{ "id": 1445785, "name": "Larry HAMILTON, on Behalf of Himself and All Others Similarly Situated v. Floyd G. \"Buddy\" VILLINES, III, et al.", "name_abbreviation": "Hamilton v. Villines", "decision_date": "1996-02-19", "docket_number": "95-191", "first_page": "492", "last_page": "496", "citations": [ { "type": "official", "cite": "323 Ark. 492" }, { "type": "parallel", "cite": "915 S.W.2d 271" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "288 Ark. 286", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719755 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/288/0286-01" ] }, { "cite": "269 Ark. 441", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712553 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/269/0441-01" ] }, { "cite": "307 Ark. 134", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902444 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/307/0134-01" ] }, { "cite": "321 Ark. 227", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449539 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/321/0227-01" ] }, { "cite": "Ark. Code Ann. \u00a7 26-35-902", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1995, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "308 Ark. 190", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904320 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/308/0190-01" ] }, { "cite": "277 Ark. 494", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1750239 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/277/0494-01" ] } ], "analysis": { "cardinality": 423, "char_count": 6593, "ocr_confidence": 0.894, "pagerank": { "raw": 8.556801173144175e-08, "percentile": 0.4881552939959048 }, "sha256": "35f39cae34ccbaeaf6e7cbcde2863d43cbd12764ec03a385b9e1fed6038acecc", "simhash": "1:883fa6c5012ce53e", "word_count": 1132 }, "last_updated": "2023-07-14T22:17:29.924838+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Special Justice Edmund M. Massey joins the opinion.", "Corbin, J., not participating." ], "parties": [ "Larry HAMILTON, on Behalf of Himself and All Others Similarly Situated v. Floyd G. \u201cBuddy\u201d VILLINES, III, et al." ], "opinions": [ { "text": "David Newbern, Justice.\nThe appellant, Larry Hamilton, sought certification of a class consisting of Pulaski County taxpayers. His claim against the appellees, Pulaski County Judge Floyd G. \u201cBuddy\u201d Villines, III, and the members of the Pulaski County Quorum Court, is of an illegal exaction. We will refer to the appellees collectively as \u201cPulaski County.\u201d The illegal exaction claim, brought under Ark. Const, art. 16, \u00a7 13, is that the County misapplied sales and use tax proceeds and other funds in the construction of the Pulaski County Regional Detention Facility. This is an appeal of one aspect of the Chancellor\u2019s order certifying a class for an action to be brought in accordance with Ark. R. Civ. P. 23. It is an interlocutory appeal. See Ark. R. App. P. 2(a)(9).\nMr. Hamilton\u2019s complaint seeks no refund to the taxpayers but requests primarily injunctive relief requiring the transfer of funds within the County coffers to keep the money from being misapplied. The Chancellor granted the class certification and required individual notices to the taxpayers in accordance with Ark. R. Civ. P. 23(c) because \u201cmonetary relief\u201d was being sought in the form of attorney\u2019s fees. The appeal is from the notice requirement imposed by the Chancellor\u2019s order. We agree that the notice requirement was improper, so we reverse and remand the case.\nIn City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982), an illegal exaction case, we said the Court should have required the parties to abide by Rule 23 because an illegal-exaction claim is in the nature of a class action but that the failure to have imposed the requirements of the rule resulted in no prejudice in the circumstances of that case and was thus harmless error. In Union Nat\u2019l. Bank v. Barnhart, 308 Ark. 190, 823 S.W.2d 878 (1992), Glaze, J., concurring, it was suggested that our statement with respect to Rule 23 in the Cash case was but an obiter dictum, that illegal exaction claims had, as an historical proposition, not been governed by the restrictions imposed on class actions, and that illegal exaction claims should not be subject to Rule 23.\nRule 23(c), in part, provides, \u201cIn any class action in which monetary relief is sought, including actions for damages and restitution, the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.\u201d In arguments before the Chancellor and before this Court the focus has been upon whether Rule 23 should apply to illegal exaction suits brought pursuant to article 16, \u00a7 13, and if so, whether a request for attorney\u2019s fees is a request for \u201cmonetary relief,\u201d thus implicating Rule 23(c).\nAs Pulaski County points out in its brief, Ark. Code Ann. \u00a7 26-35-902(a) (Supp. 1995) permits the award of attorney\u2019s fees from funds recovered when an illegal exaction is held to have occurred and a \u201crefund\u201d is ordered to the taxpayers; however, the statute does not address attorney\u2019s fees in a case in which no refund is sought. Attorney\u2019s fees may not be recovered absent a statute or rule permitting such a recovery. Wynn v. Remet, 321 Ark. 227, 902 S.W.2d 213 (1995); Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991). In Munson v. Abbott et al., 269 Ark. 441, 602 S.W.2d 649 (1980), and again in City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986), we specifically held that attorney\u2019s fees are not to be allowed in an illegal exaction case in which no refund is sought. During oral argument, counsel for Pulaski County reaffirmed his position that there is no authority to award attorney\u2019s fees in this case.\nWhen questioned about authority for the granting of attorney\u2019s fees in a case like this one, Mr. Hamilton\u2019s counsel could only reply that fees might be available if the class were able to prove a fact Pulaski County had refused to admit in response to a request for admission. Presumably he was referring to Ark. R. Civ. P. 37(c) and the sanctions provided for failure to admit. We can hardly say that reference to a sanction which may or may not become necessary amounts to a request for \u201cmonetary relief\u201d by a class as contemplated in Rule 23(c).\nApparently Pulaski County recognizes the infirmity of the Chancellor\u2019s order caused by the fact that recovery of attorney\u2019s fees is not available to Mr. Hamilton and the class. Pulaski County, therefore, asks that we affirm the order requiring notice to individual taxpayers because taxpayers should have notice of this lawsuit, which will cause a \u201cdetriment\u201d and cost to the County. No authority is cited for that position, and we are not convinced by the argument. The purpose of requiring notice to class members who may have a monetary recovery in prospect is to allow them to decide whether to participate as members of the class. In a case in which a prospective class member has no individual claim to relief, there is no purpose in the notice requirement that would not obtain anytime a city or county is sued. We can assuredly say it is not the purpose of Rule 23(c) to require notice anytime a suit is brought against a public entity in which a \u201cdetriment\u201d to it may occur.\nThe issue whether Rule 23 applies to illegal exaction claims is not before us. Both parties argue from the position that it does apply. We do not decide that issue. The issue we do decide is whether, assuming the Rule applies, it was proper for the Chancellor to hold that \u201cmonetary relief\u201d was in prospect and thus Rule 23(c) required individual notice to the taxpayers. We need not, however, go so far as to decide whether attorney\u2019s fees constitute \u201cmonetary relief\u201d because we simply cannot ignore the fact that attorney\u2019s fees are not to be recovered in this case. The General Assembly may wish to extend the language of \u00a7 26-35-902 to make some provision for attorney\u2019s fees to encourage citizens to point out illegal exactions even though no refund is to be had. We may not do so.\nReversed and remanded.\nSpecial Justice Edmund M. Massey joins the opinion.\nCorbin, J., not participating.", "type": "majority", "author": "David Newbern, Justice." } ], "attorneys": [ "Kelly Law Firm, PLC, by: A.J. Kelly and A. Shawn K. Sibley, for appellants.", "Nelwyn Davis, Pulaski County Att\u2019y, and Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by: David M. Fuqua, for appellees." ], "corrections": "", "head_matter": "Larry HAMILTON, on Behalf of Himself and All Others Similarly Situated v. Floyd G. \u201cBuddy\u201d VILLINES, III, et al.\n95-191\n915 S.W.2d 271\nSupreme Court of Arkansas\nOpinion delivered February 19, 1996\n[Petition for Rehearing denied March 25, 1996.]\nKelly Law Firm, PLC, by: A.J. Kelly and A. Shawn K. Sibley, for appellants.\nNelwyn Davis, Pulaski County Att\u2019y, and Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by: David M. Fuqua, for appellees.\nCorbin, J., not participating." }, "file_name": "0492-01", "first_page_order": 526, "last_page_order": 530 }