ESP III, in a separate case, which caused the rates at issue in In re DP&L to expire and new rates to be put in effect. Because ESP III is now in effect and is not being challenged by this appeal, we find this appeal to be moot.

CONCLUSION

{¶ 14} Because there is no remedy that this court can legally order, this appeal constitutes only a request for an advisory ruling. Cincinnati Gas & Elec. Co. , 103 Ohio St.3d 398, 2004-Ohio-5466, 816 N.E.2d 238, ¶ 17 ("In the absence of the possibility of an effective remedy, this appeal constitutes only a request for an advisory ruling from the court"). But "it is well-settled that this court does not indulge itself in advisory opinions."

Armco, Inc. v. Pub. Util. Comm. , 69 Ohio St.2d 401, 406, 433 N.E.2d 923 (1982). As the controversy is no longer live, we dismiss this appeal as moot.

Appeal dismissed.

Fischer, and DeWine, JJ., concur.

Kennedy, J., concurs in judgment only, with an opinion.

O'Donnell, J., dissents, with an opinion joined by French and Laster Mays, JJ.

Anita Laster Mays, J., of the Eighth District Court of Appeals, sitting for O'Neill, J.

{¶ 15} I concur in judgment only. I agree that this case is moot. But it has gotten to this point for its own reasons. Therefore, I disagree with the lead opinion's assertion in ¶ 9 that this case is "on all fours with" Ohio Consumers' Counsel v. Pub. Util. Comm. , 121 Ohio St.3d 362, 2009-Ohio-604, 904 N.E.2d 853 (" Ohio Consumers' Counsel II "); the two cases are not "squarely on point with regard to both facts and law," Garner, Garner's Dictionary of Legal Usage 633 (3d Ed.2011) (defining "on all fours"). To describe this case as on all fours with Ohio Consumers' Counsel II creates the inaccurate impression that this court has dealt with a case nearly identical to this one in the past; it has not. I also write to respond to the concerns raised by the dissenting opinion.

{¶ 16} It is true that this case and Ohio Consumers' Counsel II reached the same end, with this court powerless to address the disputed rate plan because the rate plan at issue is no longer in effect. In Ohio Consumers' Counsel II, the court dismissed the portion of the appeal related to the rate-stabilization plan because the disputed rates had expired. Id. at ¶ 21-22.

While dismissal for mootness was appropriate in Ohio Consumers' Counsel II and is appropriate in this case, the cases are different.

{¶ 17} Ohio Consumers' Counsel II concerned an appeal to this court that followed our remand of the matter to the Public Utilities Commission in Ohio Consumers' Counsel v. Pub. Util. Comm. , 111 Ohio St.3d 300, 2006-Ohio-5789, 856 N.E.2d 213 (" Ohio Consumers' Counsel I "). In Ohio Consumers' Counsel I , the commission had approved a stipulation entered into among the relevant parties to establish a standard market-based service offer; we ordered the commission to compel the utility to produce, in discovery, any side agreements that the utility had made with the parties so that the commission could, among other things, "evaluate the seriousness of the bargaining that had led to the stipulation." Ohio Consumers' Counsel II at ¶ 1, 3-4. After discovery was complete, the commission issued a second order, which the Ohio Consumers' Counsel appealed to this court. Id . at ¶ 9-11. We dismissed the portion of the appeal related to the rate-stabilization plan because before we could complete our review, the challenged rates had expired and new rates were in effect that were based on a rate structure established by new legislation. Id. at ¶ 21. Therefore, the court could not remand the case in order to implement lower prospective rates. Id.

{¶ 18} In Ohio Consumers' Counsel I , this court issued an order clearly describing the action the commission was to take on remand and there was no dispute that the commission properly followed through in regard to the remand; in In re Application of Dayton Power & Light Co. , 147 Ohio St.3d 166, 2016-Ohio-3490, 62 N.E.3d 179 (" DP&L I "), in contrast, our remand order did not compel any action but rather was incomplete, because we did not include any specific instructions for the commission to eliminate overcompensation obtained through an unlawful transition charge. Ultimately, the commission, after modifying Dayton Power and Light Company's ("DP&L's") second electric-security plan ("ESP II") to eliminate the service-stability-rider charge, granted intervening appellee DP&L's motion to withdraw ESP II. Pub. Util. Comm. Nos. 12-426-EL-SSO, 12-427-EL-ATA, 12-428-EL-AAM, 12-429-EL-WVR, and 12-672-EL-RDR, ¶ 12-15 (Aug. 26, 2016); Seventh rehearing entry at ¶ 14-15, 23-25 (Dec. 14, 2016). But DP&L's third electric-security plan is now in place, mooting our consideration of issues surrounding ESP II, so we are left without the ability to determine the important issue of whether the commission's modification of ESP II in reaction to an order of this court properly created an opportunity for the utility to withdraw its utility plan under R.C. 4928.143(C)(2)(a).

{¶ 19} Whereas in Ohio Consumers' Counsel II , mootness kept this court from considering only esoteric issues regarding certain aspects of a particular rate plan, in this case we are kept from deciding the broader and far-reaching issue of whether utility companies can avoid any negative effects of our orders by withdrawing their rate plans after we issue our orders. In sum, the way this case got to the point of mootness and the implications of the issues that are left undecided are so dissimilar from Ohio Consumers' Counsel II that I cannot agree with the lead opinion's description of it being "on all fours."

{¶ 20} Turning to the concerns raised by the dissenting opinion, I agree that the result in this case is not ideal. However, the less-than-ideal outcome is the upshot of this court's vague entry in DP&L I , which stated merely that the commission's decision was "reversed on the authority of In re Application of Columbus S. Power Co. , 147 Ohio St.3d 439, 2016-Ohio-1608, 67 N.E.3d 734." DP&L I at ¶ 1.

{¶ 21} Although the dissenting opinion contends that declaring this case moot undermines the authority of this court and may erode public confidence in our decisions, the commission acted after this court's vague entry failed to specifically delineate that the rider at issue in DP&L I was unlawful and failed to specify a remedy. The commission could not read into our single-sentence entry the explicit remand instructions applicable in In re Application of Columbus S. Power Co. "[T]his court's reversal and remand of an order of the commission does not change or replace the [rate] schedule as a matter of law, but is a mandate to the commission to issue a new order which replaces the reversed order," and therefore the "rate schedule filed with the commission remains in effect until the commission executes this court's mandate by an appropriate order." ClevelandElec. Illum. Co. v. Pub. Util. Comm. , 46 Ohio St.2d 105, 117, 346 N.E.2d 778 (1976). Absent explicit instructions to the commission, our mandate did not require the commission to take any specific course of action.

{¶ 22} The dissenting opinion's statement that "the commission knew of our remand in Columbus S. Power and in this case, ignored our remand order to determine the amount of transition revenue improperly collected by DP&L, estimated to be $285 million, and to eliminate the overcompensation by offsetting the balance of DP&L's revenue by the amount of the improperly collected revenue," dissenting opinion at ¶ 50, mischaracterizes what the commission did. Our imprecise entry, which merely reversed the commission's decision on the authority of Columbus S. Power , left the commission to act when this court did not.

{¶ 23} Even if the court had issued an explicit order to the commission, the amount that could have been offset against future revenue would have been limited. The dissent asserts that the "transition revenue improperly collected by DP&L, estimated to be $285 million," would have been offset. Dissenting opinion at ¶ 50. However, because the appellants, the Office of Ohio Consumers' Counsel, the Kroger Company, and the Ohio Manufacturers' Association Energy Group, did not post a bond pursuant to R.C. 4903.16, the collection of the rider was not stayed. When the commission approves a rate, it is presumed lawful and will be collected unless a party appeals from the order approving the rate and posts an appropriate bond. See Columbus v. Pub. Util. Comm. , 170 Ohio St. 105, 163 N.E.2d 167 (1959), paragraphs one, two, three, and four of the syllabus. Neither the commission nor this court has the authority to order the refund of a charge that is lawfully collected but is later determined to have been unlawful.

{¶ 24} The rider at issue in DP&L I authorized DP&L to collect $110 million a year for three years as part of an electric-security plan approved by the commission for "a term beginning January 1, 2014, and terminating December 31, 2016." In re Application of Dayton Power & Light Co. , Pub. Util. Comm. Nos. 12-426-EL-SSO, 12-427-EL-ATA, 12-428-EL-AAM, 12-429-EL-WVR, and 12-672-EL-RDR, 2013 Ohio PUC LEXIS 193, *58 (Sept. 4, 2013), as modified by a September 6, 2013 nunc pro tunc entry. During most of that term, the electric-security plan was under review at the commission or at this court. After the rehearing process was exhausted, review was first sought from this court on August 29, 2014. On June 20, 2016, we issued our entry reversing the decision and remanding the case. DP&L I , 147 Ohio St.3d 166, 2016-Ohio-3490, 62 N.E.3d 179. The day after the release of our decision, the parties challenging the rider sought an order from the commission suspending the collection of the allegedly unlawful charge. The commission finally ordered the termination of the charge on August 26, 2016. In re Application of Dayton Power & Light Co. , Pub. Util. Comm. Nos. 08-1094-EL-SSO, 08-1095-EL-ATA, 08-1096-EL-AAM, and 08-1097-EL-UNC (Aug. 26, 2016). Therefore, customers paid the charge for 32 of the 36 months that it was authorized and paid approximately $294 million.

{¶ 25} The long slog of protracted litigation-not aided by this court's unclear entry in DP&L I -has led to today's judgment of mootness. The clock has run out-now the electric-security plan at issue is no longer in force and new rates are in place, which means that this court cannot order any meaningful relief for DP&L's customers without violating the prohibition against ordering refunds. See Keco Industries, Inc. v. Cincinnati & Suburban Bell Tel. Co. , 166 Ohio St. 254, 257, 141 N.E.2d 465 (1957).

{¶ 26} As we recently recognized in In re Application of Columbus S. Power Co. , Keco 's no-refund rule can be unfair and allow windfalls in cases, like the one before us, in which utilities collect and retain hundreds of millions of dollars from customers for charges that are later determined to have been unlawful. 138 Ohio St.3d 448, 2014-Ohio-462, 8 N.E.3d 863, ¶ 56. The protection provided by the legislature against the collection of these rates that are alleged to be unlawful is a stay secured by a bond in an amount sufficient to protect the utility against damage, id. , a bond most litigants cannot afford. Nonetheless, we have consistently held that the prohibition on refunds and the bond requirement are matters of statute and that the determination whether they are wise public policies therefore rests with the General Assembly, not this court. In re Application of Columbus S. Power Co. , 128 Ohio St.3d 512, 2011-Ohio-1788, 947 N.E.2d 655, ¶ 20. This does not mean that unfairness and windfalls are inevitable. R.C. 4905.32 states:

No public utility shall refund or remit directly or indirectly, any rate, rental, toll, or charge so specified or, any part thereof, or extend to any person, firm, or corporation, any rule, regulation, privilege, or facility except such as are specified in such schedule and regularly and uniformly extended to all persons, firms, and corporations under like circumstances for like, or substantially similar, service.

The commission therefore has authority to mitigate the unfairness of the no-refund rule and the barriers imposed by the bond requirement, because a refund is possible if there is refund language in the commission's order establishing the rate charged by the utility, R.C. 4905.32. "[T]he legislature gave the commission the discretionary authority to [order a refund]. All the commission had to do was require a refund clause to be part of the tariff pursuant to R.C. 4905.32." In re Rev. of Alternative Energy Rider Contained in Tariffs of Ohio Edison Co. , 153 Ohio St.3d 289, 2018-Ohio-229, 106 N.E.3d 1, ¶ 66 (Kennedy, J., concurring). But here, there was no refund clause in the tariff, so no refund is permissible.

{¶ 27} For the above reasons, I am compelled to concur in judgment only.

{¶ 28} Respectfully, I dissent.

{¶ 29} This matter is not moot. The Public Utilities Commission ignored an earlier order of this court and permitted the Dayton Power and Light Company (''DP&L'') to withdraw its application for its second electric security plan after we reversed the commission's order modifying and approving that plan and remanded the case to the commission "on the authority of In re Application of Columbus S. Power Co. , 147 Ohio St.3d 439, 2016-Ohio-1608, 67 N.E.3d 734" (" Columbus S. Power "), in which we ordered elimination of overcompensation due to improperly collected revenue. See In re Application of Dayton Power & Light Co. , 147 Ohio St.3d 166, 2016-Ohio-3490, 62 N.E.3d 179, ¶ 1 (" In re DP&L ").

Facts and Procedural History

{¶ 30} R.C. 4928.141(A) provides that "an electric distribution utility shall provide consumers * * * a standard service offer of all competitive retail electric services necessary to maintain essential electric service to consumers" and permits the utility to provide the offer in one of two ways-a market rate offer pursuant to R.C. 4928.142 or an electric security plan pursuant to R.C. 4928.143.

{¶ 31} DP&L elected to provide its standard service offer through an electric security plan, and on June 24, 2009, the commission approved the application for its first electric security plan or ESP I. In re Application of Dayton Power & Light Co. , Pub. Util. Comm. Nos. 08-1094-EL-SSO, 08-1095-EL-ATA, 08-1096-EL-AAM, and 08-1097-EL-UNC, 2009 WL 1917793 (June 24, 2009).

{¶ 32} On September 4, 2013, the commission modified and approved DP&L's application for its second electric security plan or ESP II, effective January 1, 2014. In re Application of Dayton Power & Light Co. , Pub. Util. Comm. Nos. 12-426-EL-SSO, 12-427-EL-ATA, 12-428-EL-AAM, 12-429-EL-WVR, and 12-672-EL-RDR, 2013 Ohio PUC LEXIS 193 (Sept. 4, 2013) (the "ESP II Order"). In the ESP II Order, the commission approved a service stability rider or SSR, explaining that DP&L had proposed the SSR "for the purpose of stabilizing and providing certainty regarding retail electric service by maintaining DP&L's financial integrity," which DP&L claimed was threatened by increased customer switching, declining wholesale prices, and declining capacity prices. Id. at *36-37. In its order, the commission stated:

Although generation, transmission, and distribution rates have been unbundled, DP&L is not a structurally separated utility; thus, the financial losses in the generation, transmission, or distribution business of DP&L are financial losses for the entire utility. Therefore, if one of the businesses suffers financial losses, it may impact the entire utility, adversely affecting its ability to provide stable, reliable, or safe retail electric service. The Commission finds that the SSR will provide stable revenue to DP&L for the purpose of maintaining its financial integrity.

Id. at *50.

{¶ 33} In the ESP II Order, the commission further stated that it was rejecting the claim of the Office of the Ohio Consumers' Counsel ("OCC"), the Kroger Company, and others that the SSR constituted an unreasonable and unlawful transition charge "designed to provide DP&L with generation-related revenue that it would otherwise lose as a result of customers shopping to obtain better retail generation supply prices" and "den[ied] customers the benefits of shopping in the competitive retail electric services market," id. at *44-45, noting its determination was consistent with its approval of a retail stability rider or RSR in In re Application of Columbus S. Power Co. , Pub. Util. Comm. Nos. 11-346-EL-SSO, 11-348-EL-SSO, 11-349-EL-AAM, and 11-350-EL-AAM, 2012 WL 3542177 (Aug. 8, 2012),id. at *51. Subsequently, DP&L began collecting the charges approved by the commission in ESP II.

{¶ 34} While appeals from the ESP II Order were pending in this court, we held in Columbus S. Power , 147 Ohio St.3d 439, 2016-Ohio-1608, 67 N.E.3d 734, that the commission erred when it found the RSR did not recover transition revenue or its equivalent, id. at ¶ 38. In that case, we explained that transition costs are generally generation costs a utility incurred before retail competition began "that are no longer recoverable from customers who have switched to another generation provider." Id. at ¶ 15. The RSR was intended to "guarantee recovery of lost revenue resulting from certain discounted capacity prices * * * and from expected increases in customer shopping during the ESP," id. at ¶ 23, and it was "designed to generate enough revenue for the company to achieve a certain rate of return on its generation assets," id. at ¶ 23. Thus, we concluded the RSR recovered the equivalent of transition revenue. Id. at ¶ 25.

{¶ 35} In Columbus S. Power , we further explained that the commission had previously authorized the utility company to recover its actual capacity costs but because it also allowed the utility to recover "$508 million in additional revenue through the RSR during the ESP period, the amount of which appears to be tied in large part to [the utility's] recovery of [competitive retail electric service capacity revenues]," the utility was "being overcompensated for providing capacity service through the nondeferral part of the RSR." Id. at ¶ 34. We noted the utility was "currently collecting * * * deferred capacity costs with carrying charges through the RSR," we ordered the commission "to adjust the balance of [the utility's] deferred capacity costs to eliminate the overcompensation of capacity revenue recovered through the nondeferral part of the RSR during the ESP," and we remanded the matter to the commission to determine how much of the revenue recovered through the nondeferral part of the RSR was allocable to competitive retail electric service capacity revenues and to "offset the balance of deferred capacity costs by the amount determined." Id. at ¶ 39 -40.

{¶ 36} Columbus S. Power is significant in the instant case because on June 20, 2016, we reversed the commission's order approving ESP II "on the authority of * * * Columbus S. Power. " In re DP&L, 147 Ohio St.3d 166, 2016-Ohio-3490, 62 N.E.3d 179, at ¶ 1.

{¶ 37} On remand, even though it had collected revenue pursuant to the ESP II Order which we reversed, DP&L moved to withdraw its application for ESP II pursuant to R.C. 4928.143(C)(2)(a). The commission found that ESP II "should be modified to remove the SSR based upon the opinion" of this court in In re DP&L ; it then modified the ESP II Order to eliminate the SSR, and it explained that in doing so, it had effectively modified the application for ESP II and therefore, pursuant to R.C. 4928.143(C)(2)(a), had "no choice but to grant DP&L's motion" to withdraw, terminate ESP II, and dismiss the case. Pub. Util. Comm. Nos. 12-426-EL-SSO, 12-427-EL-ATA, 12-428-EL-AAM, 12-429-EL-WVR, and 12-672-EL-RDR (Aug. 26, 2016), ¶ 12-15. In so doing, the commission plainly ignored our judgment reversing its decision "on the authority of" Columbus S. Power and did not adjust the balance of DP&L's revenue to eliminate the overcompensation of revenue recovered through the SSR or offset the balance of the overpayment through future rate authorizations. This was error and failed to comport with our reversal mandate.

{¶ 38} On the same day that the commission granted DP&L's motion to withdraw the ESP II application, it also issued a separate order granting DP&L's motion to implement the provisions, terms, and conditions of ESP I, purportedly in accordance with R.C. 4928.143(C)(2)(b), until it authorized a subsequent standard service offer. Pub. Util. Comm. Nos. 08-1094-EL-SSO, 08-1095-EL-ATA, 08-1096-EL-AAM, and 08-1097-EL-UNC (Aug. 26, 2016). The order implementing ESP I is the subject of a separate appeal now pending before us in Supreme Court case No. 2017-0204.

{¶ 39} Thereafter, OCC, Kroger, the Ohio Manufacturers' Association Energy Group ("OMAEG"), and others challenged the order granting the motion to withdraw the application for ESP II by filing applications for rehearing. In an entry denying those applications, the commission rejected a claim that In re DP&L implicitly directed the commission to "initiate a proceeding to account for the effects of the SSR and adjust rates accordingly." Pub. Util. Comm. Nos. 12-426-EL-SSO, 12-427-EL-ATA, 12-428-EL-AAM, 12-429-EL-WVR, and 12-672-EL-RDR, 2016 Ohio PUC LEXIS 1139, ¶ 31, 33 (Dec. 14, 2016). This too was error because when the commission removed the SSR based on our opinion, it failed to account for the overcompensation the utility had received and thereby manipulated implementation of ESP II to purport to eliminate the necessity to adjust prospective rates. But our intent in reversing was to have the commission offset the overcompensation. It failed to do so.

{¶ 40} The commission determined this claim was moot because DP&L had "withdr[awn] and terminated the SSR along with the rest of ESP II," so, unlike in Columbus S. Power , "[t]here are no prospective rates to adjust * * *." Id. at ¶ 34. The commission also determined such an adjustment would violate precedent from this court prohibiting retroactive ratemaking, citing Keco Industries Inc. v. Cincinnati & Suburban Bell Tel. Co. , 166 Ohio St. 254, 141 N.E.2d 465 (1957). Id. at ¶ 33.

{¶ 41} Those commission determinations, however, ignore our order reversing "on the authority of" Columbus S. Power and fail to address the overcompensation issue. The orders granting the motion to withdraw and denying the applications for rehearing are the subject of this appeal.

{¶ 42} On October 20, 2017, the commission approved DP&L's third electric security plan or ESP III, effective November 1, 2017. Pub. Util. Comm. Nos. 16-0395-EL-SSO, 16-396-EL-ATA, and 16-397-EL-AAM (Oct. 20, 2017).

Law and Analysis

{¶ 43} " 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." In re Complaints of Lycourt-Donovan v. Columbia Gas of Ohio, Inc. , 152 Ohio St.3d 73, 2017-Ohio-7566, 93 N.E.3d 902, ¶ 23. "[T]his court has 'complete and independent power of review as to all questions of law' in appeals from the [commission]."

Id. at ¶ 24, quoting Ohio Edison Co. v. Pub. Util. Comm. , 78 Ohio St.3d 466, 469, 678 N.E.2d 922 (1997).

{¶ 44} R.C. 4928.143(C)(1) governs the commission's decision to approve, modify and approve, or reject an application for a proposed ESP and states:

The commission shall issue an order under this division for an initial application under this section not later than one hundred fifty days after the application's filing date and, for any subsequent application * * *, not later than two hundred seventy-five days after the application's filing date. * * * [T]he commission by order shall approve or modify and approve an application * * * if it finds that the electric security plan so approved * * * is more favorable in the aggregate as compared to the expected results [of a market rate offer]. * * * Otherwise, the commission by order shall disapprove the application.

{¶ 45} R.C. 4928.143(C)(2)(a) provides:

If the commission modifies and approves an application [for approval of an electric security plan] under division (C)(1) of this section , the electric distribution utility may withdraw the application, thereby terminating it, and may file a new standard service offer * * *.

(Emphasis added.)

{¶ 46} Here, the commission concluded that its decision to remove the SSR from ESP II following our reversal in In re DP&L on the authority of Columbus S. Power effectively modified and approved the application for ESP II and therefore triggered DP&L's statutory right to withdraw that application pursuant to R.C. 4928.143(C)(2)(a). The commission is wrong.

{¶ 47} When the commission removed the SSR from ESP II, it was not exercising its discretion to modify and approve an ESP application pursuant to R.C. 4928.143(C)(1) ; rather, it was acting pursuant to a mandate from this court , and the commission stated that it modified the ESP II order to eliminate the SSR "based upon the opinion" of this court. Notably, R.C. 4928.143(C)(2)(a) does not permit a utility to withdraw an application for an ESP that has already taken effect in response to an adverse ruling by this court, and that is the reason for my departure from the lead opinion, which declares the issue moot. It is not.

{¶ 48} Here, the commission removed the SSR from ESP II on remand but ignored our mandate to adjust the balance of DP&L's revenue to eliminate the overcompensation through future rate authorizations and exceeded its statutory authority when it permitted DP&L to withdraw its ESP II application. Thus, its order granting that motion to withdraw is unlawful.

{¶ 49} I reject the lead opinion's position that the approval of ESP III renders this case moot "[b]ecause there is no remedy that this court can legally order." Lead opinion at ¶ 14. And I reject its position that in In re DP&L , this court specified no remedy for the improper collection of revenue, which has been estimated by OCC, Kroger, and OMAEG to be $285 million. This court reversed the commission's approval of ESP II and granted a remedy in In re DP&L , which the commission ignored. By reversing the decision of the commission modifying and approving the application for ESP II and explaining that our reversal was "on the authority of * * * Columbus S. Power ,"

In re DP&L , 147 Ohio St.3d 166, 2016-Ohio-3490, 62 N.E.3d 179, ¶ 1, we implicitly held that the SSR, like the RSR that was at issue in Columbus S. Power , provided DP&L with generation related revenue that it would otherwise lose as a result of customer shopping and thus improperly allowed DP&L to collect transition revenue or its equivalent. See Columbus S. Power , 147 Ohio St.3d 439, 2016-Ohio-1608, 67 N.E.3d 734, at ¶ 15, 25.

{¶ 50} In Columbus S. Power , we noted the utility was compensated for providing capacity service through the nondeferral part of the RSR and was collecting deferred capacity costs with carrying charges through the RSR, and we ordered the commission to adjust the balance of the deferred capacity costs to eliminate the overcompensation and remanded the cause for the commission to determine how much of that revenue was allocable to competitive retail capacity revenues and to offset the balance by the amount determined. Id. at ¶ 39-40. Here, the commission knew of our remand in Columbus S. Power and in this case, ignored our remand order to determine the amount of transition revenue improperly collected by DP&L, estimated to be $285 million, and to eliminate the overcompensation by offsetting the balance of DP&L's revenue by the amount of the improperly collected revenue.

{¶ 51} The decision of the commission to modify ESP II by deleting the SSR, pursuant to our reversal on the authority of Columbus S. Power , only partially satisfied our order, because the commission did not calculate the amount of DP&L's overcompensation through the SSR and did not either adjust the balance of DP&L's revenue to eliminate the overcompensation or offset the balance of the overpayment through future rate authorizations, as in Columbus S. Power. An administrative agency has no power or authority to deviate from a mandate issued by a reviewing court. In re Wella A.G. , 858 F.2d 725, 728 (Fed.Cir.1988). Hence, the commission's decision to modify ESP II and permit the utility to withdraw it fails to comply with this court's order on remand and is neither lawful nor reasonable.

{¶ 52} And here, the lead opinion begins to take steps on a path that has the potential to make Ohio Supreme Court review of decisions like this one rendered by the commission completely meaningless. By issuing its dismissal based on mootness, the lead opinion permits the utility to keep the estimated $285 million it improperly collected and establishes a road map for future similar occurrences.

{¶ 53} We already witness in this matter that our court is called upon to conduct a partial review of a multiyear ESP that began in 2009, with ESP II being approved effective January 2014. Despite our remand due to an overcompensated utility and our reversal on the authority of Columbus S. Power , in which we ordered an adjustment, the commission here permitted the utility to simply withdraw ESP II and substitute ESP I with no adjustment to account for the alleged $285 million collected in overcompensation. And a majority of this court determines that the matter is moot because ESP II no longer exists.

{¶ 54} The lead opinion would set a poor precedent. It not only fails to enforce one of its lawful orders, but it also telegraphs to other utilities that if this court reverses a matter in connection with an application approved by the commission involving collection of unlawful charges, on remand, they can simply follow the procedure here, apply to withdraw the application, and thereby render review by this court wholly meaningless. This is exactly the import of the lead opinion when it dismisses the matter as moot "[b]ecause there is no remedy that this court can legally order," lead opinion at ¶ 14.

{¶ 55} Courts have inherent authority to enforce their judgments. And a matter that potentially involves a $285 million overcompensation that this court had previously ordered to be accounted for and/or offset through future rate authorizations can be remedied by an order of this court directing the commission to accomplish that objective. This is a significant case. The lead opinion's position to cede its lawful constitutional authority to review the commission's orders would reduce the jurisdiction of this court and would establish precedent that may well erode public confidence in our decisions.

Conclusion

{¶ 56} The order of the commission granting DP&L's motion to withdraw ignores a mandate from this court and violates R.C. 4928.143(C)(2)(a) because the statute does not permit a utility to withdraw an application for an ESP that has been reversed and is subject to a mandate from this court. Accordingly, I would conclude that the order of the commission is unlawful and unreasonable. Thus, I would reverse it and once again remand the matter to the commission and order the commission to calculate the amount DP&L was overcompensated through the SSR and either adjust the balance of DP&L's revenue to eliminate the overcompensation or offset the balance of the overpayment through future rate authorizations to comply with our mandate in In re DP&L reversing the ESP II Order on the authority of Columbus S. Power.

French and Laster Mays, JJ., concur in the foregoing opinion.

      The remedy that was ordered in Columbus S. Power is not binding precedent, because only three justices concurred as to the proposed remedy in that appeal. See Hedrick v. Motorists Mut. Ins. Co. , 22 Ohio St.3d 42, 44, 488 N.E.2d 840 (1986) (holding that language in prior plurality opinion was not controlling, because it lacked four votes), overruled on other grounds , Martin v. Midwestern Group Ins. Co. , 70 Ohio St.3d 478, 639 N.E.2d 438 (1994). Attempting to turn the plurality opinion in Columbus S. Power into controlling law, the dissent states, "Justice Pfeifer, joined by Justice O'Neill, expressed the view that the court did not go far enough in ordering this remedy." Dissenting opinion at ¶ 35, fn. 2, citing In re Columbus S. Power at ¶ 81 (Pfeifer, J., concurring in part and dissenting in part). But we do not read Justice Pfeifer's opinion in the same way. In Columbus S. Power , Justice Pfeifer stated that he would instruct the commission on remand to allow Ohio Power to charge only the market price for capacity service, id. at ¶ 83, but nothing in his opinion suggests that he agreed with the remedy sanctioned by the plurality.

      In his opinion concurring in part and dissenting in part, Justice Pfeifer, joined by Justice O'Neill, expressed the view that the court did not go far enough in ordering this remedy. Columbus S. Power at ¶ 81 (Pfeifer, J., concurring in part and dissenting in part).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CLEVELAND METROPOLITAN BAR ASSOCIATION v. MOODY.
    No. 2017-1738
    Supreme Court of Ohio.
    Submitted April 10, 2018 Decided October 11, 2018
    Dunson Law, L.L.C., and Joseph P. Dunson ; and Heather M. Zirke, Bar Counsel, for relator.
    Alkire & Nieding, L.L.C., Richard C. Alkire, and Dean Nieding, Independence, for respondent.
   Per Curiam.

{¶ 1} Respondent, Steven Jerome Moody, of Cleveland, Ohio, Attorney Registration No. 0074731, was admitted to the practice of law in Ohio in 2002.

{¶ 2} In a February 8, 2017 complaint, relator, Cleveland Metropolitan Bar Association, alleged that while representing a single client, Moody failed to act with reasonable diligence and promptness, failed to keep the client reasonably informed about the status of his legal matter, intentionally failed to comply with proper discovery requests, knowingly made false statements to opposing counsel and a tribunal, and counseled the client to give false deposition testimony. Although relator later amended its complaint to add a second count with additional allegations of misconduct, a panel of the Board of Professional Conduct unanimously dismissed the second count as well as one violation alleged in the original complaint.

{¶ 3} Based on the hearing testimony and the stipulated exhibits of the parties, the panel found that Moody committed the remaining charged misconduct, and it recommended that he be indefinitely suspended from the practice of law in Ohio. The board adopted the panel's report in its entirety.

{¶ 4} Moody objects to the board's findings of misconduct and its recommended sanction, arguing that the board failed to properly weigh the evidence and that an indefinite suspension is unwarranted. For the reasons that follow, we overrule Moody's objections, adopt the board's findings of fact and conclusions of law, and indefinitely suspend Moody from the practice of law in Ohio.

Misconduct

{¶ 5} In March 2015, Elton Barrios retained Moody to represent him in an employment-discrimination action against Barrios's former employer, PNC, Inc. One month later, Moody filed a complaint in state court. PNC, which was represented by attorney Siobhan M. Sweeney of Boston, Massachusetts, caused the case to be removed to federal court. Barrios v. PNC, Inc. , N.D. Ohio No. 1:15-cv-01131-CAB.

{¶ 6} In September 2015, Sweeney served Moody with interrogatories, a request for production of documents, and a notice to take Barrios's deposition on October 20, 2015. She later suspended the deposition because Moody did not timely respond to her written discovery requests. On October 21, Moody asked Sweeney for more time and received an extension to respond to PNC's discovery requests-though he failed to comply within the extended deadline.

{¶ 7} Sweeney rescheduled Barrios's deposition for November 6, 2015. She served Moody on October 23, 2015, with a notice of deposition, and on November 2, she reminded him of the deposition. Although Sweeney traveled from Boston to Cleveland for the deposition, neither Moody nor Barrios appeared. Unable to contact Moody, Sweeney adjourned the deposition. Shortly thereafter, Moody called Sweeney to advise her-for the first time-that he had a conflict on the deposition date and wished to reschedule.

{¶ 8} Based on Moody's repeated failure to comply with discovery requests, Sweeney filed a motion to compel. After a telephone conference with counsel, a magistrate judge granted the motion, ordering that Barrios's responses to PNC's interrogatories be provided no later than November 20, 2015, and that Barrios appear for a deposition on December 21, 2015.

Moody's Communications with Barrios

{¶ 9} Moody sent PNC's interrogatories to Barrios for the first time on the day of the magistrate judge's telephone conference and asked Barrios to provide his responses later that day. He submitted Barrios's responses to Sweeney by the court-ordered deadline, but they were neither verified nor notarized. Instead, Moody typed Barrios's name on the signature line under Barrios's verification statement and typed his own name on the notary-signature line.

Deposition Preparation

{¶ 10} Moody did not notify Barrios about his impending deposition until December 12, 2015-a full month after the court had scheduled it and just nine days before it was to occur. He met with Barrios on December 19 to prepare him for the deposition. Barrios surreptitiously recorded their conversation, although the recording is not in the record. Moody admitted that during the meeting, he made the following statements regarding Sweeney's written discovery requests:

• "In this particular case, what I would do is, because we're fighting the bank, right, I would fuck with this person at this stage."
• "She sent me an interrogatory, request for production of documents, I completely ignored her ass for a few months. And I made her file a Motion to Compel, and then I called her and said, oh, yeah, I'll get them to you in two weeks. And then I completely ignored her ass again."
• "So we did a telephone conference with the Magistrate, and I was like, oh, Your Honor, if only I had known, you know. I said, you know, I moved my office * * *, and I didn't know that she was-she sent those things to the wrong address. But I'll get them out. And I said, you know, this wasn't necessary. So, I wanted to make her seem like an ass."

{¶ 11} With regard to Sweeney and the failed depositions, Moody admitted that he told Barrios: "That's why I did her like I did her. Because I made that bitch fly into town. And they were calling me and shit. I was like, oh, I've been there. And I was in court, too."

{¶ 12} In addition, concerning Sweeney's approach to Barrios's court-ordered deposition, Moody admitted that he told Barrios:

• "So they're trying to get-you know, trying to play games, because I played a game with her about not giving them to her. So, you know, I told you everything. And obviously, you know, you don't want to discuss that I played a game with her, you know. But that's basically it."
• "Yeah. She isn't going to want no part of your ass. And this might take all day * * *[.] Yeah. Because looks, she's an arrogant bitch, okay?"
• "Yeah. It might be eight hours. Because we gave them a ton of documents. Everything that you gave me, you know, is part of what she asked for, and it was stuff that helped. There's a lot of shit out there, all, right? And we didn't send out any discovery. We don't need it. She might ask you, do you know that your attorney didn't send any discovery, do you know that you were supposed to be here on, whatever the-she had one or two dates. Did your attorney tell you that you were supposed to be present for those depositions? Yes."

{¶ 13} At the disciplinary hearing, Moody testified that he was only "puffing" in an effort to give Barrios confidence in his case and his counsel. Moody also claimed that he had made certain exculpatory statements at the end of his December 19 conversation with Barrios that were not recorded. Further, he testified that he had inadvertently failed to timely comply with Sweeney's discovery requests and appear at the November deposition because he had transitioned in April 2015 from a brick-and-mortar office to a virtual office and had been keeping track of all his communications from courts, lawyers, and clients on his cell phone. Barrios, on the other hand, testified that he had recorded their entire conversation and that Moody never disavowed any of the statements that he has admitted he made. After weighing the conflicting evidence, the board found that Moody's claims were not credible.

{¶ 14} Therefore, the board found that Moody violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in representing a client), 1.4(a)(3) (requiring a lawyer to keep the client reasonably informed about the status of a matter), 3.3(a)(1) (prohibiting a lawyer from knowingly making a false statement of fact or law to a tribunal), 3.4(b) (prohibiting a lawyer from counseling or assisting a witness to testify falsely), 3.4(c) (prohibiting a lawyer from knowingly disobeying an obligation under the rules of a tribunal), 3.4(d)

(prohibiting a lawyer from intentionally failing to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party), 4.1(a) (prohibiting a lawyer from knowingly making a false statement of material fact or law to a third person), 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice).

Recommended Sanction

{¶ 15} When imposing sanctions for attorney misconduct, we consider several relevant factors, including the ethical duties that the lawyer violated, the aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in similar cases.

{¶ 16} The board found that just one mitigating factor is present in this case-the absence of a prior disciplinary record. See Gov.Bar R. V(13)(C)(1). As aggravating factors, the board found that Moody acted with a dishonest or selfish motive, engaged in a pattern of misconduct, committed multiple violations of the professional-conduct rules, and refused to acknowledge the wrongful nature of his misconduct. See Gov.Bar R. V(13)(B)(2), (3), (4), and (7). The board also attributed some aggravating effect to Moody's refusal to accept any responsibility or show any remorse for his misconduct, his attempt to shift the blame for some of his misconduct to his client, and the fact that Moody's conduct toward opposing counsel in the underlying litigation constituted gender disparagement. While the board found that Moody's response to the charges in this case lacked credibility and called his character and integrity into question, it stopped short of finding that he submitted false evidence, made false statements, or engaged in other deceptive practices during the disciplinary process. See Gov.Bar R. V(13)(B)(6).

{¶ 17} Because Moody engaged in dishonesty and misrepresentation in violation of Prof.Cond.R. 8.4(c), the board recognized that, at a minimum, his misconduct warrants a term suspension from the practice of law. See Disciplinary Counsel v. Fowerbaugh , 74 Ohio St.3d 187, 190, 658 N.E.2d 237 (1995). In Disciplinary Counsel v. Stafford , 128 Ohio St.3d 446, 2011-Ohio-1484, 946 N.E.2d 193, we suspended Vincent Stafford for 18 months with six months stayed on conditions because he did not respond to discovery requests for more than a year in an attempt to " 'obfuscate and hinder the truth-seeking process,' " id. at ¶ 52, quoting the board's report, and because of his "lack of candor, his disrespect and discourtesy to fellow officers of the court, and his dilatory discovery tactics," id. at ¶ 83. The board here, however, determined that Moody's discovery violations were more egregious and flagrant than those of Stafford. Given that Moody had neglected his client's affairs, intentionally frustrated the discovery process, made misrepresentations to the court and opposing counsel, advised his client to lie, disparaged opposing counsel, and forged a defense to the resulting disciplinary matter that was simply not credible, the board determined that an indefinite suspension was necessary to protect the public from future harm.

{¶ 18} In support of that recommended sanction, the board cited two cases in which we indefinitely suspended attorneys who engaged in multiple dishonest acts in the course of litigation. See Cleveland Metro. Bar Assn. v. Gruttadaurio , 136 Ohio St.3d 283, 2013-Ohio-3662, 995 N.E.2d 190 ; Cleveland Metro. Bar Assn. v. Donchatz , 150 Ohio St.3d 168, 2017-Ohio-2793, 80 N.E.3d 444.

Moody's Objections

{¶ 19} Moody objects to the board's findings of misconduct and aggravating and mitigating factors and its recommended sanction. He raises a host of arguments in support of two main contentions: that the record fails to support seven of the nine violations found by the board and that if we do not dismiss the entire complaint, we should not impose any sanction greater than a one-year suspension with six months stayed on conditions.

{¶ 20} Among Moody's arguments are claims that the hearing panel failed to properly consider and weigh the evidence presented. He contends that the board should have afforded greater weight to his testimony that he inadvertently lost track of Sweeney's discovery requests and deposition notices due to the loss of his physical office location in April 2015. He further testified that he then lied to his client-but not to the court or opposing counsel-about the reason for his failure to comply with the discovery requests in order to demonstrate that he had the upper hand in the litigation. He argues that there is no evidence that he ever made false statements to Sweeney or the magistrate because they did not testify at his disciplinary hearing. Moody further maintains that by advising Barrios once or twice to tell the truth, Moody negated his specific instruction to Barrios that Barrios should answer "yes" if he were asked whether Moody had told him about the first two scheduled depositions-even though Moody admitted that he did not so inform him.

{¶ 21} The essence of Moody's arguments is that the panel erred in finding that his previous admissions and Barrios's testimony about their December 19, 2015 meeting were more credible than Moody's hearing testimony. But our precedent is clear-"we ordinarily defer to a panel's credibility determinations in our independent review of professional discipline cases unless the record weighs heavily against those findings." Cincinnati Bar Assn. v. Statzer , 101 Ohio St.3d 14, 2003-Ohio-6649, 800 N.E.2d 1117, ¶ 8.

{¶ 22} Here, Moody admitted that he had received Sweeney's interrogatories, requests for production, and multiple notices of depositions. Yet he told Barrios that he had played games in an effort to delay Sweeney's discovery process, to inconvenience her by making her fly into town for depositions that he had no intention of attending, and to make her look bad in front of the court. He also told Barrios that he had lied to Sweeney and the magistrate about those matters. Those statements are admissions by a party-opponent; as such they are not hearsay and may be considered for the truth of the matter asserted. See Evid.R. 801(D)(2). Although Moody claimed at the disciplinary hearing that he had disavowed those statements at the end of his conversation with Barrios, Barrios unequivocally testified that Moody made no such retraction-and the hearing panel found Barrios's testimony to be more credible.

{¶ 23} Having independently reviewed the full record in this case, we have no trouble understanding why the panel found Barrios's testimony to be credible while repeatedly stating that Moody's testimony lacked credibility. Based on Moody's admissions to his client-and the reasons underlying the board's findings that his testimony attempting to retract those admissions was simply not credible-there is ample evidence to support each of the board's findings of misconduct. Moreover, we reject Moody's arguments that the board erroneously attributed aggravating effect to certain facts and failed to attribute mitigating effect to others-because many of those findings are inextricably linked to the panel's credibility determinations.

{¶ 24} Moody's final objection to the board's report is that his misconduct does not warrant an indefinite suspension. He contends that his misconduct is distinguishable from that in Gruttadaurio and Donchatz because it occurred over a period of just eight months and affected a single client-while the conduct of Gruttadaurio and Donchatz affected multiple clients and spanned periods of one to seven years.

{¶ 25} Moody argues that we should consider additional cases in which we imposed term suspensions for misconduct that was arguably more egregious than his. For example, he argues that we suspended Joseph G. Stafford from the practice of law for 12 months based on findings that he had twice engaged in dishonest conduct and abused legal procedures for the ostensible benefit of his clients. See Disciplinary Counsel v. Stafford , 131 Ohio St.3d 385, 2012-Ohio-909, 965 N.E.2d 971. Moody also notes that we suspended Leo Johnny Talikka for two years with one year stayed on conditions for stipulated misconduct that included the neglect of three separate client matters, failure to refund the unearned portion of several client retainers, failure to safeguard client funds and maintain required records of entrusted funds, and unspecified acts of dishonesty, fraud, deceit, or misrepresentation in five separate matters, one of which was prejudicial to the administration of justice. Disciplinary Counsel v. Talikka , 135 Ohio St.3d 323, 2013-Ohio-1012, 986 N.E.2d 954.

{¶ 26} Joseph Stafford's case is distinguishable from the facts of this case because Stafford's actions were not found to be prejudicial to the administration of justice. See Stafford at ¶ 32. And while Talikka may have committed more rule violations than Moody, we also found that he took on more work than he could handle as he faced a series of significant health problems, accepted full responsibility for his misconduct, made full restitution, and submitted evidence of his good character and reputation. See Talikka at ¶ 20-21.

{¶ 27} Despite Moody's arguments to the contrary, his conduct is most comparable to that of Gruttadaurio and Donchatz given the nature, if not the extent, of the underlying misconduct and the implausible explanations and justifications that each of those attorneys offered for their misconduct in the course of the disciplinary process.

{¶ 28} Gruttadaurio failed to place client fees into his client trust account, failed to refund unearned fees, failed to perform contracted work, failed to attend the final hearing in a client's case, and lied to relator's investigator about his purported efforts to file a client's appeal. During his first meeting with relator's investigator, Gruttadaurio stated that he had mailed a notice of appeal and related documents to this court, had called this court to check on their status, and had been informed that the documents were "in the system" but not yet on the docket-though in truth the documents were never received by this court. Gruttadaurio , 136 Ohio St.3d 283, 2013-Ohio-3662, 995 N.E.2d 190, at ¶ 25-28. Gruttadaurio later attempted to retract that statement by claiming that he had been put on the spot and that "further investigation," id. at ¶ 34, of his records made him realize his error-but he had made the same misrepresentations several months earlier in a detailed written response to the grievance.

{¶ 29} Donchatz filed a satisfaction of judgment falsely stating that a default judgment taken against him had been paid, knowingly made false statements impugning the integrity of the office of disciplinary counsel in a motion filed in his own disciplinary action, and submitted a "stipulated entry and consent judgment," Donchatz , 150 Ohio St.3d 168, 2017-Ohio-2793, 80 N.E.3d 444, at ¶ 28, to a court in a client's case without first obtaining the consent of the opposing party. Donchatz also failed to acknowledge the wrongful nature of his conduct and continued to engage in dishonest conduct throughout the disciplinary proceeding. Like Gruttadaurio, he could not keep his story straight. He offered three different explanations-all false-to justify his filing of a false and unauthorized satisfaction of a judgment taken against him. Id. at ¶ 38. Donchatz also made numerous false and contradictory statements regarding a fee arrangement, claiming at various times that he had (1) agreed to represent the client pro bono, (2) agreed with the client to seek payment of his fee through a third-party source, (3) wanted to not be left "holding the bag on the legal fees," and (4) instructed the client to seek fee arbitration to convince her that she did not need to pay him for his services. Id. at ¶ 10, 41-43.

{¶ 30} Moody's explanation that he lied in an effort to increase his client's confidence, like the dubious explanations given by Gruttadaurio and Donchatz, has no place in a profession grounded in honesty, integrity, and trustworthiness. Rather than increasing Barrios's confidence in Moody's capabilities, Moody's statements had the opposite effect. Barrios testified that he was confused and "kind of mind-boggled" that Moody asked him to lie under oath to cover up Moody's misconduct or foolishness. Barrios could not sleep for two or three days as he tried to figure out what to do, and he ultimately terminated Moody's representation to avoid being part of his deceit.

{¶ 31} Regardless of whether Moody's statements to Barrios were true or false, they raise questions about Moody's integrity and his ability to conduct himself in a manner that engenders respect for the law and the profession. "One of the fundamental tenets of the professional responsibility of a lawyer is that he should maintain a degree of personal and professional integrity that meets the highest standard. The integrity of the profession can be maintained only if the conduct of the individual attorney is above reproach." Cleveland Bar Assn. v. Stein , 29 Ohio St.2d 77, 81, 278 N.E.2d 670 (1972).

{¶ 32} For these reasons, we overrule each of Moody's objections, accept the board's findings of fact and misconduct, and agree that an indefinite suspension from the practice of law is the appropriate sanction in this case.

Conclusion

{¶ 33} Accordingly, Steven Jerome Moody is indefinitely suspended from the practice of law in Ohio. Costs are taxed to Moody.

Judgment accordingly.

O'Connor, C.J., and O'Donnell, Kennedy, Fischer, and DeGenaro, JJ., concur.

French and DeWine, JJ., dissent, and would suspend respondent from the practice of law for two years.


text:
    TRUMBULL COUNTY BAR ASSOCIATION v. LARGE.
    No. 2018-0250
    Supreme Court of Ohio.
    Submitted May 8, 2018 Decided October 11, 2018.
    Randil J. Rudloff, Bar Counsel, for relator.
    Thomas J. Wilson, Youngstown, for respondent.
   Per Curiam.

{¶ 1} Respondent, John Harold Large, of Warren, Ohio, Attorney Registration No. 0068732, was admitted to the practice of law in Ohio in 1997.

{¶ 2} This is Large's third attorney-discipline proceeding. In 2009, we suspended his license for one year after he failed to file personal income-tax returns and report employee wages for tax years 2000 through 2004. See Disciplinary Counsel v. Large , 122 Ohio St.3d 35, 2009-Ohio-2022, 907 N.E.2d 1162. In 2012, we suspended him for two years, with the final six months conditionally stayed, for committing professional misconduct in three client matters and violating our prior suspension order. Large's misconduct included neglect, misuse of his client trust account, dishonesty, failure to assist in grievance investigations, failure to properly inform clients and a court of our suspension order, and failure to return client files and retainers after we suspended him. See Trumbull Cty. Bar Assn. v. Large , 134 Ohio St.3d 172, 2012-Ohio-5482, 980 N.E.2d 1021.

{¶ 3} In 2017, relator, Trumbull County Bar Association, charged Large with acting unethically in two additional client matters. Large denied that he violated any professional-conduct rules, and the matter proceeded to a hearing before a three-member panel of the Board of Professional Conduct. Large and his two former clients testified, and based on the hearing evidence, the panel found that Large engaged in the charged misconduct and recommended that we indefinitely suspend him and order him to pay restitution. The board adopted the panel's findings of misconduct but increased the recommended sanction to permanent disbarment. Large objects to the board's recommendation, arguing that disbarment is not justified based on the circumstances of this case.

{¶ 4} For the reasons explained below, we overrule Large's objection and adopt the board's findings of misconduct and recommended sanction.

Misconduct

Count one: the Seargeant matter

{¶ 5} In December 2015, Susan Seargeant retained Large to assist her and her husband in collecting funds that they had loaned to another couple. Large entered an appearance in a proceeding that the Seargeants had already filed in the Warren Municipal Court, and he obtained a continuance of a scheduled hearing. Seargeant thereafter sent Large her only copies of the documents that she believed supported her case.

{¶ 6} The court rescheduled the matter for a March 2, 2016 hearing. However, on March 1, Large moved to continue the hearing, citing a conflict in another court. According to Seargeant, Large never notified her of his conflict or his motion for a continuance. She and her husband traveled six hours round trip from their home in West Virginia to attend the hearing, only to be informed by court staff that Large had a conflict and would not be appearing for their hearing. At Large's disciplinary hearing, Seargeant testified that she had called Large on several occasions before and after the scheduled March 2 hearing, but he failed to return her phone calls.

{¶ 7} The court rescheduled the matter for March 23. But Large again failed to appear-later claiming that he had "mis-calendared" the date. Seargeant testified that because of Large's absence, she presented her case pro se and that although a magistrate ultimately granted a judgment against the defendant for some of the money that Seargeant was owed, she would have recovered more if Large had appeared and presented the documents supporting her case.

{¶ 8} After missing the hearing, Large filed a notice of withdrawal. However, he later filed objections to the magistrate's decision on Seargeant's behalf. Large argued that Seargeant had felt "pressured" to proceed without counsel, that she "had provided all documentation of claims" to him, and that she therefore had been unable to prove her claims. The court denied the objections as "wholly without merit."

{¶ 9} Based on this conduct, the board found that Large violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in representing a client) and 1.4(a) (requiring a lawyer to reasonably communicate with a client). We agree with the board's findings of misconduct.

Count two: the Baryak matter

{¶ 10} In 2014, Large successfully represented John Baryak in two proceedings, including a challenge to Baryak's residency, before a board of elections. According to Baryak, Large later told him that he "ha[d] a lawsuit" against the two men who brought the residency challenge, and Baryak paid Large $2,500 to file a civil complaint against them. In the complaint, Large alleged that Baryak suffered damages in excess of $100,000 based on claims of abuse of process, intentional infliction of emotional distress, tortious interference with business, and libel. However, at his disciplinary hearing, Large admitted that before filing the lawsuit, he did not investigate or gather evidence that would prove whether Baryak suffered any emotional, financial, or business-related damages based on these claims.

{¶ 11} After filing the complaint, Large failed to issue discovery requests and to respond to or notify Baryak of the defendants' discovery requests. Large also failed to respond to or notify Baryak of a defendant's motion for summary judgment. Instead, after receiving the dispositive motion, Large voluntarily dismissed the lawsuit. According to Baryak, Large never discussed dismissing the lawsuit with him and never obtained his consent before doing so. Baryak also claimed that after he learned about the dismissal from a third party, he repeatedly tried to reach Large without success and that when he finally heard from Large, Large stated that he intended to refile the lawsuit in order to obtain some "go-away money" from one of the defendant's insurance companies.

{¶ 12} Large thereafter refiled the same complaint, although he never sent a copy to Baryak. At his disciplinary hearing, Large acknowledged that before refiling the complaint, he did not investigate any additional factual bases to support the claims. One of the defendants again issued written discovery requests, but Large failed to timely respond to or notify Baryak of the requests. When one of the defendants filed a motion to deem admitted his requests for admissions, Large moved for an extension of time to respond, claiming that he had "mis-calendared" the dates. A magistrate, however, deemed the defendant's requests admitted, and based in part on those admissions, the defendant again moved for summary judgment. This time, the defendant also requested that the court sanction Baryak for filing a frivolous lawsuit. Large failed to oppose or notify Baryak of the dispositive motion or the request for sanctions. Instead, Large advised Baryak to dismiss the lawsuit.

{¶ 13} After the second dismissal, the defendant moved to renew his request for sanctions. Large, however, failed to respond to the motion, failed to send Baryak a copy of the motion, and failed to appear for the sanctions hearing-later claiming that he had not been notified of the hearing date. The court granted the motion and scheduled a second hearing to determine the appropriate sanction amount. Although Large appeared for the second hearing, the court ultimately ordered Baryak to pay $10,306 in attorney fees and expenses related to the first frivolous lawsuit. The court further held that at the time Large refiled the complaint, both he and Baryak knew or should have known that the lawsuit was frivolous, and therefore they were jointly and severally liable for $13,610 in attorney fees and expenses related to the second lawsuit and for $1,584.42 in other reasonable expenses incurred by the defendants. Large appealed the judgment, but the court of appeals affirmed. See Baryak v. Lange , 11th Dist. Trumbull No. 2017-T-0036, 2017-Ohio-9348, 2017 WL 6729718.

{¶ 14} Based on this conduct, the board found that Large violated Prof.Cond.R. 1.3, 1.4(a)(1) through (4) (requiring a lawyer to promptly inform the client of decisions that require the client's informed consent, to reasonably consult with a client about the means by which the client's objectives are to be accomplished, to keep the client reasonably informed about the status of a matter, and to promptly comply with reasonable requests for information), and 3.1 (prohibiting a lawyer from bringing a proceeding unless there is a basis in law and fact for doing so that is not frivolous). We agree with the board's findings of misconduct.

Sanction

{¶ 15} When imposing sanctions for attorney misconduct, we consider several relevant factors, including the ethical duties that the lawyer violated, the aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in similar cases.

Aggravating and mitigating factors

{¶ 16} The board did not find any mitigating factors but found the existence of several aggravating factors. Specifically, Large has prior disciplinary offenses, some for similar instances of neglect. See Gov.Bar R. V(13)(B)(1). He displayed a dishonest or selfish motive by failing to inform his clients of matters that negatively impacted their cases, likely for fear of being discharged. See Gov.Bar R. V(13)(B)(2). He engaged in a pattern of misconduct and committed multiple offenses. See Gov.Bar R. V(13)(B)(3) and (4). His misconduct harmed his clients. See Gov.Bar R. V(13)(B)(8). And he refused to acknowledge the wrongful nature of his conduct. See Gov.Bar R. V(13)(B)(7). Indeed, the board noted that at his disciplinary hearing, Large "would not accept responsibility for the open, obvious, and inexcusable failings."

The panel's and the board's recommended sanctions

{¶ 17} Based on the absence of any mitigating evidence and the significant aggravating factors-especially the fact that we previously disciplined Large for similar misconduct-the panel recommended that we indefinitely suspend him and order him to refund Baryak's $2,500 legal fee and reimburse Baryak for any amount he was required to pay as a sanction in the Baryak v. Lange litigation. To support its recommendation, the panel relied on Medina Cty. Bar Assn. v. Malynn , 142 Ohio St.3d 435, 2014-Ohio-5261, 32 N.E.3d 422, and Cincinnati Bar Assn. v. Grote , 127 Ohio St.3d 1, 2010-Ohio-4833, 935 N.E.2d 832.

{¶ 18} In Malynn , we indefinitely suspended an attorney for neglect and other misconduct involving a single client matter. The attorney's misconduct was similar to Large's in Baryak's case. After the attorney filed a complaint, he failed to respond to discovery requests, failed to comply with court orders, and failed to oppose a dispositive motion. After the court sanctioned his client by dismissing the lawsuit, the attorney refiled an identical complaint. But he again failed to prosecute the matter or to communicate with his clients about his actions. Also similar to the circumstances here, we had twice disciplined the attorney in Malynn , including for neglecting clients.

{¶ 19} Grote also involved an attorney who was before this court for a third time for neglecting clients and other misconduct. Noting that "[w]e have indefinitely suspended attorneys for misconduct that demonstrates a pattern of neglect," we concluded that her actions were "part of a pattern, bound to be repeated" and therefore an indefinite suspension was appropriate. Grote at ¶ 19-20.

{¶ 20} The board, however, recommends that we disbar Large, relying on our more recent decision in Toledo Bar Assn. v. Harvey , 150 Ohio St.3d 74, 2017-Ohio-4022, 78 N.E.3d 875. Harvey involved an attorney who had been twice disciplined for neglecting client matters and other misconduct, and in his third disciplinary case, we found that he had neglected three more client matters. We found no mitigating factors and a profusion of aggravating factors, and we concluded that the attorney's history of misconduct included "a pattern of not simply neglecting clients but abandoning them." Harvey at ¶ 23. We determined that the attorney was not fit to practice law and therefore disbarred him. The board concluded that Large's history of misconduct reflects a similar disregard for his professional obligations and therefore disbarment is necessary to protect the public.

Large's objection and disposition

{¶ 21} Large objects to the board's recommendation and requests a less severe sanction. He acknowledges-apparently for the first time-that he neglected the Seargeant and Baryak matters and that he should be appropriately sanctioned. However, he argues that disbarment should be reserved for the most egregious attorney misconduct and that because his underlying actions did not involve criminal behavior, misuse of client funds, or intentional deception, the board's recommended sanction is excessive.

{¶ 22} We disagree and conclude that the board's reliance on Harvey was appropriate. Similar to the facts in Harvey , this is Large's third significant breach of professional conduct, he has not made restitution, and no mitigating factors are present. In the two cases relied on by the panel- Malynn , 142 Ohio St.3d 435, 2014-Ohio-5261, 32 N.E.3d 422, and Grote , 127 Ohio St.3d 1, 2010-Ohio-4833, 935 N.E.2d 832 -mitigating factors existed, including that the attorneys lacked dishonest or selfish motives and had cooperative attitudes toward the disciplinary proceedings. In addition, the attorneys in Malynn and Grote made restitution, although untimely.

{¶ 23} As we noted in Harvey , "[t]he purpose of the attorney-discipline system is to protect the public and allow us to ascertain a lawyer's fitness to practice law." 150 Ohio St.3d 74, 2017-Ohio-4022, 78 N.E.3d 875, at ¶ 22. And " 'accepting legal fees and then failing to carry out the contract for employment is tantamount to theft of client funds and is also cause for disbarment, particularly when coupled with neglect, a history of misconduct, and other disciplinary infractions.' " Id. , quoting Disciplinary Counsel v. Frazier , 110 Ohio St.3d 288, 2006-Ohio-4481, 853 N.E.2d 295, ¶ 54, citing Columbus Bar Assn. v. Moushey , 104 Ohio St.3d 427, 2004-Ohio-6897, 819 N.E.2d 1112, ¶ 16. The board correctly assessed the relevant factors here. Considering Large's disciplinary record, our precedent, the number of aggravating factors, and the lack of any mitigating factors, we overrule Large's objection and hold that he is not fit to practice law in Ohio. Disbarment is the only appropriate sanction.

Conclusion

{¶ 24} For the reasons explained above, John Harold Large is permanently disbarred from the practice of law in Ohio. He is also ordered to make restitution of $2,500 to Baryak and to reimburse him for any amount he was required to pay as a sanction in the Baryak v. Lange litigation. Costs are taxed to Large.

Judgment accordingly.

O'Connor, C.J., and O'Donnell, Fischer, and DeGenaro, JJ., concur.

Kennedy, French, and DeWine, JJ., dissent and would indefinitely suspend respondent from the practice of law.


text:
    HILLIARD CITY SCHOOLS BOARD OF EDUCATION, Appellee, v. FRANKLIN COUNTY BOARD OF REVISION, Appellee;
    Hilliard Station, L.L.C., et al., Appellants.
    No. 2017-0717
    Supreme Court of Ohio.
    Submitted September 11, 2018 Decided October 24, 2018
    Rich & Gillis Law Group, L.L.C., Mark H. Gillis, Kimberly G. Allison, Karol C. Fox, Richelle L. Thoburn, Dublin, and Kelley A. Gorrey, for appellee Hilliard City Schools Board of Education.
    Vorys, Sater, Seymour & Pease, L.L.P., Karen H. Bauernschmidt, Cleveland, Nicholas M.J. Ray, Heather M. Lutz, and Lauren M. Johnson, Columbus, for appellants.
   Per Curiam.

{¶ 1} At issue in this case is the 2014 value of a KeyBank branch located in Hilliard.

Two appraisals were presented below, one on behalf of the land owner, appellant Hilliard Station, L.L.C., and the building owner, appellant KeyBank National Association (collectively, "Hilliard Station"), and the other on behalf of appellee Hilliard City Schools Board of Education ("school board"). Appellee Franklin County Board of Revision ("BOR") adopted Hilliard Station's appraisal, and the Board of Tax Appeals ("BTA") adopted the school board's appraisal. Hilliard Station argues that it was legal error for the BTA to rely on the school board's appraisal because of the appraiser's reference to a "special purpose," along with his choice of sale and rent comparables. Hilliard Station also argues that it was legal error for the BTA to rely on the school board's appraisal because that appraisal fails to value the fee-simple estate as if unencumbered, as required by amended R.C. 5713.03. We disagree, and we therefore affirm.

I. BACKGROUND

{¶ 2} Hilliard Station, L.L.C. owns the land at issue, and KeyBank occupies it under a ground lease, pursuant to which KeyBank pays rent for the land while itself owning the improvements. The auditor valued the subject property at $1,260,000 for 2014. Hilliard Station filed a complaint seeking a decrease to $810,000, and the school board filed a countercomplaint seeking no change from the auditor's value. Hilliard Station presented an appraisal and testimony of Kelly Fried, a certified appraiser, at the BOR hearing, and the BOR adopted Fried's valuation of $625,000.

{¶ 3} The school board appealed to the BTA, and at the BTA hearing, the school board presented an appraisal report and the testimony of Thomas Sprout, a certified appraiser. Sprout opined a value of $1,880,000 for 2014. Fried testified for Hilliard Station and reintroduced her appraisal.

{¶ 4} The BTA adopted the higher value opined by Sprout, and Hilliard Station has appealed.

II. ANALYSIS

{¶ 5} This appeal presents a "battle of appraisals," both of which purport to opine the value of the fee simple as if unencumbered. The BTA exercised its broad discretion to determine which appraiser more accurately valued the property. See EOP-BP Tower, L.L.C. v. Cuyahoga Cty. Bd. of Revision , 106 Ohio St.3d 1, 2005-Ohio-3096, 829 N.E.2d 686, ¶ 9 ("the BTA is vested with wide discretion in determining" the weight and credibility to be accorded to appraisal evidence). Hilliard Station challenges the BTA's decision by arguing that it is unreasonable or unlawful on two grounds. It is well settled that despite our deference to the BTA on factual issues, we review legal issues de novo. Lunn v. Lorain Cty. Bd. of Revision , 149 Ohio St.3d 137, 2016-Ohio-8075, 73 N.E.3d 486, ¶ 13.

A. Because Sprout's appraisal does not constitute a use valuation, it was not legal error for the BTA to rely on it

{¶ 6} Hilliard Station argues that the BTA had to reject Sprout's appraisal as a matter of law because he relied so heavily on bank branches as comparables rather than considering other commercial uses for the property. Hilliard Station argues that the BTA's reliance on Sprout's approach constitutes legal error because it is a valuation in use rather than a market valuation.

{¶ 7} " '[T]he value or true value in money of real property' refers to 'the amount for which that property would sell on the open market by a willing seller to a willing buyer * * *.' " Terraza 8, L.L.C. v. Franklin Cty. Bd. of Revision , 150 Ohio St.3d 527, 2017-Ohio-4415, 83 N.E.3d 916, ¶ 8-9, quoting State ex rel. Park Invest. Co. v. Bd. of Tax Appeals , 175 Ohio St. 410, 412, 195 N.E.2d 908 (1964). By contrast, a use valuation " 'focuses on the contributory value of real estate to the enterprise of which it is a part, without regard to its highest and best use or the monetary amount that might be realized upon its sale.' " Meijer, Inc. v. Montgomery Cty. Bd. of Revision , 75 Ohio St.3d 181, 185, 661 N.E.2d 1056 (1996), quoting American Institute of Real Estate Appraisers, The Appraisal of Real Estate 20 (9th Ed.1987); see also Johnston Coca-Cola Bottling Co., Inc. v. Hamilton Cty. Bd. of Revision , 149 Ohio St.3d 155, 2017-Ohio-870, 73 N.E.3d 503, ¶ 12-14. The case law has established a limited role for use valuation in the context of "special purpose" property. Meijer Stores Ltd. Partnership v. Franklin Cty. Bd. of Revision , 122 Ohio St.3d 447, 2009-Ohio-3479, 912 N.E.2d 560, ¶ 24.

{¶ 8} Hilliard Station cites Sprout's appraisal, which opines that a definition of "special-purpose property," derived from the Dictionary of Real Estate Appraisal , "would apply to the subject property." At the BTA hearing, Sprout clarified that in his view, two of the three elements of that definition applied: the property at issue has "a unique physical design" in that it is laid out as a branch bank, and it has "a layout that particularly adapts its utility to the use for which it was built."

{¶ 9} We find no merit to the argument that Sprout invoked the special-purpose doctrine articulated by the case law. Our special-purpose case law focuses on a circumstance that Sprout did not attribute to the subject property: that the special adaptation of improvements to the owner's business makes the property less marketable, because other commercial users would find the property less adaptable to their own use of it. W. Carrollton City Schools Bd. of Edn. v. Montgomery Cty. Bd. of Revision , 150 Ohio St.3d 215, 2017-Ohio-4328, 80 N.E.3d 484, ¶ 17. Here, as in W. Carrollton City Schools , neither appraiser found an unusual functional or economic obsolescence associated with the special adaptation of the subject property. Compare Target Corp. v. Greene Cty. Bd. of Revision , 122 Ohio St.3d 142, 2009-Ohio-2492, 909 N.E.2d 605, ¶ 4-9, 6-17 (affirming BTA decision adopting an appraisal that did deduct for substantial obsolescence due to special adaptation of the building) with Meijer Stores , at ¶ 7-13, 15-16, 24-25, 28 (affirming BTA's adoption of an appraisal that did not deduct for substantial obsolescence because of the property's location and improvements).

{¶ 10} Instead of implicating the special-purpose doctrine, this case resembles Johnston Coca-Cola Bottling Co. , 149 Ohio St.3d 155, 2017-Ohio-870, 73 N.E.3d 503. In Johnston , we distinguished the special-purpose situation from the more ordinary situation in which two appraisers arrive at differing opinions of value based on a conventional difference in the selection of comparables. Id. at ¶ 16-17. Here, as in Johnston , the appraisal relied on by the BTA referenced the present use of the subject property as a branch bank but did so "in the context of deciding which comparables * * * were 'more analogous' " to the subject property, id. at ¶ 16, quoting BTA No. 2013-5973, 2014 WL 5148342, *2 (Sept. 25, 2014). Sprout determined the highest and best use of the property to be its current use as a freestanding commercial building, and he focused on bank buildings, whereas Fried used a broader range of commercial buildings. And here, as in Johnston , "[b]ecause the BTA did not adopt a present-use valuation," the special-purpose doctrine is simply not at issue, id. at ¶ 17. B. The BTA could reasonably rely on Sprout's appraisal as determining the value of the fee-simple estate as if unencumbered

{¶ 11} Hilliard Station additionally argues that by adopting Sprout's appraisal, the BTA failed to value the "fee simple estate, as if unencumbered," as required by amended R.C. 5713.03. See Terraza 8 , 150 Ohio St.3d 527, 2017-Ohio-4415, 83 N.E.3d 916, at ¶ 27 (BTA required to consider appraisal evidence along with sale-price evidence when valuing the unencumbered fee simple).

{¶ 12} More specifically, Hilliard Station contends that although Sprout's appraisal explicitly states that it is valuing the fee-simple estate as if unencumbered, Sprout did not make adequate adjustments to leased comparables or adequately explain his adjustments at the BTA hearing. A review of the BTA's decision shows that the BTA made specific findings on these points.

{¶ 13} The BTA found that Sprout "did consider the leases in place and adjusted those sales to take into consideration any superior or inferior economics associated with the leases, including whether a lease was build-to-suit." 2017 WL 1901456 at *4. Regarding Hilliard Station's challenge to Sprout's income approach, the BTA relied primarily on Sprout's explanation that "to some extent, all leases in this market incorporate costs of construction because a tenant has decided that it is more cost effective to rent rather than to build a new property" and his observation that personal property included in the lease would contribute little to overall value. Id. The BTA concluded that "Sprout has considered the effect that components other than the value of the real property may contribute to any build-to-suit lease in his appraisal." Id.

{¶ 14} Unlike Terraza 8 , the present case does not involve a conflict between a sale price and an appraiser's opinion of value; instead, this case involves conflicting appraisals and the credibility of an appraiser's testimony, an arena in which the BTA's discretion is at its greatest. See EOP-BP Tower , 106 Ohio St.3d 1, 2005-Ohio-3096, 829 N.E.2d 686, at ¶ 9. Because Hilliard Station challenges the BTA's findings on the credibility of the appraisal evidence, it has the burden of proving an abuse of discretion by the BTA in the exercise of its quasi-judicial authority, and discharging that burden would require Hilliard Station to show an arbitrary or unconscionable attitude on the BTA's part in evaluating the evidence. NWD 300, L.L.C. v. Franklin Cty. Bd. of Revision , 151 Ohio St.3d 193, 2017-Ohio-7579, 87 N.E.3d 199, ¶ 14. Although Hilliard Station addresses why the BTA might have decided to accord less weight to Sprout's testimony, those reasons establish only that the BTA might have exercised its discretion differently-they do not establish that the BTA abused its discretion. And that is particularly true in light of the fact that the BTA addressed the alleged weak points of Sprout's appraisal at length but then identified those aspects of Fried's appraisal that, in the BTA's judgment as the finder of fact, made it less probative than Sprout's.

{¶ 15} We also reject Hilliard Station's objection based on Steak 'n Shake, Inc. v. Warren Cty. Bd. of Revision , 145 Ohio St.3d 244, 2015-Ohio-4836, 48 N.E.3d 535, as well as Hilliard Station's citation of the general rule that leased-fee sales should be adjusted, see Rite Aid of Ohio, Inc. v. Washington Cty. Bd. of Revision , 146 Ohio St.3d 173, 2016-Ohio-371, 54 N.E.3d 1177, ¶ 18-22. Quite simply, Sprout did explicitly adjust the leased-fee sales comparables. And although Hilliard Station can fault Sprout's testimony for not being as explanatory or substantive as it would like, it is the BTA's province to weigh the evidence, not ours.

C. The BTA's decision does not violate the uniformity requirement

{¶ 16} Hilliard Station also contends that the BTA's decision violates the requirement that property be valued "by uniform rule," Ohio Constitution, Article XII, Section 2. The alleged violation consists of failing to properly value the property in accordance with statute, with the result that tax must allegedly be paid on going-concern value in addition to real-estate value. This argument consists of nothing more than pinning a constitutional label on the contentions that we have already rejected. And although Hilliard Station mentions the United States Constitution, it specifies no provision that has been violated.

III. CONCLUSION

{¶ 17} For the foregoing reasons, we affirm the decision of the BTA.

Decision affirmed.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    MK MENLO PROPERTY OWNER, L.L.C., Appellant, v. SUMMIT COUNTY BOARD OF REVISION et al., Appellees.
    No. 2017-0064
    Supreme Court of Ohio.
    Submitted July 17, 2018 Decided October 25, 2018
    Stephen Swaim, Columbus, for appellant.
    Brindza, McIntyre & Seed, L.L.P., David A. Rose, Robert A. Brindza, Daniel McIntyre, Cleveland, and David H. Seed, for appellee Tallmadge City School District Board of Education.
   Per Curiam.

{¶ 1} Because the Board of Tax Appeals ("BTA") did not fully consider the appraisal evidence presented by appellant, MK Menlo Property Owner, L.L.C., we vacate the decision of the BTA and remand the cause for further proceedings on the authority of Terraza 8, L.L.C. v. Franklin Cty. Bd. of Revision , 150 Ohio St.3d 527, 2017-Ohio-4415, 83 N.E.3d 916, and Spirit Master Funding IX, L.L.C. v. Cuyahoga Cty. Bd. of Revision , --- Ohio St.3d ----, 2018-Ohio-4302, --- N.E.3d ----. On remand, the parties shall not be permitted to present new evidence. See Bronx Park S. III Lancaster, L.L.C. v. Fairfield Cty. Bd. of Revision , 153 Ohio St.3d 550, 2018-Ohio-1589, 108 N.E.3d 1079, ¶ 13.

Decision vacated and cause remanded.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.