Cite as 2023 Ark. 51

SUPREME COURT OF ARKANSAS

No. CV-22-698

CITY OF FORT SMITH, ARKANSAS

APPELLANT

V.

JENNIFER MERRIOTT, INDIVIDUALLY 

AND ON BEHALF OF THOSE 

SIMILARLY SITUATED

APPELLEE

Opinion Delivered: March 16, 2023

APPEAL FROM THE SEBASTIAN

COUNTY CIRCUIT COURT 

[NO. 66FCV-17-637]

HONORABLE STEPHEN TABOR, 

JUDGE

REVERSED AND DISMISSED.

RHONDA K. WOOD, Associate Justice

Jennifer Merriott, on behalf of the citizens and taxpayers of Fort Smith (Class), sued 

the City of Fort Smith after discovering that Fort Smith was dumping nearly all its 

recyclables in a landfill. Merriott claimed that Fort Smith’s continued collection of monthly 

sanitation charges, which purportedly included fees for recycling, was an illegal exaction and 

that Fort Smith had been unjustly enriched. The circuit court agreed and awarded the Class 

$745,057.85. Fort Smith appeals the merits, and we reverse and dismiss.

I. Background

Fort Smith’s residential-recycling program, which was initiated in the 1980s, is 

operated by Fort Smith’s sanitation department. By ordinance, Fort Smith set the residential 

fee for the collection and disposal of solid waste, which included curbside pickup of trash,

recyclables, and yard waste. During the relevant time, the unified sanitation fee was $13.28 

per month. Fort Smith did not charge a separate, independent fee for curbside recycling. 
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The collected fees were deposited into Fort Smith’s sanitation enterprise fund, which 

supported the sanitation department’s operating expenses.1

For years, Fort Smith had a no-cost processing contract for recycled waste, meaning 

that its recycling-process vendor did not charge Fort Smith to accept and process its

recyclables. In 2014, the contract expired, and the processor proposed a $35 per-ton 

processing fee to continue the service. Fort Smith did not renew the contract and thus began 

a multiyear process in which Fort Smith admittedly dumped most of its recycling. It 

continued to run a separate curbside-recycling route, advertise its recycling program, and 

give warning stickers to residents that failed to properly separate their trash and their 

recyclables. This occurred despite Fort Smith’s practice of dumping the recyclables. 

In April 2017, following press coverage, citizens learned that Fort Smith was sending 

all the residents’ recyclables to a landfill. Eventually, Fort Smith admitted to the practice. 

After this public discovery, Fort Smith contracted with a new recycling-process vendor in 

July 2017. 

Merriott filed this class-action lawsuit against Fort Smith for the misuse of sanitation 

fees.

2 She raised two claims: illegal exaction and unjust enrichment. Merriott claimed that 

Fort Smith collected monthly sanitation fees from its residential customers but did not 

actually process the recyclables. She also alleged that Fort Smith deceived citizens from 

1Separate fees for commercial and industrial collection and landfill-disposal fees, 

which are not at issue here, are also deposited into the sanitation enterprise fund. 

2Fort Smith previously appealed the circuit court’s denial of its motion to compel 

class notice. We reversed and remanded. City of Fort Smith v. Merriott, 2020 Ark. 94, 593 

S.W.3d 481. 
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October 2014 to May 2017 by having them believe that the recyclables were being recycled

when they were instead being dumped into a landfill. She alleged the sanitation fees 

constituted an illegal exaction because they included recycling services, but the residents did 

not actually receive the benefit of recycling services. She also claimed Fort Smith was 

unjustly enriched because it received the benefit of the fees for recycling and those paying 

the fees expected to have their waste recycled, but Fort Smith did not recycle. 

The circuit court held a bench trial on the illegal-exaction and unjust-enrichment

claims. It concluded that the sanitation fees constituted an illegal exaction in violation of 

article 16, section 13 of the Arkansas Constitution because recycling was a separate benefit 

and service paid for by residents that they did not receive. It also concluded that Fort Smith

was unjustly enriched because the Class paid money expecting to receive recycling services. 

It awarded the Class $745,057.85 in damages. Fort Smith appealed this judgment. 

II. Analysis

A. Standard of Review

Our standard of review from a bench trial is whether the circuit court’s findings are 

clearly erroneous. Williams v. Baptist Health, 2020 Ark. 150, at 14, 598 S.W.3d 487, 497. A 

finding is clearly erroneous when, although there is evidence to support it, the reviewing 

court, on the entire evidence, is left with the firm conviction that a mistake has been made.

Id. But a circuit court’s conclusions on questions of law are reviewed de novo. 2020 Ark. 

150, at 14–15, 598 S.W.3d at 498. 
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B. Illegal Exaction

Our constitution provides that citizens of any city, county, or town may bring suit 

for illegal exactions. Ark. Const. art. 16, § 13. An illegal exaction is the imposition of a tax 

or other expenditure of public funds for an unauthorized purpose or one contrary to law. 

Hartwick v. Thorne, 300 Ark. 502, 780 S.W.2d 531 (1989). Fort Smith argues that its 

sanitation fees are not taxes and that the illegal-exaction claim for the misapplication of 

public funds from tax revenue fails for this reason. Merriott responds that fees can be 

“denominated as a tax” for illegal-exaction purposes. Merriott is correct. Illegal-exaction 

claims do not depend on the government’s label of the charge as a fee or a tax. A 

governmental levy of any charge is subject to an illegal-exaction claim unless it meets both 

elements of the following two prong test: (1) it is fair and reasonable; and (2) it bears a 

reasonable relationship to the benefits conferred on those receiving the services. Barnhart v. 

City of Fayetteville, 321 Ark. 197, 900 S.W.2d 539 (1995).3

Here, the circuit court agreed the fee was fair and reasonable but found that an illegal 

exaction occurred because of Fort Smith’s flagrant deceit. The circuit court held that citizens 

paid a sanitation fee for what they thought included recycling. Fort Smith then committed 

3For example, in Barnhart, we held that a city sanitation fee was an illegal tax because 

the revenue was spent to pay bond debt owed by another city and county and was not 

reasonably related to providing sanitation services. Barnhart, 321 Ark. at 205–06, 900 S.W.2d 

at 542–43. We said its “true character” made it illegal. Id. Yet in Baioni, we held that a 

municipality’s water fee of $150 to tap and access its system, when the true cost was around 

$20, was not an illegal tax but a permissible fee. City of Marion v. Baioni, 312 Ark. 423, 427, 

850 S.W.2d 1, 3; Watson v. City of Blytheville, 2020 Ark. 51, at 10, 593 S.W.3d 18, 24 (“We 

have previously rejected the argument that simply because a utility fee generates a surplus 

in a utility fund, the exaction must be a tax.”). 
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an illegal exaction when it failed to disclose it wasn’t using the fee for that purpose. This

reasoning is emotionally compelling but fails to satisfy the second prong of the test. Once a 

fee is determined fair and reasonable, the question is whether it bears a reasonable 

relationship to the benefits conferred. Barnhart, 321 Ark. at 205–06, 900 S.W.2d at 542–43.

Fort Smith used the fee for its intended purpose. The Fort Smith ordinance set a 

single fee for the cost of residential collection and disposal of solid waste, recycling, and yard 

waste. And Fort Smith spent the funds on the collection and disposal of solid waste, 

recycling, and yard waste. No evidence showed that the fee did not bear a reasonable 

relationship to the benefits conferred. The circuit court’s findings that Fort Smith failed to 

notify the public, deceived citizens, and destroyed public trust are indisputable. But those 

facts do not make the sanitation fee’s relationship to the services less reasonable. 

Also there was no evidence of unauthorized use of the fees. The charges were 

maintained in the sanitation enterprise fund, which Fort Smith used to operate the sanitation 

department. The fee wasn’t collected for sanitation services and then spent for nonsanitation

purposes. Nor were the residents charged a separate fee specifically designated for recycling 

their recyclables, which was spent on other services. Fort Smith charged a unified fee that 

Fort Smith could, and did, spend within the sanitation department. 

Thus, even though Fort Smith continued to collect recyclables and general trash 

separately and appeared to run a recycling program, it still used the sanitation fee to collect

and dispose of sanitation. Because the circuit court’s finding that that the fee was an illegal

exaction was clearly erroneous, we reverse and dismiss the illegal-exaction claim.
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C. Unjust Enrichment

Fort Smith also appeals the circuit court’s finding that it was unjustly enriched. To 

find unjust enrichment, a party must have received something of value, to which it is not 

entitled and which it must restore. Hatchell v. Wren, 363 Ark. 107, 211 S.W.3d 516 (2005). 

An action based on unjust enrichment is maintainable where a person has received money 

or its equivalent in the context that, in equity and good conscience, he or she ought not to 

retain. Id. 

The circuit court granted Merriott’s claim for unjust enrichment because it 

concluded that a portion of the sanitation fee funded the recycling program. The circuit 

court’s order explained:

[T]he class paid money expecting, in part, to receive recycling services. Further, Fort 

Smith accepted that money knowing the expectations of those paying the money 

and that the reasonable value of the expected services has been established.

It awarded damages in the amount Fort Smith paid to run the curbside-recycling operation 

even though it was not recycling. On appeal, Fort Smith argues that Merriott presented no 

evidence on which restitution for unjust enrichment can be based. We agree. 

“To measure damages, the courts look at the plaintiff’s loss or injury; to measure 

restitution, the courts look at the defendant’s gain or benefit.” Hartness v. Nuckles, 2015 Ark.

444, at 8, 475 S.W.3d 558, 564. A claimant seeking restitution for unjust enrichment can 

generally recover the value of the benefit conferred upon the party unjustly enriched. Id. If 

the claimant’s evidence will not yield even a reasonable approximation of damages, the 

unjust enrichment is merely speculative, and restitution will not be awarded. Id. (citing 

Restatement (Third) of Restitution and Unjust Enrichment § 51 cmt. i (2011)).
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We agree with Fort Smith that Merriott’s restitution evidence was merely 

speculative. To meet her burden, Merriott had to show what unjust benefit Fort Smith 

gained that it must return. Merriott did not introduce any evidence of the unjust value of 

the benefit Fort Smith received from the Class. Again, the Class paid a sanitation fee for 

sanitation services. But Merriott offered no evidence that Fort Smith gained anything from

its deception. While Fort Smith’s decision to suspend the program conflicts with the public 

policies of both Fort Smith and the State of Arkansas, no evidence showed that Fort Smith

profited or otherwise benefited from its actions. Unjust enrichment does not exist to punish 

but to restore wrongful benefits, and there was no evidence that Fort Smith retained 

financial benefits from its actions that could be returned to the Class. 

In sum, the damages evidence Merriott presented—the cost of Fort Smith’s fake 

recycling program—is not a valid measure of restitution. And because Merriott presented

no evidence of Fort Smith’s wrongful gain from the suspension of the recycling operation, 

the circuit court’s restitution award was clearly erroneous. Therefore, we reverse and dismiss

the unjust-enrichment claim. 

Reversed and dismissed.

WOMACK, J., concurs.

SHAWN A. WOMACK, Justice, concurring. A government-imposed exaction, 

regardless of its name, is illegal if it violates our constitution, a statute, or other law. Despite 

the dishonest and misleading actions of the City here, the imposition of the fee at issue was 

authorized by statute, and the funds collected were used in a manner authorized by law.

Accordingly, Jennifer Merriott’s illegal-exaction claim fails because the City of Fort Smith’s 
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fee was not illegal, not because it was fair and reasonable. Our constitution provides that

“[a]ny citizen of any county, city or town may institute suit, in behalf of himself and all 

others interested, to protect the inhabitants thereof against the enforcement of any illegal

exactions whatever.” Ark. Const. art. 16, §13 (emphasis added). Although a government

fee might be unreasonable or unfair, it may nevertheless be legal. Similarly, a fee may be 

completely reasonable and fair but nevertheless illegal. 

Arkansas law requires that “[a]ll municipalities shall provide a solid waste 

management system which will adequately provide for the collection and disposal of all solid 

wastes.” Ark. Code Ann. § 8-6-211(a) (Repl. 2022). To effectuate this requirement, “[t]he 

governing body of the municipality shall have the authority to levy and collect such fees 

and charges and require such licenses as may be appropriate to discharge its responsibility 

under this subchapter, and the fees, charges, and licenses shall be based on a fee schedule as 

set forth in an ordinance.” Id § 8-6-211(b)(1). In accordance with this statute, the City 

adopted ordinances in 2007, 2013, and 2015, which governed the City’s solid-waste disposal 

and were in effect during the recycling disruption. In short, these ordinances set a fee for 

residential sanitation services, which did not expressly include recycling, and established 

various procedures for solid waste collection.

The City’s deception notwithstanding, the fee—an exaction—was not illegal. 

Because the recycling program was voluntary and offered to the City’s residents at no extra 

cost, Merriott paid the same fee as a resident who did not participate in the City’s recycling 

program. Absent a municipal ordinance to the contrary, no law requires a city to maintain 

a recycling program—let alone a recycling program that actually recycles 100 percent of the 
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materials collected. See Ark. Code Ann. § 8-9-203(a) (requiring cities, among other 

governmental entities, to establish a recycling program for government-generated but not 

resident-generated recyclables). In fact, state law explicitly vests cities with the discretion 

to implement recycling programs.

Arkansas Code Annotated section 8-6-211(e) provides:

The governing body of a municipality shall have the right to establish policies 

for and enact laws concerning all phases of the operation of a solid waste 

management system, including . . . the character and kinds of wastes accepted 

at the disposal site, the separation of wastes according to type by those 

generating them prior to collection, the type of container for storage of wastes, 

the prohibition of the diverting of recyclable materials by persons other than 

the generator or collector of the recyclable material, the prohibition of 

burning of wastes, the pretreatment of wastes, and such other rules as may be 

necessary or appropriate, so long as the laws, policies, and rules are consistent 

with, in accordance with, and not more restrictive than those adopted by, 

under, or pursuant to this subchapter or any laws, rules, or orders adopted by 

state law or incorporated by reference from federal law, the commission, or 

the regional solid waste management boards or regional solid waste 

management districts . . . .

Simply put, while the statute authorizes municipal governments to establish and maintain

recycling programs, it also vests them with the discretion to do so or not, and there is no 

requirement in Arkansas law that cities must implement residential recycling programs. 

See id. Although the General Assembly has announced it is the public policy of this state 

“to encourage and promote recycling in order to conserve natural resources, conserve 

energy, and preserve landfill space[,]” this is a stated “goal” of the legislature and is not a 

requirement placed upon cities. Ark. Code Ann. § 8-9-101. 

Because there was no separate fee charged for the City’s recycling services, each 

household paid the same fee whether the City “picked-up” its recycling or not. 
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Consequently, the City’s operations were consistent with the relevant ordinances and state 

law and were, therefore, legal. Thus, I would reverse the circuit court’s illegal-exaction 

judgment for the foregoing reasons. 

I respectfully concur.

Daily & Woods, P.L.L.C., by: Jerry L. Canfield and Colby T. Roe, for appellant.

Monzer Mansour and W. Whitfield Hyman, for appellee.