Wilson v. Adkins

Alta WILSON et al. v. Ronnie ADKINS et al.

CA 96-569                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                 Opinion delivered April 2, 1997


1.   Civil procedure -- review of motions to dismiss --
     requirements for pleading. -- In reviewing a decision on a
     motion for dismissal pursuant to ARCP Rule 12(b)(6), the facts
     alleged in the complaint are treated as true and viewed in the
     light most favorable to the party who filed the complaint;
     when the trial court decides Rule 12(b)(6) motions, it must
     look only to the complaint; fact pleading showing that the
     pleader is entitled to relief is clearly required under ARCP
     Rule 8(a)(1); Rule 12(b)(6) provides for the dismissal of a
     complaint for "failure to state facts upon which relief can be
     granted"; these two rules must be read together in testing the
     sufficiency of the complaint; facts, not mere conclusions,
     must be alleged; in testing the sufficiency of the complaint
     on a motion to dismiss, all reasonable inferences must be
     resolved in favor of the complaint, and pleadings are to be
     liberally construed.  
2.   Civil procedure -- pleading stage of litigation -- court
     reluctant to let illegal contracts survive. -- Despite the
     stringent review of grants of ARCP Rule 12(b)(6) dismissal,
     courts are very reluctant to allow clearly illegal contracts
     to survive even the pleading stage of litigation. 

3.   Contracts -- sale of organs for transplant upon receipt of
     valuable consideration -- clearly prohibited by federal law. -
     - Title 42 of the United States Code, section 274(e), clearly
     provides that it is unlawful for any person to knowingly
     acquire, receive, or transfer any human organ for valuable
     consideration for use in human transplantation if the transfer
     affects interstate commerce.

4.   Contracts -- payment to be provided was much more than
     "reasonable" -- contract was one for sale of organ in
     violation of federal law. --  No matter how appellants'
     attorney characterized the transaction, the dollar amount and
     the consideration were telling signs that the contract was one
     for the sale of an organ in violation of federal law; while
     the statute does allow "reasonable payments" for the cost of
     the procedure and incidental expenses, it was clear that
     $101,500.00 was not payment for reasonable incidental expenses
     incurred in the organ donation but was an illegal sale of an
     organ specifically prohibited by federal law.

5.   Contracts -- law will not aid either party to illegal
     contract. -- It is firmly established that the law will not
     aid either party to the alleged illegal and void contract;
     both parties considered are pari delicto, hence, neither can
     recover. 

6.   Contracts -- act of selling organs not readily analyzed within
     traditional contract-law framework -- court should look to
     specialized statutes in dealing this matter. -- Because the
     act of selling organs under contract does not readily lend
     itself to analysis within a traditional legal framework, the
     courts look instead to the particular statutes that were
     written on those subjects in an effort to balance the peculiar
     interests involved; that is, specialized statutes dealing with
     the transfer of human remains, regulating their disposition to
     achieve policy goals rather than abandoning them to the
     general law of contracts.

7.    Civil procedure -- activity under contract clearly sale of
     organs in violation of federal law -- parties in pari delicto
     -- trial court's dismissal affirmed. -- Where the contract
     approach was not reconcilable with societal beliefs and values
     on the subject of organ sales, which beliefs were clearly
     reflected in both the uniform law and the federal act, it was
     wholly appropriate for the trial court to refuse to meddle in
     the illegal dealings of parties when the subject matter of
     their agreement was so clearly repulsive to public policy and
     federal law; where both parties were in pari delicto, or
     equally culpable or criminal, and it was clear on the face of
     appellants' complaint that the activity amounted to a sale of
     organs in violation of federal law, the trial court's
     dismissal was appropriate; where an illegal contract has been
     made, neither courts of law nor of equity will interpose to
     grant any relief to the parties but will leave them where they
     find them if they have been equally cognizant of the
     illegality.


     Appeal from Sebastian Circuit Court; Don R. Langston, Judge;
affirmed.
     James B. Pierce, for appellant.
     Davis & Cox, by:  Hal W. Davis, for appellee.

     Terry Crabtree, Judge.
     Appellant Alta Wilson, a resident of Florida, sued her nephew,
Ronnie Adkins, in chancery court for detrimental reliance, breach
of contract, and fraud stemming from an alleged agreement in which
the appellant agreed to donate bone marrow to her ailing sister in
exchange for $101,500.00 as compensation for risk in the procedure. 
The chancellor granted appellees' motion to dismiss on the
detrimental reliance count, and the case was transferred to circuit
court.  Appellees again moved for dismissal, pursuant to Ark. R.
Civ. P. 12(b)(6), and the circuit court granted the motion on all
counts.  Appellants bring this appeal of the trial courtþs
dismissal, arguing that the complaint on its face stated the three
causes of action complained of, and dismissal was therefore
inappropriate.  We affirm the chancellorþs dismissal based on the
blatantly illegal nature of the alleged contract.
     Dismissal under Rule 12(b) is a ruling on the initial
complaint alleging some critical deficiency, such as jurisdiction,
service of process, or failure to state a claim.  
In reviewing the denial of a dismissal granted pursuant to
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. Neal v. Wilson, 316 Ark.
588, 873 S.W.2d 552 (1994).  When the trial court decides Rule
12(b)(6) motions, it must look only to the complaint.  Id. 
This court has summarized Arkansas' requirements for pleading
facts as follows: 

     Arkansas has adopted a clear standard to require
     fact pleading: "a pleading which sets forth a claim
     for relief . . . shall contain (1) a statement in
     ordinary and concise language of facts showing that
     the pleader is entitled to relief . . ."  ARCP Rule
     8(a)(1).  Rule 12(b)(6) provides for the dismissal
     of a complaint for "failure to state facts upon
     which relief can be granted."  This court has
     stated that these two rules must be read together
     in testing the sufficiency of the complaint; facts,
     not mere conclusions, must be alleged. Rabalaias v.
     Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985).  In
     testing the sufficiency of the complaint on a
     motion to dismiss, all reasonable inferences must
     be resolved in favor of the complaint, and
     pleadings are to be liberally construed.  Id.; ARCP
     Rule 8(f).  

Hollingsworth v. First Nat'l Bank & Trust Co., 311 Ark. 637,
639, 846 S.W.2d 176, 178 (1993).

Malone v. Trans-States Lines, Inc., 325 Ark. 383, 386, 926 S.W.2d 659, 661 (1996).
     Despite this stringent review of grants of 12(b)(6) dismissal,
courts are very reluctant to allow clearly illegal contracts to
survive even the pleading stage of litigation.  See Womack v.
Maner, 227 Ark. 786, 301 S.W.2d 438 (1957).
     Here, the complaint states in paragraph II:
That on or about the 1st day of April 1992, the Plaintiff,
Alta Wilson and the Defendant Ronnie Adkins and the Defendant
Georgia Adkins, now deceased, entered into an agreement
whereby the Plaintiff would elect and act as a bone marrow
donor for the benefit of the Defendant, Georgia Adkins.  

The complaint artfully characterizes the agreement as an exchange
of $101,500.00 for the risk, difficulties, and insurance
consequences of appellantþs marrow donation.  While appellants'
attorney goes to great lengths to disguise the nature of the
contract, it is, as the trial court noted, "so intertwined and
commingled that [it] cannot be separated," and clearly falls under
the rubric of federal law on the sale of human organs.  Here, the
complaint essentially admits that the parties contracted for an
illegal sale of organs.  No matter how the appellants' attorney
characterizes the transaction, the dollar amount and the
consideration are telling signs that the contract is one for the
sale of an organ in violation of federal law.
     Title 42 of the United States Code section 274(e) provides the
following:
     (a)  Prohibition

          It shall be unlawful for any person to knowingly
     acquire, receive, or otherwise transfer any human organ
     for valuable consideration for use in human
     transplantation if the transfer affects interstate
     commerce.

     (b)  Penalties

          Any person who violates subsection (a) of this
     section shall be fined not more than $50,000 or
     imprisoned not more than five years, or both.

     (c)  Definitions

          For purposes of subsection (a) of this section:

          (1)  The term þhuman organþ means the human
     (including fetal) kidney, liver, heart, lung, pancreas,
     bone marrow, cornea, eye, bone, and skin or any subpart
     thereof and any other human organ (or any subpart
     thereof, including that derived from a fetus) specified
     by the Secretary of Health and Human Services by
     regulation.

          (2)  The term þvaluable considerationþ does not
     include the reasonable payments associated with the
     removal, transportation, implantation, processing,
     preservation, quality control, and storage of a human
     organ or the expenses of travel, housing, and lost wages
     incurred by the donor of a human organ in connection with
     the donation of the organ.

          (3)  The term þinterstate commerceþ has the meaning
     prescribed for it by section 321(b) of Title 21.  

     While this statute does allow þreasonable paymentsþ for the
cost of the procedure and incidental expenses, it is clear that
$101,500.00 is not payment for reasonable incidental expenses
incurred in the organ donation, but is an illegal sale of an organ
specifically prohibited by federal law.
     Since the contractþs subject matter is so plainly illegal,
long standing Arkansas precedent supports the trial courtþs grant
of 12(b)(6) relief even without a responsive pleading from the
appellees.
     The case of Womack v. Maner, 227 Ark. 786, 301 S.W.2d 438
(1957), is on point in several respects.  The appellant in Womack
sought recovery of a bribe he allegedly paid to a local judge.  The
appellee demurred (roughly equivalent to a modern 12(b)(6) motion),
and the trial court granted the demurrer on the grounds that a
cause of action was not stated.
     In considering Womackþs appeal, the Arkansas Supreme Court
stated: 
It is firmly established that in a situation such as is set
out in the complaint the law will not aid either party to the
alleged illegal and void contract.  According to the
allegations in the complaint, the parties are pari delicto,
hence, plaintiff  cannot recover. 

Id. at 787-88, 301 S.W.2d  at 439.  The Womack court went on to cite
several instances where the plainly illegal nature of the contract
was dispositive of the case.
     Here, while the contract the appellants seek to enforce is not
a bribe, the act of selling oneþs organs is equally offensive, and
just as clearly illegal as bribery.  While the statute regarding
organ sales is relatively modern (1986), its genesis is in a clear
public policy based on long standing attitudes about
transplantation of organs.  þLaws regarding the removal of human
tissues for transplantation implicate moral, ethical, theological,
philosophical, and economic concerns which do not readily lend
themselves to analysis within a traditional legal framework.þ 
State v. Powell, 497 So. 2d 1188, 1194 (Fla. 1986).  In commenting
on Powell, another court noted:
For that reason, the courts should look instead to the
particular statutes that were written on those subjects in an
effort to balance the peculiar interests involved.  Recently,
the California Supreme Court said that courts should not look
to conversion law but to the specialized statutes dealing
þwith human biological materials as objects sui generis,
regulating their disposition to achieve policy goals rather
than abandoning them to the general law of personal property.þ 
Moore v. Regents of the University of California, 51 Cal. 3d 120, 271 Cal. Rptr. 146, 156, 793 P.2d 479, 489 (Cal.1990),
cert. denied, 499 U.S. 936, 111 S. Ct. 1388, 113 L. Ed. 2d 444
(1991).  The same could be said for resorting strictly to
contract law when there is an alleged agreement for the
transfer of human remains.
Perry v. Saint Francis Hosp. & Medical Ctr., 886 F. Supp. 1551, 1563
n.7 (D. Kan. 1995).  
     In Perry, the court addressed the issue of an alleged contract
between a hospital nurse and a grieving family for the donation of
tissues from a deceased patient.  While the family did recover on
other grounds for the hospitalþs overreaching organ harvesting, the
court rejected a contract approach to the communication between the
family and the hospital, stating, þA contract approach is not
reconcilable with societal beliefs and values on this subject.þ 
Id. at 1563.  In support of this contention, the Perry court cited
the Uniform Anatomical Gift Act (1987), 8A U.L.A. 25 at  10(a),
and the federal law, discussed above, at 42 U.S.C. 274(e). 
Further, the court cited commentary on both the uniform law and the
federal act that these laws þembody a commitment to the belief that
organs should be given as a gift, either to a specific individual
or to society at large.þ  Developments in the Law -- Medical
Technology and the Law, 103 Harv. L. Rev. 1519, 1622 (1990); See
also Commentaries Vol. B, Ark. Code Ann. pp. 440-51 (Repl. 1995). 
     Based on the reasoning in Perry, and the equitable concerns
implicit in certain types of attempts to contract as summarized in
Womack, it is wholly appropriate for a trial court to refuse to
meddle in the illegal dealings of parties when the subject matter
of their agreement is so clearly repulsive to public policy and
federal law.  Such an analysis is equally persuasive on each count
(contract, detrimental reliance, and fraud) where, as in the
present case, both parties were in pari delicto, or equally
culpable or criminal.  As stated in Womack, þ[W]here an illegal
contract has been made, neither courts of law nor of equity will
interpose to grant any relief to the parties, but will leave them
where it finds them, if they have been equally cognizant of the
illegality.þ (Citation omitted.) Womack, 227 Ark. at 788, 301 S.W.2d  at 439.  
     Here, it is clear on the face of appellants' complaint that
the activity amounted to a sale of organs in violation of federal
law.  Accordingly, the trial courtþs dismissal was appropriate.
     Affirmed. 
     Robbins, C.J., and Stroud, J., agree.