Tuesday, April 10, 2018
In Re LMD Integrated Logistic Services Inc., Case no. 2016-1442
Public Utilities Commission of Ohio
In the Matter of the Complaint of Harris Design Services v. Columbia Gas of Ohio Inc., Case no. 2017-0436
Public Utilities Commission of Ohio
Cleveland Metropolitan Bar Association v. Steven Jerome Moody, Case no. 2017-1738
Cuyahoga County
Columbus Bar Association v. David P. Rieser, Case no. 2017-1741
Franklin County
Did Trucking Company Properly File Appeal Notice of PUCO Fine?
In Re LMD Integrated Logistic Services Inc., Case no. 2016-1442
Public Utilities Commission of Ohio
ISSUE: Must a motor carrier appealing a Public Utilities Commission of Ohio (PUCO) order of civil forfeiture file a notice of appeal with the commission’s docketing division to in order to grant the Tenth District Court of Appeals jurisdiction to hear the matter?
BACKGROUND:
While most entities regulated by the Public Utilities Commission of Ohio (PUCO) file appeals of commission decisions directly with the Ohio Supreme Court, motor carriers are governed by a statute that directs appeals to the Tenth District Court of Appeals in Columbus. R.C. 4923.99(C) specifies the procedures for filing an appeal, and it references Revised Code Chapters 2505 and 4903, and the Ohio Rules of Appellate Procedure.
LMD Integrated Logistic Services (LMD) appealed a “motor carrier civil forfeiture” that resulted in a $1,680 fine from the PUCO. It filed its notice of appeal with the Tenth District and served the notice to a PUCO commissioner, who documented the receipt. A day after receiving the appeal, the Franklin County clerk of courts sent copies of the notice to the PUCO.
The Tenth District reversed the PUCO’s decision and remanded the matter to the commission for further proceedings. The PUCO appealed the decision to the Supreme Court, which agreed to hear the case.
Logistic Must Follow Procedure, PUCO asserts
The PUCO argues the Tenth District lacked jurisdiction to hear the case because the appeal process wasn’t properly followed.
Ohio has adopted federal rules governing interstate transportation and has the right to take action against interstate trucking companies for federal rule violations. An Ohio State Highway Patrol officer inspected an LMD truck in 2014 and charged the company with a federal rule violation for failing to list a poison inhalation hazard on its shipping papers. The PUCO ordered a civil forfeiture of $1,680 from LMD.
To appeal a PUCO decision, R.C. 4923.99(D) required LMD to file a notice of appeal with the commission. While subsection (D) doesn’t specify exactly where a notice of appeal is filed, the PUCO argues that subsection (C) states the Tenth District has the same jurisdiction for motor carriers as the Supreme Court has for all other PUCO appeals and the process follows the same “standards” set in law.
Subsection (C) notes appeals should proceed under the rules of appellate procedure and R.C. Chapter 2505. The PUCO indicates that provision means LMD had to first file a notice of appeal with the commission because that’s how all other appeals of its cases begins. And no document is considered “filed” with the PUCO until it’s received and time-stamped by the docketing division. R.C. 4923.99(D) indicates that a notice of appeal must be served to the PUCO chairman or another commissioner. The PUCO argues there is a clear distinction between filing a notice, and serving a notice. LMD filed its appeal in the Tenth District, and then personally served a copy to a commissioner. This process skipped filing a notice with the docketing division.
“The Court’s precedent requires strict adherence to jurisdictional rules and confirms that dismissal is the consequence for failing to perfect an appeal according to the statute,” the PUCO brief states.
The commission notes the Supreme Court dismissed a case in 2010, claiming a lack of jurisdiction because the party failed to follow the rules to appeal. It notes that in In re Petition of CSX Transp. Inc. a concurring opinion explained that the railroad failed to deliver a notice of appeal to the PUCO’s docketing division. The commission argues the only difference between the CSX case and LMD is that the motor carrier’s case is filed in the Tenth District rather than the Supreme Court.
Company Claims Law Followed
LMD’s brief explains that the due date of its appeal was June 8, 2015, and that on June 1, it provided the PUCO a copy of its notice that it intended to file with the Franklin County Clerk of Courts. The PUCO acknowledged receipt that day when one of the commissioners completed an “acknowledgment of service” form. The company filed its appeal with the county clerk of courts the next day, and one day later — five days before the deadline — the clerk sent two separate copies of the appeal to the PUCO.
LMD argues the law is clear that an appeal must be filed in the Tenth District, but ambiguous about where the notice must be filed. Logistic clarifies that the subject of the appeal is for a fine for violating a federal motor carrier regulation and that R.C. 4923.99(D) details what must be included in the appeal. The company notes that subsection doesn’t indicate where the notice of appeal is to be filed. The company disagrees with the PUCO claim that subsection (C) of the statute directs the filing to the PUCO’s docketing division. The company notes that the section pertains to appeals of an “order of the commission issued to secure compliance with any provision of Chapter 4921 or 4923 of the Revised Code.”
“A motor carrier civil forfeiture order is entirely different from an order of the PUCO to secure a motor carrier's compliance with the Ohio Revised Code. The former is simply a declaration that funds are owed to the PUCO as a result of non-compliance with federal motor carrier regulations, as is the case here. The latter is an order requiring a motor carrier to take certain action, or prohibiting a carrier from taking certain action (such as an order requiring a motor carrier to obtain authority to transport hazardous materials or an order revoking the motor carrier's authority to operate),” the brief states.
LMD maintains the language of the two subsections taken together indicates that they apply to two unrelated types of appeals. The company notes the Supreme Court has a history of allowing cases to be decided on the merits when there are appeals, and that the PUCO was fully aware of the substance of the appeal and responded to the notice within nine days of receipt. LMD asks the Court to affirm the Tenth District’s decision to remand the matter to the PUCO for further proceedings.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Public Utilities Commission of Ohio from the Attorney General’s Office: Eric Murphy, 614.466.8980
Representing LMD Integrated Logistic Services: John Alden, 614.221.1306
Were Door Tags Adequate Notice to Property Owner of Gas Utility Shutoff?
In the Matter of the Complaint of Harris Design Services v. Columbia Gas of Ohio Inc., Case no. 2017-0436
Public Utilities Commission of Ohio
ISSUES:
- Was the finding and conclusion of the Public Utilities Commission of Ohio in this case against the manifest weight of the evidence and unsupported by the record?
- After granting an application for rehearing in July 2016, did the commission fail or refuse to give a rehearing and was that action unreasonable, unlawful, and in violation of state law?
- After granting the rehearing application, did the commission fail or refuse to give a rehearing and was that action a violation of the appellant’s right to due process as provided in the U.S. and Ohio constitutions?
- After granting the rehearing application, did the commission fail or refuse to provide notice of the rehearing and was that action unreasonable, unlawful, in violation of state law, and a violation of due process?
BACKGROUND:
Harris Design Services, an architectural firm, owns a property in Columbus that was unoccupied for several years. Bruce Harris, the firm’s owner, said he regularly visited the property to check on it. Harris said he stopped by in December 2013, saw that everything was fine, and noted that the thermostat was set at 65 degrees Fahrenheit.
In February 2014, Janet Harris, who works at the firm and is married to Mr. Harris, received an unusually high water bill for the property. She told Mr. Harris, who immediately visited the property. He discovered that pipes above the ceilings had burst, five ceilings had collapsed, the kitchenette floor was covered in a layer of ice, and water was found throughout other rooms.
Ms. Harris said she called the gas company, Columbia Gas of Ohio, that day and several additional times and was told that the gas had not been shut off at the property even though she later found out that the company had turned off the gas in September 2013.
Architecture Firm Contests Gas Company’s Notification Process
The Harrises filed a complaint with the Public Utilities Commission of Ohio (PUCO) arguing that Columbia Gas failed to give them notice that the gas service to the property was disconnected, which made the pipes freeze and burst, causing the property damage.
A Columbia Gas technician said that a cable company hit the natural gas line on the property in September 2013. The technician repaired the line and stated that another worker left a yellow door tag notice on the door indicating that service had been disconnected and the property owner needed to call to restore service. In November 2013, the technician responded again for an emergency repair to the gas line after a third party damaged the line. He said he left an orange door tag stating that the property owner needed to contact Columbia Gas to restart service and added that he placed the notice on top of the yellow tag, which was still on the door.
PUCO Finds Door Tags Were Adequate
In May 2016, the PUCO determined that Columbia Gas gave adequate and reasonable notice that it had disconnected gas service to the Harris Design property and the utility had followed all regulations and standards.
Harris Design applied for a rehearing. In July 2016, the PUCO granted the application. In February 2017, the commission upheld its original decision in the matter.
Harris Design appealed the decision to the Ohio Supreme Court, which is required to consider appeals from the PUCO.
Door Tags Are Unreliable, Inadequate, Architecture Firm Argues
Mr. and Ms. Harris each testified that they never saw any paper tags on the door to the property during regular and multiple visits. The man who mowed the property lawn every week or two up until mid-November also stated that he saw no tags on the door. Noting that Columbia Gas was aware that the property was vacant since at least 2008, the Harrises point out that they participated in a level billing program for the property, paying the same amount each month, and state that they never missed a payment.
Harris Design disputes the credibility of the Columbia Gas technician who said door tags were placed in a visible location on the property. The firm also argues that the company has no business records documenting the placement of the tags.
Although the gas company maintains that the property’s gas bill showing zero consumption also served as notice that the gas was turned off, Harris Design counters that its charges were the same each month because of the budget billing.
The firm maintains that the door tags are unreliable and don’t provide adequate notice to customers. Knowing that the property was vacant, Columbia Gas did nothing further than allegedly placing the door tags to notify Harris Design that the gas service had been shut off, the firm contends. This inadequate approach to notifying a customer of a risk of harm to a property is unjust and unreasonable, Harris Design argues. The firm adds that Columbia Gas acknowledged during this case that it planned to add telephone and mail notification of shutoffs to its door tag notice system.
Notification Process Meets Standards and Law, PUCO Maintains
The PUCO notes that Columbia Gas’s standards require notice to be left in a conspicuous place when gas service is shut off and the customer isn’t physically present, and that these standards conform with commission rules for utilities. In the commission’s view, had Harris Design been more vigilant in overseeing the property the owners would’ve seen the door tags. The Supreme Court can’t overturn or change the PUCO’s ruling unless the decision was manifestly against the weight of the evidence, and the evidence supports the commission’s factual determinations in this case, the PUCO argues.
Firm Didn’t Prove Notices Were Inadequate, Gas Company Asserts
The Supreme Court granted Columbia Gas the right to intervene in this case, and the company submitted a brief. The company notes that the PUCO found that Harris Design didn’t meet its burden of proof to show that the notices provided were inadequate. The PUCO found the witnesses for Columbia Gas to be more persuasive than Harris Design’s.
No company standard or state law requires additional and undefined methods of notification to customers for this type of service disruption, Columbia Gas maintains. The company’s longstanding practice of using door tags was reaffirmed as reasonable by the PUCO, Columbia Gas concludes.
Rehearing Process Debated
On July 20, 2016, the PUCO granted Harris Design’s application for rehearing “for the limited purpose of further consideration of the matters specified in the application ….”
R.C. 4903.10 states that the commission “may grant and hold such rehearing on the matter specified in such application, if in its judgment sufficient reason therefor is made to appear.” If a rehearing is granted, the commission “shall specify in the notice of such granting the purpose for which it is granted. The commission shall also specify the scope of the additional evidence, if any, that will be taken, but it shall not upon such rehearing take any evidence that, with reasonable diligence, could have been offered upon the original hearing.”
In a “second entry on rehearing” issued on Feb. 1, 2017, the PUCO denied the rehearing application. Harris Design states that the PUCO held no live, in-person hearing between July and February. Indicating that the PUCO has an informal practice of granting rehearing applications to create additional time to respond to applications and then issues second entries later with decisions, Harris Design argues this practice violates the relevant statutes. It contends that, once granted, a rehearing must be held and the parties must be notified of the hearing. Not providing a hearing as provided in the law violates the firm’s due process rights, the firm maintains.
On this issue, Harris Design asks the Supreme Court to vacate the PUCO’s second rehearing entry and order the commission to hold a live, in-person rehearing.
The PUCO counters that the arguments regarding the rehearing aren’t properly before the Court because they weren’t presented in the rehearing application. In addition, the commission maintains that nothing in the statutes bar it from granting a rehearing application to allow additional time to consider the application and that it has no requirement to hold an in-person hearing allowing the presentation of evidence. Nor does Harris Design have any constitutional due process rights in this matter, the PUCO asserts.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Harris Design Services: Grant Wolfe, 614.221.2330
Representing the Public Utilities Commission of Ohio from the Ohio Attorney General’s Office: Robert Eubanks, 614.466.8703
Representing Columbia Gas of Ohio Inc.: Brooke Wancheck, 614.460.5558
Attorney Discipline
Cleveland Metropolitan Bar Association v. Steven Jerome Moody, Case no. 2017-1738
Cuyahoga County
The Board of Professional Conduct recommends that Cleveland attorney Steven J. Moody be indefinitely suspended from practicing law based on his representation of a man seeking to sue his former employer.
The board reported to the Ohio Supreme Court that Moody violated several of the rules governing the conduct of Ohio lawyers during his 2015 representation of Elton Barrios in an employment discrimination lawsuit against PNC Bank. Much of the complaint about Moody brought by the Cleveland Metropolitan Bar Association stems from statements Moody made to Barrios before Barrios was to give a deposition to PNC Bank’s attorneys. Barrios, suspecting his case wasn’t being handled properly, testified that he secretly recorded his conversation with Moody.
Attorney Accused of Uncooperative Behavior
Barrios hired Moody in March 2015 to represent him in his suit against PNC. PNC was represented by Siobhan M. Sweeney of Boston, and she worked on the case in consultation with an Ohio law firm.
In September, Sweeney served Moody with a discovery request that included documents and interrogatories from Barrios, and a notice to take Barrios’ deposition in October. Moody didn’t respond to the information request. Moody asked for an additional week to fulfill her request, which she granted, but Moody didn’t comply.
Sweeney rescheduled the deposition for November, notifying Moody by email and letter, and following up with a reminder email four days before the deposition. Moody didn’t respond to Sweeney. Sweeney traveled from Boston to Cleveland for the deposition, but neither Barrios nor Moody appeared. About an hour after the proceeding was to start, Moody called Sweeney to tell her he had a conflict and wanted to reschedule.
Sweeney filed a motion with the federal court hearing the case to compel the information. Moody didn’t challenge Sweeney’s requests. A federal magistrate conducted a telephone conference with Sweeney and Moody, in which the magistrate ordered the documents to be provided to Sweeney in late November and that Barrios be deposed on Dec. 21, 2015.
Client Concerned About Representation
Moody sent Barrios an email with PNC’s discovery requests in early November, more than two months after PNC submitted them. Moody didn’t tell Barrios about the deposition date until about nine days before it was to take place, and Barrios later testified this was the first he was informed about any attempts by PNC to depose him. Two days before the deposition, Barrios met with Moody for nearly two hours to prepare for the deposition, and Barrios recorded most of the conversation.
As the deposition with Sweeney was about to begin, Barrios fired Moody, and refused to give the deposition. He withdrew his lawsuit with the right to refile it later, but then dropped his case against PNC. Barrios filed a complaint against Moody with the Cleveland Metropolitan Bar Association.
Panel Finds Violations
A three-member board panel conducted a hearing on the charges the bar association brought against Moody. Moody complained that Barrios’ recording included “dead air” and other defects, and that it cut off the last portion of their conversation where Moody made statements that proved he didn’t violate any disciplinary rules. Moody admitted to making the statements that were recorded.
In the recording, Moody, using obscene language, admitted he deliberately evaded responding to the discovery requests. And he admitted that he didn’t have a conflict on the day Sweeney flew to Cleveland to conduct the discovery, and that he misled Sweeney and the magistrate during the conference call. He also told the magistrate the reason he didn’t respond to the production of documents is that he had moved offices during the summer, but he later admitted he used the same work email address since 2012 and did receive Sweeney’s emails requesting the information.
Moody told Barrios that he had “played a game” with Sweeney and told Barrios when he testifies at the deposition not to mention anything about the refusals to provide the information. He also told Barrios to respond “Yes” if asked whether Moody had told him about the prior depositions.
The panel found Moody failed to act with reasonable diligence and promptness in representing Barrios, made a false statement to the magistrate, and knowingly violated a court rule when failing to cooperate with the discovery requests. The panel reported several other rule violations, including that Moody engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.
The panel recommended Moody be indefinitely suspended violating the rules and also failing to accept any responsibility for his actions, attempting to shift the blame for some rule violations onto Barrios, displaying a pattern of misconduct, and committing gender disparagement by using obscene words to describe Sweeney to his client. The board adopted the panel’s recommendation.
Mistakes Made, but Rules Followed, Attorney Argues
Moody argues “inadvertence” and trouble keeping track of his calendar as he transitioned to a new office led to the delays and lack of production of documents. He contends there is no evidence that he made any false statements to the magistrate and Sweeney, and there is no evidence to demonstrate that he wasn’t in court on another matter as he claimed. He argues there is no evidence that he deliberately didn’t respond to the discovery requests or deposition scheduled, but rather that inadvertence led to the failures to provide the information. He states that once he realized there was a conflict with the time of the November deposition, he called Sweeney to apologize and reschedule.
He also claimed that Barrios’ recording cut off at least 15 minutes of their meeting and didn’t record statements he made instructing Barrios to always tell the truth during the deposition.
Moody maintains that he didn’t violate the rules, and the bar association’s complaint should be dismissed, or at most, he should be issued a public reprimand. He argues that he didn’t commit a pattern of misconduct because the complaint involves his representation of a single client for a short period of time. He concludes that if the Court does find he violated the disciplinary rules, a more appropriate sanction would be, at most, a one-year suspension with six months stayed.
Bar Association Asserts Attorney’s Own Words Reveal Violations
The Cleveland Metropolitan Bar Association supports the board’s recommendations and notes that long before any disciplinary investigation began, Moody candidly told Barrios that it wasn’t inadvertence that interfered with his representation, but that Moody deliberately disregarded Sweeney’s requests and played a game with her to undermine her ability to represent PNC.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Steven J. Moody: Richard Alkire, 216.573.0801
Representing the Cleveland Metropolitan Bar Association: Darrell Clay, 216.928.2896
Attorney Discipline
Columbus Bar Association v. David P. Rieser, Case no. 2017-1741
Franklin County
The Ohio Board of Professional Conduct recommends the indefinite suspension of Columbus attorney David P. Rieser for accepting money from a client who sent multiple unsolicited checks during the attorney’s representation, and for other misconduct.
Rieser and the Columbus Bar Association, which submitted the disciplinary complaint to the board, had agreed to a two-year suspension with one year stayed. Arguing that an indefinite suspension is too harsh, both Rieser and the bar association advocate for a penalty less than an indefinite suspension.
Attorney Hired to Represent Psychiatrist
Dr. Anil C. Nalluri, a Mahoning County psychiatrist, was indicted in March 2012 on criminal felony charges alleging workers’ compensation fraud. Nalluri hired Rieser to represent him, and they agreed on an initial fee of $30,000. Rieser didn’t discuss the additional fees that might be required and didn’t draft a written fee agreement.
In addition to the $30,000 payment, the doctor sent eight more checks to Rieser between June 2012 and December 2012. Six of the payments were for $10,000, one was for $2,999.79, and one was for $14,999. Rieser deposited two of these checks into his client trust account, as required, but he deposited three others into his business account and signed over two checks to a Columbus art gallery. The deposit of one of the checks wasn’t accounted for in the professional conduct board’s report.
With Rieser’s assistance, Nalluri pled guilty in December 2012 to a misdemeanor offense of workers’ compensation fraud. The court dismissed the remaining charges and imposed no sentence, fines, or court costs. Nalluri paid the Ohio Bureau of Workers’ Compensation $257.40 for overbilling and $70,497.68 for the cost of the bureau’s investigation.
Parties Agreed on Misconduct
Nalluri filed a grievance against Rieser with the bar association in April 2015. Rieser and the bar association agreed to the facts and that the attorney accepted excessive payment, but they disagreed on the level of reasonable compensation for representing Nalluri. The board’s panel of the board that reviewed the disciplinary matter determined that a reasonable fee was between $30,000 and $60,000.
The board’s report noted that Reiser had prior disciplinary offenses – in 1995 and 2001. The board also identified mitigating circumstances, including that Rieser offered to refund part of his fee and placed $50,000 in escrow for payment to the doctor during these proceedings. In addition, he presented evidence from a medical professional that he suffered from anxiety and depression after his father’s death during the period of this misconduct. Rieser has received counseling for these issues.
Besides determining that Rieser took an excessive fee, the board concluded that he failed to communicate the scope of his representation and basis for his fees, didn’t deposit all of Nalluri’s payments into a client trust account or keep appropriate time records, didn’t tell his client he had no liability insurance, and failed to cooperate in the disciplinary proceedings.
However, the board rejected the cases cited by the parties to support the recommended one-year actual suspension. The panel noted that Rieser accepted check after check from his client, took nearly double the fee determined to be reasonable, and deposited some checks into his personal account or endorsed them to an art gallery. Given these additional factors, the board recommends to the Supreme Court that Rieser be indefinitely suspended on conditions, including payment of $50,000 in restitution to Nalluri.
Attorney Asks for Lesser Suspension
Rieser objects to the board’s recommended increase in his sanction from a one-year actual suspension to an indefinite suspension. He notes that Nalluri emailed six times asking the attorney to cash the unsolicited checks, and Rieser testified at the disciplinary hearing that Nalluri said he wanted to send monthly checks even though Rieser told him that was unnecessary.
In disciplinary cases, Rieser stresses, individual circumstances are always considered and the goal is to protect the public rather than punish the offender. He acknowledges that he shouldn’t have accepted the unsolicited checks once they exceeded a reasonable fee. But he notes he has stipulated that he collected a clearly excessive fee for his work and has taken responsibility for his misconduct. He also points to the high quality of legal representation he provided to his client, resulting in no sentence, a misdemeanor offense rather than multiple felonies, and the increased likelihood that the doctor would keep his medical license.
The failure to cooperate during the disciplinary proceedings occurred only at the beginning of the investigation, Rieser adds. He maintains that he and the bar association agreed that his medical provider offered information about his mental condition during this time period that explained his behavior. He believes the board may have overlooked this mitigating evidence.
Bar Association Supports Lesser Penalty
The bar association notes that Rieser didn’t charge an excessive fee, although he did accept the money. Other cases imposing more severe sanctions often involve attorneys who take fees and don’t provide the legal work, but that wasn’t the situation here, the association adds.
The association also agrees with Rieser that he established that his disorder mitigated his failure to cooperate in the disciplinary process. The association argues that the board’s focus on this issue as an aggravating factor contradicts the facts of the case and the stipulations made by the parties.
The association doesn’t oppose Rieser’s view that an indefinite suspension is too severe. It asks the Court to adopt the board’s findings and determinations but order a sanction less than an indefinite suspension.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing David P. Rieser: Jonathan Coughlan, 614.462.5455
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