City of Bryant v. Collins

386 S.W.3d 699, 2011 Ark. App. 713, 2011 WL 5562739, 2011 Ark. App. LEXIS 764
CourtCourt of Appeals of Arkansas
DecidedNovember 16, 2011
DocketNo. CA 11-378
StatusPublished
Cited by4 cases

This text of 386 S.W.3d 699 (City of Bryant v. Collins) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Bryant v. Collins, 386 S.W.3d 699, 2011 Ark. App. 713, 2011 WL 5562739, 2011 Ark. App. LEXIS 764 (Ark. Ct. App. 2011).

Opinion

CLIFF HOOFMAN, Judge.

|! Appellants City of Bryant and Richard Penn (“the City”) appeal from a jury verdict finding the City liable to the appellees, Edward and Quinn Collins, in the amount of $70,000. On appeal, the City argues that Penn did not have authority to enter into the alleged contract with the appellees and that the city council did not ratify the contract after the fact. We agree with the City and reverse the jury verdict against it.

Edward and Quinn Collins filed a complaint against the City of Bryant and Richard Penn, Director of Public Works, on July 10, 2009. The Collinses sought relief for the City’s failure to comply with the terms and conditions of an agreement between the parties for the location of a storm drainage easement upon the Collins-es’ property. In 2008, the City undertook emergency activities after extensive flooding in Bryant to alleviate future flooding. As part of these activities, the City excavated a ditch on the Collinses’ property. The pCollinses alleged that they signed and delivered a “storm drainage easement” submitted to them by the City on March 27, 2009, in preparation for the construction of a concrete drain to be installed in the ditch. The Collinses alleged that the City had failed to proceed further in constructing a permanent storm drain in the ditch, covering the drain, and restoring the property in a neat and presentable condition as soon as reasonably practicable. They alleged that the ditch was eroding and constituted a nuisance, an eyesore, and a health and safety hazard. They requested an injunction to require the City to complete the work, damages for the loss of use of their property and breach of the contract, and attorney’s fees and costs.

A jury trial was held on November 29 and 30, 2010. In addition to being the director of community development and public works, Richard Penn served as the city engineer. As city engineer, Penn was responsible for reviewing subdivision plats and proposals by developers with regard to the structures that would be built, such as drainage for the streets, water, and sewer. He was also responsible for obtaining easements and other documents for drainage projects. In 2006, the City hired FTN & Associates to study its storm water and flooding problems. The appellees’ property was identified as an area of concern in FTN’s report, released in 2007, regarding the potential for flooding due to rainfall. The report stated that this could be improved with measures such as widening ditches and making existing culverts larger.

On April 3, 2008, notable storms caused flooding to 47 homes in Bryant, including the appellees’ home. More storms in April and July caused flooding in the city. In April 2008, the city council convened and heard public requests to provide immediate help with the ^flooding issues. The council decided that this was an emergency situation and empowered Fire Chief Randy Cox “to take actions as necessary until there [was] a permanent fix.” Penn assisted Cox in this emergency situation, called Operation Flood Relief.

After flooding issues with a July storm, Cox testified that it was explained to him that the current piping on Augusta Cove, the appellees’ street, would need to be enlarged to increase its capacity. Cox asked Penn if a ditch beside the existing pipe on the appellees’ property would provide some immediate relief. Cox testified that a representative of FTN agreed that a ditch would provide some relief. The ditch was dug toward the end of July 2008. Soon after the ditch was dug, Cox contacted Penn to request a chain-link fence be erected around the ditch for safety purposes.

Edward Collins testified that after the July storms, Cox and Penn talked to him about having the ditch dug, and Cox explained that there were plans to bring in box culverts around September or October 2008. Collins testified that he and his wife agreed to the ditch based on the information that was provided about installing culverts and the fact that the ditch would be a temporary situation. Collins was not asked to sign any documents at the time the ditch was dug.

The City already had a permanent easement for the existing pipe on the appellees’ property, but the ditch was partially outside of this easement. After Cox’s appointment as incident commander expired around September 2008, the responsibility of organizing and supervising the projects fell back on Penn. Penn testified that the ditch was never intended to become a permanent fixture. Instead, the ditch was intended to take care of the flooding [¿problem until the permanent pipe suggested by FTN was installed, after which it would be covered over with soil and sodded on top.

In late 2008, Penn recommended to the city council that they authorize FTN to do detailed drawings of plans and get bids for the work for the storm-drainage-system modifications on Augusta Cove. The city council authorized FTN to proceed, and FTN delivered a task order describing what they proposed to do. The council accepted the task order and requested that FTN prepare the design drawings, specifications, bid documents, and easements. Penn testified that the council’s act of authorizing the design work to be done by FTN did not constitute acceptance of the project. At this point, the city council had only authorized work on the appellees’ property as an emergency action taken by Cox as incident commander; they had not authorized any design work to be constructed.

The council approved advertisement of the project, and bids were received. Penn testified that since an easement would have to be executed prior to starting any work after the council made the final approval of the project, he tried to expedite things by taking the easement prepared by FTN to the property owners. Penn took the easement to the appellees on March 27, 2009, and they signed it. He told the appellees that if they got it signed then, they may be able to get a sooner start date for the contractor if it was approved.

Collins, who was on the city council beginning in January 2009, testified that when Penn brought him the easement, he had never seen it before and it had never been discussed at a council meeting. He testified that he did not know whether the project had been funded when he signed the easement, and that as far as he knew, the city had not authorized Penn |5to acquire part of his property. Collins testified that when he signed the easement, Penn told him that the time frame for the work would be four to six weeks.

After acquiring the easement, Penn placed it in a file along with information regarding the low bidder and drawings to be presented to the council for approval at the April 2009 meeting. Collins testified that it was his understanding that Penn would present everything to the council for the “last bit of approval.” At this meeting, the council discussed the project, including where it was located, who benefited, the priority, and the cost; however, the council did not take any action to accept the low bid. Collins testified that a council member told him to fix his property himself and the City might reimburse him someday. Collins acknowledged that the council never approved the project after he signed the easement.

Collins testified that since the ditch had been dug, some water had reached the corner of his garage, but it had not flooded. He testified that the cost to repair the damage to his property would be roughly $106,000, which was the cost of the project submitted to the city council.

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Related

City of Forth Smith v. B&A Electric, Inc.
2023 Ark. App. 24 (Court of Appeals of Arkansas, 2023)
Collins v. City of Bryant
428 S.W.3d 594 (Court of Appeals of Arkansas, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
386 S.W.3d 699, 2011 Ark. App. 713, 2011 WL 5562739, 2011 Ark. App. LEXIS 764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-bryant-v-collins-arkctapp-2011.