Deer/Mt. Judea School District v. Kimbrell , 430 S.W.3d 29 ( 2013 )

Cite as 2013 Ark. 393SUPREME COURT OF ARKANSAS
No. CV-13-182
DEER/MT. JUDEA SCHOOL DISTRICT Opinion Delivered October 10, 2013
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT
[NO. 60-CV-2011-2677]
THOMAS W. KIMBRELL H O N O R A B L E C HRISTOP H E R
APPELLEE CHARLES PIAZZA, JUDGE
DEER/MT. JUDEA SCHOOL DISTRICT
APPELLANT AFFIRMED IN PART; REVERSED
AND REMANDED IN PART; MOOT
V. IN PART; MOTION TO DISMISS
DENIED.
MIKE BEEBE, INDIVIDUALLY AND IN
HIS OFFICIAL CAPACITY AS
GOVERNOR OF THE STATE OF
ARKANSAS; MARK DARR,
INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS LIEUTENANT
GOVERNOR OF THE STATE OF
ARKANSAS; DR. THOMAS W.
KIMBRELL, INDIVIDUALLY AND IN
HIS OFFICIAL CAPACITY AS
COMMISSIONER OF EDUCATION
FOR THE STATE OF ARKANSAS; DR.
NACCAMAN WILLIAMS,
INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS CHAIRMAN OF THE
STATE BOARD OF EDUCATION; DR.
BEN MAYS, INDIVIDUALLY AND IN
HIS OFFICIAL CAPACITY AS A
MEMBER OF THE STATE BOARD OF
EDUCATION; SHERRY BURROW,
INDIVIDUALLY AND IN HER
OFFICIAL CAPACITY AS
A MEMBER OF THE STATE BOARD
OF EDUCATION; JIM COOPER,
INDIVIDUALLY AND IN HIS OFFICIAL
Cite as 2013 Ark. 393CAPACITY AS A MEMBER OF THE
STATE BOARD OF EDUCATION;
BRENDA GULLETT, INDIVIDUALLY
AND IN HER OFFICIAL CAPACITY AS
A MEMBER OF THE STATE BOARD
OF EDUCATION; SAMUEL
LEDBETTER, INDIVIDUALLY AND IN
HIS OFFICIAL CAPACITY AS A
MEMBER OF THE STATE BOARD OF
EDUCATION; ALICE WILLIAMS
MAHONEY, INDIVIDUALLY AND IN
HER OFFICIAL CAPACITY AS A
MEMBER OF THE STATE BOARD OF
EDUCATION; TOYCE NEWTON,
INDIVIDUALLY AND IN HER
OFFICIAL CAPACITY AS A MEMBER
OF THE STATE BOARD OF
EDUCATION; VICKI SAVIERS,
INDIVIDUALLY AND IN HER
OFFICIAL CAPACITY AS A MEMBER
OF THE STATE BOARD OF
EDUCATION; RICHARD WEISS,
INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS DIRECTOR OF THE
DEPARTMENT OF FINANCE AND
ADMINISTRATION; MAC DODSON,
INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS PRESIDENT OF THE
ARKANSAS DEVELOPMENT FINANCE
AUTHORITY; ROBERT MOORE,
INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS SPEAKER OF THE
HOUSE OF REPRESENTATIVES; AND
PAUL BOOKOUT, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY AS
PRESIDENT PRO TEMPORE OF THE
SENATE
APPELLEES
KAREN R. BAKER, Associate Justice
2
Cite as 2013 Ark. 393The Deer/Mt. Judea School District (DMJ) appeals from the decision of the Pulaski
County Circuit Court. On appeal, DMJ asserts that the circuit court erred on three points:
(1) in ruling that DMJ’s claims were barred by res judicata; (2) in striking only the date ranges
of section 31 of Act 269 of 2010; and (3) in striking its amended and supplemental complaint.
Beebe and the other appellees (“Beebe”) have also filed a motion to dismiss the appeal, which
we ordered passed until the case was submitted by letter order dated March 28, 2013. We
deny the motion to dismiss, affirm in part and reverse and remand in part on the first point,
hold that the second point is moot, and affirm on the third point.
I. Facts and Procedural History
The current appeal has a long and complex history of litigation in circuit court and this
court. The following is a summary of the procedural history and current posture of the case.
The appeal arises from a school-funding dispute. DMJ operates two kindergarten
through twelfth-grade campuses in Newton County and serves approximately 360 students.
On December 3, 2010, DMJ filed an action on its own behalf and on behalf of its taxpayers
to enjoin state actions in violation of state law and the Arkansas Constitution. In its
complaint, DMJ alleged that the State failed to conduct adequacy studies in compliance with
Arkansas Code Annotated section 10-3-2102 (Supp. 2007) in 2008 and 2010, and to make
necessary adjustments to maintain an education system in compliance with article XIV,
section 1 and article II, sections 2, 3, and 18 of the Arkansas Constitution. DMJ also claimed
that section 32 of Act 293 of 2010 is local or special legislation in violation of amendment 14
to the Arkansas Constitution, as it provided extra funding to only one school district. For ease
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Cite as 2013 Ark. 393of reference, throughout this opinion, the claim regarding adequacy studies and adjustments
will be referred to as “the adequacy claim” and the claim regarding local or special legislation
will be referred to as “the special-and-local-legislation claim.”
Beebe filed a motion to dismiss the complaint on January 28, 2011, asserting that
DMJ’s claims were barred by res judicata. On March 17, 2011, the circuit court held a
hearing on Beebe’s motion to dismiss. At the hearing, the circuit judge stated from the bench
that he would grant Beebe’s motion to dismiss as to the adequacy claim. On April 11, 2011,
DMJ filed a motion for voluntary dismissal without prejudice as to the special-and-local-
legislation claim, so as to “facilitate an immediate appeal.” The circuit court entered orders
the next day dismissing both of DMJ’s claims. The adequacy claim was dismissed because it
was precluded by previous school-funding cases. The special-and-local-legislation claim was
dismissed pursuant to DMJ’s voluntary nonsuit of the claim. DMJ filed a timely notice of
appeal of the Beebe case (NO. 60-CV-10-6936), which now consisted of only the adequacy
claim, on April 14, 2011.
On March 1, 2012, this court dismissed the appeal of the Beebe case for lack of a final
appealable order. Deer/Mt. Judea Sch. Dist. v. Beebe, 2012 Ark. 93. We held that the nonsuit
of the special-and-local-legislation claim did not operate to make the April 12, 2011 order
final because it could be refiled. The special-and-local-legislation claim, in fact, had been
refiled on June 1, 2011, in the Pulaski County Circuit Court against Dr. Thomas W. Kimbrell
4
Cite as 2013 Ark. 393(the Kimbrell case, NO. 60-CV-11-2677).1
After this court dismissed the appeal, DMJ filed a motion to consolidate the Beebe case
with the Kimbrell case in circuit court. The circuit court granted this motion over the
Kimbrell’s objection.
DMJ filed a motion for summary judgment on March 29, 2012, regarding the Kimbrell
case. The circuit court heard oral arguments on the motion on August 16, 2012, and held
a second hearing on November 1, 2012. DMJ filed an amended and supplemental complaint
on November 1, 2012, which included both the adequacy claim and the special-and-local-
legislation claim. The circuit court entered an order on December 11, 2012, granting the
motion for summary judgment and severing the date restrictions in section 31 of Act 269 of
2010.
On January 22, 2013, the circuit court entered an order denying DMJ’s motion for
reconsideration of the order to dismiss filed April 12, 2011, striking DMJ’s amended and
supplemental complaint, and granting a stay on the enforcement of the judgment during the
pendency of this appeal. DMJ then filed a notice of appeal for both the Beebe and the Kimbrell
cases on January 22, 2013.
Beebe filed a motion to dismiss the appeal on March 14, 2013, alleging that the notice
of appeal in the Beebe case was not timely filed. We chose to take the motion with the case.
In summary, DMJ filed a complaint alleging two claims against Beebe. DMJ then
1
This claim was also filed against the Melbourne School District, but this party was
dismissed without prejudice on November 21, 2011.
5
Cite as 2013 Ark. 393voluntarily nonsuited the special-and-local-legislation claim so that it could immediately
appeal the adequacy claim in the Beebe case. DMJ brought the special-and-local-legislation
claim as a separate case, the Kimbrell case. This court then dismissed the appeal of the Beebe
case, holding that there was a lack of finality. After we dismissed the Beebe case on appeal,
DMJ moved to consolidate the Beebe case and the Kimbrell case, and the motion was granted
by the circuit court. After the circuit court decided the Kimbrell case and the Beebe case, DMJ
filed a notice of appeal for both cases. These appeals, and Beebe’s motion to dismiss the
appeal of the Beebe case, are now before us.
We note that, while the cases were consolidated at the circuit-court level, they have
not been consolidated on appeal, nor has a motion to do so been filed. This court may
consolidate cases for appeal on its own motion under Arkansas Rule of Appellate
Procedure–Civil 3(c) (2013). We hereby consolidate these cases to avoid unnecessary delay.
While we consolidate these cases for appeal, they are still separate cases. Consolidation
does not merge the suits into a single cause, or change the rights of the parties, or make those
who are parties in one suit parties in the other. Dwiggins v. Elk Horn Bank & Trust Co., 364
Ark. 344, 219 S.W.3d 181 (2005). Consolidated cases remain joint and separate entities. St.
Louis Sw. Ry. Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1977). Because these remain
separate cases on appeal, we will address the issues relating to each case separately.
II. The Beebe Case (NO.60-CV-10-6936)
First, we address the matters in the appeal relating to the Beebe case. DMJ asserts that
the circuit court erred in granting Beebe’s motion to dismiss based on the claim-preclusion
6
Cite as 2013 Ark. 393aspect of res judicata. DMJ also asserts that the circuit court erred in striking its amended and
supplemental complaint, which was filed in the Beebe case. First, however, we must take up
the motion to dismiss the appeal in the Beebe case.
A. Beebe’s Motion to Dismiss
Beebe has moved to dismiss the appeal as to the Beebe case. In that motion, Beebe
asserts that the appeal was not timely filed, as the Beebe case became final when the Kimbrell
case was filed. Beebe further asserts that this court erred in ruling that the appeal in the Beebe
case was not final. We hold that DMJ’s notice of appeal was timely and deny the motion to
dismiss.
Beebe asserts that, under Mountain Pure LLC v. Affiliated Foods Southwest, Inc., 366 Ark.
62, 233 S.W.3d 609 (2006), because DMJ filed the special-and-local-litigation claim as a
separate suit, the Beebe case became final upon the filing of the Kimbrell case and the notice
of appeal was not timely in the Beebe case. This argument is founded on a misinterpretation
of our holding in Mountain Pure. We did not hold in Mountain Pure that the filing of a
nonsuited claim in a separate case made the remaining summary-judgment orders final.
Instead, we held that those other claims remained “in limbo” until all outstanding claims were
either finally adjudicated or were otherwise no longer a bar to finality and a final order was
entered.
Under Mountain Pure, jurisdiction vests in the circuit court until such time as any
outstanding claims are properly adjudicated or are no longer a bar to finality and a final order
is entered. Thus, an order does not become final when the nonsuited claims are refiled in a
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Cite as 2013 Ark. 393separate case, as Beebe contends. A final order must still be entered in the record of the case
for the remaining claims to be appealable.
Here, the final order entered in the Beebe case was the denial of the motion for
reconsideration. As in Mountain Pure, at the time the order denying the motion for
reconsideration was entered, all nonsuited claims had been finally adjudicated and were no
longer a bar to finality. Therefore, the order denying the motion for reconsideration was the
final order in the case, and DMJ has properly appealed from that order, thereby bringing up
for review the intermediate orders.
B. Whether the Circuit Court Erred in Granting Beebe’s Motion to Dismiss Based on Res
Judicata
For its first point on appeal, DMJ asserts that the circuit court erred in dismissing
DMJ’s claims as to the Beebe case. The circuit court ruled that the claims were barred by res
judicata, as the claims and issues had been adjudicated in Lake View School District No. 25 v.
Huckabee (Lake View 2007), 370 Ark. 139, 257 S.W.3d 879 (2007).
A history of our decisions in school-funding cases is required for an understanding of
DMJ’s argument on appeal. In 1994, the Lake View School District filed suit against the State
alleging that the state’s school-funding system violated the equality provisions and the
education article of the Arkansas Constitution. The circuit court ruled in favor of Lake View.
We rejected an appeal of this ruling as it was not a final, appealable order. Tucker v. Lake View
Sch. Dist. No. 25 of Phillips Cnty. (Lake View 1996), 323 Ark. 693, 917 S.W.2d 530 (1996).
The General Assembly repealed the school-funding scheme in 1995 and replaced it.
Lake View filed a complaint and show-cause petition asserting that the new funding system
8
Cite as 2013 Ark. 393violated the equality provisions and the education article of the Arkansas Constitution. The
circuit court dismissed the complaint and show-cause petition, ruling that they were moot
because amendment 74 had changed the standard for the school-funding system and allowed
funding variances among the school districts. The circuit court also stated that the same
analysis applied to the legislation passed by the General Assembly and added that the
complaint and show-cause petition should be dismissed for failure to state a claim because the
1995 and 1997 legislative acts are presumed constitutional, and no facts were alleged
supporting lack of a rational basis for those acts. We disagreed and remanded the case for trial.
Lake View Sch. Dist. No. 25 of Phillips Cnty. v. Huckabee, 340 Ark. 481, 10 S.W.3d 892 (2000).
On remand, the circuit court ruled that the school-funding system remained
unconstitutional. We agreed, citing our holding in DuPree v. Alma School District No. 30, 279
Ark. 340, 651 S.W.2d 90 (1983), that equal opportunity is the touchstone for a constitutional
system and not merely equalized revenues. We stated as follows:
It is the State’s responsibility, first and foremost, to develop forthwith what
constitutes an adequate education in Arkansas. It is, next, the State’s responsibility to
assess, evaluate, and monitor, not only the lower elementary grades for English and
math proficiency, but the entire spectrum of public education across the state to
determine whether equal educational opportunity for an adequate education is being
substantially afforded to Arkansas’ school children. It is, finally, the State’s responsibility
to know how state revenues are being spent and whether true equality in opportunity
is being achieved. Equality of educational opportunity must include as basic
components substantially equal curricula, substantially equal facilities, and substantially
equal equipment for obtaining an adequate education. The key to all this, to repeat,
is to determine what comprises an adequate education in Arkansas. The State has failed
in each of these responsibilities.
Lake View Sch. Dist. No. 25 of Phillips Cnty. v. Huckabee, 351 Ark. 31, 79, 91 S.W.3d 472, 500
(2002). We then stayed the issue of the mandate in order to give the State time to correct the
9
Cite as 2013 Ark. 393constitutional disability. Id.We recalled the mandate again in 2004, appointed masters, and released the mandate
later that year based on the masters’ report. Lake View Sch. Dist. No. 25 of Phillips Cnty. v.
Huckabee, 358 Ark. 137, 189 S.W.3d 1 (2004). We once again recalled the mandate the next
year, appointed masters, and stayed the mandate until December 1, 2006. We then stayed the
mandate a further 180 days. Lake View Sch. Dist. No. 25 of Phillips Cnty. v. Huckabee, 368
Ark. 231, 243 S.W.3d 919 (2006).
Finally, in 2007, this court adopted the masters’ reports and released the mandate. Lake
View 2007, 370 Ark. 139, 257 S.W.3d 879. We stated the following:
We hold that the General Assembly has now taken the required and necessary
legislative steps to assure that the school children of this state are provided an adequate
education and a substantially equal educational opportunity. A critical component of
this undertaking has been the comprehensive system for accounting and accountability,
which has been put in place to provide state oversight of school-district expenditures.
What is especially meaningful to this court is the Masters’ finding that the General
Assembly has expressly shown that constitutional compliance in the field of education
is an ongoing task requiring constant study, review, and adjustment. In this court’s
view, Act 57 of the Second Extraordinary Session of 2003, requiring annual adequacy
review by legislative committees, and Act 108 of the Second Extraordinary Session of
2003, establishing education as the State’s first funding priority, are the cornerstones
for assuring future compliance.
Id at 145–46, 257 S.W.3d at 883.
DMJ’s complaint alleged that the General Assembly had no rational basis for not
applying some of the recommendations in the Picus report, a report which created a model
for the state’s system of education. The Picus report was developed in 2003 and recalibrated
in 2006. The circuit court ruled that DMJ’s claims could have been brought in the Lake View
cases, and thus were precluded by res judicata. DMJ asserts that the circuit court erred in
10
Cite as 2013 Ark. 393ruling that the claims were precluded in two ways: (1) that the constitutionality of the
educational system requires “constant study, review, and adjustment,” and (2) that the
challenged acts and omissions of the General Assembly happened after Lake View 2007 had
been decided.
In reviewing a circuit judge’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. Baptist
Health v. Murphy, 2010 Ark. 358, 373 S.W.3d 269. In testing the sufficiency of a complaint
on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint,
and the pleadings are to be liberally construed. Id. Our standard of review for the granting
of a motion to dismiss is whether the circuit judge abused his or her discretion. Dockery v.
Morgan, 2011 Ark. 94, 380 S.W.3d 377. Res judicata means that “a thing or matter has been
definitely and finally settled and determined on its merits by the decision of a court of
competent jurisdiction.” Baptist Health, 2010 Ark. 358, 373 S.W.3d 269. Res judicata
consists of two facets, one being issue preclusion and the other claim preclusion. The claim-
preclusion aspect of res judicata bars relitigation of a subsequent suit when (1) the first suit
resulted in a final judgment on the merits; (2) the first suit was based on proper jurisdiction;
(3) the first suit was fully contested in good faith; (4) both suits involve the same claim or
cause of action; and (5) both suits involve the same parties or their privies. Id. Res judicata
bars not only the relitigation of claims that were actually litigated in the first suit, but also
those that could have been litigated. Id. Where a case is based on the same events as the
subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises
11
Cite as 2013 Ark. 393new legal issues and seeks additional remedies. Id.Collateral estoppel, the issue-preclusion facet of res judicata, bars relitigation of issues
of law or fact previously litigated, provided that the party against whom the earlier decision
is being asserted had a full and fair opportunity to litigate the issue in question and that the
issue was essential to the judgment. Morgan v. Turner, 2010 Ark. 245, 368 S.W.3d 888. To
apply collateral estoppel, the following elements must be present: (1) the issue sought to be
precluded must be the same as that involved in the prior litigation, (2) the issue must have
been actually litigated, (3) the issue must have been determined by a valid and final judgment,
and (4) the determination must have been essential to the judgment
In Lake View 2007, this court emphasized the masters’ finding that constitutional
compliance in the field of education is an ongoing task requiring constant study, review, and
adjustment. DMJ contends that this means the General Assembly has a continuous,
constitutional duty to improve the school-funding system, which it asserts the General
Assembly has not done. However, many of DMJ’s complaints stem from areas that were at
issue or could have been brought in the previous school-funding cases.
This court held in Lake View 2007 that the system of public-school financing was in
constitutional compliance and issued the mandate. In issuing the mandate, this court tacitly
decided that it would no longer look over the shoulder of the General Assembly to ensure
that the school-funding scheme was constitutional. To read Lake View 2007 as DMJ suggests
would “disparage the work of the General Assembly and cast the role of this court into that
of a brooding superlegislature.” Lake View Sch. Dist. No. 25 of Phillips Cnty. v. Huckabee, 358
12
Cite as 2013 Ark. 393Ark. 137, 189 S.W.3d 1 (2004) (mandate recalled by Lake View Sch. Dist. No. 25 of Phillips
Cnty. v. Huckabee (Lake View 2005), 362 Ark. 520, 210 S.W.3d 28 (2005)). DMJ asks this
court to maintain our jurisdiction over the school-funding cases to make sure that the General
Assembly is continually adjusting the school-funding scheme to maintain its constitutionality.
This we will not do.
DMJ also contends that the circuit court erred in granting the State’s motion to dismiss
because the acts or omissions complained of occurred after this court had issued the mandate
in Lake View 2007. We agree that not all of DMJ’s claims in the Beebe case are barred by res
judicata, as several of them involve acts or omissions that occurred after this court had released
the mandate in Lake View 2007. However, DMJ’s claims that arise out of whether the
General Assembly has adopted the recommendations of the Picus report are barred by the
claim-preclusion aspect of res judicata, as DMJ’s claims could have been litigated in the Lake
View cases.
DMJ claims (1) that the adequacy reports filed in 2008 and 2010, as required by
Arkansas Code Annotated section 10-3-2102 (Repl. 2012), have failed to comply with that
act; (2) that cost-of-living adjustments (COLAs) were determined based on what funds were
available, not by what funds were necessary; (3) that there is no rational basis to support the
State’s method of funding student transportation; (4) that DMJ’s facilities are unequal and
inadequate; (5) that the way the State funds small, remote schools is unconstitutional; (6) that
the State has failed to require schools to spend NSLA funding on programs that help
struggling students as recommended by the Picus report; (7) that the State has not required
13
Cite as 2013 Ark. 393implementation of an effective professional-development system as recommended by the Picus
report; (8) that the State must make adjustments to address the intrastate teacher-salary
disparity; and (9) that the State must make adjustments to the way it pays teacher retirement.
DMJ asserts that the adequacy reports filed in 2008 and 2010, as required by Arkansas
Code Annotated section 10-3-2102 have failed to comply with that Act. DMJ further asserts
that the students of this State are not receiving a substantially equal opportunity for an
adequate education based on alleged inequalities in funding.
Arkansas Code Annotated section 10-3-2102 states as following:
(a) During each interim, the House Committee on Education and the Senate
Committee on Education shall meet separately or jointly, as needed, to:
(1) Assess, evaluate, and monitor the entire spectrum of public education
across the State of Arkansas to determine whether equal educational
opportunity for an adequate education is being substantially afforded to
the school children of the State of Arkansas and recommend any
necessary changes;
(2) Review and continue to evaluate what constitutes an adequate
education in the State of Arkansas and recommend any necessary
changes;
(3) Review and continue to evaluate the method of providing equality
of educational opportunity of the State of Arkansas and recommend any
necessary changes;
(4) Evaluate the effectiveness of any program implemented by a school,
a school district, an education service cooperative, the Department of
Education, or the State Board of Education and recommend necessary
changes;
(5) Review the average teacher salary in the State of Arkansas in
comparison to average teacher salaries in surrounding states and member
states of the Southern Regional Education Board and make
recommendations for any necessary changes to teacher salaries in the
State of Arkansas established by law;
(6) Review and continue to evaluate the costs of an adequate education
for all students in the State of Arkansas, taking into account cost-of-
living variances, diseconomies of scale, transportation variability,
demographics, school districts with a disproportionate number of
14
Cite as 2013 Ark. 393students who are economically disadvantaged or have educational
disabilities, and other factors as deemed relevant, and recommend any
necessary changes;
(7) Review and continue to evaluate the amount of per-student
expenditure necessary to provide an equal educational opportunity and
the amount of state funds to be provided to school districts, based upon
the cost of an adequate education and monitor the expenditures and
distribution of state funds and recommend any necessary changes;
(8) Review and monitor the amount of funding provided by the State
of Arkansas for an education system based on need and the amount
necessary to provide an adequate educational system, not on the amount
of funding available, and make recommendations for funding for each
biennium.
....
(f) The study for subdivisions (a)(1)-(4) of this section shall be accomplished by:
(1) Reviewing a report prepared by the Division of Legislative Audit
compiling all funding received by public schools for each program;
(2) Reviewing the curriculum frameworks developed by the
Department of Education;
(3) Reviewing the Arkansas Comprehensive Testing, Assessment, and
Accountability Program, § 6-15-401 et seq.;
(4) Reviewing fiscal, academic, and facilities distress programs;
(5) Reviewing the state’s standing under the No Child Left Behind Act
of 2001, 20 U.S.C. § 6301 et seq.;
(6) Reviewing the Arkansas Comprehensive School Improvement Plan
process; and
(7) Reviewing the specific programs identified for further study by the
House Committee on Education and the Senate Committee on
Education.
(g) (1) The study for subdivision (a)(5) of this section shall be accomplished
by comparing the average teacher salary in Arkansas with surrounding
states and Southern Regional Education Board member states, including
without limitation:
(A) Comparing teacher salaries as adjusted by a cost of living
index or a comparative wage index;
(B) Reviewing the minimum teacher compensation salary
schedule; and
(C) Reviewing any related topics identified for further study by
the House Committee on Education and the Senate Committee
on Education.
(2) Depending on the availability of National Education Association data
on teacher salaries in other states, the teacher salary comparison may be
15
Cite as 2013 Ark. 393prepared as a supplement to the report after September 1.
(h) The study for subdivision (a)(6) of this section shall be accomplished by
reviewing:
(1) Expenditures from:
(A) Isolated school funding;
(B) National school lunch student funding;
(C) Declining enrollment funding;
(D) Student growth funding;
(E) Special education funding;
(2) Disparities in teacher salaries; and
(3) Any related topics identified for further study by the House
Committee on Education and the Senate Committee on Education.
(i) The study for subdivision (a)(7) of this section shall be accomplished by:
(1) Completing an expenditure analysis and resource allocation review
each biennium; and
(2) Reviewing any related topics identified for further study by the
House Committee on Education and the Senate Committee on
Education.
(j) The study for subdivision (a)(8) of this section shall be accomplished by:
(1) Using evidence-based research as the basis for recalibrating as
necessary the state’s system of funding public education;
(2) Adjusting for the inflation or deflation of any appropriate component
of the system of funding public education every two (2) years;
(3) Reviewing legislation enacted or rules promulgated during the
biennium covered by the study to determine the impact of the
legislation and rules on educational adequacy-related public school costs;
and
(4) Reviewing any related topics identified for further study by the
House Committee on Education and the Senate Committee on
Education.
Under our standard of review, we treat DMJ’s allegations that the Joint Committee has
not complied with Arkansas Code Annotated section 10-3-2102 as true. Because the
adequacy reports and evaluations complained of were filed after we had released the mandate
in Lake View 2007, these claims are not barred by res judicata. Therefore, the circuit court
abused its discretion in granting Beebe’s motion to dismiss as to these claims.
DMJ contends that COLAs in 2009 and 2011 are based on what funds are available,
16
Cite as 2013 Ark. 393not what funds are needed. The “Purpose” section of Act 57 makes it clear that the amount
of funding given to schools shall be based on need and not funds available. See Lake View
2005, 362 Ark. 520, 210 S.W.3d 28. These adjustments were made after this court released
the mandate; therefore, these claims are not barred by res judicata. The circuit court abused
its discretion in dismissing these claims.
DMJ asserts that there is no rational basis to support the State’s method of funding the
transportation of students. While this issue was addressed in the Lake View cases, the 2008 and
2010 adequacy reports recommended that an additional line of funding be added to provide
for those school districts whose transportation costs are not covered by the amount of funding
provided to them by the current line item. The General Assembly chose not to adopt these
recommendations. Because these acts or omissions by the General Assembly occurred after
we had released the mandate in Lake View 2007, they are not barred by res judicata.
DMJ asserts that its facilities are inequitable and inadequate because it does not receive
the funding it needs to maintain and repair those facilities. In Lake View 2005, we reviewed
the masters’ findings with respect to facilities. They concluded that the financial responsibility
required for a school district to enter into a partnership with the State for construction and
repairs would be so great that many school districts would be unable to raise the required
funds and, thus, would be forced to forgo needed construction and repairs. In Lake View
2007, this court cited the masters’ finding that Arkansas Code Annotated section 6-20-
2502(1)(B) (Repl. 2007) would provide some state assistance to every school district based on
actual need for facilities in the individual school districts as well as the school district’s ability
17
Cite as 2013 Ark. 393to pay. DMJ contends that the State has not provided this assistance as contemplated, as it is
still unable to raise the required funds to enter into a partnership with the State for
construction and repairs. Taking these allegations as true, this claim is not barred by res
judicata. It would not have been possible to bring a complaint about the effects of Act 727
of 2007, which amended section 6-20-2502(1)(B), before we issued our mandate in Lake View
2007.
DMJ alleges that the way that the State funds small, remote schools is unconstitutional
because the funding amounts given to isolated schools is not rationally related to the needs of
those schools. DMJ states that the 2006 Adequacy Report noted this and recommended that
Arkansas Code Annotated sections 6-20-603 and -604, which control this funding, be
rewritten. DMJ contends that the General Assembly rejected this recommendation, and the
issue has not been addressed in subsequent reports.2 As this recommendation was made in the
2006 adequacy report, prior to our decision in Lake View 2007, DMJ’s claim is barred by res
judicata.
DMJ contends that the adequacy reports show that school districts have failed to use
National School Lunch Act (NSLA) funds as recommended by the Picus report. The
recommendations in the Picus report were implemented or rejected before we released the
mandate in Lake View 2007 cases and could have been litigated in the school-funding cases
prior to that case. Therefore, DMJ is precluded from asserting this claim.
2
DMJ admits that section 6-20-604 has been rewritten, but only to allow a specific
school district to gain isolated school funding. This point is addressed below in the Kimbrell
case.
18
Cite as 2013 Ark. 393Similarly, DMJ asserts that the State has not required implementation of an effective
professional development system as recommended by the Picus report, and that the State must
make adjustments to address the intrastate teacher-salary disparity and the way it pays teacher
retirement. Each of DMJ’s arguments on these claims is based on whether the General
Assembly has implemented or rejected a recommendation made in the Picus report. Because
these claims could have been litigated in the Lake View cases, DMJ is precluded from bringing
them.
In summary, DMJ contends that several acts or omissions of the General Assembly
violate the Arkansas Constitution. We treat these allegations as true. Some of the acts or
omissions complained of occurred after we had released the mandate in Lake View 2007. The
circuit court abused its discretion in dismissing these claims. However, those acts or omissions
that were brought or could have been brought in the previous school-funding cases are barred
by res judicata, and the circuit court did not err in dismissing them.
C. Whether the Circuit Court Erred in Striking the Amended and Supplemental
Complaint
DMJ’s second issue on appeal in this case is whether the circuit court erred in striking
the amended and supplemental complaint. We affirm.
On November 1, 2012, DMJ filed an amended and supplemental complaint. The State
filed a motion to strike the complaint, arguing that it would be prejudicial and would cause
the disposition of the case to be unduly delayed. The circuit court agreed with the State and
granted the motion to strike. DMJ asserts that the circuit court abused its discretion in striking
the amended and supplemental complaint.
19
Cite as 2013 Ark. 393Rule 15 of the Arkansas Rules of Civil Procedure encourages liberal amendments of
pleadings. Dupree v. Twin City Bank, 300 Ark. 188, 777 S.W.2d 856 (1989). Rule 15(a) states
in pertinent part as follows:
[A] party may amend his pleadings at any time without leave of the court. Where,
however, upon motion of an opposing party, the court determines that prejudice
would result or the disposition of the cause would be unduly delayed because of the
filing of an amendment, the court may strike such amended pleading or grant a
continuance of the proceeding.
The circuit court is vested with broad discretion in allowing or denying amendments.
Neal v. Sparks Reg’l Med. Ctr., 2012 Ark. 328, ___ S.W.3d ___. While Rule 15 allows for
liberal amendments of pleadings, we adhere to our well-established standard of review that we
will not reverse a circuit court’s decision allowing or denying amendments to pleadings absent
a manifest abuse of discretion. Id.The circuit court found that prejudice would result and that the disposition of the case
would be unduly delayed if DMJ were allowed to amend and supplement its complaint. The
amended and supplemental complaint was filed on November 1, 2012, the same day as the
second hearing on DMJ’s motion for summary judgment. Further, the amended and
supplemental complaint consisted of ninety-six pages of complaint and 1,337 pages of exhibits.
DMJ contends that the State cannot be prejudiced by supplementing the claim.
However, prejudice is not necessary where the circuit court finds that the disposition of the
case would be unduly delayed by the filing of an amendment. Here, an amended and
supplemental complaint was filed on the day of the second hearing on a motion for summary
judgment that decided the case. Allowing the amended and supplemental complaint at that
20
Cite as 2013 Ark. 393late date could unduly delay the disposition of the case. Therefore, the circuit court did not
abuse its discretion in striking the amended and supplemental complaint.
III. The Kimbrell Case (NO. 60-CV-11-2677)
Next, we address the matters in the appeal relating to the Kimbrell case. DMJ asserts
that the circuit court erred in severing only the date restrictions in section 31 of Act 269 of
2010. DMJ’s contends that severing only the date restriction in section 31 of Act 269 of 2010
does not render the statute constitutional. We hold that this point is moot.
The General Assembly amended Arkansas Code Annotated section 6-20-604 (e) (Supp.
2009) with section 32 of Act 293 of 2010. The statute reads as follows:
(e)(1) A Except as provided in subdivision (e)(2) of this section, a school district
meeting the requirements of subsection (b) of this section shall receive an amount equal
to ten percent (10%) of the foundation funding received by the school district under
§ 6-20-2305(a)(2) based on the three-quarter average daily membership of the isolated
school area under § 6-20-2305(a)(2) if the school district has school facilities open for
kindergarten through grade twelve (K–12) in one (1) or more isolated schools meeting
the requirements of subsection (b) of this section.
(2) A school district shall receive an amount equal to ten percent (10%) of the
foundation funding received by the school district under § 6-20-2305(a)(2) based on
the three-quarter average daily membership of the isolated school area under §
6-20-2305(a)(2) if:
(A) The school district has school facilities serving students in any grade in kindergarten
through grade twelve (K–12) in one (1) or more isolated schools meeting the
requirements of subsection (b) of this section; and
(B) The school district closed an isolated facility serving students in grades seven (7)
through twelve (12) between January 1, 2008, and July 1, 2008.
DMJ contended below that the date restriction rendered this provision of the Act “local
or special” legislation as it granted funding to only one school district, the Melbourne School
District. The circuit court agreed and ruled that the statute was unconstitutional under
amendment 14. The circuit court further ruled that severing the date range was consistent
21
Cite as 2013 Ark. 393with the purposes of the act and would make the statute constitutional and ordered the date
range struck from the statute.
DMJ appealed, contending that all of section 32 should be stricken from the statute.
DMJ asserts that the sole purpose of section 32 was to provide Melbourne School District with
funding, and provide funding to no other school district. As this purpose was unconstitutional,
DMJ contends that the entirety of section 32 should be struck as unconstitutional.
This year, the General Assembly enacted section 33 of Act 1073 of 2013 (effective
August 16, 2013), which deleted the date range that was struck by the circuit court. Both
DMJ and the State conceded at oral argument that DMJ’s claim is now moot. As a general
rule, the appellate courts of this state will not review issues that are moot because to do so
would be to render an advisory opinion. Lott v. Langley, 2013 Ark. 247. Generally, a case
becomes moot when any judgment rendered would have no practical legal effect upon a then
existing legal controversy. Id.We have, however, recognized two exceptions to the mootness doctrine. Id. The first
exception involves issues that are capable of repetition, yet evading review, and the second
exception concerns issues that raise considerations of substantial public interest which, if
addressed, would prevent future litigation. Id. The claim of special and local legislation will
not prevent future litigation if addressed, and if this issue occurs again, it will not evade review.
Accordingly, neither of the exceptions apply here.
Because DMJ’s claims in the Kimbrell case are moot and neither of the exceptions apply,
we hereby dismiss the appeal of this case.
22
Cite as 2013 Ark. 393IV. Conclusion
Because DMJ’s notice of appeal was timely filed, we deny Beebe’s motion to dismiss.
We hold that the circuit court erred in dismissing DMJ’s claims from the Beebe case relating
to the adequacy reports and evaluations, COLAs, transportation funding, and facilities funding
based on res judicata. Therefore, we reverse and remand those claims to the circuit court.
However, we affirm the circuit court’s ruling on res judicata as to DMJ’s claims relating to
education funding in the Beebe case, which were or could have been litigated in the previous
school-funding cases. We also hold that the circuit court did not abuse its discretion in striking
DMJ’s amended complaint. Finally, we hold that the appeal in the Kimbrell case is moot.
Affirmed in part; reversed and remanded in part; moot in part; motion to dismiss
denied.
CORBIN, J., dissents in part and concurs in part.
DONALD L. CORBIN, Justice, dissenting in part and concurring in part. The
appeal in the Beebe case is untimely, and I therefore respectfully dissent from the majority’s
conclusion otherwise. I would grant the State’s motion to dismiss the appeal in Beebe, albeit
for slightly different reasoning than argued in the State’s motion. Although the specific
argument raised by the State is not well taken, the general idea of the untimeliness of the Beebe
appeal gives me concern. This court’s appellate jurisdiction requires a timely appeal from a
final order; we are obliged to raise jurisdictional issues on our own.
Relying on Mountain Pure LLC v. Affiliated Foods Southwest, Inc., 366 Ark. 62, 233
S.W.3d 609 (2006), the State based its motion on the contention that the April 12, 2011 order
23
Cite as 2013 Ark. 393entered in the Beebe case, dismissing the adequacy claim as barred by res judicata, became final
on June 1, 2011, when the Deer/Mt. Judea School District (DMJ) refiled in the Kimbrell case
the same local-and-special-legislation claim it had nonsuited in the Beebe case. The majority
correctly concludes that Mountain Pure did not so hold. However, I cannot agree with the
majority’s further analysis and conclusion that the Beebe appeal is timely as from the January 22,
2013 order denying reconsideration of the April 2011 order. I simply cannot agree that an
order denying reconsideration of a nonfinal order is a final order. Even if I could so agree,
however, I would conclude that such an order was not timely obtained in this case.
Once this court issued the opinion in the first appeal of this case, holding that the
nonsuit of the local-and-special-legislation claim was a bar to the finality of the April 2011
order, the circuit court retained jurisdiction “until such time as the remaining claims were
properly adjudicated and a final order was entered.” Mountain Pure, 366 Ark. at 69, 233
S.W.3d at 614. However, when nonsuited claims are timely refiled and “still being
adjudicated” in another case, those claims “[are] no longer a bar to the finality” of the
previously entered orders because “[a]s those claims have once been dismissed and have been
refiled, they cannot be filed a third time. Ark. R. Civ. P. 41.” Id. at 69, 233 S.W.3d at 614.
Because DMJ had refiled the local-and-special-legislation claim as a wholly separate case in
Kimbrell while the first Beebe appeal was pending, and because there were only two claims
alleged from the start in the Beebe case,3 there were no remaining claims in the Beebe case for
3
In Mountain Pure, there were several remaining claims. Some were refiled and still being
adjudicated in federal court and were no longer a bar to finality, while others were refiled in state
court and then dismissed with prejudice. I reject DMJ’s argument that Mountain Pure can be
distinguished on the basis that the nonsuited claims that were still being adjudicated were refiled in
24
Cite as 2013 Ark. 393the circuit court to properly adjudicate. Thus, according to Mountain Pure, there were no
longer any bars to the finality of the April 2011 order.
In accordance with Mountain Pure, after the first appeal in the present case, all that
remained within the circuit court’s jurisdiction in Beebe was to enter a final order on the
adequacy claim that it had previously dismissed in April 2011 as being barred by res judicata.
It was incumbent upon DMJ to obtain a final order forthwith, as there were no other
remaining claims in the Beebe case. The majority is of the view that there is no time constraint
here, and that the trial court could retain jurisdiction of the Beebe case indefinitely while the
separate Kimbrell case was being adjudicated simply to enter a final order in the Beebe case upon
the final adjudication of the Kimbrell case. I, however, am of the view that such indefiniteness
results in undue confusion and delay of the separate cases, whether consolidated or not, not to
mention prejudice and perhaps in some cases even miscarriages of justice. I am also of the
view that some time limitation should be placed on a litigant’s ability to indefinitely manipulate
the rules of civil procedure to unnecessarily complicate a case.
While a litigant has an absolute right pursuant to Rule 41 to take a voluntary nonsuit
and then refile a claim, be it in the same case or in a different case in either state or federal
court, I favor an approach that places the burden of timely winding up the loose ends that
inevitably result from the taking of a voluntary nonsuit on the party exercising such right.
Indeed, such an approach is at least intimated as within the spirit of Rule 41(b), where there
is a one-year limitation and resulting involuntary dismissal for the failure to prosecute a claim.
federal court, rather than in state court as in the present case. Rule 41(a)(2) expressly provides that
the two-dismissal rule operates regardless of which courts, state or federal, are involved.
25
Cite as 2013 Ark. 393Moreover, contrary to the majority’s view of Mountain Pure, I do not read that case to
require such indefiniteness as to the circuit court’s retention of jurisdiction to enter a final
order. Mountain Pure plainly states that when a nonsuited claim is timely refiled in another case
and is still being adjudicated, that nonsuited claim is no longer a bar to the finality of an order
on the other claims in the original case because the nonsuited and refiled claim cannot be
refiled a third time pursuant to Rule 41. In Mountain Pure, however, in addition to the
nonsuited claims that were refiled and ongoing in federal court, there were also some
nonsuited claims that were refiled and dismissed with prejudice in state court, and, still, unlike
in the present case, there was yet an additional nonsuited claim that remained within the
original case. The plaintiff in Mountain Pure chose to refile that claim via an amended
complaint within the original case. And the trial court in Mountain Pure thus retained
jurisdiction until that claim was finally adjudicated and an appeal was taken. I simply do not
read Mountain Pure as allowing the trial court to retain jurisdiction of a case until the refiled and
ongoing nonsuited claims are finally adjudicated in a separate case. As noted, on these facts,
when there are no longer any bars to finality, I would conclude that DMJ bore the burden of
obtaining a final order forthwith and its failure to do so until the Kimbrell case was finally
adjudicated results in an untimely appeal in the Beebe case.
Even assuming arguendo that, as the majority concludes, an order denying
reconsideration of a nonfinal order somehow results in a final order, then I am of the view that
there should be some time restraint on the motion for reconsideration. Thus, as applied to the
present case, if there was to be a timely motion for reconsideration of the April 2011 order,
26
Cite as 2013 Ark. 393it had to be filed at the very latest within the 90-day time constraints of Rule 60 of the
Arkansas Rules of Civil Procedure. As I would apply the majority’s conclusion to this case,
then my view is that such a motion for reconsideration must have been filed with the trial
court within 90 days of our mandate in the first appeal. The date of the mandate is the
operative date on these facts because that is the point at which both the April 2011 order no
longer had any bar to finality—due to the refiling in the separate Kimbrell case of the claim that
was the bar to finality in Beebe—and the trial court was reinvested with jurisdiction to enter
a final order. Our opinion was delivered on March 1, 2012, and our mandate issued on March
20, 2012. DMJ filed its motion for reconsideration of the adequacy claim in the Beebe case on
December 7, 2012, well outside the 90-day limitation that I propose. I can therefore follow
the majority’s opinion to no other conclusion than to grant the State’s motion to dismiss the
Beebe appeal as untimely.
As I have concluded that the appeal in the Beebe case should be dismissed as untimely,
I would not reach the merits of the argument that the circuit court erred in dismissing the
adequacy claim as barred by res judicata. I do note, however, my general agreement with this
court’s previous rejection of a res judicata argument raised by the State in a similar context:
The District argues that the Parents’ claims are barred by the doctrine of res judicata
because “the issues surrounding the definition and determination of adequacy were fully
litigated” in the Lake View litigation. Were this court to so hold, it would preclude any
future challenge ever made to the constitutionality of the state’s educational system.
There is simply no merit to this argument by the District.
Walker v. Ark. State Bd. of Educ., 2010 Ark. 277, at 18 n.6, 365 S.W.3d 899, 910 & n.6.
Finally, with respect to the Beebe case, I address the striking of the amended complaint.
27
Cite as 2013 Ark. 393According to Rule 2(a)(4) of the Arkansas Rules of Appellate Procedure–Civil, an order
striking a pleading is an immediately appealable order. We have a timely notice of appeal from
the order striking DMJ’s amended complaint. Striking the amended complaint was not an
abuse of discretion because the State would have been prejudiced by having to relitigate
matters that were already final. Thus, even assuming that it was proper for the circuit court
to have acted on the motion to strike in the Beebe case, to allow the amended complaint would
have prejudiced the State; therefore, it was not an abuse of discretion to strike it.
As for the Kimbrell appeal, I agree with the majority’s conclusion that the Kimbrell appeal
is now moot, as the parties conceded in oral argument. Even absent that concession, the
appeal would still be moot. While the current appeal was pending, the General Assembly
amended the statute in question during the 2013 session to remove the date restriction. The
amendment by the legislature occurred by way of Act 1073 of 2013, which became effective
August 16, 2013. This Act made technical corrections to the school-funding statutes and
specifically repealed the date restriction in the statute DMJ challenged on appeal. The
amendment also achieves exactly the remedy provided by the circuit court in this case. The
action of the legislature therefore renders moot the issue presented in this portion of the appeal.
See Ark. Dep’t of Correction v. Williams, 2009 Ark. 523, 357 S.W.3d 867. When a statute is
amended while an appeal challenging the statute is pending, the amendment eliminates the
controversy between the parties and renders the appeal moot. Id. As a general rule, this court
does not review moot issues, as to do so would be to render an advisory opinion. Warren
Wholesale Co. v. McLane Co., 374 Ark. 171, 286 S.W.3d 709 (2008).
28
Cite as 2013 Ark. 393In sum, while I agree generally with the majority’s conclusions on res judicata, I simply
cannot agree that this court has jurisdiction to render such an opinion. The effect of the
majority opinion is to hold our trial courts open indefinitely in the name of preventing
piecemeal appeals. We have already significantly eroded our prohibition of piecemeal appeals
by simply allowing a trial court to issue an adequate Rule 54(b) certificate. I see no reason then
to blindly protect that principle in this case at the expense of the finality principle. I would
prefer a resolution of this case that requires a litigant to promptly obtain a final order rather
than allow that litigant to continue to cause even more confusion and delay and burden our
courts at both the trial and appellate levels. While I consider myself sensitive and even
sympathetic to the arguments raised by the school district in this case, I point out that my view
of a dismissal of this appeal on jurisdictional grounds would not preclude the merits of the
arguments here presented from being properly raised in future cases.
John C. Fendley, Jr., P.A., by: Clay Fendley; and
Lewellen & Associates, by: Roy C. “Bill” Lewellen, for appellants.
Dustin McDaniel, Att’y Gen., by: Scott P. Richardson, Ass’t Att’y Gen., for appellee.
29