*1 OPPORTUNITIES, COUNTY, INC. Arkansas MILLER Place d/b/a Meadowbrook 971 S.W.2d 97-1498 Arkansas Court Supreme delivered July Opinion denied rehearing September 1998.] [Petition *3 Stewart, Stewart, & Ned A. Autrey, for Autrey by: Jr., appellant. Shaw, Dunn, Dunn, Nutter & L. Morgan by: Winford appellee. Newbern, The issue in this David appeal Justice.

whether owned and property by operated appellee, Opportu nities, Inc., is entitled to from ad valoremtaxes exemption imposed Miller by appellant, consists of land County. there which is an upon apartment by complex occupied persons 55 and older. aged was denied the Miller Exemption Court. That decision was reversed on to Miller Circuit appeal Court which held that the falls within the exemption i.e., in Ark. Const. art. provided 5(b), “Buildings *4 . . used grounds . for . . . .” It exclusively was also public charity held that prior rulings with the granting to exemption respect in barred reconsideration of the issue. hold question We that the record does not demonstrate that the is used for that exclusively and the public charity to which prior rulings the Circuit Court adverted have no res collateral judicata, estoppel, We, therefore, or law-of-the-case effect. the reverse decision.

1. Exemption The burden on a a constitutional tax party claiming to is entitlement a exemption prove reasonable doubt. beyond 87, v. City 306 Ark. 811 Fayetteville S.W.2d 308 Phillips, (1991). of Tax must be exemption construed provisions strictly against doubt, and if there is the exemption, must be any exemption denied. v. Noritsu America 320 Pledger Ark. 896 Corp., case, dis- there is factual As in the 595 (1995). Pledger S.W.2d here. pute Inc., Smith, of testified the Director

Patty Opportunities, Place to Meadowbrook criteria for admission that the formal fee.” There is to meet the monthly “financial resources include Smith said that no one to the Ms. the record contrary. nothing due to Meadowbrook Place inability had been turned away directors been authorized her board of to and had not by she pay, testified, however, who has diffi- that an to so. applicant do She meals, rent, utilities, fee covering meeting monthly culty to in an effort to find sources of funds services is counseled other found, the is referred the fee. If cannot be meet sources applicant Place residents All Meadowbrook pay to another program. is There is in the $650.00. fee. The fee average nothing monthly Inc., to of any record pays part suggest Opportunities, Place, fee although resident’s at Meadowbrook monthly extent and uses subsidizes the to a certain organization operation its Place of other some of the Meadowbrook facilities support charitable activities. run

In cases involving by not-for-profit orga hospitals nizations, with Hot School Dist. v. Sisters beginning Springs of we have held that (1907), Ark. S.W. Mercy, does not sta admission of destroy tax-exempt paying patients tus Sebastian Bd. The Western of Cnty. hospital property. Ctr., 752 S.W.2d 755 and Guidance Counseling Dist. v. In Hot School Sisters (1988). Mercy, supra, Springs Sisters were Mercy operating hospital pharmacy dispens care and medicine Those to ing nonpaying patients. paying free. Fees could not were treated and received medicine who pay were devoted solely pay paid by paying patients helping could not the treatment and medicine received those who pay. We wrote: “The fact of from some of money receiving not, think, at the character of the char does we all patients impair thus received devoted so as ity, money altogether long *5 to the institution is intended further.” charitable which object a for the a must be To qualify exemption, hospital place to services on account of where one be refused inability may are main- and where all to applied pay, profits paying patients its Bur- taining extending enlarging charity. hospital v. Four States Memorial 465 S.W.2d 693 gess Hosp., (1971). us,

In we the case now before have evidence that Inc., has lost on its of Meadow- Opportunities, money operation Place, brook but we have no that charitable is showing any activity there or that the occurring fees residents are paid by being devoted to charitable cases purpose. Applying hospital Meadowbrook Place not does for analogy, qualify exemption. it has not turned an due to Although applicant away inability fees, its it clear is that its pay that fees be policy requires paid an be refused if he or she is unable to applicant may pay. sources Although help provided for finding payment, pay ment is required.

2. Previousrulings In addition to Ms. Smith’s the Trial testimony, Court also considered three orders with the prior dealing immunity Meadowbrook Place. order, A entitled September Order,” Court “County signed by a circuit county judge, assessor, and the judge, ordered that the county 1988 taxes on Meadowbrook Place be waived based on the deed which warranty Meadowbrook Place and conveyed on information from the assessor. county 18, 1990, On a tort action was filed Meadow- against June Place,

brook and Miller Circuit Court dismissed the action on the basis that Meadowbrook Place awas charitable institution entitled charitable immunity. 28, 1991,

On October was held before the hearing Miller Court based on Chancery a Petition for Tax Exemption by Inc. The Opportunities, Chancelor found that Opportunities, Inc., awas organization its tax-exempt Meadow- operation brook Place and removed Meadowbrook Place from the tax rolls. The Chancellor also ordered that the tax collector of Miller not collect taxes assessed prior 19, 1991, years. Chancellor, On December after hearing *6 94 28 the October order set aside of the attorney,

motion prosecuting no indication in a There is set the matter for hearing. and then a was held. this case that hearing the record of Court, us, the the Circuit the case now before applying In equitable estoppel, of res collateral estoppel, doctrines judicata, case, the of taxa- consideration of issue held that further law of was barred. Place the Meadowbrook tion of a. Res judicata res bars facet of judicata relitiga The claim-preclusion suit in a final suit when: first resulted (1) tion of a subsequent merits; the first suit was based (2) upon proper judgment faith; (4) the first suit was contested fully good (3) jurisdiction; action; (5) the same claim or cause of both both suits involve their First suits involve the same or parties privies. Griffin 848, Bank, 888 S.W.2d 306 (1994). National order, county signed September assessor, It is most unusual. a circuit county judge, judge, no to which it was based. contains reference any proceedings upon it it to effect because is not hold is not entitled resjudicata We court, There is indication which if rendered it. known any, to the order or to any that Miller was County party proceedings is, indeed, that order was rise it. There no evidence to giving or contested.” “fully the result of kind of suit suit was any order no res The October has chancery judi aside, it cata other effect because was set because or apparently 7, 28, lacked See Ark. Const. art. court chancery jurisdiction. in the courts with which vests exclusive jurisdiction county taxes. county all matters relating respect has 1990 court order no resjudicata

The December action did not case because tort effect this underlying action, cause and Miller involve the same claim or to the tort nor in with neither party privity parties action.

b. Collateralestoppel *7 The elements must be shown in order to following establish collateral the issue be (1) estoppel: sought precluded must same as that involved in the the issue litigation; (2) prior must have been the issue must have been actually (3) litigated; determined a final and valid the issue must (4) judgment, State, 312, have been to the essential Hill v. 331 judgment. 962 762 S.W.2d (1988). 27,

The order 1989 does not bar a September holding Meadowbrook Place based against on collateral because estoppel there is no indication that issue was actually litigated, there is some as to whether the order question constitutes a final and valid judgment. 7,

The December order does not bar a holding Meadowbrook Place against based on collateral because estoppel the issue in the two cases is not the same. 28,

The October 1991 order does not bar a holding Meadowbrook based against on collateral as the was order estoppel set aside.

c. Law the case of The doctrine of law of case issue an prevents raised in a raised in a prior appeal being subsequent appeal there a unless is material variance in the evidence before the court Norris,

in each 166, Fairchild appeal. S.W.2d 588 is, however, The (1994). doctrine not limited to issues raised in as it prior to maintain appeals developed avoid consistency reconsideration of matters once decided of the course during lawsuit. Id. single continuing

The 1989 order does September not bar holding against Meadowbrook based law the of case because the order lawsuit, was not of this and there is part no indication that Miller was a in that suit. party does not bar a holding 1990 order The December case because tort on law of the Meadowbrook based against lawsuit. not this action is part bar a order does not holding October law the case because the Chan based on Meadowbrook against the order. cellor set aside

d. estoppel Equitable we recognize As to the doctrine of equitable estoppel, must know elements: be (1) four necessary party estopped or facts; intend his her to be must (2) estopped party *8 so that the asserting be acted on or must act party conduct intended; it so the latter (3) had a to believe was right estoppel facts; on the true and must for (4) rely be of the must ignorant or Foote’s Dixie Dandy mer’s to his her injury. conduct Adm’r, 607 S.W.2d 323 (1980). McHenry, Inc., be that Miller should County argues Opportunities, Inc., not tax that is exempt Opportunities, estopped arguing Place further argues orders. Meadowbrook based on prior with the of the was discussed that “the and use property purpose Texarkana, Arkansas, the deed to the of in securing property City on the referenced and with officials of Miller shown County tax for charitable exemption pur- orders finding right this of poses property.” Place relied indication that Meadowbrook

There of on actions or statements an Miller County. by agent Sep assessor;however, it the tax tember 1989 order by signed Ms. did stated that the 1988 taxes were waived. Smith testify only Inc., of its intended use Meadow- that discussed Opportunities, Texarkana, Arkansas, with the Miller with the brook Place City Assessor, Tax and a Miller the Miller County Judge, County however, that she not indicate does any Circuit County Judge; or tax status that of Miller guaranteed exempt agent Inc., and such statements in relied on purchasing Opportunities, in no indication Meadowbrook Place. There is developing Inc., Place that Meadowbrook abstract purchased Opportunities, in statement an of Miller County reliance agent upon be tax based status. charity would exempt Reversed and remanded. Thornton, JJ.,

Corbin not participating. in this joins Special Justice Martha Miller Harriman opinion. Boyd Chief Special Arnold H. Justice Justice Jim

dissent. The issue before Boyd, Special Justice, dissenting. H. Jim the Court is to determine whether or not in Appellee’s property is entitled to from ad taxes question valorem under the exemption Constitution, Arkansas which states in “The fol- pertinent part: shall be from taxation: . . . lowing exempt buildings and materials grounds used for Public exclusively Charity.” Const., art 5(b).

The uncontested facts before Court are that Opportuni- Inc., ties, valid, charitable, is a and has been nonprofit corporation at all times hereto. pertinent Opportunities acquired realty question exclusively charitable con- nonprofit, purposes; structed with the intent further their apartment complex charitable, and have in fact nonprofit goals; exclusively operated charitable, complex only furtherance their nonprofit *9 $500,000 lost goals. has in Opportunities their eld- approximately erly associated with the in housing project but property question, have survive. to the managed Trial Court findings by clearly so hold a reasonable doubt. Tax beyond cases of this to are be type reviewed the Court de novo and the factual the of trial findings court to are be unless erroneous. upheld clearly Little Rock City of McIntosh, 423, v. 319 Ark. 892 S.W.2d (1995). 462 16,

The real issue is whether or not Article of the 5(b) charitable, Arkansas Constitution prohibits nonprofit corpora- tion that a base fee for its services an charges from ad receiving valoremtax I find such exemption. In prohibition. my opin- ion, it is in of furtherance the State’s to allow charitable goals organization for using charitable property exclusively purposes

98 its is for if a minimum fee charged tax even receive exemption, survive, or would could not services. charitable Many projects started, least self- if were not at their services partially never get as (such if a An obvious to determine project way supporting. to run will work is housing projections, elderly project) Appellee’s determine the world does routinely etc. as business proformas, fee work. The minimum what will take to make the it project the old that one cannot help be to follow adage might premised themselves, it be eco- those not or just pure who will might help is used the bottom line is that nomics. Either way, and the elderly housing for charitable project exclusively purposes, of the Constitution has Did the framers existed as such for years. its to offer that if a was not strong enough charity financially prefer exist? If the cannot afford free that it should not services Appellee free, close down and its for should housing they just put give I do not think so. In situa- streets? elderly Appellee’s tion, if each elderly it seems that have shown that they they charge fee, a minimum their works. elderly They tenant housing project make the difference in costs with contributions regular up losses, $500,000 have to the donated charity. They but on. goes project v. FemaleAcad- In Hot SchoolDistrict Sisters Mercy Springs of of Ark., 497, Rock, 106 954 (1907), Little Ark. S.W.2d

emyof case Court cited with of Hospi- Supreme approval Pennsylvania 456, 32 Atl. tal Delaware 169 Pa. v. County, quoting for the as follows: which is used Court “Property directly pur- in the it though may operation charity, exempt, pose, also used a manner to some return reduce thereby be yield the expenses.” v. Board WesternArkansas

In Sebastian County Equalization Inc., Center, 752 S.W.2d and Guidance Counseling of Sisters the Court reaffirmed (1988), part pertinent not that the would “We held patients Mercy by stating: paying used exclusively being destroy concept hospital ...” charitable purposes. Service,

In Sloan Ambulance Voluntary App. to deter- was S.W.2d 296 the Court (1992), required Appeals in the if an fee on each household where county mine assessment the service from the ambulance service being operated disqualified maintained and as considered an “Institution operated wholly Act, under the Arkansas Workers’ Compensation public charity” Ark. Code Ann. this 11-9-102(3)(A)(iii) (1987). Although Sloan, case, the is the same. In not an ad valoremtax principle stated, do not think the fees to VAS EMSD Court “We by paid law, a matter of VAS from an institution main as being prevent, tained and as a . . .” Id. at operated ‘wholly’ public charity. 826 S.W.2d at 298.

So, the idea where does come from a public charity’s used is not entitled to an exclusively charity property public from ad valoremtaxes as a matter lawbecause it exemption charges a minimum fee for its services? The idea has case case grown because one of the factors often cited as the Court’s supporting that the in was entitled to findings property question exemption was that the offered if its services free someone couldn’t charity However, none of the cases has held that this was an pay. clearly that, effect, element in was a matter of law under the indispensable Arkansas Constitution. We should not now so hold. Even the that this issue in this Appellant acknowledges really only case. I that the facts show a reasonable

Accordingly, hold beyond been, doubt that the has and is used question being, for charitable and the fact that a minimum exclusively purposes, not, not, fee is for its services does and should charged prohibit from Miller ad question being exempt valoremtaxes.

I would affirm the lower court’s ruling.

Chief in this Arnold joins opinion. Justice