Austin PRINCE, Willie Reinhardt, Mary E. Lowman, Deborah Brown, Kevin Steeland, Phyllis Stinson, Thomas Lowman, and Richard Smith, Appellants
v.
ARKANSAS STATE HIGHWAY COMMISSION; Arkansas Department of Transportation; and Scott E. Bennett, in His Official Capacity as Director of the Arkansas Department of Transportation, Appellees
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APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, SECOND DIVISION [NO.
60CV-18-345], HONORABLE CHRISTOPHER CHARLES PIAZZA JUDGE
Gill
Ragon Owen, P.A., Little Rock, by: John P. Gill and Mitchell
S. Dennis; and Robert Keller Jackson, PLLC, Little Rock, by:
Robert K. Jackson, for appellants.
Leslie
Rutledge, Atty Gen., by: William C. Bird III and Brittany N.
Edwards, Asst Attys Gen., for appellee.
OPINION
ROBIN
F. WYNNE, Associate Justice
Appellants Austin Prince, Willie Reinhardt, Mary E. Lowman,
Deborah Brown, Kevin Steeland, Phyllis Stinson, Thomas
Lowman, and Richard Smith appeal from an order of the Pulaski
County Circuit Court granting a motion to dismiss filed by
the Arkansas State Highway Commission; the Arkansas
Department of Transportation; and Scott E. Bennett, in his
official capacity as director of the Arkansas Department of
Transportation. We affirm.
The
Arkansas State Highway Department determined that a new
bridge was needed on Highway 79 to span the White River at
Clarendon as part of a realignment and expansion of the
highway. Because Highway 79 runs through federal land at that
location, the Department was required to obtain an easement
from the federal government. To that end, the Department
entered into an agreement with the United States Fish and
Wildlife Service (USFWS). Under the agreement, the Department
would cede fifty acres of property to USFWS in exchange for a
49.69-acre easement over land in the Cache River and White
River Wildlife Refuges. The Department also agreed to convey
ninety-seven acres of land in Monroe County to USFWS to
mitigate for the loss of habitat quantity and quality caused
by the realignment and expansion of Highway 79. The agreement
further required the Department to demolish three bridges,
one of which is the old Clarendon bridge, remove all bridge
structures, restore the natural topography, and reestablish
native hardwood vegetation. To comply with this provision of
the agreement, the Department planned to invite bids and
enter into a contract with the winning bidder on the
bridge-demolition project, with an estimated cost of $ 10.8
million.
Appellants
filed a motion for preliminary injunction and complaint for
declaratory and injunctive relief alleging that the contract
between the Department and USFWS is void because it is
unconscionable,
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entered into under duress, and constitutes a windfall to
USFWS. They also alleged that there exists a mutual mistake
of fact regarding the necessity of removing the old Clarendon
bridge. Appellants contended in the complaint that, because
the contract is void, the monetary expenditures constitute an
illegal exaction, for which suit is permitted under article
16, § 13 of the Arkansas Constitution. In the complaint,
appellants requested a permanent injunction restricting the
Department from demolition activities for the old Clarendon
bridge as well as reasonable attorneys fees, costs, and
expenses.
Appellees
moved to dismiss the complaint on the following grounds: (1)
the complaint is barred by sovereign immunity; (2) appellants
lack standing to challenge the agreements; (3) the complaint
fails to state a claim for which relief may be granted; and
(4) appellants failed to join an indispensable party (USFWS).
Appellees also contested the motion for a preliminary
injunction, contending that it was barred by sovereign
immunity and failed to satisfy the requirements of Arkansas
Rule of Civil Procedure 65 (2017). The circuit court granted
the preliminary injunction with the stated goal of giving the
parties time to explore settlement. The parties were unable
to settle, and the circuit court entered an order granting
the motion to dismiss on all four grounds asserted by
appellees. This appeal followed.[1]
Appellants appeal from the grant of a motion to dismiss. In
reviewing a trial courts decision on a motion to dismiss
under Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in
the complaint as true and view them in the light most
favorable to the party who filed the complaint. Goforth
v. Smith, 338 Ark. 65, 991 S.W.2d 579 (1999). In testing
the sufficiency of the complaint on a motion to dismiss, all
reasonable inferences must be resolved in favor of the
complaint, and pleadings are to be liberally construed.
Hames v. Cravens, 332 Ark. 437, 442, 966 S.W.2d 244,
247 (1998). However, our rules require fact pleading. A
complaint must state facts, not mere conclusions, in order to
entitle the pleader to relief. Brown v. Tucker, 330
Ark. 435, 438, 954 S.W.2d 262, 264 (1997); Ark. R. Civ. P.
8(a)(1) (2017).
Appellants
sole claim in their complaint is that the agreement between
the Department and USFWS constitutes an illegal exaction.
Article 16, § 13 of the Arkansas Constitution provides:
"Any citizen of any county, city or town may institute
suit, in behalf of himself and all others interested, to
protect the inhabitants thereof against the enforcement of
any illegal exactions whatsoever." This court has held
that such a suit is not barred by the constitutions
sovereign-immunity provision, article 5, § 20, because
article 16, § 13, as a more specific provision, controls over
the more general prohibition in article 5, §
20.[2] McGhee v. Ark. State Bd. of
Collection Agencies, 360 Ark. 363, 201 S.W.3d 375
(2005); Carson v. Weiss, 333 Ark. 561, 972 S.W.2d
933 (1998); Streight v. Ragland, 280 Ark. 206,
209-10 n. 7, 655 S.W.2d 459, 461 n. 7 (1983).
Clearly, citizens are constitutionally permitted to sue the
state for an illegal exaction. The question before us in this
...