Opinion
No. 76-299
Decided December 15, 1976.
Declaratory judgments — Subject-matter jurisdiction — Civ. R. 12(B)(1) motion to dismiss — Scope of court's inquiry — Contractual right-of-way easement — Interstate gas transmission — R.C. 4905.04 not controlling — Relief authorized under R.C. 2721.03.
1. The trial court is not confined to the allegations of the complaint when determining its subject-matter jurisdiction pursuant to a Civ. R. 12(B) (1) motion to dismiss, and it may consider material pertinent to such inquiry without converting the motion into one for summary judgment.
2. R.C. 4905.04 is not applicable to an action for declaratory relief upon a contract against an interstate gas transmission company which is exclusively regulated by the Federal Power Commission.
APPEAL from the Court of Appeals for Lorain County.
Appellant, Columbia Gas Transmission Corporation (Columbia), as successor to the Ohio Fuel Gas Company, owns and operates a natural gas pipeline in interstate commerce, which passes through the land of the appellee, Southgate Development Corporation (Southgate), pursuant to a right-of-way easement. Southgate is the assignee of the grantor of the right-of-way easement pursuant to a contract dated September 16, 1963, which provides that the landowner has the right to purchase natural gas from the pipeline for use on the premises in consideration for the grant of the easement and until Columbia desires to remove or abandon such pipeline.
Southgate commenced an action in the Court of Common Pleas of Lorain County alleging its demand and Columbia's refusal to fulfill the contractual right in question and seeking declaratory relief as to the duties and obligations of the defendant, Columbia, under the aforesaid "right-of-way easement." Southgate is also seeking a determination that Columbia is bound by the provisions of the right-of-way easement to sell gas to Southgate while gas is conveyed through said tracts, and prays for an order that the duties and obligations of Columbia be specifically performed and for such other and further relief as complainant may be entitled to at law or equity.
Columbia responded to the complaint, not by filing an answer admitting or denying its obligations under the contract, but by filing a motion to dismiss for the reasons that "[t]his Court of Common Pleas does not have jurisdiction of the subject matter presented and for the relief sought by the complaint."
This motion, which clearly raised the defense of lack of subject-matter jurisdiction, under Civ. R. 12(B) (1), may have been intended to assert the additional defense of failure to state a claim upon which relief can be granted, under Civ. R. 12(B) (6).
Material pertinent to subject-matter jurisdiction presented to the trial court by Columbia admitted that Columbia is the present owner and operator of the natural gas pipeline passing through Southgate's property, and is the wholesaler of the gas flowing through that pipeline; and that both the pipeline in question and the gas therein are in interstate commerce and therefore within the exclusive regulatory jurisdiction of the Federal Power Commission. Columbia represented further that the right-of-way deed upon which Southgate relies was issued while Columbia's predecessor was an "integrated gas company" subject to dual state and federal regulation; that thereafter a division of the integrated company's functions into those involving interstate pipeline operation and that which concerned the intrastate sale and delivery of gas to retail consumers occurred; and that the latter functions were "spun off" to Columbia Gas of Ohio.
In that material, Columbia Gas Transmission then argued that, through these events, Columbia Gas of Ohio became the obligee of the contractual obligation involved. It was maintained further that the enforcement of this obligation was then because of, and now remains subject to, R.C. 4905.04, within the exclusive jurisdiction of the Public Utilities Commission of Ohio so that only that agency may now require, and only Columbia Gas of Ohio may, in the statutory language, be required "to furnish their products and render all services exacted by the commission or by law."
Columbia Gas Transmission argued, alternatively, that if it is found to be the obligee under the easement contract, then, in that event, its authority to use its interstate transmission pipeline for the purpose of making a direct sale, i.e., a retail sale for industrial or commercial purposes directly from its pipeline, must be derived from its regulatory agency, the Federal Power Commission, citing Federal Power Comm. v. Transcontinental Gas Pipe Line Corp. (1961), 365 U.S. 1.
Southgate initiated discovery in the form of interrogatories, which were answered in part. Columbia objected to the remaining interrogatories and to notices to take depositions, and obtained, ex parte, an order precluding further discovery by way of those depositions. The trial court granted the motion to dismiss for lack of subject-matter jurisdiction.
Southgate filed its notice of appeal assigning the following errors:
"1. The Court of Common Pleas of Lorain County, Ohio erred in entering judgment dismissing this action for want of jurisdiction of the subject matter.
"2. The Court of Common Pleas of Lorain County, Ohio erred by considering matters on a motion to dismiss for lack of subject matter jurisdiction not within scope of Civ. R. 12 and Civ. R. 56, and by denying Southgate a reasonable opportunity to present all material made pertinent to such motion by Civ. R. 12(B) and Civ. R. 56."
The Court of Appeals reversed and remanded the cause to the trial court.
This cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Vorys, Sater, Seymour Pease, Mr. Robert E. Leach, Mr. Michael J. Canter, Messrs. Horan, Ashenbach, Tattersall Gallagher and Mr. J.C. William Tattersall, for appellee.
Miraldi Barrett Co., L.P.A., Mr. Ray L. Miraldi, Mr. Thomas E. Morgan, Mr. H.L. Snyder and Mr. Larry L. Roller, for appellant.
On its face, Civ. R. 12(B) (1) would appear to require that a motion to dismiss a complaint for reason of lack of jurisdiction of the court over the subject matter should be determined from the face of the complaint. Such a conclusion would be buttressed by observing that when a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleadings, Civ. R. 12(B) (6) specifically authorizes that the motion may be treated as a motion for summary judgment and disposed of as provided in Civ. R. 56.
Federal practice relevant to Ohio Civ. R. 12(B) (1), however, clearly recognizes the obligation of a trial court to determine at the earliest time whether it has jurisdiction, and authorizes a court to consider outside matter attached to a motion to dismiss for lack of jurisdiction without converting it into a motion for summary judgment if such material is pertinent to that inquiry. Alabama, ex rel. Baxley, v. Woody (1973), 473 F.2d 10.
We conclude that materials which are pertinent to the claim that the court did not have subject-matter jurisdiction may properly be received by the trial court. On the basis of the materials so adduced, we conclude that the provisions of R.C. 4905.04 are not destructive of the trial court's jurisdiction here. That statute gives the Public Utilities Commission exclusive jurisdiction to require all intrastate public utilities to furnish their products and render all services exacted by the commission or by law. Admittedly, appellant, an interstate gas line, is not subject to regulation by the Public Utilities Commission, and the duty sought to be enforced was not one exacted by the commission or by law so as to be within the contemplation of that statute, but was claimed to have arisen contractually. See Public Utilities Commission of Ohio v. United Fuel Gas Co. (1943), 317 U.S. 456, 467.
With regard to appellant's alternate argument that under existing regulations, it must obtain authority to use its interstate transmission pipeline for the purpose of making a direct retail sale from its regulatory agency, the Federal Power Commission, the fact that this assertion may be entirely true is not destructive of the trial court's subject-matter jurisdiction. Neither the Federal Power Commission nor the Public Utilities Commission has jurisdiction to construe or enforce an easement contract. The subject matter of this action arises in contract and the determination of questions of construction or validity, together with the declaration of rights, status or other legal relations under such contracts, by Common Pleas Courts is specifically authorized by R.C. 2721.03.
The trial court received material from the appellant in various forms, not relevant to subject-matter jurisdiction, but bearing upon the extent of the relief which might be granted. Where under these circumstances a trial court grants a motion to dismiss an action on grounds that the court lacks subject-matter jurisdiction, and issues an ex parte protective order limiting the opportunity of the adverse party to introduce material reasonably pertinent to the question of the availability of part of the relief sought, it is inappropriate for it to consider a Civ. R. 12(B) (6) motion that the complaint fails to state a claim upon which relief can be granted.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN and W. BROWN, JJ., concur.
STERN and CELEBREZZE, JJ., dissent.
I dissent for the reason that the appellee has failed to state a justiciable cause of action in its complaint. Under R.C. 4905.04 and 4905.26, the Public Utilities Commission has jurisdiction to order gas utility service to a prospective customer. Columbia Gas of Ohio, as the successor to the gas distribution business, is required to furnish gas utility service under the easement contract, even though appellant, Columbia Transmission, owns and operates the pipeline which supplies the gas. It is only the February 18, 1976, order of the Public Utilities Commission in In re Application of Columbia Gas of Ohio, Inc., to Clarify Policies Relating to Gas Restrictions (case No. 75-584 GA-AGC) which prevents the granting of service, and denies appellee a superior position to other prospective users of gas utility service.
The Federal Power Commission under Section 7 of the Natural Gas Act, Section 717f, Title 15, U.S. Code also has jurisdiction to order appellant to furnish gas to appellee.
The administrative restrictions upon the furnishing of gas service to the appellee are a result of the present energy crisis.
I fully recognize the rights afforded appellee under the right-of-way easement to obtain gas utility service. However, this requirement must be subordinated to the authority vested by the Congress of the United States and the General Assembly of Ohio in public regulatory agencies to direct the curtailment of gas utility services for new customers in the interest of conservation of fuel.
I would reverse the judgment of the Court of Appeals and reinstate the judgment of the Court of Common Pleas.
CELEBREZZE, J., concurs in the foregoing dissenting opinion.