Pressler v. Arkansas Public Service Commission

385 S.W.3d 349, 2011 Ark. App. 512, 2011 Ark. App. LEXIS 547
Court of Appeals of Arkansas·Decided September 7, 2011·No. No. CA 10-996·Published·Cited by 4 cases

Opinion

CLIFF HOOFMAN, Judge.

| Appellants Tiffany and Christopher Pressler bring this appeal from the decision of the Arkansas Public Service Commission (PSC or the Commission) dismissing their complaint against appellee Entergy Arkansas, Inc., wherein the Presslers contended Entergy overcharged them approximately $1700 for electric service at the residence they constructed between August 2006 and February 2009. In three points for reversal, the Presslers argue that the Commission erred in (1) not considering all of the issues they raised in their complaint or amended complaint; (2) denying them the right to subpoena witnesses in violation of their due-process rights; and (3) finding that they had not met their burden of proof. We affirm.

The Presslers acted as their own general contractor in the construction of their new home, a tri-level house containing between 4500 and 5000 square feet. They began building their new home in the summer of 2006. A temporary electric meter was installed outside the perimeter of the house for use by the workers during the construction phase in August 2006. |gIn November 2007, at the Presslers’ request, Entergy installed a permanent meter with an underground service drop at the house while it was still under construction. When the Presslers learned in January 2008 that the permanent service meter was activated, they requested that it be turned off, and this was done on or about January 10, 2008. The Presslers moved into the residence in early February 2009. Thereafter, they received the disputed bill at issue in the amount of $1,704.66 after various adjustments by Entergy.

On June 22, 2009, the Presslers filed a pro se complaint with the Commission. The complaint asked the Commission to rule that the Presslers were not liable for any usage they did not request prior to February 2009; that Entergy credit their account for the $1,704.66 plus any late charges; that Entergy adjust the energy-charge rate to that posted on the PSC’s website; and that Entergy refund all over-payments.

The ALJ issued Order No. 2 on July 22, 2009, scheduling a hearing on the Pres-slers’ complaint for October 15, 2009. The parties were to file their witness lists by October 1, 2009.

On October 2, 2009, the Presslers, still acting pro se, filed their witness list containing the names of their electrician during the construction of the home, the persons who installed the two heat pumps in the residence, and seven Entergy employees. They also amended their complaint to allege that Entergy violated specified General Service Rules and that Entergy was attempting to bill them for service that they did not request.

On October 14, 2009, the Presslers moved for a continuance because Jason Brantley, their electrician, was ill with the swine flu. Brantley’s affidavit was submitted with the motion. Later that same day, the Presslers amended their motion for a continuance to add that a ^continuance was necessary to issue subpoenas to procure the attendance of certain Entergy employees they had listed on their witness list. The PSC staff suggested that the record be left open so that Brantley could testify at some future point. Entergy objected to a continuance that resulted from the Presslers’ failure to timely issue subpoenas but did not object to the continuance caused by Brantley’s illness.

The ALJ denied the motion for continuance by Order No. 3, issued on October 14, 2009. The record would be left open for a further hearing “limited solely to the purpose of having Mr. Brantley testify and for no other purpose.”

Immediately prior to the commencement of the hearing, the ALJ took up Entergy’s oral objections to the Presslers’ filing of their amended complaint and the late filing of their witness list. Entergy argued that, because of the late filing of the amended complaint, it did not have the witnesses present to address the new allegations contained in the amended complaint. The ALJ offered to continue the hearing to give Entergy sufficient time to investigate the allegations of the amended complaint. The ALJ noted that the fact that Entergy and the PSC staff were seeking a continuance changed the issue of the Presslers’ failure to subpoena the Entergy employees listed on their witness list. Entergy objected to allowing the Presslers the opportunity to subpoena the witnesses they had failed to subpoena earlier, stating that the continuance to address the allegations of the amended complaint was a separate issue from the failure to subpoena witnesses. The PSC staff suggested that the ALJ hear and address the allegations of the Presslers’ original complaint that day and that the subsequent hearing be for the purpose of hearing the testimony of Jason Brantley. The ALJ orally ruled that, because of the continuance requested by En-tergy and the PSC staff, the Presslers would be able to |4subpoena the witnesses that they did not originally subpoena.

After the Presslers presented their case, the ALJ recessed the hearing because the Presslers had a family emergency. . The ALJ entered Order No. 4 on November 2, 2009, that set forth the limited purposes of the continued hearing: to receive Brant-ley’s testimony; to receive the testimony of the witnesses listed in Entergy’s original witness list; to receive the testimony of additional Entergy witnesses necessary to address the allegations in the Presslers’ amended complaint; and to receive the testimony of a witness for the PSC staff.

In a series of emails in early December 2009, the Presslers again sought to subpoena four of the seven Entergy employees listed on their witness list. Although the Presslers portrayed these witnesses as rebuttal witnesses, the ALJ ruled that the Presslers could not subpoena these witnesses because they were not subpoenaed prior to the first hearing on October 15, 2009. The ALJ later clarified the ruling to apply to any witness the Presslers wanted to call. The Presslers filed an objection to the ALJ’s ruling on January 8, 2010.

Following the conclusion of the hearing in January 2010, the ALJ issued Order No. 5 concluding that the Presslers failed to meet their burden of proving that the alleged overbilling was the result of any wrongdoing by Entergy. The ALJ ruled that there was no proof of a causal connection between Entergy’s alleged violations of the Commission’s General Service Rules and the alleged overbilling. The ALJ also noted the sincerity of the Presslers’ belief that they were overbilled but, nevertheless, found that the sincerity of their belief was no substitute for proof of such over-billing.

In accordance with statutory requirements 1 and the Commission’s rules, the Presslers,^through counsel, sought rehearing on July 29, 2010. The request for rehearing was deemed denied on Monday, August 30, 2010.2 The Presslers filed their notice of appeal with the clerk of this court on September 27, 2010.

Our review of Commission orders is limited by statute as follows:

(3) The finding of the commission as to the facts, if supported by substantial evidence, shall be conclusive.

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Pressler v. Arkansas Public Service Commission, 385 S.W.3d 349, 2011 Ark. App. 512, 2011 Ark. App. LEXIS 547 (Ark. Ct. App. 2011).

385 S.W.3d 349 (Pressler v. Arkansas Public Service Commission) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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