Phoenix Group Holding Co. v. State Ex Rel. Oklahoma Corp. Commission

2016 OK CIV APP 19, 369 P.3d 1096, 2016 Okla. Civ. App. LEXIS 2, 2016 WL 1273288
CourtCourt of Civil Appeals of Oklahoma
DecidedMarch 2, 2016
Docket112,920
StatusPublished
Cited by3 cases

This text of 2016 OK CIV APP 19 (Phoenix Group Holding Co. v. State Ex Rel. Oklahoma Corp. Commission) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phoenix Group Holding Co. v. State Ex Rel. Oklahoma Corp. Commission, 2016 OK CIV APP 19, 369 P.3d 1096, 2016 Okla. Civ. App. LEXIS 2, 2016 WL 1273288 (Okla. Ct. App. 2016).

Opinion

KEITH RAPP, Judge.

T1 The Phoenix Group Holding Company (Phoenix) appeals a Final Order of the Oklahoma Corporation Commission (OCC) denying its motion to set aside or vacate an OCC Order that clarified a previous OCC Order and denied all other requests by Phoenix for relief.

BACKGROUND

[ 2 Phoenix was a consultant to the owners of a convenience store that had a gasoline storage tank,. Gasoline storage tanks are regulated by OCC to assure safety and absence of leakage. The owners were required to file reports, Apparently, Phoenix provided consultation to the owners about compliance.

13 OCC received a report of a gasoline leak, OCC instituted an investigation against the owners for reimbursement of the costs of remediation due to the leak. OCC requires a showing of substantial noncompliance in order to obtain reimbursement.

14 OCC informed owners that its reports were deficient in several instances and did not include required information OCC asked owners to submit the reports for the purpose of mitigating any fine. -

5 Phoenix transmitted records, which included volt meter readings, Upon examination of the report and further investigation, OCC learned that there were no volt meters on the gas storage system. The owners were offered the opportunity to withdraw the reports that included volt meter readings. A Phoenix representative sent a set of acerbic, caustic emails to the OCC employee conducting the investigation. Ultimately, an explanation was offered to the effect that the volt meter belonged to and was used by: Phoenix.

T6 OCC instituted a proceeding against the owners and their store to assess a fine. Phoenix was named as an interested party and served with notice. However, OCC claimed no relief against Phoenix. Phoenix did not participate in the proceeding.

T 7 During a hearing in the proceeding, the administrative law judge (ALJ) inquired of the OCC representative about a recommendation for a fine. The representative's response, in part, expressed a belief, but without any basis for so stating, that the store owner received bad advice from its consultant. The ALJ subsequently commented to the store owner that the ALJ did not "think *1098 you got very good advice from the consultant." The ALJ further commented about the consultant's "rudeness and lack of courte-By.” *

{8 The ALJ imposed a substantially reduced fine and the OCC affirmed. The Order became final and no appeal was filed. The OCC's final order in the proceedings is dated December 80, 2010.

(9 Phoenix complained to the OCC Administrator about the comments, but apparently without receiving its desired result. On September 8, 2011, the Administrator filed the present case. In this action, the Administrator sought a review of the foregoing proceedings, and an opportunity for Phoenix to respond to the comments about the consultant and the consultant's advice, and other unspecified relief.

I 10 Phoenix filed a response. In the response, it claimed that the ALJ and the OCC representative made defamatory statements in the proceedings, Phoenix specifically requested an order for a public and written retraction of the statements. Phoenix requested that the apology and retraction be placed in the file of the enforcement proceeding. Phoenix specifically requested that the apology and retraction be made by the ALJ and the OCC representative. Phoenix then requested attorney fees and reimbursement for the time spent by its representative. °

[11 After a hearing on the Administrator's application concluded in September 2011, the parties were unable to agree upon the wording of a final order after numerous exchanges. 1 On April 18, 2018, Phoenix filed a motion to settle the terms of the Final Order in the present case. -

" 12 It appears that. the OCC then moved to dismiss and withdraw the Administrator's application. Phoenix. responded. The ALJ concluded that OCC did not engage in oppressive or delaying conduct in that case and denied Phoenix's request for attorney fees.

[13 The ALJ also recommended that the motion to dismiss be denied.. The ALJ wrote:

It is abundantly clear from review of the proceedings ..., that several essential and regrettable mistakes were made by the OCC's staff and other parties to the enforcement action that resulted in erroneous assumptions by the OCC's witness, which the ALJ ... accepted as a correct and proper investigation of the incident. The record ... certainly demonstrates unfortunate mistakes were made in the Staffs investigation, and erroneous assumptions were included in testimony which resulted in erroneous points in the ALJ's rationale for the fine assessments recommended. ... The instant ALJ recommends that a final order be entered (in this 'cause) in the form of a referral of the matter to the PTSD 2 for a proper disposition by report regarding the erroneous allegations and inferences negatively impacting the Consultant's License held by The Phoenix's Group pursuant to OAC 165:209-3-99(g) and (h). 3

114 The cause eventually 'came before the Commissioners for decision. The Final Order entered by the Commissioners recited the history of the Enforcement Cause, including service on Phoenix and its absence from the"hearing. The Final Order continued with a recital of the history of the Administrator's application, including the evidence from Phoenix which the Commissioners described as "to the effect that the Phoenix Group did not prepare the substantial compliance documents thus submitted to the Commission, and was not at fault for any erroneous substantial documents submitted to the Commission."

{ 15 The Final Order then reads:

The Commission has been requested in this Cause to correct and modify Order No. 581667, which is a final order that was not appealed. The Commission does not believe modification of the final order is *1099 necessary: or permissible. The. Commis1 sion does hereby clarify that in Final Order No. 581667, the Commission did not find or conclude that The Phoenix Group was at fault, The Commission further clarifies that Cause EN No. 201000122 was not an action to suspend, revoke, or otherwise effect (sic) The Phoenix Group's license, and that the final order issued therein did not suspend, revoke, or otherwise act upon The Phoenix Group's Hi-cense. 4
The Commission finds that the Phoenix Group's requests for affirmative relief should be denied, including, but not limited to, the request for written apologies, redaction of transcript and audio recording material, and an award of attorney's fee and costs, and that referral to the Petroleum Storage Tank Division for disposition by report should be denied.

~ {16 The Commissioners then reiterated the findings as the Final Order of the Commission. Phoenix moved to set aside or modify this Order. 5 In this motion, Phoenix first maintained that the Final Order did not conform to the OCC Rules regarding form and content of a Final Order. . _. 1

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Bluebook (online)
2016 OK CIV APP 19, 369 P.3d 1096, 2016 Okla. Civ. App. LEXIS 2, 2016 WL 1273288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phoenix-group-holding-co-v-state-ex-rel-oklahoma-corp-commission-oklacivapp-2016.