Sanders v. Bradley County Human Servs. Pub. Facilities Bd.

Janette SANDERS and Jerry Sanders d/b/a
Sanders-2 v. BRADLEY COUNTY 
HUMAN SERVICES PUBLIC FACILITIES BOARD and 
Bradley County, Arkansas

97-110                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 4, 1997


1.   Judgment -- summary judgment -- standard of review. -- Under the
     standard of review for appealing the grant of summary
     judgment, the appellate court need only decide if the granting
     of summary judgment was appropriate based on whether the
     evidentiary items presented by the moving party in support of
     the motion left a material question of fact unanswered. 

2.   Judgment -- summary judgment -- burden of sustaining motion on movant. --
     The burden of sustaining a motion for summary judgment is
     always the responsibility of the moving party; all proof
     submitted must be viewed in a light most favorable to the
     party resisting the motion, and any doubts and inferences must
     be resolved against the moving party. 

3.   Judgment -- summary judgment -- when proper. -- Summary judgment is
     proper when a claiming party fails to show that there is a
     genuine issue concerning a material fact and when the moving
     party is entitled to summary judgment as a matter of law.

4.   Judgment -- summary judgment -- shifting burden upon establishment of prima
     facie case. -- Once a party establishes prima facie entitlement
     to summary judgment by affidavits, depositions, or other
     supporting documents, the opposing party must meet proof with
     proof and demonstrate the existence of a genuine issue of
     material fact.

5.   Principal & agent -- agency relationship -- two essential elements. -- The
     two essential elements of an agency relationship are (1) that
     an agent have the authority to act for the principal and (2)
     that the agent act on the principal's behalf and be subject to
     the principal's control.

6.   Counties -- public facilities boards -- legislature mandated independence
     between boards and counties. -- Based upon the language of Ark.
     Code Ann.  14-137-104(c), which limits the ability of the
     counties to control the actions of the public facilities
     boards, the supreme court concluded that the General Assembly
     mandated independence between the facilities boards and the
     counties.

7.   Counties -- contracts -- no appropriation supported contract for
     architectural services -- contract unenforceable. -- The supreme court
     agreed with the trial court that there was no appropriation to
     support a contract for architectural services rendered by
     appellants; this fact alone would render the contract
     unenforceable.

8.   Counties -- public facilities board -- appellants failed to abstract
     ordinance -- appellate court declined to speculate about board's action. -
     - Where appellants failed to abstract a county ordinance
     creating a public facilities board, leaving the supreme court
     unenlightened concerning what powers the quorum court had
     conferred on the board, the supreme court declined to
     speculate about whether the facilities board was acting within
     its conferred powers in contracting with appellants for
     architectural services.

9.   Contracts -- unjust enrichment -- quantum meruit claim discussed. -- Under
     Arkansas law, a claim for quantum meruit is generally made
     under the legal theory of unjust enrichment and does not
     involve the enforcement of a contract; nonetheless, a quantum
     meruit claim can succeed even when it is argued, in the
     alternative, to a contract that has been declared void; the
     amount of a quantum meruit recovery is measured by the value
     of the benefit conferred upon the party unjustly enriched. 

10.  Contracts -- unjust enrichment -- when theory is applicable. -- For the
     legal theory of unjust enrichment to pertain, there must be
     some enrichment or benefit to the party against whom the claim
     is made.

11.  Contracts -- unjust enrichment -- quantum meruit claim rejected. -- Where
     there was no proof whatsoever offered by appellants that
     appellee county had received architectural plans or made use
     of them or even knew about the contract with appellants to
     provide the services, appellants failed to meet proof with
     proof to establish that appellee county had indeed benefitted
     from the architectural services; a mere allegation that this
     was the case was not enough to offset summary judgment; given
     the lack of any proof that appellants' architectural plans had
     been used or that appellee county had benefitted in any way by
     them, the supreme court rejected appellants' quantum meruit
     claim.

12.  Appeal & error -- failure to obtain ruling resulted in procedural bar. --
     Where a review of the trial court's order revealed that no
     ruling was obtained under the theory of estoppel, the supreme
     court held that the point was procedurally barred.


     Appeal from Bradley Circuit Court; Sam Pope, Judge; affirmed.
     Michael R. Davis, for appellants.
     Haley, Claycomb, Roper & Anderson, by: Bruce Anderson, for
appellees.

     Robert L. Brown, Justice.
     Appellants in this case, Janette Sanders and Jerry Sanders
d/b/a Sanders-2 (the Sanderses), appeal a summary-judgment order in
favor of appellee Bradley County, Arkansas.  Bradley County had
denied liability on a contract where architectural services had
been rendered by the Sanderses.  The amount claimed by them was
$24,025.00.  The Sanderses contend that the Bradley County Human
Services Public Facilities Board, with whom their contract was
made, is not a separate body politic but rather is an agent of
Bradley County.  Moreover, they argue that Bradley County is
estopped from denying liability on the contract and that, in any
event, Bradley County has been unjustly enriched by the Sanderses'
work.  We hold that the points raised by the Sanderses are without
merit, and we affirm.
     On April 17, 1996, the Sanderses filed a complaint in Bradley
County Circuit Court against the Bradley County Human Services
Public Facilities Board (Facilities Board) and appellee Bradley
County.  The complaint alleged that the Facilities Board, which had
been created by the Bradley County Quorum Court, solicited bids
from architects in May 1994 for the purpose of designing a proposed
building in Bradley County that would provide office space for the
Department of Human Services.  According to the complaint, the
Facilities Board accepted the Sanderses' bid, and on June 1, 1994,
the Facilities Board and the Sanderses signed a written agreement
for architectural services.
     The Sanderses alleged that after they performed the work,
Bradley County was unsuccessful in its efforts to obtain financing
for construction of the building.  They asserted that, although
they demanded payment from both the Facilities Board and Bradley
County, payment was not forthcoming.  They acknowledged, however,
that payment in the amount of $1,180.00 was received from Bradley
County as a reimbursement for costs.  They asked for judgment
against both Bradley County and the Facilities Board in the amount
of $24,025.00 plus attorney fees.
     In its answer, the Facilities Board admitted that it was
created by the Bradley County Quorum Court pursuant to Ordinance
No. 262.  The Facilities Board also admitted that it entered into
a contract with the Sanderses but asserted that the Sanderses knew
the contract was contingent on funding for the proposed project,
which never occurred.  The Facilities Board further stated that the
Sanderses were aware that the Facilities Board had no income or
assets and that the ability of the Facilities Board to pay was
based on its ability to obtain financing through a direct loan or
bond issue.  The Facilities Board acknowledged that the Sanderses
performed certain architectural services.  The answer finally
stated that the Facilities Board was dissolved by Ordinance No. 294
of the Bradley County Quorum Court on October 10, 1995.
     In its separate answer, Bradley County admitted that the
Quorum Court created the Facilities Board and further admitted that
the Sanderses entered into a contract with the Facilities Board. 
Bradley County asserted, however, that the contract was entered
into in the name of the Facilities Board, not the County, and that
the County did not incur any liability as a result of the
Facilities Board's action.
     Bradley County next moved for summary judgment on the same
ground -- that it did not enter into the architectural agreement
with the Sanderses.  The County claimed that the Facilities Board
was a body politic separate and apart from the Quorum Court and
that the Facilities Board, which had been dissolved, did not have
the authority to obligate the County to a contract.  Attached to
the summary-judgment motion was an affidavit from LaVern Rice, the
Bradley County Judge.  In the affidavit, Judge Rice averred that
the Facilities Board was indeed a body politic separate and apart
from the Quorum Court; that the members of the Facilities Board
were not members of the Quorum Court; that Ordinance No. 262 did
not empower the Facilities Board with the ability to obligate the
County; that the Quorum Court was not consulted about the contract;
and that the County Judge did not become aware of the contract
until the Sanderses made demand on the County for payment.
     In their response to the motion for summary judgment, the
Sanderses offered no countervailing proof.  Rather, they contended
only that the Facilities Board was a creation of Bradley County and
that, if it was dissolved, the Board's actions should be imputed to
the County.
     A hearing was held, and the trial court granted Bradley
County's motion for summary judgment.  The trial court noted that
it was undisputed that Bradley County did not make an appropriation
to cover the additional services sued for by the Sanderses, and
that pursuant to Ark. Code Ann.  14-20-106 (1987), the County
could not be held liable for a contract under such circumstances. 
The trial court also explicitly rejected the Sanderses' arguments
for a recovery on the basis of either quantum meruit or unjust
enrichment.
     The trial court later entered an order acknowledging that the
claim against the Facilities Board had not been resolved by its
previous order and ruled that there was no just reason for delaying
the Sanderses' appeal with respect to the liability of Bradley
County under Ark. R. Civ. P. 54(b).
     The standard of review for appealing the grant of summary
judgment is well-established:
          In these cases, we need only decide if the granting
     of summary judgment was appropriate based on whether the
     evidentiary items presented by the moving party in
     support of the motion left a material question of fact
     unanswered.  The burden of sustaining a motion for
     summary judgment is always the responsibility of the
     moving party.  All proof submitted must be viewed in a
     light most favorable to the party resisting the motion,
     and any doubts and inferences must be resolved against
     the moving party.  Our rule states, and we have
     acknowledged, that summary judgment is proper when a
     claiming party fails to show that there is a genuine
     issue as to a material fact and when the moving party is
     entitled to summary judgment as a matter of law.
Sublett v. Hipps, 330 Ark. 58, 62, 952 S.W.2d 140, 142 (1997),
quoting Milam v. Bank of Cabot, 327 Ark. 256, 261-62, 937 S.W.2d 653, 656 (1997).  Furthermore, "[o]nce a party establishes prima
facie entitlement to summary judgment by affidavits, depositions,
or other supporting documents, the opposing party must meet proof
with proof and demonstrate the existence of a genuine issue of
material fact."  Id.
     The General Assembly created public facilities boards by the
Public Facilities Boards Act, now codified at Ark. Code Ann.  14-
137-101 to -123 (1987 & Supp. 1995).  This legislation provides in
part that any county is authorized to establish one or more public
facilities boards to construct health-care facilities.  Ark. Code
Ann.  14-137-106(a)(1) (Supp. 1995).  The General Assembly
authorized and empowered the boards "[t]o do any and all ... things
necessary or convenient to accomplish the purposes of this
chapter[,]" including the ability to succeed perpetually as a body
politic that could sue and be sued in its own name.  Ark. Code Ann.
 14-137-111 (Supp. 1995).     
     The Sanderses urge two reasons why this court should reverse
the trial court and hold that the actions of the Facilities Board
are imputed to Bradley County: (1) the Facilities Board was created
by ordinance of the Quorum Court; and (2) the County Judge was
responsible for appointing the initial members of the Facilities
Board under Ark. Code Ann.  14-137-108 (Supp. 1995).  We view
these reasons as essentially a contention that the Facilities Board
acted as an agent for Bradley County.  Thus, the initial question
to be addressed is whether a principal-agent relationship existed
between the Facilities Board and Bradley County.  In Taylor v.
Gill, 326 Ark. 1040, 1042-43, 934 S.W.2d 919, 921 (1996), this
court said that the two essential elements of an agency
relationship are (1) that an agent have the authority to act for
the principal and (2) that the agent act on the principal's behalf
and be subject to the principal's control.  Id., citing Pledger v.
Troll Book Clubs, Inc., 316 Ark. 195, 200, 871 S.W.2d 389, 392
(1994).
     Bearing these elements in mind, we turn to section 14-137-
104(c) of the Arkansas Code, which limits the ability of the
counties to control the actions of the facilities boards:
          Notwithstanding any other provisions of state law or
     ordinance of any municipality or county to the contrary,
     except as otherwise expressly provided in this chapter,
     none of the powers granted to a board under the
     provisions of this chapter shall be subject to the
     supervision or regulation or require the approval or
     consent of the state, or of any municipality, county, or
     political subdivision of the state, or of any commission,
     board, body, bureau, official, or agency of the state or
     any municipality, county, or political subdivision.
Ark. Code Ann.  14-137-104(c) (1987)(emphasis added).  Based on
this statutory language, we conclude that the General Assembly has
mandated independence between the facilities boards and the
counties.  This statutory separation is consistent with other
provisions of the Public Facilities Board Act.  See, e.g., Ark.
Code Ann.  14-137-120(a) (Supp. 1995)(bonds issued by a public
facilities board do not obligate the faith and credit of the
creating municipality or county); Ark. Code Ann.  14-137-106(a)(2)
(Supp. 1995) (public facilities boards are not administrative
boards under the County Government Code).
     Moreover, we agree with the trial court that there was no
appropriation to support the contract.  See Ark. Code Ann.  14-20-
106 (1987).  This fact alone would render the contract
unenforceable.  See, e.g., Lyons Machinery Co. v. Pike County, 192
Ark. 531, 93 S.W.2d 130 (1936); American Disinfecting Co. v.
Franklin County, 181 Ark. 659, 27 S.W.2d 95 (1930).  Cf. State use
Prairie County v. Leathem & Co., 170 Ark. 1004, 282 S.W. 367
(1926)(holding warrants issued in excess of appropriations void). 
Also, the Sanderses failed to abstract Bradley County Ordinance No.
262, leaving this court in the dark as to what powers the Quorum
Court conferred on the Facilities Board.  See Ark. Code Ann.  14-
137-107(2)(A) (1987) (ordinance shall specify powers granted to the
facilities board).  Hence, we can only speculate about whether the
Facilities Board was acting within its conferred powers.  This we
will not do.
     We turn next to the Sanderses' claims of unjust enrichment and
quantum meruit.  Under Arkansas law, a claim for quantum meruit is
generally made under the legal theory of unjust enrichment and does
not involve the enforcement of a contract.  Sisson v. Ragland, 294
Ark. 629, 745 S.W.2d 620 (1988); Dews v. Halliburton Industries,
Inc., 288 Ark. 532, 708 S.W.2d 67 (1986).  Nonetheless, a quantum
meruit claim can succeed even when it is argued, in the
alternative, to a contract that has been declared void.  Sisson v.
Ragland, supra; City of Damascus v. Bivens, 291 Ark. 600, 726 S.W.2d 677 (1987).  The amount of a quantum meruit recovery is
measured by the value of the benefit conferred upon the party
unjustly enriched.  City of Damascus v. Bivens, supra; Yaffe Iron
& Metal Co. v. Pulaski County, 188 Ark. 808, 67 S.W.2d 1017 (1934).
     In previous decisions, this court has permitted a quantum
meruit recovery after a contract with a government entity was
declared invalid.  See, e.g., City of Damascus v. Bivens, supra
(city obtained the benefit of physical improvements in the form of
resealed streets as a result of an invalid services contract);
Yaffe Iron & Metal Co. v. Pulaski County, supra (county kept
purchase money even though it did not deliver two bridges that were
the subject of a sales contract).  Yet, it is clear from our
decisions that in order for the legal theory of unjust enrichment
to pertain, there must be some enrichment or benefit to the party
against whom the claim is made.  See, e.g., City of Damascus v.
Bivens, supra.  In Lyons Machinery Co. v. Pike County, supra, we
defined benefit in terms of whether the county made any use of the
concrete forms at issue.
     In the instant case, there is no proof whatsoever offered by
the Sanderses that Bradley County received the architectural plans
or made use of them or even knew about the contract with the
Sanderses to provide the services.  Indeed, according to the County
Judge's affidavit, he was not aware of the contract.  Thus, the
Sanderses failed to meet proof with proof to establish that Bradley
County did indeed benefit from the architectural services.  A mere
allegation that this is the case is not enough to offset summary
judgment.  See Sublett v. Hipps, supra.  It is true that counsel
for the Sanderses mentioned at oral argument that the County Judge
sat as an ex officio member of the Facilities Board, which would
suggest knowledge.  That statement, however, hardly constitutes
proof.  Moreover, the County Judge specifically averred in his
filed affidavit that that was not the case.  Given the lack of any
proof that the Sanderses' architectural plans have been used, or
that Bradley County has been benefitted in any way by them, we
reject the quantum meruit claim.
     For their final point, the Sanderses argue that Bradley County
should be estopped from claiming it did not know what was occurring
with regard to the architectural contract.  A review of the trial
court's order reveals that no ruling was obtained on this theory of
relief.  The point is, therefore, procedurally barred.  See, e.g.,
Oglesby v. Baptist Medical Sys., 319 Ark. 280, 891 S.W.2d 48
(1995).
     Affirmed.