Terry v. White

288 S.W.3d 199, 374 Ark. 387, 2008 Ark. LEXIS 531
CourtSupreme Court of Arkansas
DecidedOctober 2, 2008
Docket07-1096
StatusPublished
Cited by21 cases

This text of 288 S.W.3d 199 (Terry v. White) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Terry v. White, 288 S.W.3d 199, 374 Ark. 387, 2008 Ark. LEXIS 531 (Ark. 2008).

Opinion

Paul E. Danielson, Justice.

Appellant John David Terry appeals from the circuit court’s order dismissing his amended complaint against appellees John A. White, in his capacity as Chancellor of the University of Arkansas at Fayetteville, and B. Alan Sugg, in his capacity as President of the University of Arkansas System, pursuant to Arkansas Rule of Civil Procedure 12(b)(6) (2007). He asserts six points on appeal: (1) that the amended complaint stated facts upon which relief could be granted; (2) that the dismissal of the amended complaint was premature; (3) that mandamus was an available remedy where Chancellor White abused his discretion; (4) that Chancellor White had an obligation to enforce the policies of the University and the National Collegiate Athletic Association (NCAA); (5) that the amended complaint alleged an illegal exaction; and (6) that the circuit court exhibited bias and prejudice. Because we hold that the instant matter is moot, we dismiss Mr. Terry’s appeal.

On June 25, 2007, Mr. Terry filed an amended complaint against both Chancellor White and President Sugg, in their capacities as chancellor and president respectively (hereinafter referred to jointly as “the University”), which asserted two causes of action: (1) mandamus and (2) waste and misuse of public funds. 1 The amended complaint asserted that Mr. Terry was a citizen and taxpayer of Arkansas and that, as a taxpayer, he was entitled to a writ of mandamus to require Chancellor White to carry out all the duties of his public office, specifically, to conduct a legitimate and independent investigation in a matter involving a deriding e-mail that was sent to a student on the University’s football team by a private citizen (hereinafter, “the e-mail matter”). In addition, Mr. Terry alleged an illegal-exaction claim, stating that because Chancellor White’s salary was comprised of taxpayer funds, those funds were being wasted or misused when spent to pay the salary of Chancellor White who had failed to perform all of the duties of his public office.

In support of these claims, Mr. Terry’s amended complaint stated that Chancellor White was responsible to President Sugg “for enforcement of the regulations, decisions, and the policies and procedures of the University Board of Trustees.” He further averred that “by virtue of his appointment as Chancellor[,]” Chancellor White was a public official, and as an employee of the University, Chancellor White was an employee of the State of Arkansas. With respect to the alleged duties, which Mr. Terry claimed the Chancellor had failed to perform, he stated:

13. According to the NCAA Constitution and By-Laws, Chancellor John A. White was and is responsible for the administration of all aspects of the athletics program, including approval of the budget and audit of all expenditures. The Chancellor has ultimate responsibility and final authority for the conduct of the intercollegiate athletics program. Therefore, by virtue of holding the office of Chancellor and pursuant to his contract of employment, the Chancellor has a mandatory obligation and duty to the University of Arkansas to ensure that the institution maintains compliance with the rules and regulations of the NCAA. These obligations and duties, by necessity, give rise to “investigatory powers” vested in Chancellor White.
14. As Chancellor of the University of Arkansas, John A. White also has a fiduciary duty to the student-athletes and his responsibility is affirmative in nature and requires that he exhibit fairness, openness and honesty in his relationships with the student-athletes; and a duty to ensure that the University maintains an environment that fosters a positive relationship between the student-athlete and the coaching staff. Because Chancellor White is a teacher of young people, he must do more than avoid improper conduct or questionable acts; and his own moral values must be so certain and positive that those young people will be influenced by a fine example. These duties are also a part of the Chancellor’s office and taxpayers have a right to insist that Chancellor White carry out these duties. [Exhibit references omitted.]

Mr. Terry further asserted that he had standing to bring the suit as a taxpayer “who bears the financial burden” of paying Chancellor White’s salary, and because it concerned an illegal expenditure, specifically, that a public official compensated with public funds had refused and continued to refuse to perform all of the duties of his public office.

After setting forth a litany of facts involving a host of characters, Mr. Terry asserted that mandamus relief was proper and requested the circuit court order Chancellor White “to cause a good faith, full, complete, and independent investigation to be conducted” in the e-mail matter. He further requested an injunction be issued to President Sugg enjoining the payment of a portion of Chancellor White’s salary to prevent the illegal exaction of taxpayer funds being paid to a public official not performing his duties.

On July 16, 2007, the University moved to dismiss Mr. Terry’s amended complaint and moved for an award of attorney’s fees and costs. The motion urged that the matter be dismissed with prejudice because Mr. Terry failed to present a justiciable issue as a matter of law. Mr. Terry responded to the motion, denying that his amended complaint should be dismissed. The University replied, and a hearing was held on the motion on August 17, 2007. The circuit court heard arguments from both sides, and on September 7, 2007, entered its order dismissing the amended complaint and awarding attorney’s fees. In its order, the circuit court dismissed both counts with prejudice for failing to state facts upon which relief could be granted, pursuant to Ark. R. Civ. P. 12(b)(6). Mr. Terry now appeals.

As a threshold matter, we must first determine whether the instant appeal is moot, as asserted by the University. The University, both in its brief and at oral arguments, urges that this appeal is moot due to the fact that Chancellor White has since resigned from the position of chancellor. We agree.

As a general rule, the appellate courts of this state will not review issues that are moot. See Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). To do so would be to render advisory opinions, which this court will not do. See id. We have generally held that a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. See id. In other words, a moot case presents no justiciable issue for determination by the court. See Shipp v. Franklin, 370 Ark. 262, 258 S.W.3d 744 (2007).

In this case, Mr. Terry’s prayer for relief within his amended complaint was quite clear. It stated:

WHEREFORE, Plaintiff requests that the Defendants be cited to appear and answer, and that, upon trial, Plaintiff have, among other things:

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Bluebook (online)
288 S.W.3d 199, 374 Ark. 387, 2008 Ark. LEXIS 531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terry-v-white-ark-2008.