Arkansas Dept. of Env. Qual. v. Al-Madhoun

• Court: Arkansas Supreme Court
• Writing for the Court: Jim Gunter
• Citation: Arkansas Dept. of Env. Qual. v. Al-Madhoun, 285 S.W.3d 654 (Ark. 2008)
• Decision Date: 19 June 2008
• Docket Number: No. 07-988.,07-988.
• Parties: The ARKANSAS DEPARTMENT OF ENVIRONMENTAL QUALITY; Marcus Devine, individually, and in his official capacity; Mary Leath, individually and in her official capacity; Steve Martin, individually and in his official capacity; Ryan Benefield, individually and in his official capacity; Harry Elliott, individually and in his official capacity; Scott McWilliams, individually and in his official capacity; and Gerald Delavan, individually and in his official capacity, Appellants, v. Shawki AL-MADHOUN and Northstar Engineering Consultants, Inc., Appellees.

285 S.W.3d 654

The ARKANSAS DEPARTMENT OF ENVIRONMENTAL QUALITY; Marcus Devine, individually, and in his official capacity; Mary Leath, individually and in her official capacity; Steve Martin, individually and in his official capacity; Ryan Benefield, individually and in his official capacity;

Harry Elliott, individually and in his official capacity; Scott McWilliams, individually and in his official capacity; and Gerald Delavan, individually and in his official capacity, Appellants, v. Shawki AL-MADHOUN and Northstar Engineering Consultants, Inc., Appellees.

No. 07-988.

Supreme Court of Arkansas.

June 19, 2008.

Dustin McDaniel, Att'y Gen., by: Charles Moulton, Sr., Ass't Att'y Gen., and Kendra Akin Jones, Ass't Att'y Gen., for appellants.

Little Law Firm, P.A., by: Courtney N. Little, Rogers; and Corbitt Law Firm, by: Chris P. Corbitt, Little Rock, for appellees.

JIM GUNTER, Justice.

This appeal arises from an order of the Pulaski County Circuit Court denying a motion to dismiss filed by the Arkansas Department of Environmental Quality ("ADEQ") and seven ADEQ employees in their official and individual capacities (collectively "Appellants"). We reverse the circuit court's order and dismiss the case.

On March 17, 2006, Appellees Shawki Al-Madhoun ("Al-Madhoun") and Northstar Engineering Consultants, Inc. ("Northstar") filed a complaint against the ADEQ. In the complaint, Appellees alleged that the ADEQ violated Al-Madhoun's equal protection and due process rights, abused the engineering board complaint process to retaliate against Al-Madhoun, and interfered with the contractual relationships of Northstar. On April 6, 2006, the ADEQ moved to dismiss the complaint, asserting that it was immune from suit under article 5, section 20, of the Arkansas Constitution. On June 5, 2006, Appellees filed an amended complaint adding seven employees¹ of the ADEQ, both in their individual and official capacities, as defendants. On June 26, 2006, the ADEQ and the seven employees filed a motion to dismiss the amended complaint based on Ark. R. Civ. P. 8(a)(1), 12(b)(6), article 5, section 20 of the Arkansas Constitution, and Ark. Code Ann. § 19-10-305(a) (Supp.2001).

A hearing on the motion to dismiss was held on August 25, 2006. The circuit court denied the motion to dismiss on September 18, 2006. The circuit court ruled that sovereign immunity did not apply to the ADEQ because Appellees were requesting only injunctive relief and not asking for monetary damages against a state agency. The circuit court further ruled that qualified immunity did not apply to the individual defendants because there was an exception to qualified immunity for malicious acts and intentional torts under Ark.Code Ann. § 19-10-305. The circuit court also required Appellees to amend their complaint to plead the alleged malicious acts with more specificity, ruling that the first amended complaint failed to put the individually named defendants on notice regarding those acts.

On October 18, 2006, Appellees filed their second amended complaint, asking for the following: a preliminary and permanent injunction against Appellants; an order from the circuit court instructing the ADEQ to correct the public records related to Al-Madhoun, Northstar, and their clients; and actual and special damages from the seven employees in the amount of $300,000, punitive or exemplary damages in the amount of $900,000, and "costs herein expended and such additional relief as the court deems appropriate." On November 15, 2006, Appellants moved to dismiss the second amended complaint pursuant to Ark. R. Civ. P. 8(a)(1) and 12(b)(6) alleging that constitutional and statutory immunity barred the lawsuit. A hearing on the motion to dismiss was held on February 9, 2007. On February 23, 2007, the circuit court entered an order denying the motion to dismiss with respect to counts one, three, four, five, six, and eight. The circuit court granted the motion to dismiss with respect to counts two and seven and ordered Appellees to amend their complaint for a third time to plead additional facts in support of count three.

On March 1, 2007, Appellees filed their third amended complaint. Appellants filed another motion to dismiss on March 19, 2007, based on Ark. R. Civ. P. 8(a)(1), 12(b)(6), article 5, section 20 of the Arkansas Constitution, and Ark.Code Ann. § 19-10-305(a). On May 16, 2007, the circuit court held a hearing on the motion to dismiss. The circuit court denied the motion to dismiss, and ruled that article 5, section 20 of the Arkansas Constitution did not apply because Appellees were seeking injunctive relief. Appellants now bring this appeal.

For their first point on appeal, Appellants assert that, as a state agency, the ADEQ is immune from this suit pursuant to article 5, section 20 of the Arkansas Constitution. They admit that Ark.Code Ann. § 25-15-214 (Repl.2002) is a codified exception to the State's immunity, but contend that the facts pled by Appellees in each of their complaints fail to meet this immunity exception. They further assert that § 25-15-214 does not provide the circuit court with the authority to grant the relief Appellees are seeking from the ADEQ because Appellees are seeking to control or coerce the actions of the ADEQ with this lawsuit. Finally, they argue that § 25-15-214 is not applicable to the ADEQ because it addresses agency rule making and adjudication, asserting that the General Assembly has vested the Arkansas Pollution Control and Ecology Commission ("the Commission") with the authority to engage in final rule making and to conduct adjudicatory hearings of the ADEQ's administrative decisions in Ark.Code Ann. § 8-1-203 (Repl.2007).

In response, Appellees assert that the ADEQ is not entitled to sovereign immunity because their amended complaint clearly states that the ADEQ and one or more of the named employees unlawfully, unreasonably, or capriciously refused to act. They also assert that sovereign immunity does not apply in this case because the relief requested is injunctive relief and will not increase the obligations of the State. Further, they contend that any claim of sovereign immunity has been waived by Ark.Code Ann. § 25-15-214 and that the circuit court is authorized to command the officers of the ADEQ to act.

While normally an appeal may not be taken from an order denying a motion to dismiss, such an appeal may be taken under Ark. R.App. P.-Civil 2(a)(2) (2007) based on the movant's assertion that he is immune from suit. See Simons v. Marshall, 369 Ark. 447, 255 S.W.3d 838 (2007); State v. Goss, 344 Ark. 523, 42 S.W.3d 440 (2001); Newton v. Etoch, 332 Ark. 325, 965 S.W.2d 96 (1998). The rationale justifying an interlocutory appeal is that the right to immunity from suit is effectively lost if the case is permitted to go to trial. Id.

Our court reviews a trial court's decision on a motion to dismiss by treating the facts alleged in the complaint as true and by viewing them in the light most favorable to the plaintiff. Clowers v. Lassiter, 363 Ark. 241, 213 S.W.3d 6 (2005); King v. Whitfield, 339 Ark. 176, 5 S.W.3d 21 (1999); Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994). In viewing the facts in the light most favorable to the plaintiff, the facts should be liberally construed in the plaintiff's favor. Clowers, supra; Rothbaum v. Ark. Local Police & Fire Retirement Sys., 346 Ark. 171, 55 S.W.3d 760 (2001); Martin v. Equitable Life Assurance Soc. of the U.S., 344 Ark. 177, 40 S.W.3d 733 (2001). Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Ark. R. Civ. P. 8(a)(1); Grine v. Board of Trustees, 338 Ark. 791, 2 S.W.3d 54 (1999); Brown v. Tucker, 330 Ark. 435, 954 S.W.2d 262 (1997).

Article 5, section 20, of the Arkansas Constitution provides that "[t]he State of Arkansas shall never be made defendant in any of her courts." Sovereign immunity is jurisdictional immunity from suit, and jurisdiction must be determined entirely from the pleadings. See LandsnPulaski, LLC v. Ark. Dept. of Corrections, 372 Ark. 40, 269 S.W.3d 793 (2007); Clowers v. Lassiter, 363 Ark. 241, 213 S.W.3d 6 (2005); Ark. Tech Univ. v. Link, 341 Ark. 495, 17 S.W.3d 809 (2000). In determining whether the doctrine of sovereign immunity applies, the court should determine if a judgment for the plaintiff will operate to control the action of the State or subject it to liability. If so, the suit is one against the State and is barred by the doctrine of sovereign immunity. See LandsnPulaski, supra; Grine, supra; Fireman's Ins. Co. v. Ark. State Claims Comm'n, 301 Ark. 451, 784 S.W.2d 771 (1990); Page v. McKinley, 196 Ark. 331, 118 S.W.2d 235 (1938).

Here, in their original complaint, Appellees requested a judgment against the ADEQ for actual and special damages to compensate the plaintiff for injuries in the amount of $300,000, $900,000 in punitive or exemplary damages, costs expended, and "such additional relief as the court deems appropriate." In their subsequent amended complaints, Appellees asked for preliminary and permanent injunctions against the ADEQ and the seven employees of ADEQ as well as actual and special damages from the employees, asserting that sovereign immunity did not apply because of § 25-15-214.

Specifically, Appellees asked for injunctions preventing the ADEQ from further violating Al-Madhoun's equal protection and due process rights and from interfering with contractual relationships. In their second amended complaint, Appellees also asked for an order of the circuit court instructing the ADEQ to correct the public records related to Al-Madhoun Northstar, and their clients. These requests for injunctive relief made in Appellees' complaint and the subsequent amended complaints clearly seek to control the actions of the ADEQ. Our well-established case law states that if a judgment will operate to control the action of the State, the suit is one...