Cite as 2025 Ark. App. 469 ARKANSAS COURT OF APPEALS DIVISION III No. CV-23-635
OZARKS ELECTRIC COOPERATIVE Opinion Delivered October 8, 2025 CORPORATION AND OZARKSGO, LLC APPEAL FROM THE WASHINGTON APPELLANTS COUNTY CIRCUIT COURT [NO. 72CV-17-916]
V. HONORABLE DOUG MARTIN, JUDGE WILLIAM B. STANLEY; NIOLENE E. STANLEY; STEPHEN C. PARKER; KATHRYN A. PARKER; MATTHEW AFFIRMED BRITT; AND MICHAEL C. WILLIS, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED APPELLEES
BART F. VIRDEN, Judge
This case returns to us after the Washington County Circuit Court entered an order
denying a motion to compel arbitration and to stay the proceedings filed by appellants
Ozarks Electric Cooperative Corporation and OzarksGo, LLC (at times, referred to
collectively as “Ozarks”), against the Stanleys; the Parkers; Britt; and Willis, on behalf of
themselves and all others similarly situated (“appellees” or “the Property Owners”). Ozarks
argues that the trial court erred (1) by failing to recognize that all threshold issues of
arbitrability should be decided by an arbitrator; (2) by relying on the law-of-the-case doctrine; and (3) by deciding that appellees’ claims were not covered by the arbitration agreements. 1
We affirm.
I. Procedural History
Much of the factual background is set forth in our original opinion. Stanley v. Ozarks
Elec. Coop. Corp., 2019 Ark. App. 560, 591 S.W.3d 322. Generally, appellees are property
owners who, in May 2017, brought an action against Ozarks for taking their property without
just compensation and for increased interference with their land. Appellees own land subject
to general utility easements and electric easements, both recorded and unrecorded. Appellees
alleged that Ozarks planned to install and operate a commercial fiber-optic communications
network independent of the existing wires and cables for the transmission or distribution of
electricity. They alleged that Ozarks’ plans for such a network is a separate business distinct
from the generation, transmission, or distribution of electricity.
Ozarks moved to dismiss, alleging that the Arkansas Public Service Commission
(PSC) had jurisdiction over appellees’ claims. The trial court granted Ozarks’ motion to
dismiss for lack of jurisdiction. On appeal, in reversing and remanding for further
proceedings, we held that the circuit court has exclusive jurisdiction over claims that involve
private-property rights and inverse-condemnation proceedings, not the PSC. Stanley, supra.
Ozarks filed a petition for rehearing, which we denied. Ozarks then filed a petition for review
by the Arkansas Supreme Court. That petition was also denied.
1 Ozarks also argued several points that it anticipated that appellees would raise as alternative grounds on which to affirm.
2 After the mandate issued in February 2020, Ozarks answered appellees’ third
amended complaint, raising arbitration as an affirmative defense and counterclaimed for
declaratory judgment that appellees are bound by arbitration agreements. Ozarks then filed
a motion to compel arbitration and to stay proceedings on April 16, 2020. The arbitration
agreement in Ozarks Electric’s bylaws enacted in 20112 provides the following:
Any person, firm, association, corporation or body politic who becomes a member of Ozarks Electric Cooperative Corporation (hereinafter called the Cooperative) agrees: . . . (c) that all member disputes with the cooperative, to the extent not subject to the jurisdiction of the applicable regulatory commission of the State where the dispute arose or the member is located, shall be resolved by binding arbitration in accordance with the rules of and before the American Arbitration Association.
(Emphasis added.)
In OzarksGo’s subscriber agreement, paragraph 22 provides the following with regard
to dispute resolution by binding arbitration:
OzarksGo and Subscriber agree to resolve all disputes and claims between OzarksGo (including OzarksGo’s Parties as defined herein) and Subscriber related to or associated with the Service through binding arbitration by the American Arbitration Association (“AAA”). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to all claims or disputes arising out of or relating to any aspect of the relationship between OzarksGo and Subscriber, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory.
2 The bylaws, as amended in 2018, provide that “all member disputes with the cooperative, to the extent not subject to the jurisdiction of the applicable regulatory commission of the State where the dispute arose, or the member is located, shall, with the exception of collection cases, and eminent domain be resolved by binding arbitration . . . .” (Emphasis added.) Appellees amended their complaint twice in 2018.
3 In denying the motion to compel arbitration, the trial court found that “[a]s a result”
of our holding in Stanley, supra, the arbitration agreement did not apply to appellees’ causes
of action and that “[b]ased on the spirit and purpose behind the Court of Appeals opinion,
this controversy is not covered by the arbitration agreement relied on by [Ozarks], and it is
controlled by the law of the case.” Ozarks appealed.
II. Standard of Review
An order denying a motion to compel arbitration is an immediately appealable order.
Ark. R. App. P.–Civ. 2(a)(12); Ark. Code Ann. § 16-108-228(a)(1) (Repl. 2016). We review
a trial court’s order denying a motion to compel arbitration de novo on the record, with the
entire case open for review. Boone Operations, LLC v. Adams, 2025 Ark. App. 34, 705 S.W.3d
503. We do not reverse absent a showing that the trial court erred. Id. On appeal, we are
limited to deciding two issues: (1) whether there is a valid arbitration agreement between the
parties and (2) whether the dispute falls within the scope of that agreement. HPD, LLC v.
TETRA Techs., Inc., 2012 Ark. 408, 424 S.W.3d 304. Whether the law-of-the-case doctrine
was properly invoked and to what extent it applies to a case are questions of law that the
court of appeals reviews de novo. Faughn v. Kennedy, 2023 Ark. App. 252, 668 S.W.3d 512.
III. Discussion
We begin our discussion by addressing the law-of-the-case doctrine because it is
dispositive. The venerable doctrine of law of the case prohibits a court from reconsidering
issues of law and fact that have already been decided on appeal. Cadillac Cowboy, Inc. v.
Jackson, 347 Ark. 963, 69 S.W.3d 383 (2002). The doctrine serves to effectuate efficiency
4 and finality in the judicial process. Id. The doctrine provides that a decision of an appellate
court establishes the law of the case for the trial on remand and for the appellate court itself
on subsequent review. Id. On the second appeal, the decision of the first appeal becomes the
law of the case and is conclusive of every question of law or fact decided in the former appeal
and also of those that might have been, but were not, presented. Id. The law-of-the-case
doctrine is conclusive only where the facts on the second appeal are substantially the same
as those involved in the prior appeal and does not apply if there was a material change in the
facts. Turner v. Nw. Ark. Neurosurgery Clinic, P.A., 91 Ark. App.
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Cite as 2025 Ark. App. 469 ARKANSAS COURT OF APPEALS DIVISION III No. CV-23-635
OZARKS ELECTRIC COOPERATIVE Opinion Delivered October 8, 2025 CORPORATION AND OZARKSGO, LLC APPEAL FROM THE WASHINGTON APPELLANTS COUNTY CIRCUIT COURT [NO. 72CV-17-916]
V. HONORABLE DOUG MARTIN, JUDGE WILLIAM B. STANLEY; NIOLENE E. STANLEY; STEPHEN C. PARKER; KATHRYN A. PARKER; MATTHEW AFFIRMED BRITT; AND MICHAEL C. WILLIS, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED APPELLEES
BART F. VIRDEN, Judge
This case returns to us after the Washington County Circuit Court entered an order
denying a motion to compel arbitration and to stay the proceedings filed by appellants
Ozarks Electric Cooperative Corporation and OzarksGo, LLC (at times, referred to
collectively as “Ozarks”), against the Stanleys; the Parkers; Britt; and Willis, on behalf of
themselves and all others similarly situated (“appellees” or “the Property Owners”). Ozarks
argues that the trial court erred (1) by failing to recognize that all threshold issues of
arbitrability should be decided by an arbitrator; (2) by relying on the law-of-the-case doctrine; and (3) by deciding that appellees’ claims were not covered by the arbitration agreements. 1
We affirm.
I. Procedural History
Much of the factual background is set forth in our original opinion. Stanley v. Ozarks
Elec. Coop. Corp., 2019 Ark. App. 560, 591 S.W.3d 322. Generally, appellees are property
owners who, in May 2017, brought an action against Ozarks for taking their property without
just compensation and for increased interference with their land. Appellees own land subject
to general utility easements and electric easements, both recorded and unrecorded. Appellees
alleged that Ozarks planned to install and operate a commercial fiber-optic communications
network independent of the existing wires and cables for the transmission or distribution of
electricity. They alleged that Ozarks’ plans for such a network is a separate business distinct
from the generation, transmission, or distribution of electricity.
Ozarks moved to dismiss, alleging that the Arkansas Public Service Commission
(PSC) had jurisdiction over appellees’ claims. The trial court granted Ozarks’ motion to
dismiss for lack of jurisdiction. On appeal, in reversing and remanding for further
proceedings, we held that the circuit court has exclusive jurisdiction over claims that involve
private-property rights and inverse-condemnation proceedings, not the PSC. Stanley, supra.
Ozarks filed a petition for rehearing, which we denied. Ozarks then filed a petition for review
by the Arkansas Supreme Court. That petition was also denied.
1 Ozarks also argued several points that it anticipated that appellees would raise as alternative grounds on which to affirm.
2 After the mandate issued in February 2020, Ozarks answered appellees’ third
amended complaint, raising arbitration as an affirmative defense and counterclaimed for
declaratory judgment that appellees are bound by arbitration agreements. Ozarks then filed
a motion to compel arbitration and to stay proceedings on April 16, 2020. The arbitration
agreement in Ozarks Electric’s bylaws enacted in 20112 provides the following:
Any person, firm, association, corporation or body politic who becomes a member of Ozarks Electric Cooperative Corporation (hereinafter called the Cooperative) agrees: . . . (c) that all member disputes with the cooperative, to the extent not subject to the jurisdiction of the applicable regulatory commission of the State where the dispute arose or the member is located, shall be resolved by binding arbitration in accordance with the rules of and before the American Arbitration Association.
(Emphasis added.)
In OzarksGo’s subscriber agreement, paragraph 22 provides the following with regard
to dispute resolution by binding arbitration:
OzarksGo and Subscriber agree to resolve all disputes and claims between OzarksGo (including OzarksGo’s Parties as defined herein) and Subscriber related to or associated with the Service through binding arbitration by the American Arbitration Association (“AAA”). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to all claims or disputes arising out of or relating to any aspect of the relationship between OzarksGo and Subscriber, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory.
2 The bylaws, as amended in 2018, provide that “all member disputes with the cooperative, to the extent not subject to the jurisdiction of the applicable regulatory commission of the State where the dispute arose, or the member is located, shall, with the exception of collection cases, and eminent domain be resolved by binding arbitration . . . .” (Emphasis added.) Appellees amended their complaint twice in 2018.
3 In denying the motion to compel arbitration, the trial court found that “[a]s a result”
of our holding in Stanley, supra, the arbitration agreement did not apply to appellees’ causes
of action and that “[b]ased on the spirit and purpose behind the Court of Appeals opinion,
this controversy is not covered by the arbitration agreement relied on by [Ozarks], and it is
controlled by the law of the case.” Ozarks appealed.
II. Standard of Review
An order denying a motion to compel arbitration is an immediately appealable order.
Ark. R. App. P.–Civ. 2(a)(12); Ark. Code Ann. § 16-108-228(a)(1) (Repl. 2016). We review
a trial court’s order denying a motion to compel arbitration de novo on the record, with the
entire case open for review. Boone Operations, LLC v. Adams, 2025 Ark. App. 34, 705 S.W.3d
503. We do not reverse absent a showing that the trial court erred. Id. On appeal, we are
limited to deciding two issues: (1) whether there is a valid arbitration agreement between the
parties and (2) whether the dispute falls within the scope of that agreement. HPD, LLC v.
TETRA Techs., Inc., 2012 Ark. 408, 424 S.W.3d 304. Whether the law-of-the-case doctrine
was properly invoked and to what extent it applies to a case are questions of law that the
court of appeals reviews de novo. Faughn v. Kennedy, 2023 Ark. App. 252, 668 S.W.3d 512.
III. Discussion
We begin our discussion by addressing the law-of-the-case doctrine because it is
dispositive. The venerable doctrine of law of the case prohibits a court from reconsidering
issues of law and fact that have already been decided on appeal. Cadillac Cowboy, Inc. v.
Jackson, 347 Ark. 963, 69 S.W.3d 383 (2002). The doctrine serves to effectuate efficiency
4 and finality in the judicial process. Id. The doctrine provides that a decision of an appellate
court establishes the law of the case for the trial on remand and for the appellate court itself
on subsequent review. Id. On the second appeal, the decision of the first appeal becomes the
law of the case and is conclusive of every question of law or fact decided in the former appeal
and also of those that might have been, but were not, presented. Id. The law-of-the-case
doctrine is conclusive only where the facts on the second appeal are substantially the same
as those involved in the prior appeal and does not apply if there was a material change in the
facts. Turner v. Nw. Ark. Neurosurgery Clinic, P.A., 91 Ark. App. 290, 210 S.W.3d 126 (2005).
Ozarks argues that the trial court erred in relying on law of the case in denying its
motion to compel arbitration. Ozarks asserts that we did not have the opportunity to rule
on the issue of arbitration because the only issue presented was that of jurisdiction. Ozarks
contends that our ruling on jurisdiction did not explicitly or implicitly decide the arbitration
issue. Moreover, Ozarks states that—contrary to appellees’ assertion—it, as the prevailing party
below, was not obligated to raise any alternative grounds on appeal. Further, Ozarks
contends that it was likewise not prevented from raising additional issues on remand that
had not been decided.
We agree that Ozarks was neither obligated to raise arbitration as an alternative
argument in the first appeal nor prohibited from raising arbitration on remand. The trial
court had already determined that the PSC had exclusive jurisdiction over the case and thus,
correctly, had not considered the merits-based issue of arbitration, and we would not have
5 addressed that matter when it had not been ruled on below. See Greennecks Lawn Servs., LLC
v. Lewis, 2024 Ark. App. 404, 698 S.W.3d 367.
We, however, disagree with Ozarks that law of the case is not applicable here. In
Stanley, we held that the trial court erred in ruling that the PSC had jurisdiction over
appellees’ claims. In explaining why the circuit court had jurisdiction and not the PSC, we
said that the Property Owners’ claims did not involve public rights or the provision of
broadband services; that their complaint identified them as landowners, not consumers of
the utility company; and that the gist of their complaint was a taking of private property
without just compensation. We clarified that the Property Owners did not dispute that
Ozarks had a right to use its own existing lines to transmit broadband services but that they
objected to Ozarks’ entry onto their land to install completely new lines for broadband
services without just compensation or an assessment of damages for the increased
interference. Ozarks did all that it could do procedurally to overturn our holding in Stanley
but was unsuccessful, so those issues of law and fact are settled, and our mandate has issued.
A mandate is the official notice of the appellate court’s action, directed to the court
below, informing that court of the action taken by the appellate court and directing the lower
court to have the appellate court’s judgment duly recognized, obeyed, and executed. Jackson
v. Smiley Sawmill, LLC, 2021 Ark. App. 433, 638 S.W.3d 11. An inferior court must give
deference to an appellate court’s mandate, implementing both the letter and spirit of the
mandate, and has no power or authority to deviate from the mandate issued. Id.
6 While the trial court referenced the threshold questions that are typically involved
when deciding a motion to compel arbitration, it ruled that they did not apply because the
Property Owners’ controversy is not subject to arbitration. In Stanley, we characterized the
parties’ dispute as a lawsuit by landowners against a utility company for the taking of and
interference with private property. Appellees may—or may not—have been members of the
cooperative or subscribers to OzarksGo; however, neither their status as members or
subscribers nor Ozarks’ provision of services to them had anything to do with the causes of
action in the complaint. We said that this was a matter involving private-property rights and
damages for inverse condemnation and increased interference. Therefore, Ozarks Electric’s
bylaws and OzarksGo’s subscriber agreement containing arbitration provisions had no
bearing on the causes of action alleged; rather, the causes of action essentially involved
allegations that Ozarks had exceeded the scope of authorization within their various
easements. We are bound by the issues of law and fact established in Stanley, as much as the
parties. Cadillac Cowboy, supra. Accordingly, we affirm the trial court’s decision.
Affirmed.
KLAPPENBACH, C.J., and WOOD, J., agree.
Friday, Eldredge & Clark, LLP, by: Martin A. Kasten, Marshall S. Ney, and Katherine C.
Campbell, for appellants.
Hirsch Law Firm, P.A., by: E. Kent Hirsch; The Evans Law Firm, P.A., by: Marshall Dale
Evans; and Danielson Law Firm, PLLC, by: Paul Danielson and David Danielson, for appellees.