dissenting. I respectfully dissent. The majority treats this case as an appeal. It is not. The
majority correctly states the standard of review as set out in Erin, Inc. v. White County Circuit Court, 369 Ark. 265, 253 S.W.3d 444 (2007) and then fails to follow it. We confine our review to the pleadings. The question is whether the circuit court is wholly without jurisdiction. Id. Jurisdiction is tested on the pleadings and not the proof. Hatfield v. Thomas, 351 Ark. 377, 93 S.W.3d 671 (2002); Modern Laundry v. Dilley, 111 Ark. 350, 163 S.W. 1197 (1914). The plaintiffs plead common law causes of action against corporate entities, some of which are regulated by the Arkansas Public Utilities, and some which are not. Also, pursuant to plaintiffs’ pleadings, those causes of action lie outside the regulatory scheme and may be tried in circuit court. Further, plaintiffs have pleaded causes of action to recover injuries to out-of-state consumers who clearly are not within the APSC’s jurisdiction. As yet, there is no decision on the validity of the pleadings. Additionally, there are facts in dispute that may determine whether there is jurisdiction. The majority relies in error on Austin v. Center Point Energy ARKLA, 365 Ark. 138, 226 Ark. 814 (2006) and Cullum v. Seagull Mid-South, Inc., 322 Ark. 190, 907 S.W.2d 741 (1995) in error. Both of these cases concern appeals and are not on point in the present matter.
I agree that “[i]n essence, the plaintiffs are complaining that they are being charged too much for natural gas;” however, I disagree that this court may at this point conclude based on a review of the pleadings alone that “their actual damages can only be measured by comparing the rates they have been charged and the rates they should have been charged absent the alleged fraudulent conduct.” The plaintiffs have pleaded otherwise, and those pleadings must be litigated. The writ is premature and issued in error.
Danielson, J., joins.