Robert Steinbuch v. University of Arkansas

 Digitally signed
 by Susan P.
 Williams
 Reason: I attest
 to the accuracy
 and integrity of                 Cite as 

 this document
 Date:              SUPREME COURT OF ARKANSAS
 2021.07.08                           No. CV-18-973
 15:03:58 -05'00'
                                               Opinion Delivered: December 5, 2019
 ROBERT STEINBUCH
      APPELLANT/CROSS-APPELLEE APPEAL FROM THE PULASKI
                                 COUNTY CIRCUIT COURT, SIXTH
 V.                              DIVISION
 UNIVERSITY OF ARKANSAS A/K/A [NO. 60CV-15-5690]
 UNIVERSITY OF
 ARKANSAS-LITTLE ROCK; THE       HONORABLE TIMOTHY DAVIS
 TRUSTEES OF THE UNIVERSITY      FOX, JUDGE
 OF ARKANSAS; MICHAEL
 SCHWARTZ, IN HIS OFFICIAL AND
 PERSONAL CAPACITY; THERESA
 BEINER, IN HER OFFICIAL AND
 PERSONAL CAPACITY; JOANN
 MAXEY, IN HER OFFICIAL
 CAPACITY; JOHN M.A. DIPIPPA, IN
 HIS OFFICIAL CAPACITY; AND
 VELMER BURTON, IN HIS
 OFFICIAL CAPACITY               AFFIRMED ON DIRECT APPEAL;
    APPELLEES/CROSS-APPELLANTS CROSS-APPEAL DISMISSED.


                          JOHN DAN KEMP, Chief Justice

        Appellant Robert Steinbuch appeals the Pulaski County Circuit Court’s dismissal of

his action against appellees University of Arkansas a/k/a University of Arkansas-Little Rock

(“UALR”), the Trustees of the University of Arkansas, Michael Schwartz in his official and

individual capacities, Theresa Beiner in her official and individual capacities, JoAnn Maxey

in her official capacity, John M.A. DiPippa in his official capacity, and Velmer Burton in

his official capacity. On appeal, Steinbuch argues that the circuit court erred by requiring

him to pay for counsel of the representatives of a class of students implicated in his 2015

Arkansas Freedom of Information Act (“FOIA”) request, by dismissing his claims for
injunctive and monetary relief against the official-capacity defendants based on sovereign

immunity, by dismissing individual-capacity claims against Schwartz and Beiner, and that

the University affirmatively waived sovereign immunity on a claim under the Arkansas

Whistle-Blower Act (“AWBA”). Appellees (collectively “the University”) cross-appeal,

asserting that the circuit court erred in denying Schwartz and Beiner’s dispositive motion

asserting statutory immunity, allowing the AWBA claim to go forward without cognizable

allegations of “adverse action,” denying the University’s motion to dismiss UALR as a party

that lacks legal capacity to be sued, and allowing Steinbuch to pursue a claim against JoAnn

Maxey in her official capacity. We affirm on direct appeal and dismiss the cross-appeal.

                                          I. Facts

       Steinbuch, a professor at the William H. Bowen School of Law (“Law School”)

made several FOIA requests between 2012 and 2015 in connection with research he was

conducting. His October 12, 2015 request consisted of spreadsheets, which included the

name, LSAT score, undergraduate GPA, law school GPA, race, sex, full-time or part-time

status, residency, graduation month, graduation year, and bar-passage information for every

student over a ten-year period. Claiming that a release of unredacted documents would

violate the students’ privacy rights, the Law School produced a redacted version of the

requested spreadsheet.

       On November 17, 2015, Steinbuch filed a complaint in the Pulaski County Circuit

Court alleging FOIA violations against UALR and Schwartz in his official capacity as then

dean of the Law School. Steinbuch filed an amended complaint on November 23, 2015, in

which he again claimed that UALR and Schwartz violated FOIA and sought an order for

                                             2
the production of an unredacted copy of the spreadsheet. He also added a claim against

UALR and Beiner, in her official capacity, alleging violations of the AWBA, 

 et seq. (Repl. 2016 & Supp. 2017), for retaliatory actions against

Steinbuch as a result of his original complaint. Specifically, Steinbuch claimed that, on

November 19, 2015, Beiner, then associate dean of the Law School, contacted a minority

student from one of Steinbuch’s classes and asked the student whether Steinbuch had

discussed his race-related research with the class.

       On December 10, 2015, Steinbuch filed an ex parte petition for temporary

restraining order and petition for preliminary injunction in which he alleged that on

November 27, 2015, Law School professors Adjoa Aiyetoro and Sarah Jenkins emailed

Beiner about Steinbuch’s lawsuit and grading policies. In response to the email from

Aiyetoro, Beiner wrote,

       Thank you for your e-mail about some of the concerns raised by this. I’ve
       been in touch with [Schwartz], and he and I are discussing how best to
       proceed. One or both of us will be in touch soon. In the meantime, if you,
       Sarah, or Ranko have any further thoughts on this, I welcome hearing from
       you.

       Schwartz then forwarded Aiyetoro’s and Jenkins’s emails to Steinbuch and others

involved, writing, in pertinent part,

       Normally, if I were to receive a message like the message below, either Terri or I
       would forward the message to the faculty member in question (in this case you,
       Rob), and we would work through the issues with all involved. However, because
       I am a named defendant in the referenced lawsuit, by copy of this message to Dr.
       Toro, I am asking Dr. Toro to investigate and resolve the issues.

In Steinbuch’s petition, he sought to “prevent[] Defendants or their agents or representatives

from any further retaliation against Plaintiff,” including, but not limited to, his requested

                                               3
attendance by Zulma Toro, then UALR provost, at an investigatory meeting. On

December 29, 2015, Steinbuch filed a second ex parte petition for temporary restraining

order and petition for preliminary injunction. That same day, Steinbuch filed a second

amended complaint, adding Toro and Maxey, an attorney in the University of Arkansas

Office of General Counsel, as defendants in their official capacities.

       On January 25, 2016, the circuit court held a hearing on Steinbuch’s petitions for

temporary restraining order and preliminary injunction. It did not enter an order on those

petitions until April 8, 2016. In the meantime, Steinbuch filed his third amended complaint

on February 18, 2016. The University moved to dismiss that complaint, arguing that the

requested records were exempt from FOIA, that the allegations failed to demonstrate

“adverse action” as required under the AWBA, that neither Maxey nor Beiner was

Steinbuch’s “public employer” under the AWBA, and that UALR was not an entity

amenable to suit. On April 8, 2016, the circuit court denied the University’s motion.

       That same day, the circuit court denied Steinbuch’s petitions for temporary

restraining order and preliminary injunction and found that both petitions were moot

because Toro had concluded the investigation one business day prior to the January 25

hearing. The circuit court ruled sua sponte that “the graduates of UALR Bowen School of

Law, whose records are implicated by Plaintiff’s FOIA request that underlies the instant

litigation, are necessary parties in this matter under Rule 19(a) of the Arkansas Rules of Civil

Procedure” because they may have constitutional privacy rights implicated and their

potential rights “are not adequately represented by either party.” Thus, Steinbuch was




                                               4
ordered to file a class-action complaint that named one or more of the students implicated

by the 2015 data request and pay the attorney’s fees of class counsel.1

       On August 19, 2016, Steinbuch filed his fourth amended complaint, naming Beiner

and Schwartz in their official and individual capacities and adding a claim of tortious

interference with an employment contract. He also alleged that his free-speech rights under

the Arkansas Constitution and United States Constitution, as well as his right to academic

freedom, had been violated. The case was removed to federal district court on August 30,

2016, and then remanded to state court on August 29, 2017, after Steinbuch dropped his

federal claim. On January 2, 2018, the circuit court entered an order giving Steinbuch thirty

days to file a fifth amended complaint that complied with Ark. R. Civ. P. 8(a) and sixty

days to comply with its April 8, 2016 order regarding former students.

       Steinbuch filed his fifth amended complaint on February 2, 2018,2 and added as

defendants John DiPippa and Velmer Burton in their official capacities as the Law School

dean and UALR provost, respectively. He also added a claim under the Arkansas Civil

Rights Act (“ACRA”) and a claim of civil conspiracy. On February 20, 2018, the University

filed a motion for partial judgment on the pleadings as to all the non-FOIA claims, arguing

that the institutional and official-capacity claims were barred by sovereign immunity, that


       1
         Steinbuch’s interlocutory appeal of the circuit court’s order on the requirements of
joinder of the defendant class of graduates and payment of class counsel’s fees was dismissed
for lack of appellate jurisdiction. Steinbuch v. Univ. of Ark., CV-16-596 (Feb. 8, 2018) (order
granting motion to dismiss appeal for lack of jurisdiction). Steinbuch did not appeal the
denial of his petitions for temporary restraining order and preliminary injunction.
       2
         The circuit court struck a prior version of Steinbuch’s fifth amended complaint for
failure to comply with Rule 8 of the Arkansas Rules of Civil Procedure.

                                              5
the equitable claims either were barred by sovereign immunity or were moot, that the

individual-capacity claims were barred by statutory immunity, and that he had not alleged

cognizable claims for tortious interference or conspiracy. In a sixth amended complaint,

Steinbuch supplemented his previous complaint by adding Evelyn Gomez and Misty Peltz

Steele as the representatives of the law-school class of graduates whose data was being

sought.

       On May 14, 2018, the circuit court dismissed the FOIA claim (count 1) with

prejudice because the parties had negotiated a settlement on that claim. The court also found

that

       there is no longer a need for a class of graduates of UALR Bowen School of
       Law to participate in this case. The putative class representatives, Evelyn
       Gomez and Misty Peltz-Steele, are hereby dismissed as separate defendants in
       this action. In addition, there is no need for an attorney for a putative class to
       participate as counsel in this case.

       After a hearing on the University’s motion for partial judgment on the pleadings, the

circuit court entered an order granting the motion, entering judgment on the pleadings, and

dismissing the remaining five claims on August 6, 2018.3 It also denied Schwartz and

Beiner’s claim to statutory immunity “because discovery is required to develop the facts

related to statutory immunity.” The circuit court then found that “[a]ny official-capacity




       3
         The following five claims remained: a claim of violations under the AWBA (count
2); a claim of violations under the Arkansas Constitution, as enforced through the ACRA
(count 3); a claim of violations to Steinbuch’s academic freedom, which the circuit court
interpreted as arising under the ACRA (count 4); a claim of tortious interference with an
employment contract (count 5); and a civil-conspiracy claim (count 6).

                                               6
claims, individual-capacity claims, or claims against UA/UALR that have not been

specifically addressed in this Order are dismissed with prejudice.” It concluded,

           The Court GRANTS Defendants’ motion, enters JUDGMENT on the
       pleadings in Defendants’ favor, and DISMISSES this civil action with
       prejudice. It is SO ORDERED on this 6 day of August 2018.

Steinbuch timely appealed the dismissal of his case, and the University filed a cross-appeal.4

                                    II. Standard of Review

       A motion for judgment on the pleadings is appropriate if the pleadings show on their

face that there is no merit to the suit. See LandsnPulaski v. Ark. Dep’t of Corr., 

,

 (2007). When we review the granting of judgment on the pleadings, we

view the facts alleged in the complaint as true and in the light most favorable to the party

seeking relief. See Rhodes v. Kroger Co., 

, 

.

       Our standard of review for the granting of a motion to dismiss is whether the circuit

court abused its discretion. 

. An abuse of discretion is a high threshold

that requires not only error in the circuit court’s decision, but also that the ruling was made

improvidently, thoughtlessly, or without due consideration. 

.

                                  III. Points on Direct Appeal

                          A. Attorney’s Fees for the FOIA Lawsuit

       Steinbuch first challenges the circuit court’s April 8, 2016 finding that he was

required to pay for counsel for the representatives of the class of students implicated by his



       4
        Steinbuch’s notice of appeal indicates that he appeals the circuit court’s orders
entered on April 8, 2016, January 2, 2018, and August 6, 2018. The University cross-appeals
orders entered on April 8, 2016, and August 6, 2018.

                                               7
2015 data request. He asserts that there was “no basis in law to impose such a burden on a

FOIA plaintiff” and, left unchecked, the ruling has the potential to have an extinguishing

effect on FOIA activity. Steinbuch argues that attorney’s fees are never recoverable against

a plaintiff under FOIA and that the court’s fee ruling directly conflicts with 

(d)(2) (Repl. 2014).

       The circuit court’s April 8, 2016 order states,

       Accordingly, the Court orders that this case should include, as a defendant
       class, graduates of UALR Bowen School of Law whose privacy interests may
       be affected if UALR Bowen School of Law were to release the data that
       Plaintiff has requested under FOIA. Plaintiff shall file a class-action complaint
       that names one or more of the graduates impacted by Plaintiff’s 2015 data
       request as a representative defendant.

       ....

       Plaintiff is ordered to pay the fees of counsel for the defendant class
       representative and class.

       We are persuaded by the University’s assertion that this argument is moot. In its May

14, 2018 order—three months before the remaining claims were dismissed—the circuit

court indicated that the parties had negotiated a settlement and resolved the FOIA claim.

Thus, the circuit court dismissed count 1 with prejudice and found,

       2. Because the Court has dismissed the FOIA claim . . ., the Court finds that
       there is no longer a need for a class of graduates of UALR Bowen School of
       Law to participate in this case. The putative class representatives, Evelyn
       Gomez and Misty Peltz-Steele, are hereby dismissed as separate defendants in
       this action. In addition, there is no need for an attorney for a putative class to
       participate as counsel in this case.

       3. The Court expresses no view on whether Plaintiff should recover attorneys’
       fees under FOIA. Resolution of that issue properly rests with the State Claims
       Commission under 

(e), 

-
       10-204(d), and Article V, § 20, of the Arkansas Constitution. Nothing in this
       order is intended to operate as a bar to Plaintiff’s ability to file a claim for
                                               8
       attorneys’ fees in the Claims Commission or Defendant’s ability to contest
       such a claim.

Based on this finding, any judgment rendered on the issue of payment of attorney’s fees

would not have had a practical legal effect on an existing legal controversy. Accordingly,

the issue is moot. See Terry v. White, 

, 

 (2008). We

have consistently held that we will not review issues that are moot because to do so would

be to render advisory opinions. See Ark. State Plant Bd. v. McCarty, 

, 

. Thus, we affirm on the FOIA attorney’s-fees issue.

                                 B. Official-Capacity Claims

                                       1. Injunctive relief

       Steinbuch next argues that the circuit court erred by dismissing his claims for

injunctive relief based on sovereign immunity. Although the circuit court’s August 6, 2018

order states that all claims “that have not been specifically addressed in this Order are

dismissed with prejudice[,]” Steinbuch acknowledges on appeal that the order fails to make

specific rulings on any claim for injunctive relief.

       The University argued to the circuit court that Steinbuch’s claims for equitable relief

were barred by the doctrines of sovereign immunity and mootness. But the August 6 written

order does not reflect on which of those two bases injunctive relief was denied.

       Steinbuch had the burden to obtain a ruling on his argument to preserve it for appeal.

See Tillman v. Raytheon Co., 

, 

. Because it is

unclear from the order that injunctive relief was denied on sovereign-immunity grounds,

the issue is not preserved. See Ark. Lottery Comm’n v. Alpha Mktg., 

, at 5–8,

, 403–05 (Lottery Commission’s failure to obtain a ruling on the defense of
                                                9
sovereign immunity when it moved to dismiss complaint on multiple grounds precluded

our review of sovereign-immunity issue on appeal). Cf. Kelley v. Johnson, 

, at

9–11, 

, 354–55 (addressing sovereign immunity on appeal when it was the

sole basis on which the Arkansas Department of Correction (ADC) moved for dismissal and

summary judgment, and the circuit court explicitly rejected the ADC’s asserted grounds for

being immune from suit).5

       Steinbuch further contends that the circuit court made a bench ruling at a June 2018

hearing when it stated that “sovereign immunity bars any action against the state of any kind

or nature, even if no monetary relief is being sought.” Assuming this statement constituted

an oral ruling, an oral order announced from the bench does not become effective until

reduced to writing and filed. See Nat’l Home Ctrs., Inc. v. Coleman, 

, 

 (2007). The written order controls. 

 Thus, we hold that Steinbuch’s

injunctive-relief argument is unpreserved. We therefore decline to address it.

                                       2. Monetary relief

       Steinbuch argues that the official-capacity claims for monetary relief were not barred

by sovereign immunity. Those official-capacity claims ruled by the circuit court to be barred

by sovereign immunity include the AWBA claim, a retaliation claim under the ACRA, the

academic-freedom claim, and a common-law conspiracy claim.



       5
        To the extent that Steinbuch also attempts to appeal the circuit court’s April 8, 2016
denial of his motion for preliminary injunction on mootness grounds, he failed to appeal
that court ruling pursuant to Rule 2(a)(6) of the Arkansas Rules of Appellate Procedure–
Civil. Thus, he failed to preserve any challenge to it. See, e.g., In re Estate of Stinnett, 

, 

.

                                               10
       On the issue of sovereign immunity, the Arkansas Constitution provides that “[t]he

State of Arkansas shall never be made defendant in any of her courts.” Ark. Const. art. 5, §

20. Generally, a suit against the State is barred by the sovereign-immunity doctrine if a

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

to liability. See Ark. State Med. Bd. v. Byers, 

, 

. The

General Assembly cannot override the Arkansas Constitution by enacting legislation that

subjects state entities to damages claims in circuit court. See Bd. of Trs. of Univ. of Ark. v.

Andrews, 

, at 10–12, 

, 622–23. We have extended sovereign

immunity to state agencies and state employees sued in their official capacities. Banks v.

Jones, 

, 

. That is because a suit against a state official

in his or her official capacity is not a suit against that person, but rather is a suit against that

official’s office. Id. at 3, 575 S.W.3d at 115. As such, it is no different than a suit against the

state itself. Id., 575 S.W.3d at 115.

       Sovereign immunity does not bar an injunction against the state or state officials

acting arbitrarily, capriciously, in bad faith, or in a wantonly injurious manner. See Ark.

Game & Fish Comm’n v. Heslep, 

, at 5–6, 

. Moreover, we

have long recognized that a state agency or officer may be enjoined from proposed action

that is ultra vires. See Byers, 

, 

. The exception to

sovereign immunity for unconstitutional acts or for acts that are ultra vires, arbitrary,

capricious, or in bad faith, however, does not apply to a claim seeking monetary damages.

See Bd. of Tr. of Univ. of Ark. v. Burcham, 

; see also Heslep, 

,

at 6, 

 (sovereign immunity would bar any claim for monetary damages).

                                                11
       Under Andrews and its progeny, claims for monetary damages against the state and

state employees acting in their official capacities are barred by sovereign immunity. Thus,

we hold that Steinbuch’s official-capacity claims for monetary relief are barred, and we

affirm the circuit court’s dismissal of them.

                               C. Individual-Capacity Claims

       Steinbuch also contends that the circuit court erred by dismissing the individual-

capacity claims against Beiner and Schwartz.6

                         1. Individual-capacity claims under the AWBA

       On Steinbuch’s individual-capacity claims under the AWBA, the circuit court ruled

that “[t]o the extent that Claim II asserted individual-capacity claims, the Court rules that

such claims are not permitted under the WBA.”

       Arkansas Code Annotated § 21-1-603(a)(1) (Repl. 2016) states that

       [a] public employer shall not take adverse action against a public employee
       because the public employee or a person authorized to act on behalf of the
       public employee communicates in good faith to an appropriate authority:

       (A) The existence of waste of public funds, property, or manpower, including
       federal funds, property, or manpower administered or controlled by a public
       employer; or


       6
         To the extent that Steinbuch asserts that the circuit court erred by denying, based
on sovereign immunity, his request for injunctive relief against Beiner and Schwartz in their
individual capacities, he has failed to preserve that argument for our review. Again, although
the August 6 order states that all claims “that have not been specifically addressed in this
Order are dismissed with prejudice[,]” Steinbuch acknowledges that the order fails to make
specific rulings on any claim for injunctive relief, including against individuals. Because he
failed to obtain a ruling on his injunctive-relief argument, it is not preserved. See Tillman,

, 

.



                                                12
              (B) A violation or suspected violation of a law, rule, or regulation
              adopted under the law of this state or a political subdivision of the state.

Additionally, the AWBA defines “public employer” as any of the following:

              (A) An agency, department, board, commission, division, office,
              bureau, council, authority, or other instrumentality of the State of
              Arkansas, including the offices of the various Arkansas elected
              constitutional officers and the General Assembly and its agencies,
              bureaus, and divisions;

              (B) A state-supported college, university, technical college,
              community college, or other institution of higher education or
              department, division, or agency of a state institution of higher
              education;

              (C) The Supreme Court, the Court of Appeals, the Administrative
              Office of the Courts, the circuit courts, and prosecuting attorneys’
              offices;

              (D) An office, department, commission, council, agency, board,
              bureau, committee, corporation, or other instrumentality of a county
              government or a municipality or a district court, a county subordinate
              service district, a municipally owned utility, or a regional or joint
              governing body of one (1) or more counties or municipalities; or

              (E) A public school district, school, or an office or department of a
              public school district in Arkansas[.]

(5) (Repl. 2016).

       In considering the meaning of a statute, we construe it just as it reads, giving the

words their ordinary and usually accepted meaning in common language. See Holbrook v.

Healthport, Inc., 

, 

, 596–97. When a statute is clear, it is

given its plain meaning, and we will not search for legislative intent. Id. at 6, 

. Based on the plain language of the statute, the AWBA does not provide for suit against

individuals. Thus, we hold that the circuit court did not err in dismissing the individual-

capacity claims under the AWBA.
                                              13
                        2. Individual-capacity claims under the ACRA

       Steinbuch next contends that the circuit court erred in finding that his individual-

capacity claims under the ACRA failed to state claims for which relief could be granted.

The circuit court rejected count 3, a retaliation claim under the ACRA, and count 4, the

academic-freedom claim, against Beiner and Schwartz in their individual capacities because

the ACRA’s relevant provision, 

, authorizes claims of

retaliation or interference with constitutional rights arising out of the employee-employer

relationship to be asserted against “an employer” but not individuals. 7

       The General Assembly in Act 191 of 2017 amended 

-

108(c), which governs remedies and procedures for retaliation or interference claims under

the ACRA. It added subsection (c)(2), which states, “An employment-related claim or a

claim arising out of the employee-employer relationship for a violation of subsection (a) or

subsection (b) of this section may be brought only against an employer, and the remedies

and procedures are limited to the remedies and procedures available under § 16-123-

107(c).” 

, § 3.

       Again, when a statute is clear, it is given its plain meaning, and we will not search

for legislative intent. See Holbrook, 

, 

. Under a plain

reading of the ACRA, the circuit court correctly dismissed these claims. The statute makes

clear that retaliation and interference claims under the ACRA are available against



       7
          To the extent that Steinbuch alleges the inapplicability of the ACRA or the AWBA
to his individual-capacity claims, that argument is unpreserved as it is being advanced for
the first time on appeal. See Leach v. State, 

, 

.

                                             14
employers. But claims against individuals are not permitted. We hold that the circuit court

properly dismissed Steinbuch’s individual-capacity claims under the ACRA.

                                 3. Tortious-interference claim

       Steinbuch next argues that the circuit court erred by dismissing his claim against

Beiner and Schwartz for tortious interference with a contract because they allegedly

instigated sham investigations they “knew or reasonably should have known were false, all

for the purpose of injuring [Steinbuch.]” In its August 6 order, the circuit court rejected

this claim, finding,

               In Claim V, Plaintiff asserted common-law claims against Schwartz (in
       his individual capacity) and Beiner (in her individual capacity) for tortious
       interference with [an] employment contract. Plaintiff did not sue UA/UALR
       or any defendants in their official capacities for tortious interference. The
       Court rules that Claim V fails to state a claim for which relief can be granted.
       See Faulkner v. Arkansas Children’s Hosp., 

, 

,
       405–06 (2002) (holding that the complaint for tortious interference was
       properly dismissed because it did not sufficiently allege that the defendants,
       who were supervisory employees at Arkansas Children’s Hospital, acted
       outside the scope of their employment in connection with “disciplinary
       actions and power struggles within a workplace setting.”).

       An essential element of a tortious-interference-with-contractual-relations claim is

that there must be some third party involved. See Faulkner, 

, 

. A party to a contract and its employees and agents, acting within the scope of their

authority, cannot be held liable for interfering with the party’s own contract. 

; see also Navorro-Monzo v. Hughes, 

, 

 (1989)

(tortious-interference claim defeated by the fact that there was no third party involved with

whom a contract could be disparaged).




                                              15
       Here, the circuit court correctly dismissed this claim because there was no third party

involved, and Steinbuch did not sufficiently allege that Beiner and Schwartz acted outside

the scope of their employment. Additionally, Steinbuch alleged in his fifth amended

complaint that “Defendants Beiner and Schwartz are agents of Defendant UA/UALR, and

their actions in this matter were done at the direction, behest, acquiescence, and/or urging

of UA/UALR.” We hold that Beiner and Schwartz were not capable of tortious

interference; accordingly, we affirm the dismissal of the claim.

                                    4. Civil-conspiracy claim

       Steinbuch argues that the circuit court erred in dismissing his civil-conspiracy claim.8

In its August 6 order, the circuit court determined that the claim was barred by sovereign

immunity and that

       [c]laim VI fails to state a claim for which relief can be granted. See Dodson v.
       Allstate Ins. Co., 

, 

 (2001) (“Corporate
       agents may not be held liable for civil conspiracy in the absence of evidence
       showing that they were acting for their own personal benefit rather than for
       the benefit of the corporation.”)

       In order to prove a civil conspiracy, a plaintiff must show a combination of two or

more persons to accomplish a purpose that is unlawful or oppressive or to accomplish some

purpose, not in and of itself unlawful, oppressive or immoral, by unlawful, oppressive or

immoral means, to the injury of another. See Born v. Hosto & Buchan, PLLC, 

, 

. Because a corporate entity cannot conspire with itself, a civil



       8
        To the extent that Steinbuch brought the civil-conspiracy claim against any
appellees in their official capacities, the circuit court correctly dismissed it as being barred
by sovereign immunity. See Banks, 

, 575 S.W.3d at 114.

                                               16
conspiracy is not legally possible when a corporation and its alleged coconspirators are not

separate entities but rather stand in either a principal-agent or an employer-employee

relationship with the corporation. See Dodson v. Allstate Ins. Co., 

, 

 (2001). Corporate agents may not be held liable for civil conspiracy in the

absence of evidence showing that they were acting for their own personal benefit rather

than for the benefit of the corporation. 

.

       Again, Steinbuch alleged in his fifth amended complaint that “Beiner and Schwartz

are agents of Defendant UA/UALR, and their actions in this matter were done at the

direction, behest, acquiescence, and/or urging of UA/UALR.” Thus, Steinbuch has failed

to allege facts demonstrating that Beiner or Schwartz acted for their own personal benefit.

We hold that the circuit court properly dismissed the civil-conspiracy claim.

                 D. Waiver of Sovereign Immunity on the AWBA Claim

       In his final point, Steinbuch argues that the University affirmatively waived sovereign

immunity on the AWBA claim because it sent him notice, as required by 

 (Repl. 2016), of his rights, including the right to sue under the AWBA. While

he acknowledges that the General Assembly cannot waive sovereign immunity, Steinbuch,

citing Wilson v. Arkansas Department of Human Services, 

, 

,

contends that sovereign immunity can be waived by a defendant and that a defendant can

be estopped from asserting it as a defense.

       In Wilson, we reiterated our holding from Walther v. FLIS Enterprises, Inc., 

, 

, that sovereign immunity is not a matter of subject-matter jurisdiction

that may be raised for the first time on appeal. 

, at 4, 

. We

                                              17
explained that it is an affirmative defense that must be raised and ruled on at the circuit court

level in order to preserve the issue. 

. In Wilson, the sovereign-

immunity defense was not raised by either Wilson or DHS at any stage of the lawsuit, nor

was it ruled on by the circuit court. Id. at 5, 

. In that instance, we refused

to address the issue for the first time on appeal.

       Here, this case is distinguishable from Wilson because sovereign immunity was

asserted by the University throughout the litigation below. And the AWBA claim was

rejected by the circuit court based on sovereign immunity. Further, we agree with the

University that its dissemination of a statutorily required notice does not fall within the

definition of a “waiver.” A “waiver” is “the voluntary abandonment or surrender by a

capable person of a right known by him to exist, with the intent that he will forever be

deprived of its benefits.” Fewell v. Pickens, 

, 

 (2001).

Pursuant to section 21-1-608, the University was required to notify employees about the

AWBA’s provisions. Its action in doing so did not constitute a “voluntary abandonment.”

See State Office of Child Support Enforcement v. Mitchell, 

, 

 (1997). Thus, the University did not waive its sovereign immunity as to the AWBA

claim. Because the University asserted below that the AWBA claim was barred by sovereign

immunity, we hold that the circuit court properly rejected the claim on that basis.

                                       IV. Cross-Appeal

       The University cross-appeals, asserting four points: (1) the circuit court erroneously

denied Beiner and Schwartz’s dispositive motion asserting statutory immunity; (2) the circuit

court in its April 8, 2016 order erroneously allowed the AWBA claim to go forward without

                                               18
cognizable allegations of “adverse action”; (3) the circuit court in its April 8, 2016 order

erroneously denied the University’s motion to dismiss UALR as a party that lacks legal

capacity to be sued; and (4) the circuit court in its April 8, 2016 order erroneously allowed

Steinbuch to pursue a claim against JoAnn Maxey in her official capacity even though she

was serving as associate general counsel and not as Steinbuch’s “employer” under the

AWBA.

       The entirety of the case against the University, however, was dismissed by the circuit

court’s August 6, 2018 order. Because we affirm on direct appeal, reversal on any of the

University’s cross-appeal points would have no practical effect. We will not review moot

issues, as doing so would be to render an advisory opinion, which we will not do. See Bank

of Am., N.A. v. Brown, 

, at 3. We therefore dismiss the cross-appeal.

       Affirmed on direct appeal; cross-appeal dismissed.

       Special Justices JAMES CROUCH, ROGER ROWE, and DOUG SCHRANTZ join.

       BAKER, J., concurs in part; dissents in part.

       HART, J., dissents.

       HUDSON, WOOD, and WYNNE, JJ., not participating.

       KAREN R. BAKER, Justice, concurring in part and dissenting in part. I

concur with the majority on Parts (III)(A), III(B)(2), III(C)(1), III(C)(2), III(C)(3), III(C)(4)

and IV of the majority opinion. In Board of Trustees of University of Arkansas v. Andrews, 

, 

, the majority explained, “Article 5, section 20 of the

Arkansas Constitution provides that [t]he State of Arkansas shall never be made defendant

in any of her courts. Sovereign immunity is jurisdictional immunity from suit, and

                                               19
jurisdiction must be determined entirely from the pleadings. See LandsnPulaski, LLC v. Ark.

Dep’t of Corr., 

, 

 (2007); Clowers v. Lassiter, 

, 

 (2005); Ark. Tech Univ. v. Link, 

, 

 (2000).”

Accordingly, pursuant to Andrews, Steinbuch’s pleadings are inconsequential because the

State cannot be sued under any circumstances—never means never. Therefore, I concur in

the portions of the opinion listed above.

       Further, I concur with the majority on the disposition of Part III(D) of the opinion—

“Waiver of Sovereign Immunity on the AWBA Claim”—but disagree with the majority’s

analysis. The majority affirms the circuit court’s decision that the State did not waive

sovereign immunity and bars Steinbuch’s AWBA claim, stating,

       In his final point, Steinbuch argues that the University affirmatively waived
       sovereign immunity on the AWBA claim because it sent him notice, as
       required by 

 (Repl. 2016), of his rights, including
       the right to sue under the AWBA. While he acknowledges that the General
       Assembly cannot waive sovereign immunity, Steinbuch, citing Wilson v.
       Arkansas Department of Human Services, 

, 

,
       contends that sovereign immunity can be waived by a defendant and that a
       defendant can be estopped from asserting it as a defense.

              In Wilson, we reiterated our holding from Walther v. FLIS Enters., Inc.,
       

, 

, that sovereign immunity is not a matter of
       subject-matter jurisdiction that may be raised for the first time on appeal. 

, at 4, 

. We explained that it is an affirmative
       defense that must be raised and ruled on at the circuit court level in order to
       preserve the issue. 

.

              ....

              Because the University asserted below that the AWBA claim was
       barred by sovereign immunity, we hold that the circuit court properly
       rejected the claim on that basis.




                                              20
     This analysis is misplaced. As I explained in my dissent in FLIS Enterprises, Inc., 

, 

, sovereign immunity is not an affirmative defense:

              I disagree with the majority’s decision to treat sovereign immunity like
      an affirmative defense. Specifically, the majority states that “[a]lthough
      sovereign immunity certainly has jurisdictional qualities, this court historically
      has treated it like an affirmative defense that must be preserved. See Ark.
      Lottery Comm’n v. Alpha Mktg., 

, 

      (concluding that the trial court's failure to rule on sovereign immunity
      prevented appellate review).” Following the majority’s decision in Andrews,
      saying that sovereign immunity is like an affirmative defense is akin to saying
      a Bengal tiger is like a house cat. Further, I disagree because this position yields
      the nonsensical result that in each lawsuit against the State, trial counsel for a
      State entity may waive sovereign immunity—either as a result of poor
      lawyering skills, negligent omission, or even as a matter of trial strategy. This
      is fundamentally unfair to the citizens of Arkansas and completely absurd.

FLIS, 

, at 23–24, 

, 276–77 (Baker, J., dissenting).

      Further, I explained the confused state of our law regarding sovereign immunity in

my dissent in Banks v. Jones, 

, at 9–11, 

, 117–18:

              [W]hile I concurred in Williams v. McCoy, 

, 

, which was handed down on the same day as Andrews, even a fortune-
      teller could not have predicted the state of disarray that would lie in the wake
      of Andrews. See Walther v. FLIS Enters., Inc., 

, 

      (sovereign immunity is an affirmative defense and a failure to assert it amounts
      to a waiver); Ark. Dep't of Veterans Affairs v. Mallett, 

, 

 (the failure to assert sovereign immunity is of no moment); Wilson
      v. Ark. Dep’t of Human Servs., 

, at 5–6, 

, 203–
      04 (Hart, J., concurring) (“FLIS provides that the failure to assert sovereign
      immunity as an affirmative defense amounts to a waiver of this doctrine, but
      in [Mallett], this court held that the failure to assert sovereign immunity simply
      does not matter. These cases are at odds on this question, and the majority’s
      decision here to cite FLIS as controlling authority only renders our
      jurisprudence further indiscernible.”); Id. at 8, 

 (Wynne, J.,
      dissenting) (“The majority cites [FLIS] for the proposition that sovereign
      immunity is not a matter of subject-matter jurisdiction that may be addressed
      for the first time on appeal; rather, it is an affirmative defense that must be
      raised and ruled on at the circuit court level in order to preserve the issue.
      However, after FLIS, this court handed down [Mallett]. . . . Over three years
      into the case, ADVA filed a motion to dismiss and argued for the first time
                                              21
       that it was entitled to sovereign immunity. The circuit court denied the
       motion, but this court reversed and dismissed. As noted by two dissenting
       opinions, Mallett thus retreated from FLIS’s treatment of sovereign immunity
       as an affirmative defense.”).

       Accordingly, sovereign immunity is not an affirmative defense. Rather, according to

Andrews, the State can never be sued. Therefore, I would affirm the circuit court’s order,

and, I concur in the majority’s result on this point.

       Finally, I dissent from Part III(B)(1)—“Official Capacity Claims, Injunctive

Relief”—because the issue is preserved. I would address the merits of this claim and affirm

the circuit court’s decision on this point based on Andrews. The majority states:

              Steinbuch had the burden to obtain a ruling on his argument to
       preserve it for appeal. See Tillman v. Raytheon Co., 

, 

. Because it is unclear from the order that injunctive relief
       was denied on sovereign-immunity grounds, the issue is not preserved. See
       Ark. Lottery Comm’n v. Alpha Mktg., 

, at 5–8, 

,
       403–05 (Lottery Commission’s failure to obtain a ruling on the defense of
       sovereign immunity when it moved to dismiss complaint on multiple grounds
       precluded our review of sovereign-immunity issue on appeal).

              ....

               Steinbuch further contends that the circuit court made a bench ruling at a
       June 2018 hearing when it stated that “sovereign immunity bars any action against
       the state of any kind or nature, even if no monetary relief is being sought.” Assuming
       this statement constituted an oral ruling, an oral order announced from the bench
       does not become effective until reduced to writing and filed. See Nat’l Home Ctrs.,
       Inc. v. Coleman, 

, 

 (2007). The written order
       controls. 

 Thus, we hold that Steinbuch’s injunctive-relief argument is
       unpreserved. We therefore decline to address it.

       The majority’s holding is flawed because Steinbuch preserved the issue. As the

majority acknowledges, the circuit court’s August 6, 2018 written order does not contain a

specific ruling on Steinbuch’s alleged request for injunctive relief. However, the record

demonstrates that Steinbuch clearly sought injunctive relief. The order at issue dismissed all

                                              22
claims against the University that were not specifically addressed in the order: “Any official-

capacity claims, or claims against UA/UALR that have not been specifically addressed in

this Order are dismissed with prejudice.” Accordingly, the circuit court dismissed all claims,

including Steinbuch’s injunctive-relief claim, and was not required to enter specific findings

of fact and conclusions of law. Here, the circuit court stated that it had considered all

arguments, pleadings, briefs, and exhibits, and it ruled. To now conclude that the circuit

court did not rule, when it expressly states that it did rule, is error. TEMCO Constr., LLC

v. Gann, 

, at 16–17, 

 (Hannah, J., dissenting).

       Further, in declining to reach the merits of the injunctive-relief claim, the majority

relies on Alpha Marketing, 

, 

. However, as I explained in my

dissent to Mallett, 

, at 5–6, 549 S.W.3d at 353–54, Andrews overruled Alpha

Marketing; therefore, the majority cannot rely on Alpha Marketing.

       Rather, in light of Andrews, I would affirm the circuit court’s decision on this point.

Any suit against the State is barred, and Steinbuch’s pleadings are inconsequential. “In Brown

v. Arkansas State HVACR Lic. Bd., 

, 

 (1999) . . . we pointed

out that sovereign immunity is jurisdictional immunity from suit, and where the pleadings

show the action is one against the State, the trial court acquires no jurisdiction.” Ark. Tech

Univ., 

, 

. Therefore, despite Steinbuch’s claims, the circuit

court did not acquire jurisdiction to consider his claims for injunctive relief. In accordance

with Andrews, we must affirm the circuit court’s orders regarding any injunctive relief against

the University. Finally, although the majority of this court held that the suit for injunctive

relief may be pursued against the State in Arkansas State Plant Board v. McCarty, 

, at 9–10, 

, 477–78, that holding conflicts with Andrews, and I would

overrule McCarty. The State cannot be sued under any circumstances—never means never.

 (Baker, J., dissenting). Accordingly, I dissent on this point.

       Based on the discussion above, I concur in part and dissent in part.

       JOSEPHINE LINKER HART, Justice, dissenting. This case must be dismissed for

lack of a final, appealable order. The order appealed from only disposes of a motion for

partial judgment on the pleadings. Cross-appellants acknowledge that not all the named

defendants were dismissed. Furthermore, Schwartz’s and Beiner’s statutory-immunity

defense for official-capacity claims is, by express language in the order, still pending. The

University of Arkansas at Little Rock has not even been completely dismissed—there is no

ruling on the injunctive relief, which Steinbuch contends is not barred by sovereign

immunity.

       Furthermore, the majority’s reliance on Arkansas Lottery Commission v. Alpha

Marketing, 

, 

, is misplaced. In that case, this court held that

without an express ruling on sovereign immunity, the order was not amenable to

interlocutory appeal pursuant to Arkansas Rule of Appellate Procedure –Civil 2(a)(10). In

Alpha Marketing, the failure to rule on sovereign immunity required this court to dismiss the

appeal, not decide it on the merits or, more precisely, affirm the dismissal of the case on a

procedural bar. The failure to rule on this issue puts the “partial” in the “partial motion for

judgment on the pleadings.”

       In Arkansas, there is a policy against piecemeal litigation. Blackman v. Glidewell, 

. A final order is required to give this court appellate jurisdiction. 

 To be final,

                                               24
the order must dispose of all pending claims. Servewell Plumbing, LLC v. Summit Contractors,

Inc., 

, 

 (2005). Inasmuch as all pending claims are not disposed

of, and there is no Arkansas Rule of Civil Procedure 54(b) certification, this case should be

dismissed. See, e.g., Dodge v. Lee, 

, 

 (2002).

       I dissent.

       Corbitt Law Firm, PLLC, by: Chris P. Corbitt, for appellant.

       David A. Curran, Office of the General Counsel, for appellees.




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