[Cite as Martin Marietta Magnesia Specialties, L.L.C. v. Pub. Util. Comm., 129 Ohio St.3d 485, 

2011-Ohio-4189.] 

MARTIN MARIETTA MAGNESIA SPECIALTIES, L.L.C., APPELLANT, v.

PUBLIC UTILITIES COMMISSION OF OHIO, APPELLEE. 

CALPHALON CORPORATION, APPELLANT, v. PUBLIC UTILITIES 

COMMISSION OF OHIO, APPELLEE. 

KRAFT FOODS GLOBAL, INC., APPELLANT, v. PUBLIC UTILITIES 

COMMISSION OF OHIO, APPELLEE. 

WORTHINGTON INDUSTRIES, APPELLANT, v. PUBLIC UTILITIES 

COMMISSION OF OHIO, APPELLEE. 

BRUSH WELLMAN, INC., APPELLANT, v. PUBLIC UTILITIES 

COMMISSION OF OHIO, APPELLEE. 

[Cite as Martin Marietta Magnesia Specialties, L.L.C. v. Pub. Util. Comm., 129 

Ohio St.3d 485, 2011-Ohio-4189.] 

Termination date of special contracts entered into under R.C. 4905.31 — Public 

Utilities Commission erred in determining that it needed to refer to its 

earlier electric-deregulation decisions to interpret the plain language of 

the special contracts. 

(Nos. 2009-1064, 2009-1065, 2009-1067, 2009-1071, and 2009-1072 — 

Submitted May 24, 2011 — Decided August 25, 2011.) 

APPEAL from the Public Utilities Commission of Ohio, No. 08-893-EL-CSS. 

APPEAL from the Public Utilities Commission of Ohio, No. 08-145-EL-CSS. 

APPEAL from the Public Utilities Commission of Ohio, No. 08-146-EL-CSS. 

 APPEAL from the Public Utilities Commission of Ohio, No. 08-67-EL-CSS. 

APPEAL from the Public Utilities Commission of Ohio, No. 08-254-EL-CSS. 

__________________ 

O’DONNELL, J. 

I. Introduction 

{¶ 1} Martin Marietta Magnesia Specialties, L.L.C., the Calphalon 

Corporation, Kraft Foods Global, Inc., Worthington Industries, and Brush 
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Wellman, Inc., each appeal from a decision of the Public Utilities Commission of 

Ohio (“PUCO”) that established February 2008 as the termination date for special 

contracts they entered into with the Toledo Edison Company for the sale of 

electricity. These special contracts had been approved by the PUCO pursuant to 

R.C. 4905.31, which permits “reasonable arrangements” between public utilities 

and their customers. Generally, such contracts include arrangements that differ 

from the standard rate schedules and are often tailored to a specific customer’s 

service. 

{¶ 2} The parties to these appeals have asked us to determine the 

termination date of appellants’ special contracts with Toledo Edison. Appellants 

contend that Toledo Edison agreed in 2001 that the contracts would not terminate 

until Toledo Edison stopped collecting regulatory-transition charges from its 

customers. Appellants further contend that their contracts did not expire until 

December 31, 2008, the date when Toledo Edison stopped collecting regulatorytransition charges. 

{¶ 3} In contrast, intervening appellee Toledo Edison and the PUCO 

maintain that the special contracts expired in February 2008, as provided by the 

commission’s orders in electric-deregulation cases involving Toledo Edison. 

{¶ 4} The PUCO found that based on the language of the special contracts 

and its orders in the earlier electric-deregulation cases, the contracts terminated in 

February 2008. The commission erred in this determination, and we accordingly 

reverse its order and enter judgment in favor of appellants. 

II. Facts 

{¶ 5} In 2008, appellants filed complaints pursuant to R.C. 4905.26 

against Toledo Edison with the Public Utilities Commission of Ohio. See PUCO 

case No. 08-893-EL-CSS (Martin Marietta); PUCO case No. 08-145-EL-CSS 

(Calphalon); PUCO case No. 8-146-EL-CSS (Kraft); PUCO case No. 08-67-ELCSS (Worthington); and PUCO case No. 08-254-EL-CSS (Brush Wellman). In 
January Term, 2011 

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proceedings before the commission, the attorney examiner consolidated the five 

complaints, and the parties then filed joint stipulations of fact. 

{¶ 6} Between 1990 and 1997, Toledo Edison entered into an electricservice contract with each appellant, and those contracts became valid after 

approval by the commission pursuant to R.C. 4905.31. According to the terms of 

these contracts, appellants received discount pricing for electric service below the 

standard tariff rates charged by Toledo Edison to other large industrial customers. 

{¶ 7} On October 5, 1999, the General Assembly enacted Am.Sub.S.B. 

No. 3, codified as R.C. Chapter 4928, which restructured Ohio’s electric-utility 

industry to allow retail customers to buy electric service from providers other than 

local electric-service providers. Am.Sub.S.B. No. 3, 148 Ohio Laws, Part IV, 

7962 (“S.B. 3”). Following passage of that legislation, in a series of cases 

involving Toledo Edison and other electric utilities, the PUCO attempted to ease 

the transition from a regulated rate structure to a market rate structure. See 

Toledo Edison’s electric-transition-plan case, case No. 99-1212-EL-ETP; ratestabilization-plan case, case No. 03-2144-EL-ATA; and rate-certainty-plan case, 

case No. 05-1125-EL-ATA (collectively, “the S.B. 3 cases”). 

{¶ 8} Through a series of agreed stipulations and commission orders in the 

S.B. 3 cases, special-contract customers were able to extend the duration of their 

contracts with Toledo Edison. 

{¶ 9} In the first S.B. 3 case, Toledo Edison’s electric-transition-plan case, 

special-contract customers were given a one-time opportunity to extend their 

special contracts, provided that those customers agreed to the offer by December 

31, 2001. None of the appellants was a party to the electric-transition-plan case, 

but each received notice of the offer to extend its special contracts from Toledo 

Edison pursuant to the electric-transition-plan stipulation and the commission’s 

order approving that stipulation. Each accepted the offer to extend the terms of its 
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contract with Toledo Edison until the date that Toledo Edison stopped collecting 

its regulatory-transition charges. 

{¶ 10} Thereafter, each appellant amended its agreement with Toledo 

Edison, referred to as “the 2001 Amendments.” Each agreement contained the 

following language: “This Agreement, as amended, shall terminate with the bill 

rendered for the electric usage through the date which RTC ceases for the [Toledo 

Edison] Company.” The contracts defined “RTC” as regulatory-transition 

charges. 

{¶ 11} The next opportunity to extend these contracts occurred in the 

second S.B. 3 case, Toledo Edison’s rate-stabilization-plan case. In that case, the 

commission again approved a joint stipulation filed by Toledo Edison and other 

parties allowing Toledo Edison’s customers to extend the term of any special 

contract beyond the extension approved in the electric-transition-plan case. 

However, unlike the electric-transition-plan case, neither the rate-stabilizationplan stipulation nor the commission’s order required Toledo Edison to notify its 

special-contract customers of the opportunity to extend, and Toledo Edison did 

not directly communicate with appellants or any other special-contract customer 

regarding this option. None of Toledo Edison’s special-contract customers, 

including appellants, was a party to the rate-stabilization-plan case. Despite this, 

nine of Toledo Edison’s 46 special-contract customers requested Toledo Edison to 

extend the terms of their special contracts, and Toledo Edison agreed. None of 

the appellants in this case, however, submitted a similar request to Toledo Edison 

to extend the term of its contract. 

{¶ 12} Another stipulated contract extension was approved in the third 

S.B. 3 case, Toledo Edison’s rate-certainty-plan case. This stipulation provided 

that those special contracts that were extended under the rate-stabilization-plan 

case would continue in effect until December 31, 2008. The stipulation further 

provided that special contracts extended under the electric-transition-plan case but 
January Term, 2011 

5

not under the rate-stabilization-plan case—such as appellants’ contracts—would 

continue in effect until February 2008. The stipulation stated that the February 

2008 termination date for such contracts was “consistent with the [electrictransition-plan’s] method of calculation of the contract end dates.” 

{¶ 13} The commission’s order in the rate-certainty-plan case also 

authorized Toledo Edison to continue to recover regulatory-transition charges 

through December 31, 2008. Accordingly, Toledo Edison continued to recover 

regulatory-transition charges after February 2008, through December 31, 2008. 

Notably, appellants were not parties to the rate-certainty-plan case and were not 

notified that an end date for special contracts would be established in that case. 

{¶ 14} Thus, following the order in the rate-certainty-plan case, 

appellants’ contracts were arguably scheduled to terminate (1) according to the 

contracts, upon the termination of the regulatory-transition charges and (2) 

according to the rate-certainty-plan order, in February 2008. 

{¶ 15} Between February 2006 and September 2007, Toledo Edison 

informed appellants that their special contracts would terminate in February 2008, 

and in response, between January and July 2008, appellants filed the underlying 

complaints, alleging that Toledo Edison’s attempt to unilaterally change the plain 

language of the special contracts was unreasonable and unlawful. According to 

appellants, the 2001 Amendments to their special contracts provided that the 

contracts were to terminate on the date that Toledo Edison stopped collecting 

regulatory-transition charges, which turned out to be December 31, 2008. 

Appellants complained that despite this provision of the contract, Toledo Edison 

intended to terminate the contracts in February 2008, the date set by the 

commission in the third S.B. 3 case, ten months before the utility ceased 

collecting the regulatory-transition charges. 

{¶ 16} Toledo Edison subsequently entered into escrow agreements with 

Worthington, Calphalon, Kraft, and Brush Wellman, whereby those appellants 
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agreed to escrow the difference between what those appellants and Toledo Edison 

alleged should be the cost of electric service between February 2008 and 

December 31, 2008. There is no escrow agreement between Martin Marietta and 

Toledo Edison. 

{¶ 17} On February 19, 2009, the commission issued its order dismissing 

appellants’ complaints. The commission found that appellants’ special contracts 

terminated in February 2008, and it noted that the electric-transition-plan 

stipulation provided that Toledo Edison’s collection of regulatory-transition 

charges would continue until its cumulative distribution sales reached a certain 

level based on the number of kilowatt-hours. The commission concluded that the 

February 2008 contract end date—which was established in the rate-certaintyplan case—was consistent with the electric-transition-plan stipulation’s “original 

method of calculation” of the contract-termination dates agreed to by Toledo 

Edison and appellants in the 2001 Amendments. Because the electric-transitionplan stipulation formed the basis for the 2001 Amendments, the commission 

concluded that appellants had agreed to Toledo Edison’s “offer” that the electrictransition plan’s method of calculation would determine the termination dates for 

appellants’ special contracts. 

{¶ 18} Appellants timely filed a joint application for rehearing, but the 

commission denied that application. 

{¶ 19} These appeals followed. Because the appeals share identical facts 

and legal issues, we consolidated these cases for briefing and oral argument. 122 

Ohio St.3d 1463, 2009-Ohio-3385, 909 N.E.2d 639. Appellants jointly raise four 

propositions of law. For the reasons discussed below, we sustain appellants’ first 

proposition of law, reverse the commission’s orders, and do not reach the 

remaining propositions of law. 

III. Standard of Review 
January Term, 2011 

7

{¶ 20} “R.C. 4903.13 provides that a PUCO order shall be reversed, 

vacated, or modified by this court only when, upon consideration of the record, 

the court finds the order to be unlawful or unreasonable.” Constellation 

NewEnergy, Inc. v. Pub. Util. Comm., 104 Ohio St.3d 530, 2004-Ohio-6767, 820 

N.E.2d 885, ¶ 50. We will not reverse or modify a PUCO decision as to questions 

of fact when the record contains sufficient probative evidence to show that the 

commission’s decision was not manifestly against the weight of the evidence and 

was not so clearly unsupported by the record as to show misapprehension, 

mistake, or willful disregard of duty. Monongahela Power Co. v. Pub. Util. 

Comm., 104 Ohio St.3d 571, 2004-Ohio-6896, 820 N.E.2d 921, ¶ 29. The 

appellant bears the burden of demonstrating that the PUCO’s decision is against 

the manifest weight of the evidence or is clearly unsupported by the record. Id. 

IV. Appellants’ First Proposition of Law

{¶ 21} In their first proposition of law, appellants contend that the 

commission erred when it failed to apply the clear and unambiguous language of 

the 2001 Amendments to their special contracts. They argue that the 2001 

Amendments expressly state that their contracts would terminate on the date that 

Toledo Edison ceased its collection of regulatory-transition charges, i.e., 

December 31, 2008, but Toledo Edison terminated their contracts in February 

2008. Appellants therefore argue that the commission unlawfully and 

unreasonably disregarded the plain language of the 2001 Amendments when it 

allowed Toledo Edison to terminate appellants’ contracts in February 2008, ten 

months before the regulatory-transition-charges ended. 

A. The PUCO ignored the plain language of the 2001 Amendments 

to appellants’ special contracts 

{¶ 22} When confronted with an issue of contract interpretation, the role 

of the court is to give effect to the intent of the parties to that agreement. The 

court examines the contract as a whole and presumes that the intent of the parties 
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is reflected in the language used in the agreement. Westfield Ins. Co. v. Galatis, 

100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 11. “Where the parties 

following negotiation make mutual promises which thereafter are integrated into 

an unambiguous contract duly executed by them, courts will not give the contract 

a construction other than that which the plain language of the contract provides.” 

Aultman Hosp. Assn. v. Community Mut. Ins. Co. (1989), 46 Ohio St.3d 51, 544 

N.E.2d 920, paragraph one of the syllabus. “When the language of a written 

contract is clear, a court may look no further than the writing itself to find the 

intent of the parties.” Galatis at ¶ 11. Evidence cannot be introduced to show an 

agreement between the parties that is materially different from that expressed by 

the clear and unambiguous language of the instrument. Blosser v. Enderlin 

(1925), 113 Ohio St. 121, 148 N.E. 393, paragraph two of the syllabus. “As a 

matter of law, a contract is unambiguous if it can be given a definite legal 

meaning.” Galatis at ¶ 11. 

{¶ 23} The 2001 Amendments to appellants’ special contracts provided 

that those contracts “shall terminate with the bill rendered for the electric usage 

through the date which [the regulatory-transition charge] ceases for the [Toledo 

Edison] Company.” This language is clear and unambiguous. Accordingly, the 

commission was bound to give effect to the parties’ intent, as expressed in the 

plain language of the agreements. 

{¶ 24} Contrary to the commission’s determination that appellants and 

Toledo Edison had agreed in the 2001 Amendments that the contract-termination 

dates would be determined by a calculation that tied regulatory-transition charges 

to Toledo Edison’s distribution sales, nothing in the 2001 Amendments specifies 

that appellants’ special contracts would end when Toledo Edison’s distribution 

sales reach a certain level. Because no such provision was included, and because 

the actual termination provision is unambiguous, the commission should have 
January Term, 2011 

9

determined the intent of the parties to the special contracts from the four corners 

of the document. 

{¶ 25} The parties here agreed that the termination date of the contracts 

would be the termination of the regulatory-transition charges. Thus, based on the 

plain language of these agreements, Toledo Edison should not have been allowed 

to terminate appellants’ special contracts in February 2008; rather, they remained 

in effect until December 31, 2008, when the utility ceased collecting the 

regulatory-transition charges. 

B. Counterarguments of Toledo Edison and the PUCO 

{¶ 26} In response to appellants’ first proposition of law, Toledo Edison 

and the PUCO raise four counterarguments. None has merit. 

1. The S.B. 3 cases did not provide the language of the 

special contracts with special meaning 

{¶ 27} On appeal, the PUCO argues that the S.B. 3 cases were an integral 

part of appellants’ special contracts and provided special meaning to the language 

used in the agreements. The PUCO maintains that appellants’ special contracts 

are entirely dependent on the commission’s S.B. 3 orders because (1) the 

contracts were first extended through the 2001 Amendments pursuant to the 

electric-transition-plan case and (2) the commission fixed the end point of Toledo 

Edison’s collection of regulatory-transition charges in the rate-certainty-plan case. 

{¶ 28} For its part, Toledo Edison contends that it would be impossible to 

determine the intent of the contracting parties without reference to the 

commission’s orders in the S.B. 3 cases. In Toledo Edison’s view, the 

commission necessarily had to review the circumstances surrounding the 2001 

Amendments to the special contracts to determine the meaning of “regulatorytransition charges” and when those charges would cease according to the 

agreements. Otherwise, Toledo Edison avers, the termination language contained 

in the 2001 Amendments had no meaning. 
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{¶ 29} We recognize that when circumstances surrounding an agreement 

invest the language of the contract with a special meaning, extrinsic evidence can 

be considered in an effort to give effect to the parties’ intention. See Shifrin v. 

Forest City Ents., Inc. (1992), 64 Ohio St.3d 635, 597 N.E.2d 499, syllabus. See 

also Graham v. Drydock Coal Co. (1996), 76 Ohio St.3d 311, 313-314, 667 

N.E.2d 949, Latina v. Woodpath Dev. Co. (1991), 57 Ohio St.3d 212, 214, 567 

N.E.2d 262. 

{¶ 30} However, the circumstances do not show that the commission’s 

orders in the S.B. 3 cases invested the language of the special contracts with any 

special meaning or reflected the intent of the contracting parties. None of the 

appellants was a party to the S.B. 3 cases or joined in the stipulations approved by 

the commission in those cases. Further, the 2001 Amendments did not tie 

termination of the contracts to Toledo Edison’s distribution sales reaching a 

certain level. Rather, the 2001 Amendments tied termination of the contracts to 

the end of the regulatory-transition charges. Thus, the commission erred in 

relying on the S.B. 3 cases to alter the plain meaning of appellants’ special 

contracts and in allowing Toledo Edison to terminate the special contracts in 

February 2008, when it continued to collect regulatory-transition charges until 

December 2008. 

2. The commission did not invoke its authority under R.C. 4905.31 

 to supervise or modify the special contracts 

{¶ 31} Both Toledo Edison and the PUCO contend that appellants’ special 

contracts are “reasonable arrangements” pursuant to R.C. 4905.31, and as such, 

are subject to the commission’s continuing supervision and regulation, and they 

maintain that the commission acted within this authority when it determined the 

end dates for appellants’ contracts. The PUCO further argues that R.C. 4905.31 

gives the commission authority to modify appellants’ special contracts. 
January Term, 2011 

11

{¶ 32} There is no dispute that pursuant to R.C. 4905.31, the commission 

has authority to regulate, supervise, and modify special contracts. But nowhere in 

the commission’s orders in this case did it claim to be using that authority to 

supervise, regulate, or modify appellants’ special contracts. In fact, the 

commission expressly denied on rehearing that it had modified the terms of these 

special contracts in the underlying cases. Given that the commission never 

invoked the authority provided by R.C. 4905.31 in the proceedings below and 

affirmatively disclaimed that it was modifying the contracts, it cannot defend its 

decision on that basis on appeal. 

3. Toledo Edison’s regulatory-transition charges 

did not cease on January 1, 2006 

{¶ 33} Both Toledo Edison and the PUCO claim that the collecting of 

regulatory-transition charges referred to in the 2001 Amendments ended long 

before appellants’ special contracts were terminated in February 2008. 

Specifically, they contend that Toledo Edison stopped collecting those particular 

regulatory-transition charges on January 1, 2006. Therefore, they contend, the 

commission properly determined that the contracts did not extend to December 

31, 2008. 

{¶ 34} According to Toledo Edison and the PUCO, the rate-certainty-plan 

case ordered that new regulatory charges—the “RTC rate components,” which are 

made up of regulatory-transition charges and extended regulatory-transition 

charges—were to replace the regulatory-transition charges referred to in the 2001 

Amendments. According to appellees, the extended regulatory-transition charges 

replaced the regulatory-transition charges referred to in the 2001 Amendments to 

appellants’ contracts. That is, the PUCO and Toledo Edison concede that Toledo 

Edison continued to collect regulatory-transition charges after January 1, 2006, 

but they maintain that those charges were not the same regulatory-transition 

charges originally tied to the termination of the special contracts. Instead, they 
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claim that those “original” regulatory-transition charges ended in January 2006 

and that Toledo Edison collected the RTC rate components after January 2006 

and until December 31, 2008. 

{¶ 35} During oral argument before this court, counsel for the PUCO 

contradicted the statements in the PUCO brief and claimed that Toledo Edison 

stopped collecting regulatory-transition charges in February 2008, rather than 

January 2006. Counsel maintained that the regulatory-transition charges referred 

to in appellants’ special contracts were designed to recover different costs than 

those costs intended to be recovered by the extended regulatory-transition 

charges. Counsel explained that the regulatory-transition charges were 

implemented to recover Toledo Edison’s “stranded” costs, while the extended 

regulatory-transition charges recovered Toledo Edison’s deferred fuel costs. The 

PUCO’s counsel argued that the regulatory-transition charges set forth in the 2001 

Amendments were no longer being collected, because Toledo Edison was no 

longer recovering its stranded costs. Rather, according to counsel, from February 

2008 until the end of December 2008, Toledo Edison was recovering its deferred 

fuel costs solely through the collection of the extended regulatory-transition 

charges. 

{¶ 36} However, these arguments are contradicted by the agreed 

stipulation of facts that the commission relied on to resolve this case. Toledo 

Edison and appellants filed a joint stipulation of facts in these cases when they 

were before the commission that stated that the rate-certainty-plan case 

“authorized [Toledo Edison] to recover [regulatory-transition charges] through 

December 31, 2008, and [Toledo Edison] has continued to recover [regulatorytransition charges] after [appellants’] February 2008 billing dates.” The parties 

further stipulated that Toledo Edison “project[ed] its Regulatory Transition 

Charge will cease on or before December 31, 2008.” 
January Term, 2011 

13

{¶ 37} The joint stipulation was submitted into evidence on July 23, 2008, 

well after the dates (January 1, 2006, and February 2008) on which Toledo Edison 

and the PUCO now allege that regulatory-transition charges had ended. 

Moreover, although the agreed stipulation refers to both the regulatory-transition 

charges and the extended regulatory-transition charges, the stipulation makes no 

distinction between the regulatory-transition charges referred to in the 2001 

Amendments and those discussed in the rate-certainty-plan case. 

{¶ 38} Toledo Edison stipulated that it did not stop collecting regulatorytransition charges until December 31, 2008. If Toledo Edison had been collecting 

only extended regulatory-transition charges or the RTC rate components between 

February and December 2008—as it and the PUCO now allege—certainly Toledo 

Edison could have stipulated to that fact or litigated the issue. For whatever 

reason, Toledo Edison did neither. 

{¶ 39} Further, the commission never found that Toledo Edison had 

stopped collecting regulatory-transition charges on January 1, 2006, or in 

February 2008, or at any other time before December 31, 2008. If Toledo Edison 

had actually stopped collecting regulatory-transition charges in February 2008, 

the commission would have said so. Instead, the commission held that the 

contract-termination dates were consistent with the “method of calculation” for 

when regulatory-transition charges should have ended, not when those charges 

actually ended. 

4. Appellants’ complaints were not an improper collateral attack 

 on the commission’s prior orders 

{¶ 40} Appellants filed complaints pursuant to R.C. 4905.26 challenging 

Toledo Edison’s right to terminate the special contracts in February 2008. The 

commission dismissed appellants’ complaints, finding in part that the complaints 

were an improper collateral attack upon the commission’s orders in the ratestabilization-plan and rate-certainty-plan cases, the latter of which established the 
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contract-termination dates. According to the commission, to allow appellants to 

collaterally attack its prior decisions “at this late date” may give appellants an 

unfair advantage over other special-contract customers who followed those cases 

and took the risk of extending their contracts when today’s market rates were 

unknown. Toledo Edison and the PUCO claim on appeal that the commission 

acted reasonably and lawfully in dismissing appellants’ complaints on this 

ground. 

{¶ 41} Contrary to the commission’s finding, its prior orders can be 

collaterally attacked through R.C. 4905.26 complaint proceedings. We have long 

held that “R.C. 4905.26 is broad in scope * * *. [R]easonable grounds may exist 

to raise issues which might strictly be viewed as ‘collateral attacks’ on previous 

orders.” Allnet Communications Servs., Inc. v. Pub. Util. Comm. (1987), 32 Ohio 

St.3d 115, 117, 512 N.E.2d 350, citing W. Res. Transit Auth. v. Pub. Util. Comm. 

(1974), 39 Ohio St.2d 16, 68 O.O.2d 9, 313 N.E.2d 811. 

{¶ 42} As to the commission’s concern that appellants may have gained an 

unfair advantage over those Toledo Edison special-contract customers who 

extended their contracts when today’s market prices were unknown, that concern 

is irrelevant to the critical issue before us: the meaning of the language contained 

in the 2001 Amendments to appellants’ special contracts.

{¶ 43} Intertwined with its collateral-attack argument, Toledo Edison also 

raises the equitable defenses of waiver and laches. Toledo Edison complains that 

it informed appellants of the February 2008 actual termination of their contracts in 

2006 and 2007, but the first appellant to file a complaint with the commission 

challenging the termination date waited until January 2008 to do so. These 

defenses are not well taken. 

{¶ 44} Waiver is a voluntary relinquishment of a known legal right. State 

ex rel. Madden v. Windham Exempted Village School Dist. Bd. of Edn. (1989), 42 

Ohio St.3d 86, 89, 537 N.E.2d 646. Appellants filed their complaints with the 
January Term, 2011 

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commission between January and July 2008, at the latest only a few months after 

Toledo Edison’s attempt to terminate the contracts in February 2008. Toledo 

Edison offers no argument or evidence as to how appellants have voluntarily 

waived their claims. 

{¶ 45} Toledo Edison’s laches argument also lacks merit. The elements of 

laches are (1) unreasonable delay or lapse of time in asserting a right, (2) absence 

of an excuse for such a delay, (3) knowledge—actual or constructive—of the 

injury or wrong, and (4) prejudice to the other party. State ex rel. Cater v. N. 

Olmsted (1994), 69 Ohio St.3d 315, 325, 631 N.E.2d 1048. Toledo Edison must 

establish all four elements, but it has not shown that there was any unreasonable 

or prejudicial delay in this case. At most, a four-month window occurred between 

termination of the contracts and litigation. 

C. Conclusion to First Proposition of Law 

{¶ 46} Appellants’ first proposition of law is well taken. The commission 

erred in determining that evidence of the stipulations and orders in Toledo 

Edison’s electric-transition-plan and rate-certainty-plan cases were needed to 

interpret the plain language of the 2001 Amendments, which provided that 

appellants’ special contracts were to continue until Toledo Edison stopped 

collecting the regulatory-transition charges. That occurred on December 31, 

2008. Accordingly, the commission unlawfully and unreasonably allowed Toledo 

Edison to terminate the special contracts in February 2008. 

V. Appellants’ Second, Third, and Fourth Propositions of Law 

{¶ 47} Due to our disposition of the first proposition of law, we need not 

address appellants’ remaining propositions of law. 

VI. Conclusion 

{¶ 48} The decision of the commission is reversed, and we enter judgment 

for appellants. 

Orders reversed. 
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 O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, LANZINGER, CUPP, 

and MCGEE BROWN, JJ., concur. 

__________________ 

 Craig I. Smith; Kravitz, Brown & Dortch, L.L.C., and Michael D. Dortch; 

Bricker & Eckler, L.L.P., Thomas J. O’Brien, and Matthew W. Warnock; and 

Crowell & Moring, L.L.P., and Daniel W. Wolff, for appellants. 

 Michael DeWine, Attorney General, William L. Wright, Section Chief, 

and Thomas W. McNamee and John H. Jones, Assistant Attorneys General, for 

appellee. 

 Calfee, Halter & Griswold, L.L.P., James F. Lang, and N. Trevor 

Alexander, for intervening appellee. 

______________________