WILLIAM B. STANLEY, NIOLENE E. STANLEY, STEPHEN C. PARKER, KATHRYN A. PARKER, MATTHEW BRITT, AND MICHAEL C. WILLIS, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED APPELLANTS
OZARKS ELECTRIC COOPERATIVE CORPORATION AND OZARKSGO, LLC APPELLEES
FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CV-17-916]
HONORABLE DOUG MARTIN, JUDGE
Evans Law Firm, P.A., by: Marshall Dale Evans; and Hirsch Law
Firm, P.A., by: E. Kent Hirsch, for appellants.
Friday, Eldredge & Clark LLP, by: Marshall S. Ney and
Katherine C. Campbell; and Eldridge Law Firm, by: John R.
Eldridge III, for appellees.
F. VIRDEN, JUDGE
William B. Stanley, Niolene E. Stanley, Stephen C. Parker,
Kathryn A. Parker, Matthew Britt, and Michael C. Willis
appeal from the Washington County Circuit Court's order
dismissing their complaint against appellees Ozarks Electric
Cooperative Corporation and OzarksGo, LLC (Ozarks Electric).
The circuit court found that the Arkansas Public Service
Commission (PSC) has primary jurisdiction of the case.
Because this is an inverse-condemnation proceeding and
otherwise involves private-property rights, appellants'
complaint was properly filed in the circuit court, which has
jurisdiction over this matter. Accordingly, we reverse and
remand for further proceedings.
Standard of Review
reviewing a circuit court's order granting a motion to
dismiss, we treat the facts alleged in the complaint as true
and view them in the light most favorable to the plaintiff.
Sanford v. Walther, 2015 Ark. 285, 467 S.W.3d 139.
Our standard of review is whether the circuit court abused
its discretion. Id. As to issues of law presented,
our review is de novo. Id.
Allegations in the Complaint
plaintiffs/appellants are property owners in Washington
County. The Stanleys and the Parkers own property subject to
general-utility easements. Ozarks Electric has installed and
is operating a commercial fiber-optic communications network
independent of the transmission or distribution of
electricity. The Stanleys and the Parkers allege that Ozarks
Electric entered land adjacent to the existing utility
easements to install its fiberoptic communications network.
They allege that during construction of the network, they
suffered damages, e.g., loss of use and loss of privacy, to
the land adjacent to the easements for which no compensation
was offered. They also allege that they suffered damages to
the land within the existing easements due to the increased
interference with their use of the land.
owns property through which Ozarks Electric has a
right-of-way easement for the transmission or distribution of
electricity. Britt executed this easement for Ozarks
Electric's distribution line, but the recorded
easement's use is limited on its face to an
"electric line or system." He alleges that Ozarks
Electric plans to install and operate a newly constructed 100
percent fiber-optic communications network independent of the
existing system for the transmission or distribution of
electricity. Britt seeks damages for inverse condemnation or,
alternatively, increased interference.
owns property through which Ozarks Electric installed and
maintains a transmission or distribution line for
electricity. While there are no existing easements on record
with respect to Willis's property, Ozarks Electric plans
to install and operate a newly constructed 100 percent
fiber-optic communications network on his property. Willis
seeks damages for inverse condemnation or, alternatively,
allege that Ozarks Electric plans to install and operate a
commercial fiber-optic communications network that is
independent of the existing wires and cables for the
transmission or distribution of electricity. Ozarks
Electric's plans for such a network is a separate
business distinct from the generation, transmission, or
distribution of electricity. Neither the written, recorded
electric power-line easement to Ozarks (on Britt's
property) nor the unrecorded electric power-line easement
benefiting Ozarks (on Willis's property) authorizes the
installation of fiber-optic cables for communication,
internet, or television purposes. Appellants allege that the
Broadband Over Power Utility Lines Enabling Act provides for
an award of damages to property owners for increased
interference when a utility company installs broadband over
power lines without just compensation. Appellants allege that
BPL (broadband over power lines) is technology that sends two
signals down one line: one signal is electricity, and the
other is a broadband internet signal. According to
appellants, the new fiber-optic system is not broadband over
power lines; rather, it is broadband over newly installed
fiber-optic cables. They contend that none of Ozarks
Electric's existing power lines are being used for the
transmission of the internet signal.
any corporation authorized by law to appropriate private
property for its use shall have entered upon and appropriated
any real or personal property, the owner of the property
shall have the right to bring an action against the
corporation in the circuit court of the county in
which the property is situated for damages for the
appropriation[.]" Ark. Code Ann. § 18-15-102(a)
(Repl. 2015) (emphasis added). A property owner is entitled
to receive just compensation when private property is taken
for a public use. Ark. Code Ann. § 18-15-103(b)(1).
Arkansas Code Annotated section 18-15-504 deals with
petitions for the assessment of damages. "If an electric
utility . . . fails to obtain, by agreement with the owner of
the property through which the line may be located, the
right-of-way over the property, it may apply by petition to
the circuit court of the county in which the property is
situated to have the damages for the right-of-way
assessed[.]" Ark. Code Ann. § 18-15-504(a).
"An electric utility shall not be required to petition a
court in order to provide broadband services over its own
lines of wire, cables, poles, or other structures
that are in service at the time that the electric
utility provides broadband services over the lines of wire,
cables, poles, or other structures." Ark. Code Ann.
§ 18-15-504(e)(1) (emphasis added). "An owner of
property upon which an electric utility's lines of wire,
cables, poles, or other structures are located may
petition the circuit court of the county in which
the property is situated for any compensation to which it
might be entitled under this subchapter." Ark. Code Ann.
§ 18-15-504(e)(2) (emphasis added). Section 18-15-507
If an owner of property petitions a court under section
18-15-504(e), the amount of damages, if any, payable to the
owner for the use of preexisting lines of wire,
cables, poles, or other structures by an electric utility to
provide broadband services shall be limited to an amount
sufficient to compensate the property owner for the increased
interference, if any, with the owner's use of the
property caused by any new or additional physical attachments
to the preexisting facility for the purpose of providing
Code Ann. § 18-15-507(a)(2) (emphasis added).
The Broadband Over Power Lines Enabling Act
electric utility, along with affiliates and unaffiliated
entities, may own or operate a broadband system on the
electric utility's electric-delivery system. Ark. Code
Ann. § 23-18-804(a)(1), (2) & (3) (Repl. 2015).
Arkansas Code Annotated section 23-18-805(a) provides that
"[e]xcept as provided in this subchapter, neither the
state nor any agency, instrumentality, or political
subdivision of the state has jurisdiction over (1) an
electric utility's ownership or operation of a broadband
system; or (2) the provision of broadband services by the
electric utility, a broadband affiliate, or a broadband
operator." "Nothing in this subchapter shall
interfere with the Arkansas Public Service Commission's
authority to regulate public utilities pursuant to section
23-2-301 et seq." Ark. Code Ann. § 23-18-805(b).
23-3-119 provides that any person unlawfully treated by a
public utility may complain to the PSC in writing, and the
PSC has the authority to investigate and hold public
hearings. The PSC shall also have the authority "to
mandate monetary refunds and billing credits, or to order
appropriate prospective relief as authorized or required by
law, rule, regulation, or order." Ark. Code Ann. §
The jurisdiction of the commission in such disputes is
primary and shall be exhausted before a court of law or
equity may assume jurisdiction. However, the commission
shall not have the authority to order payment of damages or
to adjudicate disputes in which the right asserted is a
private right found in the common law of contracts, torts, or
Id. (emphasis added).
statute specifically grants the PSC "the authority to
adjudicate individual disputes between consumers and
the public utilities which serve them when those
disputes involve public rights." Ark. Code Ann.
§ 23-3-119(f)(1) (emphasis added). Furthermore,
Public rights which the commission may adjudicate are those
arising from the public utility statutes enacted by the
General Assembly and the lawful rules, regulations, and
orders entered by the commission in the execution of the
statutes. The commission's jurisdiction to adjudicate
public rights does not and cannot, however, extend to
disputes in which the right asserted is a private right found
in the common law of contracts, torts, or property.
Code Ann. § 23-3-119(f)(2).
the circuit court granted Ozarks Electric's motion to
dismiss because it found that the PSC had primary
jurisdiction over the matter. Subject-matter jurisdiction is
the power of the court to hear and determine the subject
matter in controversy between the parties. Perroni v.
Sachar, 2017 Ark. 59, 513 S.W.3d 239. An Arkansas court
lacks subject-matter jurisdiction if it cannot hear a matter
"under any circumstances" and is "wholly
incompetent to grant the relief sought." Edwards v.
Edwards, 2009 Ark. 580, at 4, 357 S.W.3d 445, 448
(quoting J.W. Reynolds Lumber Co. v. Smackover State
Bank, 310 Ark. 342, 352-53, 836 S.W.2d 853, 858 (1992)).
Circuit courts have original jurisdiction of "all
justiciable matters not otherwise assigned pursuant to"
the constitution. Ark. Const. amend. 80, § 6(A).