[Cite as Scott v. Universal Utils., Inc., 2017-Ohio-4341.]




                              IN THE COURT OF APPEALS OF OHIO
                                  SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY

Gloria Scott, et al.                                         Court of Appeals No. WD-16-064

        Appellant                                            Trial Court No. 2015CV0440

v.

Universal Utilities, et al.                                  DECISION AND JUDGMENT

        Appellees                                            Decided: June 16, 2017

                                                    *****

        Michael D. Portnoy, for appellant.

        John A. Borell, Jr., for appellees.

                                                    *****

        PIETRYKOWSKI, J.

        {¶ 1} This matter is before the court on appeal of the November 4, 2016 judgment

of the Wood County Court of Common Pleas which granted summary judgment in favor

of appellees, Universal Utilities, Inc., Friendly Village Limited Partnership, Meadows of
Perrysburg, LLC, and Choice Properties, Inc., in appellant Jill Smith’s1 action for

damages and request for class certification relating to appellees’ water and sewer billing

practices. Because we agree that no issues of fact remain, we affirm.

       {¶ 2} Appellant, Jill Smith, is a resident of appellee, Meadows of Perrysburg,

LLC, a mobile home park in Perrysburg, Ohio. Appellee, Friendly Village Limited

Partnership, is also a mobile home park in Perrysburg, Ohio. The parks are managed by

appellee, Choice Properties, Inc. Appellee, Universal Utilities, is the water and sewer

billing company for the mobile home parks. The residents of the parks are supplied water

and sewer services through the Northwestern Water and Sewer District (“the District”)

which provides water for several townships in Wood County, Ohio.

       {¶ 3} Each mobile home park has a main water meter that measures the amount of

water provided by the District. Each mobile home lot has its own meter to measure water

usage by the individual residents. The parks, through Choice Properties, pay the water

and sewer amounts billed by the district. In turn, Choice Properties, through Universal,

bills the individual residents.

       {¶ 4} This action commenced on August 18, 2015, with plaintiff-appellant Jill

Smith and then-plaintiffs Gloria Scott and Jamie Clark’s filing of a complaint and request

for class certification against appellees. The complaint stated that the matter was being

brought by plaintiffs as representatives for not less than 250 class members, residents of


1
 Although the trial court action and the appeal were filed on behalf of “appellants,”
appellant Smith is the only remaining named appellant and will be referred to singularly.


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appellees’ mobile home parks, who were overcharged for water and sewer services. The

complaint alleged breach of the lease agreements by violating state and federal law and

failing to bill residents for actual water usage, a violation of the Ohio civil RICO statute,

R.C. 2923.32(A)(1), and a violation of the Ohio Consumer Sales Practices Act, R.C.

1345.02 and 1345.03.

       {¶ 5} Plaintiff Gloria Scott withdrew from the action on January 26, 2016;

plaintiff Jamie Clark was dismissed by agreement of the parties on June 2, 2016. The

case then proceeded with appellant as the sole plaintiff and purported class

representative.

       {¶ 6} On May 2, 2016, appellant filed a Civ.R. 23 motion to certify a class

consisting of “residents of both Friendly Village mobile home parks and the Meadows of

Perrysburg since 2013 who paid a water or sewer bill administered by Choice Properties

and Universal Utilities.” Appellant further indicated that she believed that the class

would exceed 200. Appellant asserted that the only question of all the potential class

members was: “Did Choice Properties and Universal Utilities charge the members more

for water and sewer services than the law permits?” Finally, appellant argued that even

though the individual residents may have varying determinations as to overpaid amounts,

the method of determining said amounts would involve a review of standardized billing

practices.

       {¶ 7} On July 8, 2016, appellees filed a motion for summary judgment and a joint

memorandum in support of summary judgment and opposing class certification.



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Appellees, relying on the affidavits of Joni Edgington, bookkeeper for Universal, and

Cindy Wilcox, district manager for Choice Properties, argued that despite appellant’s

claims that she is overpaying for water, Choice Properties does not add a sur-charge to

the rates it is charged by the District. Conversely, the affidavits alleged that Choice

Properties suffered a sizeable monetary loss while attempting to recoup its outlay for the

services during the relevant time period. Further, as to billing practices, the affidavits

indicated that customers are charged per 100 cubic feet of use. In other words, as is

industry standard, customers are charged in 100 cubic feet increments only after they use

the entire 100 cubic feet.

       {¶ 8} Appellees generally argued that appellant lacked factual support as to each

of her claims. Pointing to appellant’s deposition, appellees confirmed that appellant had

asserted the following four reasons she believed she was being overcharged for water and

sewer: (1) she was paying more for water than her brother who also lives in Perrysburg,

Ohio; (2) her water bill fluctuates; (3) in January 2015 her pipes burst, she had a $6 water

bill for two months then it increased to $120-$150; and (4) variations in water bills

among neighbors. Appellees further asserted that appellant admitted to having no facts to

support any of her claims and that she was just “guessing.”

       {¶ 9} Appellees further disputed the claims of overcharges by the way of

administrative, management, and/or miscellaneous fees by providing copious billing

statements and spreadsheets detailing when and why any additional charges were billed.

Finally, as to work orders for repair of broken meters and the claim that such repairs



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evidenced that the meters were inaccurate, appellees contended that the issues were with

the transmitters, not the meters. In other words, the meters were still recording accurate

water usage, but that usage was not being communicated back to Universal.

       {¶ 10} In response, appellant argued that affiant Joni Edgington “brazenly

committed perjury” by stating that the water meters were accurately calculating actual

water use. Appellant proceeded to argue that appellees failed to “provide a scintilla of

evidence Plaintiff Smith’s water meters were accurately calculating actual water use

during the time period in question.” Appellant further claimed that “[b]ecause

Defendants failed to prove the Smiths’ water meters accurately calculated actual water

use let alone less than their actual water use, Defendants have no undisputed proof the

Smiths or any resident were billed for actual water use, as required by the lease

agreements.”

       {¶ 11} In support of her arguments, appellant attached the affidavit of Michael

Plunkett, an engineering consultant and mechanical engineer. Plunkett stated that he was

asked to provide an expert opinion of the “working efficiency” of appellant’s Sensus

SRII water meter that had been installed at her residence since 2013. He also reviewed

work orders, bills, affidavits, discovery responses, and depositions relating to the case.

       {¶ 12} Mr. Plunkett observed the testing of appellant’s water meter and stated that

it “did measure accurately within specifications.” Plunkett asserted, however, that the

water bills were inaccurate because “[e]very single bill indicates the actual water usage

ended in the 100th cubic foot” and that the bills widely fluctuated. Plunkett further noted



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that he reviewed approximately 300 work orders which represented broken or clogged

meters or broken transmitters. Finally, Mr. Plunkett contended that approximately 63

residents were illegally charged for water use when their meters were broken.

       {¶ 13} In response, appellees argued that critical to appellant’s case, her

opposition failed to demonstrate that she was overcharged for water. Expert Plunkett’s

affidavit did demonstrate that appellant’s meter was working properly and that, if

anything, residents were undercharged for water usage.

       {¶ 14} The trial court agreed with appellees’ arguments in granting their motion

for summary judgment. Specifically, as to class certification the court concluded that

although appellant asserted that 63 residents were overcharged for water based upon

work orders and bills, her name and address was not included in the list. Appellant

further alleged that residents were improperly charged various “administrative” or

“management” fees which she failed to allege in her complaint. The court further noted

that appellant’s water and sewer bills failed to show that she was ever charged such a fee.

The court then concluded that appellant failed to demonstrate that she was an appropriate

class representative.

       {¶ 15} Turning to the merits of appellant’s claims, the court concluded that no

issues of fact remained based upon appellant’s admission that she had no facts to support

her claims, the clear establishment of Universal Utilities’ billing practices which refute

appellant’s assertions, and appellant’s expert’s failure to demonstrate and appellant was




6.
overcharged for water or sewer or that her meter was inaccurate. This appeal followed

with appellant raising three assignments of error for our review:

              1. The grant of summary judgment was in error because Plaintiffs

       have clearly met the burden of establishing their claim that the lease

       agreements were breached by Defendants not charging them for actual

       water usage.

              2. The grant of summary judgment was in error because Mr.

       Plunkett’s Affidavit created genuine issues of material fact regarding

       whether Plaintiffs were accurately charged for water usage.

              3. Plaintiff’s Motion to Certify Class was improperly denied

       because all members of the class suffered the same damages from being

       overcharged for water usage due to Defendants’ breach of contract and

       Ohio civil RICO violations.

       {¶ 16} Appellant’s first and second assignments of error dispute the trial

court’s summary judgment award and will be jointly addressed. We initially note

that appellate review of a trial court’s grant of summary judgment is de novo.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996 Ohio 336, 671 N.E.2d

241 (1996). Accordingly, we review the trial court’s grant of summary judgment

independently and without deference to the trial court’s determination. Brown v.

County Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993).

Summary judgment will be granted only when there remains no genuine issue of



7.
material fact and, when construing the evidence most strongly in favor of the

nonmoving party, reasonable minds can only conclude that the moving party is

entitled to judgment as a matter of law. Harless v. Willis Day Warehousing Co.,

54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978); Civ.R. 56(C). The burden of showing

that no genuine issue of material fact exists falls upon the party who moves for

summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d 264

(1996). However, once the movant supports his or her motion with appropriate

evidentiary materials, the nonmoving party “may not rest upon the mere

allegations or denials of his pleadings, but his response, by affidavit or as

otherwise provided in this rule, must set forth specific facts showing that there is a

genuine issue for trial.” Civ.R. 56(E).

       {¶ 17} Appellant first argues that an issue of fact remains as to whether appellant

was charged for her actual water usage as required by the lease agreement. Specifically,

appellant argues she disputes “the accuracy of each and every bill and the Defendants’

entire billing system.” Appellant also references, as “proof of defendants’ scheme to

overcharge for water usage,” Universal’s alleged fraudulent billing practices in Missouri.

       {¶ 18} Appellant also contends that the affidavit of her expert, Michael Plunkett,

created a genuine issue of fact precluding summary judgment. Appellant contends that

his affidavit demonstrates that the bills sent to appellant were false based on the fact that

she was charged to the 100th cubic foot each month; thus, she and the other residents

were not charged for “actual water use.” Appellant further argued that Plunkett’s



8.
affidavit showed that there were 300 work orders for broken meters or transmitters and

that appellees failed to prove that the meters were ever checked for accuracy.

       {¶ 19} Independently reviewing the arguments of the parties, we must agree with

the trial court that appellant has failed to set forth any material issues of fact for trial.

Appellant, in several instances, argues that appellees failed to prove that the meters were

working accurately or that the bills were accurate. Appellant, as the plaintiff, has the

ultimate burden of proof in this case. Further, in order to survive a summary judgment

motion, appellant as the nonmoving party was required to demonstrate a triable issue of

fact; she did not. Appellant admitted that she had no facts to base her arguments on.

Further, the billing system, by the 100 cubic foot, is the industry standard and is billed

only after its use. Finally, Plunkett himself admitted that appellant’s meter was working

properly. It is not appellees’ burden to prove that appellant was being charged for actual

use; that was appellant’s burden. Appellant’s first and second assignments of error are

not well-taken.

       {¶ 20} Appellant’s third assignment of error contends that the trial court erred by

denying appellant’s motion to certify a class. Based on our disposition of appellant’s first

two assignments of error, we find that appellant failed to demonstrate the class-

certification requirements under Civ.R. 23. Appellant’s third assignment of error is not

well-taken.




9.
       {¶ 21} On consideration whereof, we find that substantial justice was done the

party complaining and the judgment of the Wood County Court of Common Pleas is

affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.

                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       ____________________________
                                                       JUDGE
Thomas J. Osowik, J.
                                               ____________________________
James D. Jensen, P.J.                                  JUDGE
CONCUR.
                                               ____________________________
                                                       JUDGE




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