Davis v. Brushy Island Public Water Authority

290 S.W.3d 16, 375 Ark. 249, 2008 Ark. LEXIS 733
CourtSupreme Court of Arkansas
DecidedDecember 19, 2008
Docket08-562
StatusPublished
Cited by9 cases

This text of 290 S.W.3d 16 (Davis v. Brushy Island Public Water Authority) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Brushy Island Public Water Authority, 290 S.W.3d 16, 375 Ark. 249, 2008 Ark. LEXIS 733 (Ark. 2008).

Opinion

JIM HANNAH, Chief Justice.

Appellants Lili Mitchell Davis, Rose M. White, Jack D. Wilson, Dennis Burnett, Wayne Nunnerly, and Owen Honeysuckle appeal the order of dismissal in favor of appellee Brushy Island Public Water Authority of the State of Arkansas (Authority), formerly known as Brushy Island Water Association, Inc. (Association). On appeal, the appellants contend that the circuit court erred in dismissing their claims under the doctrines of claim preclusion, issue preclusion, and mootness. We affirm.

Appellants are members of the former Brushy Island Water Association, Inc. They filed a complaint seeking to invalidate the July 15, 2003 vote whereby the Association was converted to the Authority-

The present action is the second case challenging the validity of the conversion vote. Previously, former members of the Association sued the Authority and its directors, seeking a declaration that the vote to convert the Association from a nonprofit corporation into a water authority was void and invalid. See Williams v. Brushy Island Pub. Water Auth., 368 Ark. 219, 243 S.W.3d 903 (2006). The circuit court granted the Authority’s motions (1) for summary judgment, (2) to strike an amendment to the Association’s complaint, and (3) to appoint a receiver for the Authority. See id. We affirmed the circuit court’s decision in its entirety. See id.

While the appeal in the Williams case was pending, the appellants in the instant ease filed a complaint for declaratory judgment in the circuit court on January 10, 2006. In the complaint, the appellants requested, in relevant part, that the circuit court declare (1) that the July 15, 2003 vote of Association members to convert the Association to the Authority failed to carry a two-thirds majority as required by Arkansas Code Annotated section 4-28-225(a)(2) (Supp.2003), (2) that the Authority has no existence because the membership conversion vote failed to carry by a two-thirds majority, and (3) that the Authority does not have corporate existence. The circuit court dismissed the appellants’ complaint, pursuant to Arkansas Rule of Civil Procedure 12(b)(8), finding that the appellants’ complaint and the then-pending Williams case were “between the same parties arising out of the same transaction or occurrence.” The appellants did not appeal from this order, nor did they seek to intervene in the Williams case. In addition, the appellants did not seek a stay of the order in the Williams case appointing CAW as receiver. Therefore, during the pendency of the appeal, CAW moved forward with the improvements directed by the order.

Following the issuance of this court’s decision in the Williams case, the appellants again filed a complaint for declaratory judgment on December 22, 2006, requesting that the circuit court find and declare that the vote to convert did not receive a two-thirds vote of the members present at the meeting and, pursuant to Arkansas Code Annotated section 4-28-225(a)(2), the vote failed, and the Association was not properly converted to the Authority. Accordingly, the appellants requested that the circuit court find and order that the Authority has no existence and that the Association continues to exist in the form that it held prior to the July 15, 2003 vote. On October 8, 2007, the Authority moved for summary judgment on the grounds of res judicata and mootness. On March 5, 2008, the circuit court dismissed the complaint with prejudice. The appellants now bring this appeal.

As a threshold matter, we must determine whether the appellants’ complaint should have been dismissed under the doctrine of mootness, as the Authority contends. The Authority claims that the complaint for declaratory judgment is moot because it is clear from the receivership order that the circuit court’s decision to appoint a receiver had nothing to do with whether the assets in question were owned by a water association or a water authority. The Authority asserts that even if a court were to enter judgment declaring the conversion vote invalid, the facilities of the former Association are, and will continue to be, in receivership, pursuant to the order in the Williams case. The appellants assert that the Authority offered no evidence of facts, events, or occurrences that have transpired during the course of this litigation or in the course of the 2003 suit, including the Williams appeal, from which the circuit court could conclude that the issue of the passage of the conversion vote by the statutorily mandated two-thirds majority would have no practical legal effect on the outcome of this litigation. We disagree.

As a general rule, the appellate courts of this state will not review issues that are moot. See Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). To do so would be to render advisory opinions, which this court will not do. See id. We have generally held that a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. See id.

In this case, the appellants filed a complaint for declaratory judgment, seeking, in relevant part, that the circuit court: (1) declare that the July 15, 2003 vote of the Association members to convert the Association to the Authority failed to carry by a two-thirds majority, as required by Arkansas Code Annotated section 4 — 28—225(a)(2); (2) declare that the Authority has no existence because the July 15, 2003 Association membership vote failed to carry by a two-thirds majority; and (3) declare that the Brushy Island Public Water Authority was not properly constituted and does not, therefore, have corporate existence.

The appellants’ complaint is moot because any judgment rendered by the circuit court would have no practical legal effect upon the case. In its October 18, 2005 order appointing CAW as receiver, the circuit court found that Brushy Island lacked sufficient management or staff to adequately serve the needs of Brushy Island customers and that Brushy Island lacked the necessary infrastructure to provide Brushy Island customers with adequate fire service protection. The circuit court also noted that the Arkansas Department of Health and Human Services had cited Brushy Island for several violations of the rules and regulations pertaining to public water systems and the national primary drinking water regulations. Accordingly, the circuit court found that it was in the best interest for Brushy Island customers that CAW be appointed as receiver for Brushy Island. In the order of receivership, the circuit court expressly empowered and authorized CAW to perform any of the following duties:

a. to take possession and control of the Assets and any and all proceeds, receipts, and disbursements arising out of or from the Assets;
b. to receive, preserve, protect, and maintain control of the Assets, or any part or parts thereof;
c. to manage, operate, and carry on the business of Brushy Island, including the power to enter into any agreements, incur any obligations in the ordinary course of business, lawfully cease to carry on all or any part of the business, or lawfully cease to perform any contracts of Brushy Island;
d.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Eric Sharbino v. Jennifer Graham
2023 Ark. App. 399 (Court of Appeals of Arkansas, 2023)
Jeffery Parsons v. Christina Parsons
2022 Ark. App. 493 (Court of Appeals of Arkansas, 2022)
Colton T. Kankey v. Bailey C. Quimby
2020 Ark. App. 471 (Court of Appeals of Arkansas, 2020)
Poland v. Poland
2017 Ark. App. 178 (Court of Appeals of Arkansas, 2017)
Pruitt v. Dickerson Excavation, Inc.
379 S.W.3d 766 (Court of Appeals of Arkansas, 2010)
Flow Doc, Inc. v. Horton
2009 Ark. 411 (Supreme Court of Arkansas, 2009)
Rudder v. Hurst
337 S.W.3d 565 (Court of Appeals of Arkansas, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
290 S.W.3d 16, 375 Ark. 249, 2008 Ark. LEXIS 733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-brushy-island-public-water-authority-ark-2008.