[Cite as Duke Energy Ohio, Inc. v. Hamilton, 2018-Ohio-2821.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

DUKE ENERGY OHIO, INC., : 

 Appellant, : CASE NO. CA2018-01-001 

 : O P I N I O N 

 - vs - 7/16/2018 

 : 

CITY OF HAMILTON, et al., : 

 Appellees. : 

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

Case No. CV 17 01 0163 

Jack F. Grove, 1251 Nilles Road, Suite 10, Fairfield, Ohio 45014 and James E. McLean, 139 

East Fourth Street, M/C 1212-M, Cincinnati, Ohio 45202, for appellant 

Heather Sanderson Lewis, Steven A. Tooman, Samantha R. Wicktora, 232 High Street, 

Hamilton, Ohio 45011 and John P. Coyle, 1730 Rhode Island Avenue NW, Washington D.C. 

20036, Admitted Hac Vice, for appellee, city of Hamilton 

Lawrence E. Barbiere, Jay D. Patton, 5300 Socialville-Foster Road, Suite 200, Mason, Ohio 

45040, for defendants, Board of Township Trustees of Fairfield Township and Fairfield 

Township 

 HENDRICKSON, J.

{¶ 1} Plaintiff-appellant, Duke Energy Ohio, Inc. (hereafter, "Duke Energy"), appeals 

from a decision of the Butler County Court of Common Pleas granting the motion of 

defendant-appellee, the city of Hamilton, for partial dismissal of Duke Energy's claims for lack 
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of subject matter jurisdiction.1 

Facts & Procedural History

{¶ 2} Duke Energy is a public-utility corporation that supplies natural gas and electric 

services throughout southwestern Ohio. It is regulated by the Public Utilities Commission of 

Ohio ("PUCO"). Hamilton is an Ohio municipal corporation located in Butler County, Ohio. 

Hamilton operates a municipal utility that provides natural gas and electric services both 

inside and outside of its territorial limits. 

{¶ 3} In 1996, Hamilton and Fairfield Township, a township located in Butler County, 

entered into a Joint Economic Development District ("JEDD") agreement, designated the 

"Hamilton-Indian Springs Joint Economic Development District Contract," which had a stated 

purpose of facilitating commercial and economic development. Under the terms of the 

JEDD, Hamilton agreed to supply limited utility service for sewerage within the JEDD 

designated area. In November 2016, Hamilton issued a letter of intent summarizing terms of 

an amendment to the JEDD agreement to expand the JEDD to add 209 acres of land located 

entirely within Fairfield Township. Pursuant to the terms of the amendment, Hamilton would 

provide electric and natural gas services to the added area. 

{¶ 4} In January 2017, Duke Energy filed suit against Hamilton, Fairfield Township, 

and the Board of Township Trustees of Fairfield Township ("the Board"). In its amended 

complaint, Duke Energy sought declaratory judgment that Hamilton could not provide natural 

gas or electric service to entities in the 209-acre area and sought a permanent injunction 

preventing Hamilton from providing natural gas and electric service in said area. Duke 

Energy's complaint set forth two distinct claims. First it argued that it has an exclusive right to 

provide electric service and natural gas service within the 209-acre area pursuant to its 

 

1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar for the purposes of 

issuing this opinion. 
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PUCO-approved tariffs and the Certified Territories Act, as set forth in R.C. 4933.81 through 

4933.90 (the "exclusive-right claim"). Second, Duke Energy asserted that Hamilton 

exceeded the authorization for extraterritorial sales established by Article XVIII, Section 6 of 

the Ohio Constitution by "circumvent[ing] legal limitations upon its home rule authority, and * * 

* supply[ing] unlimited natural gas and electric service outside of Hamilton's municipal 

territory" (the "constitutional claim"). Fairfield Township and the Board filed a joint answer 

denying the allegations set forth in Duke Energy's complaint. Hamilton also filed an answer 

denying the allegations, and it further filed a counterclaim against Duke Energy asserting a 

claim of unfair competition. 

{¶ 5} After discovery was initiated, Hamilton moved for a partial dismissal of Duke 

Energy's complaint pursuant to Civ.R. 12(H)(3), contending that the common pleas court 

lacked subject matter jurisdiction over the exclusive-right claim.2 Hamilton argued that this 

claim was subject to the exclusive jurisdiction of the PUCO. Duke Energy opposed the 

motion, and the trial court heard argument on the parties' respective positions on November 

30, 2017. Thereafter, the trial court granted Hamilton's partial motion to dismiss, concluding 

that Duke Energy's "claim for service exclusivity is based upon the Ohio Certified Territories 

Act and tariffs filed with the PUCO. The General Assembly has vested the PUCO with the 

exclusive authority to administer these statutes and tariffs. Accordingly, this court lacks 

jurisdiction to consider these claims." 

{¶ 6} Duke Energy moved to have the trial court certify its decision granting dismissal 

with "no just cause for delay language," arguing the decision should be immediately 

appealable. Hamilton and Fairfield Township opposed the motion, arguing the court's 

decision did not satisfy the requirements of a final, appealable order under either R.C. 

 

2. Hamilton did not seek dismissal of Duke Energy's constitutional claim, and that claim remains pending in the 

trial court. 
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2505.02 or Civ.R. 54(B). The court granted Duke Energy's motion, finding that "judicial 

economy will be best served by granting Plaintiff's motion to certify no just cause under 

Civ.R. 54(B)." Thereafter, the court issued an "Order Dismissing Claims of Plaintiff Duke 

Energy Ohio, Inc. for Lack of Subject Matter Jurisdiction with Nunc Pro Tunc Certification of 

No Just Cause for Delay Under Civ.R. 54(B)." 

{¶ 7} Duke Energy timely appealed, raising the following as its sole assignment of 

error: 

{¶ 8} THE COMMON PLEAS COURT ERRED IN PARTIALLY DISMISSING THE 

CLAIMS OF DUKE ENERGY OHIO FOR LACK OF SUBJECT MATTER JURISDICTION 

BECAUSE THE PUCO LACKS AUTHORITY TO ADJUDICATE TERRITORIAL DISPUTES 

INVOLVING MUNICIPAL OVERREACH. 

{¶ 9} In its sole assignment of error, Duke Energy argues the trial court erred in 

dismissing the exclusive-right claim for lack of subject matter jurisdiction. Duke Energy 

contends that the common pleas court, and not the PUCO, has jurisdiction to decide 

territorial disputes between a regulated public utility and a municipal utility. 

{¶ 10} However, before we can consider the merit of Duke Energy's assigned error, 

we must first determine whether the trial court's dismissal of Duke Energy's exclusive-right 

claim constitutes a final appealable order subject to our review. This issue was raised by 

Hamilton, Fairfield Township, and the Board as a defensive assignment of error in 

accordance with R.C. 2505.22.3 The defensive assignment of error states the following: 

{¶ 11} THE TRIAL COURT ERRED IN CONCLUDING THAT ITS DISMISSAL OF 

 

3. R.C. 2505.22 provides that "[i]n connection with an appeal of a final order, judgment, or decree of a court, 

assignments of error may be filed by an appellee who does not appeal, which assignments shall be passed upon 

by a reviewing court before the final order, judgment, or decree is reversed in whole or in part." Although an 

appellee's defensive assignment of error is normally addressed only after a court finds merit to an assignment of 

error raised by an appellant, we find it more appropriate to begin with the defensive assignment of error in the 

present case, as Hamilton, Fairfield Township, and the Board have challenged this court's jurisdiction to consider 

the appeal. 
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DUKE'S TERRITORIAL EXCLUSIVITY CLAIMS WAS A "FINAL ORDER" UNDER R.C. 

2505.02. 

Final Appealable Order

{¶ 12} Section (3)(B)(2), Article IV of the Ohio Constitution provides that appellate 

courts have jurisdiction only to "affirm, modify, or reverse judgments or final orders of the 

courts of record inferior to the court of appeals within the district." Therefore, "an order must 

be final before it can be reviewed by an appellate court. If an order is not final, then an 

appellate court has no jurisdiction." Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 

17, 20 (1989). "An order of a court is a final appealable order only if the requirements of both 

R.C. 2505.02 and, if applicable, Civ.R. 54(B), are met." State ex rel. Scruggs v. Sadler, 97 

Ohio St.3d 78, 2002-Ohio-5315, ¶ 5; Gehm v. Timberline Post & Frame, 112 Ohio St.3d 514, 

2007-Ohio-607, ¶ 15. 

{¶ 13} R.C. 2505.02(B) provides, in pertinent part, as follows: 

An order is a final order that may be reviewed, affirmed, modified, 

or reversed, with or without retrial, when it is one of the following: 

(1) An order that affects a substantial right in an action that in 

effect determines the action and prevents a judgment; 

(2) An order that affects a substantial right made in a special 

proceeding or upon a summary application in an action 

after judgement. 

R.C. 2505.02(B)(1)-(2). A "substantial right" is "a right that the United States Constitution, the 

Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to 

enforce or protect." R.C. 2505.02(A)(1). A "special proceeding" is "an action or proceeding 

that is specifically created by statute and that prior to 1853 was not denoted as an action at 

law or a suit in equity." R.C. 2505.02(A)(2). 

{¶ 14} The Ohio Supreme Court has recognized that "[a] declaratory judgment action 

is a special proceeding pursuant to R.C. 2505.02 and, therefore, an order entered therein 
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which affects a substantial right is a final appealable order." Gen. Acc. Ins. Co., 44 Ohio 

St.3d at 17, paragraph two of the syllabus. "A substantial right involves the idea of a legal 

right, one which is protected by law." Id. at 21. "An order affects a substantial right for the 

purposes of R.C. 2505.02(B)(2) only if an immediate appeal is necessary to protect the right 

effectively." Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, ¶ 7. 

{¶ 15} Hamilton, Fairfield Township, and the Board contend the trial court's dismissal 

does not affect a substantial right, as dismissal for lack of subject matter jurisdiction over the 

exclusive-right claim "operate[s] as a failure otherwise than on the merits" under Civ.R. 

41(B)(4)(a). "Ordinarily, a dismissal 'otherwise than on the merits' does not prevent a party 

from refiling and, therefore, ordinarily, such a dismissal is not a final, appealable order." Natl. 

City Commercial Capital Corp. v. AAA at Your Serv., Inc., 114 Ohio St.3d 82, 2007-Ohio2942, ¶ 8. However, there are circumstances where the dismissal for lack of subject matter 

jurisdiction qualifies as a final appealable order. See, e.g., George v. State, 10th Dist. 

Franklin Nos. 10AP-4 and 10AP-97, 2010-Ohio-5262, ¶ 15-17; Burchett v. Burchett, 4th Dist. 

Scioto No. 16CA3784, 2017-Ohio-2667, ¶ 20. As the Tenth District noted in George, 

While such a dismissal does not bar refiling in a different forum, 

presumably the correct one with jurisdiction over the matter, it 

certainly would make futile any attempt by the plaintiff to refile in 

the same forum the same claims even if the dismissal was 

labeled without prejudice. Thus, while such a dismissal is 

nominally without prejudice to refiling, it essentially precludes a 

refiling in the initial forum. "[A] dismissal without prejudice does 

not guarantee that a case can be refiled." Brubaker v. Ross, 10th 

Dist. Franklin No. 01AP-1431, 2002-Ohio-4396, ¶ 15. Nor, even 

if the case could be refiled, does a dismissal without prejudice 

permit subsequent appellate review of some aspects of the case. 

If the dismissal is not a final appealable order because it is 

without prejudice, but the case is refiled in the same forum, it 

could only, by operation of res judicata, be again dismissed on 

the same grounds, and there would never be the opportunity for 

subsequent appellate review of such rulings in a final order from 

that forum. There would be in such cases no mechanism to 

review the trial court's determination that it lacked jurisdiction over 

the matter in the first instance; the only remaining appeal would 
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be from a determination in a refiled matter in another forum, 

which appeal would likely not permit useful review of the initial 

court's determination that it lacked jurisdiction. Both judicial 

economy and fundamental fairness would seem to argue for 

immediate appellate review of such a dismissal. 

George at ¶ 16. 

{¶ 16} We agree with the rationale expressed by the court in George and conclude 

that in the present case, the trial court's judgment is a final appealable order pursuant to R.C. 

2505.02(B)(2). The action in which Duke Energy sought declaratory relief is a special 

proceeding, and the trial court's judgment dismissing the exclusive-right claim for lack of 

subject matter jurisdiction affects a substantial right. 

{¶ 17} In dismissing Duke Energy's exclusive-right claim, the trial court complied with 

Civ.R. 54(B). Civ.R. 54(B) applies to actions involving multiple claims and multiple parties. 

"If the court enters judgment as to some, but not all, of the claims and/or parties, the 

judgment is not a final appealable order, unless it satisfies Civ.R. 54(B) by including the 

language that 'there is no just reason for delay.'" Eagle's View Professional Park 

Condominium Unit Owners Assn. v. EVPP, LLC, 12th Dist. Butler No. CA2013-07-132, 2014-

Ohio-565, ¶ 14, citing Gen. Acc. Ins. Co., 44 Ohio St.3d at 22. "In the absence of express 

Civ.R. 54(B) language, an appellate court may not review an order disposing of fewer than all 

claims." IBEW, Local Union No. 8 v. Vaughn Industries, L.L.C., 116 Ohio St.3d 335, 2007-

Ohio-6439, ¶ 8; Stealth Investigations, Inc. v. Mid-Western Auto Sales, Inc., 12th Dist. Butler 

No. CA2009-08-216, 2010-Ohio-327, ¶ 12. 

{¶ 18} Although the court's decision to grant Hamilton's motion to dismiss did not 

dispose of all claims – both Duke Energy's constitutional claim and Hamilton's counterclaim 

for unfair competition remain pending – the trial court certified there was "no just cause for 

delay" in accordance with Civ.R. 54(B). As a result, we find that the court's decision granting 

dismissal of Duke Energy's exclusive-right claim for lack of subject matter jurisdiction meets 
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the requirements of both R.C. 2505.02 and Civ.R. 54(B), and is therefore a final appealable 

order capable of appellate review. Hamilton's, Fairfield Township's, and the Board's 

defensive assignment of error is, therefore, overruled. 

Dismissal for Lack of Subject Matter Jurisdiction

{¶ 19} We now turn to the argument set forth in Duke Energy's assignment of error – 

that the trial court erred in granting Hamilton's motion to dismiss the exclusive-right claim on 

the basis that it lacked subject matter jurisdiction. 

{¶ 20} Subject matter jurisdiction refers to a court's power to hear and decide a case 

on the merits. State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 75 (1998). Civ.R. 12(H)(3) 

provides that "[w]henever it appears by suggestion of the parties or otherwise that the court 

lacks jurisdiction of the subject matter, the court shall dismiss the action." After a party files a 

motion to dismiss for lack of subject matter jurisdiction, the trial court must determine whether 

the complaint contains allegations of a cause of action that the trial court has authority to 

decide. Brethauer v. Fed. Express Corp., 143 Ohio App.3d 411, 413 (10th Dist.2001). "The 

trial court is not confined to the allegations of the complaint when determining its subject 

matter jurisdiction pursuant to a * * * motion to dismiss, and it may consider material pertinent 

to the inquiry without converting the motion into one for summary judgement." Southgate 

Dev. Corp. v. Columbia Gas Transm. Corp., 48 Ohio St.2d 211 (1976), paragraph one of the 

syllabus. 

{¶ 21} Subject matter jurisdiction is determined as a matter of law. Pratts v. Hurley, 

102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 34. As a result, an appellate court reviews a trial 

court's decision on a motion to dismiss a complaint for lack of subject matter jurisdiction 

under a de-novo standard of review. Powers-Urtega v. Urtega, 12th Dist. Warren No. 

CA2014-08-109, 2015-Ohio-2465, ¶ 15; Heskett v. Ohio Dept. of Adm. Serv., 166 Ohio 

App.3d 311, 2006-Ohio-2074, ¶ 9 (10th Dist.). 
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{¶ 22} "[W]here the General Assembly has enacted a complete and comprehensive 

statutory scheme governing review by an administrative agency, exclusive jurisdiction is 

vested within such agency." Kazmaier Supermarket v. Toledo Edison Co., 61 Ohio St.3d 

147, 153 (1991). "The General Assembly has by statute pronounced the public policy of the 

state that the broad and complete control of public utilities shall be within the administrative 

agency, the Public Utilities Commission." Id. at 150-151. Title 49 of the Revised Code 

"reflects a comprehensive statutory regime that governs the business activities of public 

utilities." Cleveland Mobile Radio Sales, Inc. v. Verizon Wireless, 113 Ohio St.3d 394, 2007-

Ohio-2203, ¶ 17. PUCO has "exclusive jurisdiction over various matters involving public 

utilities, such as rates and charges, classifications, and service, effectively denying to all Ohio 

courts (except [the supreme court]) any jurisdiction over such matters." (Emphasis added.) 

State ex rel. Cleveland Elec. Illuminating Co. v. Cuyahoga Cty. Court of Common Pleas, 88 

Ohio St.3d 447, 450 (2000). See also R.C. 4903.12 and R.C. 4933.90.4 "A court of common 

pleas, however, retains limited subject-matter jurisdiction over pure tort and contract actions 

involving utilities regulated by the commission." DiFranco v. FirstEnergy Corp., 134 Ohio 

St.3d 144, 2012-Ohio-5445, ¶ 20. 

{¶ 23} Duke Energy contends its exclusive-right claim "is not per se a service case; it 

is a distribution case," and argues this distinction gives the trial court jurisdiction over the 

case. The Ohio Supreme Court has recognized that in determining whether a common pleas 

court has jurisdiction over a claim involving a public utility, "courts must look to the substance 

of the allegations in the complaint to determine proper jurisdiction." Id. at ¶ 27. 

{¶ 24} Duke Energy's complaint alleges, in pertinent part, the following: 

 

4. R.C. 4903.12 provides that "[n]o court, other than the supreme court shall have power to review, suspend, or 

delay any order made by the public utilities commission, or enjoin, restrain, or interfere with the commission or 

any public utilities commissioner in the performance of official duties." With respect to the Certified Territories 

Act, R.C. 4933.90 provides that "[a]ction of the public utilities commission pursuant to sections 4933.81 to 

4933.90 of the Revised Code is subject to review in accordance with Chapter 4903. of the Revised Code[.]" 
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8. With regard to electric service under the Certified Territories 

Act, R.C. 4933.81, et seq., a public utility is assigned a specific 

territory for which it is the exclusive provider. Natural gas service 

is determined by PUCO-approved tariffs which have the force 

and effect of general law. 

9. Duke Energy Ohio, with its predecessors, have been the 

exclusive providers of natural gas and electric service within 

Fairfield Township for many decades. 

* * * 

12. Duke Energy Ohio is the exclusive electric provider to 

customers within Fairfield Township pursuant to the Certified 

Territories Act, and as such has agreed to provide and continues 

to provide plentiful, safe, and reliable electric service to Fairfield 

Township. 

13. Duke Energy Ohio is also the exclusive provider of natural 

gas to customers within Fairfield Township pursuant to Duke 

Energy Ohio tariffs approved by the PUCO, and as such has 

agreed to provide and continues to provide plentiful, safe, and 

reliable natural gas service to Fairfield Township. 

14. Duke Energy Ohio is the exclusive provider of natural gas 

and electric within the areas of Fairfield Township which are now 

located in the JEDD. 

15. Duke Energy has capability to supply gas and electric service 

to any area within Fairfield Township that may be added to the 

JEDD. 

* * * 

17. Hamilton does not have unrestricted authority to provide 

natural gas and electric service outside of the municipality's 

territory and to compete with public utilities operating under 

PUCO regulatory control. 

* * * 

25. Pursuant to the * * * [letter of intent], Hamilton will provide 

electric and natural gas services to the [209-acre] Added Area 

even though such area is within the exclusive service territory of 

Duke Energy Ohio. 

26. Hamilton intends to construct new utility infrastructure and to 

become exclusive provider of natural gas and electric service to 

the JEDD Added Area, thus acting as a general public utility, but 
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without PUCO regulation. 

27. Hamilton has not sought nor has Duke Energy granted 

Hamilton any permission to serve customers in the JEDD Added 

Area. Duke Energy Ohio is vigilant in protecting its exclusive 

service territory and in the administration of its tariffs. 

28. Pursuant to the [letter of intent], Hamilton and Fairfield 

Township, through its Trustees, expect to complete and exclude 

the * * * amendment on or before May 1, 2017. The effect of the 

JEDD amendment will enable Hamilton to compete unfairly with 

Duke Energy Ohio in its exclusive territory which is contrary to the 

general laws of Ohio. 

* * * 

32. The controversy is justiciable, and speedy relief is necessary 

to preserve Duke Energy Ohio's rights to protect its exclusive 

service territory and tariffs. 

 

{¶ 25} Contrary to Duke Energy's contentions, its exclusive-right claim is a servicebased claim that requires the PUCO's administrative expertise to resolve the issue in dispute. 

See DiFranco, 2012-Ohio-5445 at ¶ 28-34. Duke Energy's claim for service exclusivity is 

based on the Ohio Certified Territories Act and tariffs filed with the PUCO. Both the tariffs 

and the Act are set forth in Title 49 of the Revised Code and fall within the exclusive purview 

of the PUCO. "The General Assembly has provided for commission oversight of filed tariffs, 

including the right to adjudicate complaints involving customer rates and services." Kazmaier 

Supermarket, 61 Ohio St.3d at 151. "[T]he commission is the fact-finder best suited to review 

and analyze * * * tariff schedules, and commission orders." DiFranco at ¶ 34. 

{¶ 26} As PUCO has exclusive jurisdiction over service-related matters involving 

public utilities, we find that the trial court lacked jurisdiction over Duke Energy's exclusiveright claim. In reaching this determination we conclude that Duke Energy's reliance on 

Toledo Edison Co. v. Bryan, 90 Ohio St.3d 288 (2000) is misplaced. Contrary to Duke 

Energy's assertions, this case does not support its argument that the trial court had subject 

matter jurisdiction over its exclusive-right claim. In Toledo Edison, the issue raised was a 
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purely constitutional issue, i.e., "whether a municipality has constitutional authority to 

purchase electricity solely for direct resale to an entity that is not an inhabitant of the 

municipality and not within the municipality's limits." Toledo Edison at 291. Resolution of this 

issue revolved around the interpretation of Sections 4 and 6 of Article XVIII of the Ohio 

Constitution. Id. at 291-293.5 Looking at these provisions, the supreme court determined 

that a municipality was prohibited from purchasing electricity solely for the purpose of 

reselling it to an entity that is not within the municipality's geographic limits. Id. at 293. 

Toledo Edison, therefore, explains the interplay between Sections 4 and 6 of Article XVIII and 

provides an analysis possibly relevant to a resolution of Duke Energy's constitutional claim – 

a claim that remains pending in the trial court – but it is not relevant to the exclusive-right 

claim. 

{¶ 27} Accordingly, for the reasons stated above, we find that the trial court did not err 

in granting Hamilton's motion to dismiss Duke Energy's exclusive-right claim. Duke Energy's 

sole assignment is overruled.6 

{¶ 28} Judgment affirmed. 

 S. POWELL, P.J., and RINGLAND, J., concur. 

 

5. Section 4, Article XVIII of the Ohio Constitution addresses a municipality's authority to produce and acquire a 

public utility, product, or service for supply to the municipality or its occupants. Section 6, Article XVIII of the Ohio 

Constitution allows a municipality that owns or operates a utility for the purpose of generating its own natural gas 

or electricity to sell surplus natural gas or electricity in an amount not exceeding 50 percent of the total service or 

product supplied within the municipality. Hamilton's constitutional authority under Sections 4 and 6 of Article 

XVIII to provide natural gas and electric service to the 209-acre area located in Fairfield Township is an issue 

that remains pending in the trial court. 

6. We note that on April 13, 2018, Duke Energy provided this court with a Notice of Supplemental Authority, 

directing this court's attention to St. Clairsville v. South Central Power Co., Pub. Util. Comm. No. 17-1750-ELCSS, 2018 Ohio PUC LEXIS 402 (Apr. 11, 2018), a recent opinion by PUCO. We have reviewed this nonbinding opinion, and find it unpersuasive and distinguishable from the case at hand.