Freda Hostler; Kimberly Steward; Stephanie Moten; And Eylorna Bones v. Nathaniel Dennison, Angela Newcomb, Cecile Blucher, and Becky Dunagin, Individually and in Their Official Capacities; And Arkansas Department of Human Services, Division of Children and Family Services

2020 Ark. App. 255, 601 S.W.3d 142

• Court: Court of Appeals of Arkansas
• Decided: April 22, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 255 ARKANSAS COURT OF APPEALS Reason: I attest to the accuracy and integrity of this document Date: 2021-06-16 13:54:42 Foxit PhantomPDF Version: 9.7.5 DIVISION IV No. CV-19-337

Opinion Delivered April 22, 2020 FREDA HOSTLER; KIMBERLY STEWARD; STEPHANIE MOTEN; APPEAL FROM THE JEFFERSON AND EYLORNA BONES COUNTY CIRCUIT COURT APPELLANTS [NO. 35CV-12-727]

V. HONORABLE DAVID N. LASER, JUDGE NATHANIEL DENNISON, ANGELA NEWCOMB, CECILE BLUCHER, AND BECKY DUNAGIN, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES; AND ARKANSAS DEPARTMENT OF HUMAN SERVICES, DIVISION OF AFFIRMED IN PART; REVERSED CHILDREN AND FAMILY SERVICES AND REMANDED IN PART APPELLEES

N. MARK KLAPPENBACH, Judge

Freda Hostler, Kimberly Steward, Stephanie Moten, and Eylorna Bones appeal the

orders of the Jefferson County Circuit Court dismissing their claims as barred by the doctrine

of sovereign immunity. We affirm in part and reverse and remand in part.

Bones filed the original complaint in this matter in December 2012 against Nathaniel

Dennison and the Arkansas Department of Human Services Division of Children and Family

Services (DCFS). Bones alleged that she had been retaliated against in her employment in

violation of several state and federal laws. Five amended complaints were subsequently filed,

adding plaintiffs, defendants, and claims. The fifth amended complaint, operative here, was

filed in April 2015 by the aforementioned appellants against Dennison, Angela Newcomb, Cecile Blucher, and Becky Dunagin, individually and in their official capacities, and against

DCFS. The complaint alleged violations of the Family and Medical Leave Act, the Arkansas

Whistle-Blower Act, the Arkansas Civil Rights Act, the Rehabilitation Act, the Americans

with Disabilities Act, and Title VII of the Civil Rights Act of 1964. Appellants sought

money damages and prayed for the reinstatement of Steward and the removal of retaliatory

information.

Appellees moved to dismiss the complaint on several grounds, including that it was

barred by the sovereign-immunity provision of the Arkansas Constitution. The circuit court

granted the motion to dismiss ruling that all the claims against all the defendants were barred

by the doctrine of sovereign immunity.

In reviewing a circuit court’s decision on a motion to dismiss, we treat the facts

alleged in the complaint as true and view them in the light most favorable to the plaintiff.

Harris v. Hutchinson, 2020 Ark. 3, 591 S.W.3d 778. We look only to the allegations in the

complaint and not to matters outside the complaint. Id. We treat only the facts alleged in

the complaint as true but not a plaintiff’s theories, speculation, or statutory interpretation.

Id. Whether a party is immune from suit is purely a question of law that we review de

novo. Id.

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.” A suit against the State is

barred by the doctrine of sovereign immunity if judgment for the plaintiff will operate to

control the action of the State or subject it to liability. Steve’s Auto Ctr. of Conway, Inc. v.

Ark. State Police, 2020 Ark. 58, 592 S.W.3d 695. The doctrine of sovereign immunity

2 extends to state agencies and state employees sued in their official capacities. Banks v. Jones,

2019 Ark. 204, 575 S.W.3d 111. That is because a suit against a state official in his or her

official capacity is not a suit against that person but rather is a suit against that official’s office.

Id. As such, it is no different than a suit against the State itself. Id. However, sovereign

immunity does not bar suits seeking only declaratory or injunctive relief and alleging an

illegal, unconstitutional, or ultra vires act. Harris, supra.

Appellants first argue that sovereign immunity does not apply because they are

seeking injunctive relief. They point to the complaint’s prayer for relief, which states as

follows:

WHEREFORE, Plaintiff prays for a Judgment exceeding seventy-five thousand dollars, for an injunction requiring the removal of the retaliatory information, reinstatement of Steward, for a trial by jury, costs, reasonable attorney’s fees, and all other proper relief.

Appellees contend that the prayer clause is the only mention of injunctive relief and

that the complaint itself does not allege facts to support a claim for injunctive relief. Even

if the complaint is seeking injunctive relief, appellees argue that it is still barred by sovereign

immunity because the relief prayed for would control the action of the State. They cite

Arkansas Department of Environmental Quality v. Al-Madhoun, 374 Ark. 28, 285 S.W.3d 654

(2008), in which the supreme court held that a request to redress a past injury by correcting

public records clearly sought to control the actions of the state agency. Furthermore, in

Banks, supra, the supreme court held that a claim seeking reinstatement would control the

actions of the state agency and was barred. We agree that a judgment for appellants here

would control the action of the State.

3 As noted above, sovereign immunity does not bar suits seeking to enjoin state-agency

actions that are illegal, unconstitutional, or ultra vires. Steve’s, supra. A plaintiff seeking to

surmount sovereign immunity under this exception is not exempt from complying with our

fact-pleading requirements. Harris, supra. The complaint must provide facts sufficient to

state a claim based on the alleged unconstitutional State action; conclusory statements and

bare allegations will not do. Id. Appellants recognize this exception to the general bar

against suits against the State, but they do not attempt to argue that they have sufficiently

pleaded facts to satisfy the exception. Appellants’ brief does not discuss any of their claims

in order to show that they have sufficiently pleaded facts to establish illegal or ultra vires

actions. We have long held that we will not address arguments unless they are sufficiently

developed and include citation to authority. Wilson v. Pulaski Bank & Tr., 2011 Ark. App.

383, 383 S.W.3d 919. We do not make a party’s argument for him or her. Id.

Appellants next argue that we should not apply the sovereign-immunity doctrine

because article 5 of the Arkansas Constitution should yield to article 2’s provisions regarding

the right to a remedy and the “right to remonstrate.” Appellants also argue that the doctrine

is inapplicable because the State is not the only named defendant. Both of these exact

arguments, however, were recently rejected by our supreme court in Harris, supra. Because

appellants’ arguments are indistinguishable from those made in Harris, we likewise reject

them.1 Therefore, we hold that sovereign immunity precludes appellants’ claims against

DCFS and the individual defendants in their official capacities.

1 It appears to us that nearly the entirety of appellants’ counsel’s brief was simply copied and pasted from his briefs in other cases without proofreading or without even changing the designations of the parties. In some instances, he asks us to affirm when he 4 We do, however, find merit in appellants’ arguments regarding their claims against

the appellees in their individual capacities. In their individual capacities, the appellees do

not enjoy the immunity granted to the State under article 5, section 20 of the Arkansas

Constitution. Harris, supra. As in Harris, the appellees argued that they were entitled to

statutory and qualified immunity as to the individual-capacity claims; however, the circuit

court relied on sovereign immunity to dismiss all the claims. Accordingly, we reverse the

dismissal of the individual-capacity claims and remand for further proceedings.

Affirmed in part; reversed and remanded in part.

ABRAMSON and MURPHY, JJ., agree.

Sutter & Gillham, P.L.L.C., by: Luther Oneal Sutter and Lucien Gillham, for appellants.

Leslie Rutledge, Att’y Gen., by: Robert T. James, Ass’t Att’y Gen., for appellees.

clearly means to reverse. This exhibits a lack of professionalism that we do not condone, and we instruct counsel to comply with our rules and standards should he consider filing future appeals. 5