Biedenharn et al v. Hogue

• Decision Date: 07 October 1999
• Docket Number: 98-1463
• Citation: 1 S.W.3d 424
• Parties: Cliff BIEDENHARN, Earl Oxford, and Dan Melton v. Bobby HOGUE 98-1463 ___ S.W.2d ___ Opinion delivered
• Court: Arkansas Supreme Court

Cliff BIEDENHARN, Earl Oxford, and Dan Melton v Bobby HOGUE

98-1463 ___ S.W.2d ___

Opinion delivered October 7, 1999

Supreme Court of Arkansas

Appeal from Craighead Chancery Court; David Burnett, Chancellor; affirmed.

1. Appeal & error -- mootness -- defined. -- A case is moot when any decision rendered by the supreme court will have no practical legal effect on an existing legal controversy.

2. Statutes -- Act 34 of 1999 discussed -- issue moot. -- Act 34 of 1999 made it unlawful for a member of the General Assembly to enter into employment with a state agency like appellee did in 1997; any decision rendered in this case would have no precedential value because the General Assembly has made it unlawful for any legislator to be employed by a state agency under the circumstances in which appellee found himself in this legal controversy.

3. Contracts -- officer may be entitled to value of services provided even when services provided illegally -- condition for recovery. -- Even if an officer holds a job and provides services illegally, he may retain the quantum meruit value of the services he provided; one critical factor is whether the General Assembly has declared any such contracts to be "null and void"; in the absence of the prohibitory words "null and void" and where the contract has been performed by the parties in good faith, compensation may be retained measured by the reasonable value thereof; such recovery is grounded upon the proposition that valuable services having been rendered that have been accepted by the parties, it would be inequitable and unjust to permit one party to substantially gain under the contract to the great and irreparable damage of the other.

4. Contracts -- officer may be entitled to value of services provided even when services provided illegally -- condition for recovery. -- Where members of the General Assembly had illegally held office as members of state boards, the supreme court held that, in the absence of a showing of fraudulent intent by the members, the members were not required to account for the services and expenses they had incurred.

5. Contracts -- officer entitled to value of services provided --appellee clearly achieved primary purpose of position. --Where the evidence proved quite clearly that appellant had accomplished the primary purpose of the assistant athletic director position, which was to raise funds for the university, he was allowed to retain the value of the services he performed.

6. Motions -- summary judgment -- suspicions about motive do not give rise to genuine issue of material fact. -- A party's suspicions about motive do not give rise to a genuine issue of material fact.

7. Motions -- summary judgment appropriate -- appellee acted in good faith. -- Where the employment contract did not contain the prohibitory words "null and void," the evidence showed that there was no quid pro quo involved, and appellee never conditioned any of the university's funding on his being given the job, there was simply no evidence from which a genuine issue of material fact could be inferred that appellee acted with fraudulent intent or bad faith; summary judgment was appropriate, as the undisputed evidence showed that appellee committed no fraud but, instead, acted in good faith.

8. Appeal & error -- trial court granted summary judgment --affirmed. -- Because there was no evidence suggesting fraud or bad faith by appellee, the supreme court agreed with the trial court that appellee was entitled to retain his salary earned while performing as assistant athletic director; the trial court's decision granting appellee summary judgment was affirmed.

Oscar Stilley, for appellants.

Barrett & Deacon, by: J.C. Deacon and D. P. Marshall, Jr., for appellee.

Tom Glaze, Justice.

This case involves former Speaker of the Arkansas House of Representatives, appellee Bobby Hogue. In February of 1997, Hogue was hired as Arkansas State University's (ASU's) Assistant Athletic Director for Development, a newly created position authorized and funded by the 1997 General Assembly when Hogue was Speaker. Actually, ASU officials had agreed to create the position in 1996, and had unsuccessfully offered the job to two other men before Hogue was hired. Nonetheless, appellants, a group of taxpayers, later initiated this litigation questioning whether Hogue was involved in creating the new position and whether his employment in the position was lawful. Jurisdiction of this case on appeal is in our court because issues have been raised concerning the interpretation of the Arkansas Constitution and Act 34 of 1999. See Ark. Sup. Ct. R. 1-2(a)(1) and (b)(6).

The relevant facts leading to this lawsuit follow. As indicated above, although ASU officials had no one in mind for the university's new athletic director position, appellant taxpayers became concerned when Hogue was offered and accepted the job. Hogue began working as the assistant athletic director in April of 1997, but the job was terminated on June 30, 1998, one day before the Governor issued an executive order prohibiting state legislators from working for state agencies.

On November 6, 1997, the taxpayers filed suit against Hogue alleging that Hogue aided in creating the position, and, in doing so, 1) contravened Ark. Code Ann. § 19-4-1604 (Repl. 1998), which prohibits a person from drawing salaries from two different state agencies; 2) violated Ark. Const. art. 5, § 10, which prohibits a member of the General Assembly from being elected or appointed to any "civil office"; 3) violated Ark. Const. art. 16, § 4 by making a profit out of or misusing public funds by taking the job; and 4) violated his oath of office.

In February of 1998, the Attorney General intervened, adding allegations of 1) breach of fiduciary duty, 2) separation of powers, 3) incompatibility of offices, and 4) usurpation of office. The complaint in intervention also fleshed out the taxpayers' "civil office" allegations. The Attorney General later abandoned the incompatibility allegation.

In July of 1998, the Attorney General dismissed his complaint; however, the taxpayers were permitted to proceed and to adopt the Attorney General's viable allegations as their own. On Julya20, 1998, Hogue filed a motion for summary judgment; he attached thirteen affidavits, including the statements of Dr. Les Wyatt, President of ASU, and Barry Dowd, ASU's Athletic Director. Both Wyatt and Dowd averred that Hogue had not been involved in any way in the creation of the assistant athletic director position and that no promises of extra funding or threats of decreased money for the university were made in conjunction with the new position. Hogue's motion also posited that the legal controversy regarding his employment became moot when he ended his employment on June 30, 1998. The taxpayers offered no counter-affidavits, and the trial court granted summary judgment in favor of Hogue. Appellants appeal, raising five points for reversal. Hogue responds to the merits of appellants' arguments, but first submits that this legal controversy has been made moot not only by the termination of his employment on June 30, 1998, but also by the General Assembly's enactment of Act 34 of 1999. We address the mootness issue first, since if this case is now moot, we need not reach the appellants' points for reversal.

A case is moot when any decision rendered by this court will have no practical legal effect on an existing legal controversy. Wilson v. Pulaski Ass'n of Classroom Teachers, 330 Ark. 298, 301,954 S.W.2d 221, 223 (1997). As just mentioned, not only did Hogue's employment with ASU end on June 30, 1998, but during the 1999 session of the General Assembly, the legislature passed Act 34. Section 2(a)(1) of that Act provides in pertinent part that "no person elected to a constitutional office [including the House of Representatives] may, after being elected to the constitutional office, and during the term for which elected, enter into employment with any state agency...." "State agency" is defined under the act to include state-supported colleges and universities such as ASU. See Act 34, Section 1(a). The Act further provides that former members of the General Assembly shall not be eligible to be employed by any state agency within two years after he or she leaves office in any job which was created by the legislature within two years prior to his or her leaving office. Act 34, Section 2(e).

In sum, Act 34 now makes it unlawful for a member of the General Assembly to enter into employment with a state agency like Hogue did in 1997. Thus, any decision we may render in this case will have no precedential value since the General Assembly has now in clear terms made it unlawful for any legislator to be employed by a state agency under the circumstances in which Hogue found himself in this legal controversy.

The only remaining issue with respect to mootness is whether Hogue must refund the monies he received as an ASU employee. Our case law has established the rule that, even if an officer holds a job and provides services illegally, he may retain the quantum meruit value of the services he provided. Harris v. Revis, 219 Ark. 586, 243 S.W.2d 747 (1951). In the Revis case, Harris was the mayor of Clarksville and also worked as a laborer for the Clarksville water and light departments, drawing a salary for both positions. In an illegal exaction suit brought by several concerned taxpayers, the Revis court held that Harris was entitled to retain the quantum meruit value received for his services even though he was holding the water and light department job in violation of a state statute. The court further ruled in Revis that the critical factor was the fact that the General Assembly had not declared any such contracts (i.e., between a municipal officer and a provider of services to the municipality) to be "null and void." Quoting from Gantt v. Ark. Power & Light Company, 189 Ark....