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               SUPREME COURT OF ARKANSAS
                                     No.   CV-13-448

BOARD OF TRUSTEES OF THE                        Opinion Delivered   February 13, 2014
UNIVERSITY OF ARKANSAS
                   APPELLANT                    APPEAL FROM THE CRAWFORD
                                                COUNTY CIRCUIT COURT
V.                                              [NO. 17CV-11-480]

                                                HONORABLE MIKE MEDLOCK,
MIKE BURCHAM                                    JUDGE
                                APPELLEE
                                                REVERSED AND DISMISSED.


                         PAUL E. DANIELSON, Associate Justice


       Appellant Board of Trustees of the University of Arkansas (the University) appeals

from an order of the Crawford County Circuit Court denying its motion to dismiss appellee

Mike Burcham’s amended complaint for wrongful termination. On appeal, the University

argues that Burcham’s complaint is barred by sovereign immunity pursuant to article 5, § 20

of the Arkansas Constitution. We agree and, accordingly, reverse and dismiss.

       The pertinent facts are simple. Burcham filed an amended complaint against the

University and others1 on January 10, 2012, claiming that he was wrongfully terminated in

violation of public policy, his due-process rights, and his First Amendment rights. The

University filed an amended motion to dismiss on January 30, 2012, arguing, among other



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       The other parties named in the complaint were dismissed by the circuit court due
to Burcham’s failure to properly serve them.
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things, that it was sovereignly immune from suit and, therefore, Burcham’s claims should be

dismissed. After a hearing on the matter, the circuit court denied the motion. In its April

24, 2013 order, the circuit court found that the allegation contained in Burcham’s complaint

that the University failed to follow a grievance procedure outlined in the employee

handbook was sufficient to waive the University’s sovereign immunity. The University

timely filed the instant appeal.

       The University now contends, as it did below, that Burcham’s claim is barred by

sovereign immunity and that none of the limited exceptions apply in the instant case.

Burcham avers that sovereign immunity can be waived and that the University’s act of firing

him without following its grievance policy was ultra vires, wanton, capricious, in bad faith,

injurious, and arbitrary, allowing him to proceed with a claim against the State. After review,

we agree with the University that sovereign immunity applies in the instant case.

       In reviewing the circuit court’s decision on a motion to dismiss under Ark. R. Civ.

P. 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light

most favorable to the party who filed the complaint. See Arkansas Tech Univ. v. Link, 341

Ark. 495, 17 S.W.3d 809 (2000). In testing the sufficiency of the 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. See id. However, our rules require fact pleading, and

a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief.

See id. Furthermore, because sovereign immunity is jurisdictional immunity from suit,

jurisdiction must be determined entirely from the pleadings. See id.


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       This court has held that sovereign immunity is jurisdictional immunity from suit. See

Milberg, Weiss, Bershad, Hynes & Lerach, LLP v. State, 342 Ark. 303, 28 S.W.3d 842 (2000).

The defense arises from article 5, § 20 of the Arkansas Constitution, which provides that

“[t]he State of Arkansas shall never be made a defendant in any of her courts.” Id. at 320, 28

S.W.3d at 854 (quoting Ark. Const. art. 5, § 20). We have extended the doctrine of

sovereign immunity to include state agencies. See Arkansas Dep’t of Cmty. Corr. v. City of Pine

Bluff, 2013 Ark. 36, ___ S.W.3d ___. We have also held that a suit against the board of

trustees of a state university is a suit against the State, and is barred by the doctrine of

sovereign immunity. See Arkansas Tech Univ., supra; State Comm’r of Labor v. Univ. of Ark.,

241 Ark. 399, 407 S.W.2d 916 (1966).

       Where the pleadings show that the action is, in effect, one against the State, the circuit

court acquires no jurisdiction. See City of Pine Bluff, 2013 Ark. 36, ___ S.W.3d ___. In

determining whether the doctrine of sovereign immunity applies, the court must decide if a

judgment for the plaintiff will operate to control the action of the State or subject it to

liability. See id. If so, the suit is one against the State and is barred by the doctrine of

sovereign immunity, unless an exception to sovereign immunity applies. See id.

       This court has recognized three ways in which a claim of sovereign immunity may be

surmounted: (1) where the State is the moving party seeking specific relief, (2) where an act

of the legislature has created a specific waiver of sovereign immunity, and (3) where the state

agency is acting illegally or if a state-agency officer refuses to do a purely ministerial action

required by statute. See id. Additionally, a state agency may be enjoined if it can be shown


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(1) that the pending action of the agency is ultra vires or without the authority of the agency,

or (2) that the agency is about to act in bad faith, arbitrarily, capriciously, and in a wantonly

injurious manner. See Arkansas Tech Univ., supra; Arkansas State Game & Fish Comm’n v.

Eubank, 256 Ark. 930, 512 S.W.2d 540 (1974).

       None of the above exceptions are applicable to the instant case. Burcham claims that

his employment manual provided procedures to be followed prior to an employee dismissal

and that the University did not follow those procedures. Therefore, Burcham argues that

the University violated his procedural due-process rights and waived sovereign immunity

because that conduct was unconstitutional, ultra vires, arbitrary, capricious, or in bad faith.

However, the scope of the exception to sovereign immunity for unconstitutional acts or for

acts that are ultra vires, arbitrary, capricious or in bad faith, extends only to injunctive relief.

See Arkansas Lottery Comm’n v. Alpha Mktg., 2013 Ark. 232, ___ S.W.3d ___. The exception

does not apply to suits seeking money damages, and we have never recognized the exception

to allow a claim for damages to proceed. See id.

       In the instant case, Burcham clearly sought damages. His complaint states:

       Plaintiff has incurred damages including lost wages, lost benefits, lost seniority,
       embarrassment and emotional distress, and should be entitled to damages associated
       with Defendant’s wrongful acts. Plaintiff should be entitled to the full amount of
       damages available under Arkansas law, including attorneys’ fees and costs.

Although the final sentence of his prayer for relief in the amended complaint includes the

language “enjoin Defendants as specified in this Complaint,” the complaint was devoid of

anything relevant to injunctive relief. Furthermore, that same sentence ends with the request



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that the court “award Plaintiff damages, attorneys’ fees and costs pled herein.” Even given

a liberal reading, the amended complaint fails to plead a claim for anything but money

damages. Because the exception to sovereign immunity for unconstitutional acts or for acts

that are ultra vires, arbitrary, capricious, or in bad faith does not apply to a claim seeking

monetary damages, and because the University did not waive sovereign immunity,

Burcham’s claim is barred.

       The circuit court erred in denying the University’s amended motion to dismiss

because it lacked jurisdiction over Burcham’s claim pursuant to the doctrine of sovereign

immunity. Accordingly, we reverse and dismiss.

       Reversed and dismissed.

       Special Justice VAUGHAN HANKINS joins in this opinion.

       GOODSON, J., not participating.

       Matthew McCoy, Associate General Counsel, University of Arkansas System, for

appellant.

       Hopkins & Holmes, PLLC, by: Kevin R. Holmes, for appellee.




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