*1 Here, act occurred the alleged negligent 536 (1991). and fell in County when Appellee slipped on May hence, store; now barred the action is Market grocery of limitations. statute three-year dismissed.
Reversed
v. BIG MAC
Thomas and Alisa CUMMINGS
HOMES, INC.,
Bank
Services
MOBILE
Stephen raised L. issues by appellants Brown, Robert Justice. are in this case and Alisa Timothy Cummings to the trial court erred concluding exception whether and whether doctrine did not the exhaustion-of-remedies apply at exceeded the authority granted issue legislative regulations We hold that Arkansas Manufactured Home Commission. of administrative the rule an exhaustion an exception requiring case, trial court. and we reverse the remedies does in this apply 1995, 9, a new 1995 On Cummingses purchased January Mac Mobile mobile home from Big Classic appellee Express Inc., $20,870.50. Homes, From the time the mobile home for the roof it leaked water from was delivered to Cummingses, rained, ran the interior walls. it and the water down Big each time the water leak: (1) four unsuccessful Mac made attempts repair 3, 1995; 15, 16, 1995; on on (3) February on (2) February January 17, 1996, 10, 1995; the Cum- and on 1995. On (4) May April letter to of the mobile home by revoked their mingses acceptance Mac, and demanded Mac, the mobile home Big tendered Big refused Mac the mobile home. Big made on of return payments the tender. for 9, 1996, filed complaint the Cummingses
On July home was the mobile and of the sales contract alleged breach to them and when delivered defective condition” in a “structurally them. its value to substantially impaired that this nonconformity had tendered further alleged they The Cummingses had Mac refused Mac and that Big home to Big mobile $30,000 breach of of for in excess tender. They sought damages made on the included contract. The payments requested for home and casualty mobile price premiums purchase Mac then filed a against third-party complaint insurance. Big home, Inc., mobile and the manufacturer Classic Housing, liable. Mac was found over in event Big judgment prayed Mac moved dismiss the complaint On May Big remedies. to failure to exhaust administrative Specifically, Big due to file a that the had failed Cummingses complaint Mac asserted On Home Commission.1 with the Arkansas Manufactured Sep- filed Amended and Substi- tember an Cummingses BankAmerica Services as Housing tuted Complaint joined Mac installment sales defendant assignee party Big home, no contract on the mobile but they wrongdoing alleged *4 BankAmerica The stated for against purpose joining party. was to bind that in the event of a against Housing judgment party 22, 1998, the court Mac. On trial Big September granted Big The motion to without Mac’s dismiss Cummingses explanation. of of Law and filed a Motion for Fact and Conclusions Findings 21, 1997, fact October of for Reconsideration. On findings court, and on Octo- conclusions of law were entered trial by was denied. The the motion for reconsideration ber from the order recon- filed Cummingses timely appeal denying sideration of dismissal. 1 Big Mac Act 419 as for its Act 346 of cites of 1977 motion. erroneously for costs See Ark. Code Ann. 1987 for to Commission of provides complaints repairs. (Repl. 20-29-105
220 first contend that there error on Cummingses was of trial court an part failing apply exception of
doctrine
exhaustion of administrative remedies. The doctrine
of exhaustion of administrative remedies
that no one is
provides
entitled to
for a
or
relief
threatened
until
judicial
supposed
injury
administrative
has been
statutory
prescribed
exhausted. See
v. Bethlehem
However, in Barr v.
Blue
Shield,
Arkansas
Crossand Blue
Inc.,
262,
297 Ark.
We turn then to the statutes. The General Assem- applicable codified, amended, first enacted Act bly now at Ark. Code 20-25-101 20-25-113 through §§ for 1997), the establishment of Supp. the Arkansas provide Manufactured Home of uniform adoption homes, standards for the of manufactured building and for enforcement those standards Act penalties. Subsequendy, *5 346 of now at codified Ark. Code 20-29-101 §§ 20-29-111 for through 1991), procedures filing complaints before the and for Commission the awarding for actual damages deals 20-29-105 Section specifically enacted. were cost of repairs of these complaints: the with filing dealer, installer, consumer, licensee, manufacturer or All
(a) commission The filed with the commission. shall be complaints establishes, it determine, whatever hearing procedure or by shall and, violated has been commission by standard the if any adopted home, if so, any, manufactured of repairs if the actual cost or parties. by aggrieved party suffered the commission The of awarded (b) amount damages the manufactured the actual cost of repairs be limited to shall On appeal include fees. attorneys’ home and shall not commission, of the jurisdiction court an award of the circuit from cost of repairs be limited to the actual the circuit court shall have court not juris- manufactured home. The circuit shall for claims cov- damages diction to award punitive exemplary fees, or of court attorneys’ this chapter, ered provisions costs. awards: 20-29-106 then addresses available damage
Section that a standard has (a) the commission Upon finding by violated, direct the licen- the commission shall respondent been dealer, see, installer, the awarded amount or manufacturer pay to the complainant. not follow-
(b) (30) days If the amount is within thirty paid commission and no of appeal the written decision ing court, shall, has filed in the circuit the commission decision been Housing from the Manufactured Recovery upon request, pay if: Fund the of the award to complainant amount (1) is in excess of ten thousand dollars The amount not licen- (1) for one violation ($10,000) any respondent manufacturer; see, installer, dealer, or which mirror Commission later rules adopted XII, these statutes. See Section Rules Regulations granted by for Homes (1993). Manufactured rules, Under the Arkansas statutes and Commission for dam it is that the a remedy clear Commission only provides has the actual when one of its standards for cost repairs ages hand, not the case at been violated. But in repairs *6 Indeed, that their assert requested. Cummingses remedy mobile is seek the of home revoca- beyond They remedy repair. Code, tion of under the Uniform Commercial due to acceptance, a which nonconformity mobile home’s substantially impairs value to them. SeeArk. Code Ann. 4-2-608 Fol- Mac, a of the seek tender mobile home return they lowing Big of the sales To ask for this before Commis- paid. remedy price sion would futile because this is manifestly not remedy simply available. of Harris, The case Delta School Commercev. supra,provides of Harris, for our In held this court
authority holding today. administrative was for its failure to allow the remedy inadequate relief of plaintiff/students’ requested consequential damages, lost and The students’ including wages out-of-pocket expenses. was that the had made school fraudulent complaint statements enroll, actual, which induced them to and conse- they sought action, and Prior to this the U.S. Sec- quential, punitive damages. of Education had federal to its retary adopted regulations pursuant of which allowed a student to file a com- statutory grant with the The federal plaint Secretary. that if regulations provided valid, a student’s was could initiate complaint an Secretary institution, limit, action to fine the or terminate the suspend, institution’s in the Education eligibility participate Higher Act, Assistance and take “other We action.” affirmed appropriate award of in favor and held damage students jury because the federal not did allow the regulations Secretary pur- student, sue for a such as lost consequential wages the administrative was inade- out-of-pocket expenses, remedy That is the situation we have in the case at quate. precisely bar.
We conclude that when relief that is plaintiff prays level, not availableat the administrative clearly exhaustion other available administrative remedies is not Delta See School required. Commerce, Harris, Indus., Inc. v. See also O & G Inc. v. supra. Comm’n, A.2d 1121 Planning Zoning (Conn. 1995) (an administrative if it can only adequate provide plain tiff with the relief it seeks and review of the administrative judicial Maresca Town decision); (Conn. A.2d 751 Ridgefield, App. Ct. 1994) (administrative when remedy inadequate employee adminis- was the only and reinstatement money damages sought available). trative remedy *7 a trial court made finding the do note where
We
with the Commission
a claim
case that filing
in the instant
fact
view
erroneous. We
was
That
clearly
not be futile.
finding
would
exhaust administra
failure to
dismiss due to
Mac’s motion to
Big
for failure to
to dismiss
motion
12(b)(6)
as a Rule
tive remedies
P.
Ark. R. Civ.
See
relief
granted.
facts
which
may
state
upon
Finally, do not consumer recovery establish the Commission provide intended that the General indicate Assembly pre any way fact, of the a consumer’s remedies at law. In one provision empt See Commission suggestsjust opposite. Code establishing Section 20-25- 20-25~110(c) Ark. Code § manufacturer to issue warranty a mobile-home requires material defects the mobile home is free from guaranteeing manner. of 20-25- (c) and built in a workmanlike Subparagraph to, and not in shall be in addition 110 states that: “The warranty of, which buyer may all other derogation rights privileges is clear or instrument.” This have under other law provision any is not the administrative scheme that with to manufacturers regard meant to be exclusive of other remedies at that consumers law have. might short,
In it clear to this court and appears patently that the serious Cum beyond any remedy sought dispute face, on its is not available at the Commission level. We mingses, hold that in of the fact that an administrative was light unavailable, it would have been a futile act to require appel file their lants to revocation of first complaint seeking acceptance with the Commission. We reverse and remand the matter to the trial court for further Because we reverse on this proceedings. we need not address the second that the point, Cummingses’ point court, Commission’s the trial would regulations, interpreted by exceed the Commission’s legislative authority.
Reversed and remanded.
Thornton, dissents. J., I would affirm the
Ray Thornton, Justice, dissenting. of the trial court on the that findings grounds appellants must exhaust their administrative remedies the before Arkansas Manufactured Home Commission before relief pursuing judicial in this matter. I dissent from the respectfully majority opinion not to claim but rather to seek the by choosing damages rescission of a contract to more than a after the purchase year into, contract was entered should be allowed purchase appellants the administrative of its deprive agency responsi- violated, and, to determine whether standards had been if bility so, to award Ark. See Code Ann. 20-29- appropriate damages. § 105 1991). (Repl. view,
In the created the Commission to my Legislature pro- vide to consumers who defective manufac- protection purchased tured homes. the associated with Recognizing special problems from dealers and manufacturers who recovering had damages financial resources were or otherwise inadequate judgment-proof, Fund to underwrite Legislature provided Recovery damages $10,000.00 However, unit. no limitation was up per imposed the maximum to be recovered from the manufac- remedy upon turer or dealer which violated the standards. fund to pro- of a recovery the establishment rationale for
The
award from
consumer
similar
principle
tect the
not
does
require
Commission generally
Worker’s Compensation
As we stated
injuries.
for work-related
fault for recovery
proof
769,
S.W.2d
326 Ark.
in Brown
Finney,
Act
behind the Worker’s Compensation
(1996),
purpose
all
the burden off
shifting
the common law by
. . was to change
.
and employees
employers
from individual
injuries
work-related
being virtually
of fault
with the concept
the consuming public
Ark.
Nat’l Bank v. Thompson,
See SimmonsFirst
immaterial.
statutes,
of such
With
(1985).
passage
Brown, at 771. 326 Ark. at Here, actions con- intended that all clearly Legislature be addressed should defects in manufactured housing cerning but did not statutorily provide cited the has applicable pro- be exclusive. majority properly 20-29-105, but I wish to Ann. emphasize visions of Ark. Code § consumer, licen- “All the first sentence of that statutory provision: see, installer, dealer, be filed with manufacturer shall complaints 20-29-105(a) Ark. Code Commission.” statuto- that this is not While I with majority delegation agree law, in the exclusive as workers’ hope- rily compensation provided *9 that in the absence of a all members of the court would fully agree exclusive jurisdiction, jurisprudential statutory delegation controls. doctrine of exhaustion settled doctrine is “long
The jurisprudential-exhaustion administration that no one is rule of judicial [which mandates] until relief for a or threatened entitled to injury judicial supposed has been exhausted.” administrative remedy Taylor the prescribed 470, 1997), 127 F.3d 476 Cir. (5th citing v. U.S. Treasury Dept., 41, U.S. 50-51. Arkan 303 v. Bethlehem Corp., Myers Shipbuilding administrative held that exhaustion of have sas courts previously will result if the where remedies is not irreparable injury required remedies, is administrative complaining party compelled pursue or where an administrative would be futile. Delta School appeal Harris, 611, 618, Commerce, Inc. 310 Ark. 839 S.W.2d Inc., Shield, Barr v. Arkansas Blue Cross and Blue 297 Ark. (1992); Here, the has (1988). majority case, determined that the relief not available to pleaded, requests under the administrative available before the appellants remedy Commission, Manufactured Home and that therefore the remedy need not be exhausted. This conclusion is inadequate flawed, view, because the for the my simply damages entire which is available administrative purchase price, through action, is adequate. notes,
As the the General majority quite correctly Assembly for the establishment of the Arkansas Manufactured provided Home Commission to uniform standards for the adopt building, homes, and installation of manufactured and to enforce selling, those standards and deter violations Act 346 of through penalties. 1987, codified at Ark. Code Ann. 20-29-101 20-29- through §§ outlines 1991), consumer com- (Repl. procedures filing before the which is to award plaints empowered sections, for the cost of Under these Arkansas repairs. Manufactured Home Commission is authorized to collect annual manufacturers, dealers, assessments of and installers of manufac- tured homes to contribute to a fund whose is to recovery purpose awards for claims and filed with Commission. pay complaints Section 20-29-105 provides: consumer, licensee, installer, dealer,
All or manufacturer shall be filed with the complaints Commission. The Commis- sion shall determine or whatever by hearing it estab- procedure first, lishes if any, standard by Commission has been adopted violated, and, so, if the actual cost of manufactured repairs home, if suffered any, aggrieved party parties. Ark. Code Ann. It seems clear to 20-29-105(a) me that if a structure as substantial as a manufactured home is truly the limit of which could be awarded beyond repair, recovery the Commission would be the of a cost new home. *10 violated, the been Commis- a standard has that finding
Upon the amount. If the awarded the shall direct pay sion respondent court, circuit the award is not not appealed amount is paid, from the award complainant the Commission may pay not in excess of Fund, the amount is so long Recovery claim to his $10,000.00, to subrogate and the agrees complainant 20-29-106(a)-(b) (Repl. Ark. Code Commission. § 1991). consumer, that “All statute language providing filed
licensee, installer, dealer, shall be or manufacturer complaints intention indicates the the Commission” clearly Legislature’s with before the Commission. as these be such brought disputes enforce that the Commission This effectuates the goal legislative violators. The majority’s opin- the state’s standards penalize enforcement of state standards ion defeats these goals; agency not made aware of violations. where the Commission is impossible A rule of administrative agency basic procedure requires to address a before question complainant given opportunity 313 Ark. to the courts. Hankins v. resorts McElroy, S.W.2d 310 (1993).
Furthermore, intention that has revealed its Legislature this is a which must be exhausted in following provi- circuit court: sions concerning appeals a decision of the shall be to the from Commission Appeals Administrative Circuit Court in accordance with the Arkansas of the Com- Procedure Act. Such shall appeal stay portion Neither the damage. mission order which directs payment shall be to pay damages nor the Commission respondent required until such time as a final order of the Circuit complainant Court, or Court is issued. Court of Appeals, Supreme dam- awarding
On the Circuit Court appeal, jurisdiction (a) in amount to to be from the fund shall be limited ages paid (b) the limits set amount determined fees or court attorneys’ forth herein. The Court shall not award costs to be the fund. paid
Ark. Code Ann. 20-29-107 *11 The amount of awarded Commission shall damages by be limited to the actual cost of to the manufactured home repairs and shall not include fees. On to the attorneys’ Circuit appeal Court from an award of the the jurisdiction of the Circuit Court shall be limited to the actual cost of repairs manufactured home. The Circuit Court shall not havejurisdic- tion to award punitive exemplary damages covered claims fees, of this by provision or costs. chapter, attorneys’ Ark. Code Arm. 20-29-105(b)
While seek which is appellants argue they beyond the Commission to power authority grant, of the plain reading reveals no above-quoted statutory language limits on the be compensatory damages to a may granted Commission; indeed, for the complainant by full amount of the manufactured home may thus appropriate, a rescission of the sales contract. The effecting remedies only which are unavailable from the Commission are those for attor- fees and This ney’s limitation on exemplary damages. recovery, like the limitation on an action in tort in workers’ compensation cases, $10,000.00 is offset availability from the up Fund, Commission’s as the Recovery worker’s tort claim just offset the assured for work-related recovery injuries. relies majority opinion strongly upon language
the Code consumer’s in addition to the regarding rights warranty on the manufactured home which is the statutes. It required by seems clear to me that warranties, this provision cou- relating with the Commission’s pled award damages, negates conclusion that any before the Commission would be proceeding futile. I with the trial court’s agree conclusion that administrative remedies should be exhausted before the courts accept jurisdic- tion, and dissent from the respectfully majority’s opinion.