Richard Sharp v. Kansas City Power & Light Company and KCP&L Greater Missouri Operations Company

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT

RICHARD SHARP, et al., )
)
Respondents, )
)
v. ) WD77444
)
) OPINION FILED:
KANSAS CITY POWER & LIGHT ) January 13, 2015
COMPANY and KCP&L GREATER )
MISSOURI OPERATIONS COMPANY, )
)
Appellants. )

Appeal from the Circuit Court of Buchanan County, Missouri
The Honorable Weldon C. Judah, Judge

Before Division Three: Karen King Mitchell, Presiding Judge, and
Cynthia L. Martin and Gary D. Witt, Judges

Kansas City Power & Light Company and KCP&L Greater Missouri Operations

Company (collectively “KCP&L”) appeal the trial court’s denial of their motion to stay litigation

and compel arbitration, filed in response to a putative class action filed by Respondents, a group

of consumers, which raised claims of breach of contract, negligence, violation of the Missouri

Merchandising Practices Act, and fraud/misrepresentation, surrounding the consumers’

participation with KCP&L in the Solar Energy Rebate Program. KCP&L argues that, pursuant

to a dispute resolution provision found within a net-metering agreement upon which the
consumers’ claims are allegedly based, the consumers were required to arbitrate their disputes

before the Missouri Public Service Commission (PSC) rather than seeking relief in a court of

law. But because the dispute resolution provision does not constitute an arbitration agreement,

the trial court committed no error in denying KCP&L’s motion to stay proceedings and compel

arbitration. We affirm.

Factual and Procedural Background1

In 2008, the legislature passed the Renewable Energy Standard, a statutory scheme

designed to encourage the use of renewable energy sources by producers and consumers alike.

§ 393.1020 et seq.2 Included within the new legislation was the Solar Energy Rebate Program

(SERP), which required all electric utilities (subject to certain exemptions inapplicable here) to

“make available to its retail customers a solar rebate for new or expanded solar electric systems

sited on customers’ premises, up to a maximum of twenty-five kilowatts per system.”

§ 393.1030.3. The legislation directed the PSC and the Department of Natural Resources to

“make whatever rules are necessary to enforce the renewable energy standard.” § 393.1030.2.

Pursuant to that dictate, the PSC promulgated 4 C.S.R. § 240-20.100,3 which required electric

utilities to make a rebate available for consumers owning or leasing solar-generated power

equipment that was interconnected with the electric utility’s system. In order to facilitate

interconnection, the PSC required electric utilities and consumers to enter into an interconnection

agreement, the terms of which were laid out in 4 C.S.R. § 240-20.065(9). One of the provisions

of the form agreement created by the PSC was a dispute resolution provision, which provided:

1
We defer to the trial court’s express factual determinations, and we view all other facts in the light most
favorable to the court’s ruling. Baier v. Darden Restaurants, 420 S.W.3d 733, 736-37 (Mo. App. W.D. 2014).
2
All statutory citations are to the Revised Statutes of Missouri (2000), as updated through the 2013
Cumulative Supplement, unless otherwise noted.
3
All regulatory citations are to the Missouri Code of State Regulations, as updated.

2
 If any disagreements between the Customer-Generator and [Utility Name] arise
that cannot be resolved through normal negotiations between them, the
disagreements may be brought to the Missouri Public Service Commission by
either party, through an informal or formal complaint. Procedures for filing and
processing these complaints are described in 4 CSR 240-2.070. The complaint
procedures described in 4 CSR 240-2.070 apply only to retail electric power
suppliers to the extent that they are regulated by the Missouri Public Service
Commission.

Id.

KCP&L advertised availability of the SERP on its website and solicited participation in

the program by its customers. The consumers in this appeal all applied to KCP&L to participate

in the SERP. KCP&L’s website advised its customers of various forms and contracts required

for participation, along with a list of approved installers of solar electric systems. Among those

installers was United States Solar (USS). Each of the consumers in the purported class used USS

to install their solar-power systems. Among the various forms and contracts required was the

net-metering agreement, which mirrored the language required by the PSC in 4 C.S.R.

§ 240-20.065, including the dispute resolution provision.

The consumers eventually became dissatisfied with the solar-power systems installed by

USS, alleging that the systems failed to perform as they were promised, and that USS and

KCP&L had breached their contractual obligations with respect to the SERP. Accordingly, the

consumers filed a putative class action against KCP&L, USS, and others, alleging breach of

contract, negligence, and violation of the Missouri Merchandising Practices Act. The initial

pleading and a subsequent amendment both relied, in part, upon terms found within the

net-metering agreement to establish KCP&L’s contractual obligations. The initial pleading and

first amendment both alleged that “[Plaintiffs] and all class members agreed to be bound by the

Interconnection Application/Agreement for Net Metering.”

3
 KCP&L filed a Motion and Memorandum to Dismiss or, Alternatively, Stay Proceedings

and Compel Arbitration, arguing that the PSC had primary jurisdiction over the consumers’

complaints and that, in the alternative, the consumers’ complaints were subject to a valid and

enforceable arbitration provision in the net-metering agreement (the “dispute resolution

provision”). The consumers opposed the motion, arguing that the PSC lacked jurisdiction to hear

the consumers’ complaints, rendering any arbitration provision unreasonable and

unconscionable, and that the consumers’ complaints were outside the scope of any arbitration

agreement. After abundant briefing on the issue by all parties, the consumers sought leave to file

a second amended petition, raising an additional claim of fraud and misrepresentation, which

alleged that the consumers were fraudulently induced to enter into a contractual relationship with

KCP&L and USS and that the signatures appearing on the various contracts either did not belong

to or were not authorized by the consumers. The amended petition also omitted any language

suggesting that the consumers “agreed to be bound” by the net-metering agreement. Though

KCP&L opposed the second amended petition, the court allowed it. The court then denied

KCP&L’s motion to dismiss or stay proceedings and compel arbitration, finding that “a person

who claims never to have seen nor signed a contract is [not] required to be bound by the terms

therein.” KCP&L appeals.4

Standard of Review

“A trial court’s decision to deny a motion to stay proceedings and to compel arbitration is

a legal conclusion that we review de novo.” Baier v. Darden Restaurants, 420 S.W.3d 733, 736

(Mo. App. W.D. 2014). Any “‘issues[, however,] relating to the existence of an arbitration

4
“An appeal may be taken from . . . [a]n order denying an application to compel arbitration made under
section 435.355.” § 435.440.1(1).

4
agreement are factual and require our deference to the trial court’s findings.’” Id. (quoting Katz

v. Anheuser-Busch, Inc., 347 S.W.3d 533, 539 (Mo. App. E.D. 2011)).

Analysis

KCP&L raises two claims on appeal premised on the court’s denial of the motion to stay

proceedings and compel arbitration. First, it argues that the court erred in finding that the

consumers could not be bound by the net-metering agreement containing the dispute resolution

provision in that the consumers, by their conduct, ratified the net-metering agreement (along

with the dispute resolution provision) and agreed that the dispute resolution provision was

enforceable. Second, KCP&L argues that the court erred because the consumers’ complaints

were within the scope of the allegedly valid and enforceable dispute resolution provision, and

that this provision constitutes an agreement to arbitrate disputes before the PSC. KCP&L’s

second point is dispositive.

Both KCP&L and the consumers make a variety of arguments concerning the validity of

the dispute resolution provision and whether the contract was ratified by the consumers’ lawsuit.

Ultimately, however, we need not resolve any of these issues because, even if we were to resolve

all of them in favor of KCP&L, its motion to stay proceedings and compel arbitration was still

properly denied because the dispute resolution provision does not constitute an arbitration

agreement.

A motion to compel arbitration requires the court to consider three factors: (1) whether a

valid arbitration agreement exists; (2) whether the dispute falls within the scope of the

agreement; and (3) whether applicable contract principles subject the agreement to revocation.

Baier, 420 S.W.3d at 737 n.3. As to the first factor, the consumers argue that the dispute

resolution provision does not constitute an arbitration agreement simply because it does not

5
mention the word “arbitrate” anywhere within its language. KCP&L argues that an arbitration

agreement need not use the word “arbitrate” and, essentially, that every “dispute resolution”

provision constitutes an arbitration agreement. We believe that both parties overstate their legal

authority.5

The parties appear to agree that, if the dispute resolution provision can be properly

characterized as an arbitration agreement, it would be governed by the Federal Arbitration Act

(FAA). “The FAA expresses . . . Congress’s policy favoring resolution of disputes by

enforcement of arbitration agreements, instead of resorting to the judicial system.” Kansas City

Urology, P.A. v. United Healthcare Servs., 261 S.W.3d 7, 11 (Mo. App. W.D. 2008). “While

courts look favorably upon clauses entitling a party to arbitration, this does not mean that a

court . . . will read a right to arbitrate into a contract where, as here, the contract does not provide

such a right.” Triarch Indus., Inc. v. Crabtree, 158 S.W.3d 772, 777 (Mo. banc 2005). “A party

cannot be compelled to arbitration unless the party has agreed to do so.” Kansas City Urology,

261 S.W.3d at 11. KCP&L, “[a]s the party asserting the existence of a valid and enforceable

contract to arbitrate, . . . [bears] the burden of proving that proposition.” Baier, 420 S.W.3d at

737 (internal quotation omitted).

To support its claim that an arbitration agreement need not use the word “arbitrate,”

KCP&L relies on AMF Inc. v. Brunswick Corp., 621 F.Supp. 456 (E.D.N.Y. 1985), and Wolsey,

Ltd. v. Foodmaker, Inc., 144 F.3d 1205 (9th Cir. 1998). In both cases, the courts noted that

“‘[n]o magic words such as “arbitrate” or “binding arbitration” or “final dispute resolution” are

needed to obtain the benefits of the [FAA].’” Wolsey, 144 F.3d at 1208 (quoting AMF Inc., 621

5
The trial court did not resolve the question of whether the dispute resolution provision constituted an
arbitration agreement. Nevertheless, appellate courts are “concerned primarily with reaching a correct result, and
thus . . . do not need to agree with the reasoning of the trial court in order to affirm.” McDermott v. Carnahan, 934
S.W.2d 285, 287 (Mo. banc 1996).

6
F.Supp. at 460). The cases further suggest that “‘[a]rbitration is a creature of contract, a device

of the parties rather than the judicial process. If the parties have agreed to submit a dispute for a

decision by a third party, they have agreed to arbitration.’” Id. (quoting AMF Inc., 621 F.Supp.

at 460).

We agree with KCP&L that an arbitration agreement need not specifically use the word

“arbitrate” to come within the coverage of the FAA. That being said, we disagree that every

“dispute resolution” provision necessarily constitutes an arbitration agreement. KCP&L relies

on the Missouri Supreme Court’s decision in Johnson ex rel. Johnson v. JF Enters., LLC, 400

S.W.3d 763, 768 (Mo. banc 2013), for the proposition that all dispute resolution provisions

constitute arbitration agreements. This is not what the Court in Johnson held. Rather, when

describing an arbitration agreement (which, incidentally, was titled “Arbitration Agreement”),

the Court noted that it was “a dispute resolution clause,” as opposed to “an agreement to loan

money, extend credit or forbear from enforcing repayment or promise to extend or renew debt.”

Id. Though we agree that all arbitration agreements constitute dispute resolution provisions, the

converse is not true. In other words, not all dispute resolution provisions constitute arbitration

agreements—case-in-point, the dispute resolution provision at issue before us.

“Dispute resolution” encompasses not only arbitration but also negotiation, mediation,

and even litigation. See Alternative Dispute Resolution, BLACK’S LAW DICTIONARY 91 (9th ed.

2009). And the particular provision at issue here provides for “dispute resolution” in the form of

either “an informal or formal complaint,” which is to be “brought to the Missouri Public Service

Commission.” It then identifies 4 C.S.R. § 240-2.070 as the procedural regulation governing

the filing of such complaints.

7
 KCP&L argues that the reference to 4 C.S.R. § 240-2.070 serves merely as a procedural

mechanism for the parties to commence their rights to arbitration. We disagree. The dispute

resolution provision states that “disagreements may be brought to the Public Service

Commission by either party, through an informal or formal complaint” and then simply notes

that the procedures for filing such complaints can be found in 4 C.S.R. § 240-2.070. We do not

believe that the formal and informal complaint process is the equivalent of arbitration. For

example, the informal complaint process does not guarantee a binding resolution for a

controversy, as would arbitration; rather, it seems to provide an avenue for facilitating a

negotiated resolution of a controversy. Further, even if—as KCP&L argues—the complaint

procedure referenced in the provision serves merely as a mechanism for invoking arbitration—a

finding we do not make—KCP&L failed to demonstrate the prerequisites necessary to invoke the

PSC’s authority under the dispute resolution provision in that KCP&L has filed neither a formal

nor an informal complaint before the PSC.6

In addition, given that the dispute resolution provision was drafted by the PSC, we find it

notable that the provision contains no reference whatsoever to section 386.230,7 which is the sole

authority allowing the PSC to act in an arbitration capacity. This suggests that the PSC was not

6
We recognize that there does not appear to be any reason for KCP&L to have filed a complaint in this
matter, given that the consumers are the ones raising the challenges. See 4 C.S.R. § 240-2.070(1) (providing that
“[a]ny person or public utility who feels aggrieved by an alleged violation of any tariff, statute, rule, order, or
decision within the commission’s jurisdiction may file a complaint.” (emphasis added)). But this fact merely
solidifies our determination that the dispute resolution provision was never intended to be an arbitration agreement.
For if it were intended to be an arbitration agreement, there would be no need for a complaint to be filed by the party
seeking to compel arbitration, which is often—though not always—the responding party to a complaint.
7
The full text of § 386.230 is as follows:

Whenever any public utility has a controversy with another public utility or person and all the
parties to such controversy agree in writing to submit such controversy to the commission as
arbitrators, the commission shall act as such arbitrators, and after due notice to all parties
interested shall proceed to hear such controversy, and their award shall be final. Parties may
appear in person or by attorney before such arbitrators.

8
intending the provision to include arbitration as a means of dispute resolution for controversies

arising out of net-metering agreements.8

In addition, before the dispute resolution provision at issue could be treated as an

arbitration agreement, the statutory prerequisites for the PSC to act as an arbitrator would have to

be met. The PSC “is a body of limited jurisdiction and has only such powers as are conferred

upon it by the statutes, and such incidental powers as may be necessary to enable the commission

to exercise the powers granted.” Katz Drug Co. v. Kansas City Power & Light Co., 303 S.W.2d

672, 679 (Mo. App. 1957). Although section 386.230 gives the PSC authority to act as

arbitrators, it also limits that authority to controversies between public utilities or between public

utilities and persons, and only where “all the parties to such controversy agree in writing to

submit such controversy to the commission as arbitrators.”

The statutory prerequisite to PSC authority to act as an arbitrator, that all the parties agree

in writing to submit a controversy to the commission as arbitrators, has not been met. The

consumers plainly have not agreed in writing to submit the matter to the PSC. On the contrary,

the consumers are vehemently opposed to arbitration before the PSC. Section 386.230 requires

an agreement “in writing to submit [a] controversy to the commission as arbitrators.” (Emphasis

added.) This provision has been interpreted to mean a post-dispute agreement in writing. See

Shawnee Bend Dev. Co., L.L.C. v. Lake Region Water & Sewer Co., 18 Mo. P.S.C. 3d 466, 467

(2009) (PSC denied a request for arbitration where one of the parties disputed the existence of

contractual pre-conditions to arbitration, noting that “[w]ithout the written consent of both

parties, the Commission [could not] proceed with an arbitration.”).

8
Furthermore, the PSC is unlikely to ever be a party to a net-metering agreement, and we fail to discern
how a non-party to a contract can ever bind parties to mandatory arbitration.

9
 Here, not only have the consumers vigorously opposed arbitration but also the court

below found that the consumers had not signed the contracts containing the dispute resolution

provision. This is a factual finding to which we defer. See Ferguson v. Ewing, 437 S.W.3d 821,

824 (Mo. App. W.D. 2014). As such, KCP&L has failed to demonstrate that the parties ever

agreed, either before or after the dispute, in writing to submit the controversy to the PSC as

arbitrators and, therefore, has failed to invoke the PSC’s arbitration authority under

section 386.230.9

Accordingly, KCP&L has failed to meet its burden of demonstrating a valid and

enforceable contract to arbitrate.

9
Even if we were to accept KCP&L’s ratification theory, the written agreement requirement of
section 386.230 would still be unmet. Ratification means “[a] person’s binding adoption of an act already
completed but . . . not done in a way that originally produced a legal obligation.” BLACK’S LAW DICTIONARY 1376
(9th ed. 2009). Though ratification could estop some of the consumers’ legal arguments, it cannot serve as an
agreement “in writing” per the requirement of section 386.230.
Furthermore, even if we were to find that the dispute resolution provision constituted an arbitration
agreement and that the consumers were bound by it, we seriously question whether the PSC is permitted, under
section 386.230, to arbitrate matters that are outside the scope of its statutory jurisdiction. “In construing a statute it
is appropriate to take into consideration statutes involving similar or related subject matter when such statutes shed
light upon the meaning of the statute being construed . . . .” Cook Tractor Co., Inc. v. Dir. of Revenue, 187 S.W.3d
870, 873 (Mo. banc 2006). Under section 386.250(6), the PSC has jurisdiction to adopt rules “which prescribe the
conditions of rendering public utility service, disconnecting or refusing to reconnect public utility service and billing
for public utility service.” Section 386.250 does not give the PSC jurisdiction to construe or annul contracts, award
damages, construe the Missouri Merchandising Practices Act, or adjudicate individual tort claims. See Katz Drug
Co. v. Kansas City Power & Light Co., 303 S.W.2d 672, 679 (Mo. App. 1957); see also Wilshire Constr. Co. v.
Union Elec. Co., 463 S.W.2d 903, 905 (Mo. 1971) (“The Public Service Commission cannot enforce, construe []or
annul contracts, nor can it enter a money judgment.”) (internal quotation omitted). “While administrative
regulations are entitled to a presumption of validity and may not be overruled except for weighty reasons, [t]he rules
or regulations of a state agency are invalid if they are beyond the scope of authority conferred upon the agency, or if
they attempt to expand or modify statutes.” Union Elec. Co. v. Dir. of Revenue, 425 S.W.3d 118, 124-25 (Mo. banc
2014) (internal quotation and citation omitted). We do not believe that the PSC, by regulation in the form of a
dispute resolution provision, can expand its statutory jurisdiction to act. See, e.g., Shawnee Bend Dev. Co., L.L.C. v.
Lake Region Water & Sewer Co., 18 Mo. P.S.C. 3d 466, 468 (2009) (stating that “Section 386.230, RSMo, cannot
give the Commission authority to hear controversies beyond its jurisdiction.”); but see In re Arbitration between
Kauffman and Capital City Water Co., 21 Mo. P.S.C. 537 (1977) (PSC arbitrated a controversy wherein the question
was one of negligence and resulting damages despite having dismissed earlier complaint for lack of jurisdiction).

10
 Conclusion

The trial court did not err in overruling KCP&L’s motion to stay proceedings and compel

arbitration. Its ruling is affirmed.

Karen King Mitchell, Presiding Judge

Cynthia L. Martin and Gary D. Witt, Judges, concur.

11