Cite as 2022 Ark. App. 113

ARKANSAS COURT OF APPEALS

DIVISION II

No. CV-21-180

RAZORBACK RIDES, LLC

APPELLANT

V.

MARY BIRDSONG AND NORM 

FARNUM

APPELLEES

Opinion Delivered March 9, 2022

APPEAL FROM THE BOONE COUNTY

CIRCUIT COURT

[NO. 05CV-13-226]

HONORABLE JOHN R. PUTMAN, JUDGE

AFFIRMED

BRANDON J. HARRISON, Chief Judge

We pick up this dispute at the 2016 second amended complaint filed by Razorback 

Rides, LLC. In that operative complaint, Razorback alleged that it had performed “major 

upgrades” on two vehicles—“The Kookie Monster” a/k/a “The Hauler” (a 1932 roadster) 

and “Blackie” (a pickup truck)—in 2007 and 2010. Razorback claimed that the man who 

solicited the improvements, Norm Grabowski, died in October 2012 “without delivering the 

promised compensation for The Hauler or for Blackie.” Razorback’s second amended 

complaint also alleges:

To the extent that Defendants obtained benefits from LSI[1]from assets whose 

value were enhanced by Plaintiff without compensation, Defendants will be 

unjustly enriched. This Court should impose a constructive trust upon 

 

1Razorback alleges that Grabowski was the settlor of an irrevocable trust named LSI. 

The circuit court was not, however, provided proof that any express trust named LSI exists. 
2

Defendants for all benefits received by Defendants from LSI until such time 

as Plaintiff has been fully compensated for its labor. 

Attached to the second amended complaint as exhibit A is a 6 October 2010 invoice from 

Razorback to Norman D. Grabowski for work Razorback performed (June 2007 to August 

2010). 

Appellees Mary Birdsong and Norm Farnum twice moved to dismiss the case against 

them because, in their view, Razorback failed to state a claim under Arkansas Rule of Civil 

Procedure 12(b)(6) (2021). They argued, among other things, that Razorback had pleaded a 

contract claim and that unjust enrichment “cannot be invoked in matters of contract.” They 

also answered Razorback’s second amended complaint and raised estoppel, waiver, laches, 

and statute of limitations as defenses. 

During an August 2020 motions hearing, Birdsong and Farnum argued to the circuit 

court that Razorback’s claim was as a creditor of Grabowski’s estate; and the probate code 

barred its claim. Razorback’s counsel said, “Well, that would be if we wanted a contract 

claim, but this claim arises in constructive trust. We don’t want a contract claim.” Birdsong 

and Farnum also argued that a three-year statute of limitations barred Razorback’s contract 

claim. Razorback again maintained that it did not plead a breach-of-contract claim; it 

pleaded a claim for unjust enrichment, and “[t]here is no statute of limitations for unjust 

enrichment.” Razorback told the circuit court that “there is no statute of limitations here. 

It’s just a matter of laches.” 
3

In February 2021, the court entered a final order that dismissed Razorback’s second 

amended complaint with prejudice. Simply put, the court held that Razorback’s complaint 

did not allege any actionable basis for unjust enrichment and was based on a contract. The 

written order states in part:

To be clear, the court is ruling that Razorback’s cause of action is based on an 

express contract and, under the facts alleged in this case, the law will not imply 

a quasi- or constructive trust. For this reason, Razorback’s complaint fails to 

state facts upon which relief can be granted against Birdsong and Farnum and, 

as to them, should be, and hereby is, dismissed. . . . Razorback is trying to 

enforce nonpayment of a debt Grabowski allegedly owed to Razorback. The 

mere failure to pay a debt will not give rise to a constructive trust. 90 C.J.S. 

Trusts § 182; McKey v. Paradise, 200 U.S. 119 (1936). For this reason also, 

Razorback’s second amended complaint fails to state facts upon which relief 

can be granted against separate defendants Mary Birdsong and Norm Farnum 

and the complaint against them should be, and hereby is, dismissed. (footnote 

omitted).

. . . .

Birdsong and Farnum have also moved to dismiss for failure to join a 

necessary party. The court ordered that LSI be made a party to this action. 

The Plaintiffs have failed to join LSI. Therefore, Birdsong and Farnum’s 

motion to dismiss for failure to join a necessary party should be, and hereby 

is, granted. 

Here, Razorback argues that the circuit court erred as a matter of law when it held 

that the second amended complaint failed to state facts upon which relief could be granted. 

Razorback asserts that its complaint stated a claim for unjust enrichment, and there is no 

statute of limitations for a constructive trust, which is the remedy it sought. It also says the 

circuit court erred as a matter of law when it held that LSI, an irrevocable trust, was a 

necessary party to the action. 
4

As to Razorback’s first point, it has failed to state facts upon which relief could be 

granted. According to Arkansas Rule of Civil Procedure 8(a)(1), a pleading that sets forth a 

claim for relief must contain a statement in ordinary and concise language of facts showing 

that the pleader is entitled to relief. Only facts alleged in the complaint are treated as true, 

not a plaintiff’s theories, speculation, or statutory interpretation. Ark. St. Plant Bd. v. 

McCarty, 2019 Ark. 214, 576 S.W.3d 473. As a result, a complaint must state facts, not mere 

conclusions, to entitle the pleader to relief. Quinn v. O’Brien, 2020 Ark. App. 83, 596 S.W.3d 

20. We will look to the underlying facts supporting an alleged cause of action to determine 

whether the matter has been sufficiently pled. Id. 

Here, the circuit court found that an oral breach-of-contract claim was raised in the 

second amended complaint as the result of an (oral) agreement for services between 

Grabowski and Razorback. (Paragraphs 8 through 16, for example, speak in terms of 

“agreements,” and “promises” “in exchange” for this and that, and “reliance upon the 

promises of Norm Grabowski,” etc.) Moreover, that complaint asked that the appellees be 

made to pay Razorback $51,795.34 in consideration for services rendered to Grabowski. 

Razorback, because of its delayed enforcement of an oral contract with Grabowski, cannot 

morph its dispute into something that it is not. Because the second amended complaint 

alleged that a valid legal contract existed, Razorback has failed to state a claim for restitution 

or unjust enrichment.
5

Regarding Razorback’s second point, we do not need to decide whether LSI was a 

necessary party to the case because Razorback has failed to state a claim against any potential 

defendant. What form a potential defendant might take does not matter in this case.

The circuit court’s judgement is wholly affirmed.

Affirmed.

ABRAMSON and GLADWIN, JJ., agree.

Davis Law Firm, by: Steven B. Davis, for appellant.

Jeremy B. Lowrey, for appellees.