DONALD L. CORBIN, Justice.
This is the second time that Petitioners Centerpoint Energy, Inc., Centerpoint Energy Resources Corp. (f/k/a Reliant Energy Resources Corp.), Entex Gas Marketing Co., Centerpoint Energy Field Services, Inc., and Centerpoint Energy Pipeline Services, Inc. (collectively Centerpoint), are before this court seeking an extraordinary writ to stop the Miller County Circuit Court from acting on the complaint styled Weldon Johnson, et al. v. Centerpoint Energy, Inc., et al., No. 04-327-2.
In support of this petition, Centerpoint argues that: (1) the circuit court exceeded its jurisdiction in failing to recognize, obey, and execute our mandate and opinion in Centerpoint I such that writs of mandamus, prohibition, and certiorari should be granted; (2) as a result of our issuance of a writ of prohibition in Centerpoint I, venue is no longer proper in the circuit court such that a writ of prohibition is again warranted; and (3) because this court held that Respondents Weldon Johnson and Angela Sullivan Engledowl (collectively Respondents) complain about their gas rates, the Arkansas filed-rate doctrine renders the circuit court wholly without jurisdiction to adjudicate Engledowl's claims such that a writ of prohibition is proper. As this case involves extraordinary writs, jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(a)(3). For the reasons set forth below, we grant the writ of mandamus and the writ of prohibition. The petition for certiorari is moot.
The underlying facts are set out in Centerpoint I. There, Centerpoint argued, in part, that a writ of prohibition should be issued because the state regulatory agencies, including the Arkansas Public Service Commission (APSC) and the Texas Railroad Commission (TRRC), have exclusive jurisdiction over the claims asserted by Respondents on behalf of the proposed class, and that the circuit court is wholly without jurisdiction. Prior to addressing Centerpoint's arguments, we held that our jurisdiction was
Id. at 197, 258 S.W.3d at 340. We then went on to address Centerpoint's contention that the circuit court was wholly without jurisdiction because the APSC has sole and exclusive jurisdiction over disputes between customers and utility companies over public rights, such as natural gas rates.
In granting the writ with respect to the Arkansas consumers represented by Johnson, we concluded that there is clear authority given to the APSC by the Arkansas General Assembly for "sole and exclusive jurisdiction" over Respondents' claims as they relate to Arkansas consumers, but not as they relate to Texas consumers under Texas law. Specifically, we summarized the case as follows:
Id. at 202-203, 258 S.W.3d at 345.
We delivered our Centerpoint I opinion on June 7, 2007, and our mandate was issued on June 26, 2007.
In response to the renewed motion to dismiss for lack of jurisdiction, Respondents argued that Centerpoint I did not dismiss any parties or any claims, and that Centerpoint I did not change the fact that this case is about fraud and not filed rates. As to Centerpoint's improper-venue motion, Respondents asserted that Centerpoint
On July 25, 2007, a hearing was held on Centerpoint's motions. Following arguments, the circuit court denied both of the motions to dismiss, but stayed all claims by Respondents as they related to Arkansas customers pending further proceedings before the APSC. The court explicitly refused to dismiss Johnson and found that venue was proper based on Johnson's retention in the complaint.
Following the hearing, the circuit court granted Respondents' motion to file a second amended complaint, which they filed on August 2, 2007. Then, on August 7, 2007, the circuit court issued an order denying the motions to dismiss and staying the claims asserted on behalf of Arkansas customers to allow the APSC an opportunity to explore those claims. As to the joint renewed motion to dismiss for lack of jurisdiction, the circuit court agreed with Respondents and found that
With regard to the joint motion to dismiss for improper venue, the circuit court again agreed with Respondents and denied the motion
On September 5, 2007, Centerpoint filed the present petition for writs of mandamus, prohibition, and certiorari. Respondents responded by filing a motion to expedite submission and to dismiss Centerpoint's petition for lack of ripeness. On October 4, 2007, we granted the motion to expedite, but ordered that the motion to dismiss be submitted with the case. We deny the motion to dismiss at
Centerpoint first argues that the circuit court exceeded its jurisdiction in failing to recognize, obey, and execute this court's mandate and opinion in the prior prohibition proceeding. Specifically, they claim that Centerpoint I established as the law of the case that the circuit court lacks subject-matter jurisdiction over Respondents' claims as they pertain to Arkansas customers, because those rate-related claims lie within the sole and exclusive jurisdiction of the APSC. Centerpoint asserts that writs of mandamus, prohibition, and certiorari are warranted to enforce our mandate in Centerpoint I because the circuit court has exceeded its jurisdiction by disregarding the opinion and mandate of this court, and they have no other adequate remedy at law. Centerpoint further argues that there is well-established precedent that an extraordinary writ should issue to enforce the proper fulfillment of the directions of this court and to correct a circuit court's failure to recognize, obey, and execute an appellate court's opinion and mandate.
The purpose of a writ of mandamus is to enforce an established right or to enforce the performance of a duty. See Weaver v. Simes, 365 Ark. 289, 229 S.W.3d 15 (2006). A writ of mandamus is issued by this court only to compel an official or judge to take some action. Id. When requesting a writ of mandamus, a petitioner must show a clear and certain right to the relief sought and the absence of any other adequate remedy. Id. However, a writ of mandamus will not lie to control or review matters of discretion. Id.
In Centerpoint I, we concluded that the asserted claims involved rates and held that
370 Ark. at 203-204, 258 S.W.3d at 345 (emphasis added). We then granted the writ of prohibition with regard to the issue of jurisdiction of the APSC over Arkansas customers, who are potential class members to be represented by Johnson.
A writ of prohibition is issued when a circuit court is wholly without jurisdiction. See Weaver, 365 Ark. 289, 229 S.W.3d 15. By its very nature, Centerpoint I meant that the circuit court did not and does not have jurisdiction over the Arkansas claims. Consequently, the nature and spirit of our ruling required that the circuit court dismiss the case inasmuch as it relates to claims asserted on behalf of the Arkansas consumers. Put another way, Johnson's claims against Centerpoint were to be dismissed so that they could be brought before the APSC. This is not what occurred.
The circuit court then clarified that it was not dismissing Johnson's claims at that time. Moreover, in the August 7 order, the court ruled "that the claims asserted on behalf of the Arkansas customers are hereby STAYED to allow the Arkansas Public Service Commission an opportunity to explore those claims." The circuit court also noted that the APSC had primary jurisdiction over the claims of Johnson and the Arkansas consumers.
This was clearly outside of the circuit court's power and jurisdiction. Specifically, a court cannot retain jurisdiction over a proceeding for which it does not have jurisdiction in the first place. We made it very clear in Centerpoint I that the APSC had sole and exclusive jurisdiction over Johnson's claims involving Arkansas customers. Accordingly, the circuit court's refusal to dismiss Johnson and its decision to stay the claims asserted on behalf of Arkansas customers cannot be viewed as actions taken in compliance with the Centerpoint I ruling. Because these actions were outside of the purview of our mandate, and since we have already granted a writ of prohibition informing the circuit court that it is without jurisdiction over the Arkansas claims, we grant a writ of mandamus and direct the circuit court to dismiss Johnson as it should have following Centerpoint I.
Centerpoint next argues that because the writ of prohibition entered in Centerpoint I required the circuit court to dismiss Johnson from the case, no basis exists for venue over the only remaining named plaintiff, Engledowl. Specifically, they claim that once the mandate is properly enforced and Johnson is dismissed, the undisputed facts demonstrate that there is no basis for venue over the claims of Engledowl, a Texas resident. Centerpoint further argues that a writ of prohibition can be issued when venue is improper as to a party. Respondents counter that Centerpoint cannot raise a new defense, such as an objection to venue, at this time because it had been waived.
Under Ark. R. Civ. P. 12(b), a party must assert the defense of improper venue in its answer or in a motion filed prior to or simultaneously with its answer. See Gailey v. Allstate Ins. Co., 362 Ark. 568, 210 S.W.3d 40 (2005). If a party fails to do this, he has waived this defense. Id. Specifically, Ark. R. Civ. P. 12(h)(1) provides, in pertinent part, that
It is undisputed that Centerpoint did not raise the defense of improper venue in their first motion to dismiss. However, Centerpoint argues that they have not waived this defense because is was not available at the time they filed their first motion, as Johnson had not yet been dismissed from the case and his residence in Miller County, Arkansas, provided venue for the action under Ark.Code Ann. § 16-55-213 (Repl.2005). Specifically, they contend that it was only after the Centerpoint I decision and mandate that the defense of improper venue became available. Upon review, Centerpoint is correct in their assertion that the circumstances of this case are such that they did not waive the defense of improper venue by failing to address it in their first motion to dismiss because it was not "then available."
Although this court has never addressed the question now before us, several federal courts have examined this issue in relation to Fed.R.Civ.P. 12, which is substantially the same as our Rule 12. In Glater v. Eli Lilly & Co., 712 F.2d 735, 738 (1st Cir. 1983), the First Circuit explained:
Moreover, the conclusion that a party has not waived a defense is reinforced if a party moves quickly to raise their new defense upon learning of it. Id. See also Daniel v. Am. Bd. of Emergency Med., 988 F.Supp. 127 (W.D.N.Y.1997) (explaining that courts frequently excuse the failure to assert an affirmative defense which was not available at the time of the defendant's original answer); Holzsager v. Valley Hosp., 646 F.2d 792 (2d Cir.1981) (holding that a party cannot be deemed to have waived a defense not known to be available at the time it made its first defensive motion, especially when it raised the objection as soon as the party became aware of it).
In applying this logical reading of Rule 12 to the present case, it only follows that Centerpoint did not waive the defense of improper venue if it was not available when it made its first motion to dismiss for lack of subject-matter jurisdiction, and they acted quickly upon learning of its availability. Here, Centerpoint raised the defense of improper venue at the earliest availability. It is undisputed that Johnson's residence in Miller County had been used as the basis for venue in this case. Therefore, it follows that a challenge to venue only became available after he was dismissed from the case. See Tracinda Corp. v. DaimlerChrysler AG, 364 F.Supp.2d 362 (D.Del.2005) (holding that a defendant could not, in good faith, raise the defense of lack of personal jurisdiction
Moreover, there is no merit to Respondents' contention that this venue challenge has been available to Centerpoint since the onset of this litigation because,
It is illogical to conclude that the mere fact that Centerpoint previously sought to dismiss all claims filed against it for lack of subject-matter jurisdiction made them aware of the defense of improper venue should any of those claims be dismissed. Specifically, in Centerpoint I, Centerpoint was challenging the subject-matter jurisdiction as to all claims, but we only granted the writ of prohibition as to those claims brought by Johnson on behalf of Arkansas consumers. Thus, Johnson was not dismissed from the case until after Centerpoint I, such that the defense of improper venue only became available at that time. To expect Centerpoint to have the clairvoyance demanded by Respondents is simply inconsistent with the doctrine of waiver discussed above, especially when Centerpoint raised the issue soon after it became available. See Glater, 712 F.2d 735; Holzsager, 646 F.2d 792. As such, the issue of improper venue was not waived and can be addressed.
As stated above, Centerpoint I established that the circuit court did not have jurisdiction over Johnson's claims involving Arkansas consumers, such that Centerpoint is correct in their argument that the proper enforcement of the mandate requires Johnson's dismissal. Because of Johnson's dismissal, Centerpoint argues that venue is not proper under Ark.Code Ann. § 16-55-213(a)(3)(A) (Repl.2005), Ark.Code Ann. § 16-55-213(b)(1) (Repl. 2005), or Ark.Code Ann. § 16-60-113(b) (Repl.2005), and a writ of prohibition should issue.
The purpose of a writ of prohibition is to prevent a court from exercising a power not authorized by law when there is no adequate remedy by appeal or otherwise. See Ark. Game & Fish Comm'n v. Harkey, 345 Ark. 279, 45 S.W.3d 829 (2001). As stated earlier, a writ of prohibition is extraordinary relief that is only appropriate when the trial court is wholly without jurisdiction. While jurisdiction is the power and authority of the court to act, venue is the place where the power to adjudicate is to be exercised. Id. Venue has thus often been characterized as procedural rather than jurisdictional. Id. However, even though procedural, this court has a long history of granting the writ when venue is improper as to a party. Id. This is so because this court characterizes the venue issue as one of jurisdiction over the person, the improper assertion of which in that instance, justifies issuance of the writ. Id. Where the issue of the writ of prohibition alleges improper venue, this court will grant the writ only when there are no disputed facts regarding venue. Premium Aircraft Parts, LLC v. Circuit
It is this court's fundamental duty to give effect to the legislative purpose set by the venue statutes. Id. The venue statutes at issue here are sections 16-55-213(a)(3)(A) and (b)(1), and section 16-60-113(b). Section 16-55-213 states, in pertinent part:
Section 16-60-113(b) provides:
In the present case, Centerpoint is challenging Respondents' contention that venue lies in Miller County. Specifically, in their second amended complaint filed after Centerpoint I, Respondents asserted that
Centerpoint argues that, from the face of the complaint, venue is improper because Centerpoint I dismissed Johnson from the case and venue cannot be established through Engledowl. This is correct.
First, venue is improper under section 16-55-213(a)(3)(A) and (b)(1) because both of these statutes place venue in the county of the plaintiff's residence. With Johnson's dismissal, Engledowl is the sole remaining plaintiff. It is undisputed that Engledowl is a resident of Bowie County, Texas. Accordingly, venue cannot lie in Miller County under either section 16-55-213(a)(3)(A) or (b)(1) because Engledowl is a resident of Texas and not Miller County.
Neither is venue proper under section 16-60-113(b). Just as with the previous venue statutes, Respondents maintain that venue is proper based upon alleged fraudulent activity directed at Johnson and other Miller County residents. Yet again it
Writ of mandamus granted; writ of prohibition granted; writ of certiorari moot.
Motion to dismiss denied.
HANNAH, C.J., and DANIELSON, J., concur.
GUNTER, J., not participating.
PAUL E. DANIELSON, Justice, concurring.
I concur with the result as stated by the majority, but only as to where the instant case now stands. I write only to go on record as noting that I continue to disagree that the circuit court was wholly without jurisdiction as held by the majority in Centerpoint I and believe this court erred by granting the writ of prohibition in that case.
From the beginning, it has been my opinion that the instant case is more than a simple rate case. In fact, the defendants had initially removed the case to federal district court, and the federal court remanded the case back to the circuit court, finding that the claims were based exclusively on Arkansas common law. The complaint asserted that Centerpoint and its affiliates were involved in a fraudulent "high-low" selling scheme for natural gas that created huge profits for the company at the expense of residential customers. See Centerpoint Energy, Inc. v. Miller County Circuit Court, 370 Ark. 190, 258 S.W.3d 336 (2007) (Centerpoint I). The plaintiffs alleged that suppliers sold natural gas to the regulated utility divisions of Centerpoint for resale to residential and commercial consumers in the states of Arkansas, Texas, Oklahoma, Louisiana, and Mississippi at prices far above market prices. See id. The cost of the natural gas was then passed on to the customers through a purchased-gas adjustment clause. See id. Because of these high-priced purchases by the regulated subsidiaries, the gas suppliers were then able to sell natural gas to unregulated subsidiaries at below-market prices, and those subsidiaries, in turn, sold the natural gas to major commercial and industrial consumers. See id. Industrial natural gas prices are not government regulated, and the complaint alleged that because Centerpoint bought this natural gas at such low prices, it obtained a competitive advantage in the industrial natural gas market. See id. The complaint asserted causes of action against the defendants for fraud, unjust enrichment, and civil conspiracy and sought relief on behalf of residential and commercial customers in the form of actual money damages sustained as a result of the alleged fraud, as well as exemplary and punitive damages and reasonable and necessary attorneys' fees. See id.
The General Assembly has made clear that the jurisdiction of the Arkansas Public Service Commission "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." Ark. Code Ann. § 23-3-119(f) (Repl.2002). The majority in Centerpoint I held that, "[i]n essence, the plaintiffs are complaining that
Our original review of this case was to be confined to the pleadings. See Erin, Inc. v. White County Circuit Court, 369 Ark. 265, 253 S.W.3d 444 (2007). My review of the pleadings reveals that the essence of plaintiffs' complaint is unjust enrichment, and that they are most definitely seeking disgorgement of profits by the gas suppliers. For the above reasons, I continue to believe this court erred in granting the original writ of prohibition.
HANNAH, C.J., joins.