Osborne v. Power

908 S.W.2d 340, 322 Ark. 229, 1995 Ark. LEXIS 625
Supreme Court of Arkansas·Decided October 30, 1995·No. 93-1303·Published·Cited by 6 cases

Opinion

Bradley D. Jesson, Chief Justice.

This contempt proceeding, an original action, follows our ruling on December 5, 1994, in which this court, on de novo review, issued an injunction against Jennings and Mitzi Osborne, enjoining them from placing massive Christmas light displays on and about their home on Cantrell Road in Little Rock. Osborne v. Power, 318 Ark. 858, 890 S.W.2d 570 (1994). We ordered the Osbornes to abate the nuisance, and remanded the case to the chancellor for enforcement of the injunction.

Thereafter, the Osbornes filed a motion for stay of mandate, in which they stated their intentions to file a petition for a writ of certiorari with the United States Supreme Court, and suggested that the injunction was extremely broad and vaguely worded. In a per curiam opinion delivered on December 16, 1994, we denied the stay and reiterated our earlier directives, noting that the injunction was “short, concise, and readily understandable.” Osborne v. Power, 319 Ark. 52, 890 S.W.2d 574 (1994). We once again explained that “massive commercial lighting displays generated by commercial transformers are not appropriate in quiet residential neighborhoods and violate express provisions of bills of assurances.” Id. at 53.

Three days later, on December 19, 1994, the appellees filed a motion for contempt, alleging that Jennings Osborne had violated our orders by illuminating displays on December 17,18, and 19, 1994. Upon considering this motion, we ordered Osborne to appear on December 27, 1994, to show cause why he should not be held in contempt of court for willfully disobeying the injunction. Osborne v. Power, 319 Ark. 177, 890 S.W.2d 575 (1994). Osborne appeared with counsel at the show-cause hearing and pleaded not guilty.

On January 9, 1995, we denied the Osbornes’ petition for rehearing on the merits of the original appeal, and appointed the Honorable George Cracraft as master to conduct an evidentiary hearing for the limited purpose of determining (1) whether Osborne reduced substantially the size and extravagance of the display at or about his home to a level which would not attract the large crowds that had been drawn to the neighborhood in the past; (2) whether Osborne continued massive Christmas light displays on and about his home that are calculated and do attract large numbers of visitors to the neighborhood; and (3) whether Osborne reduced the volume of any sound accompanying the display so that it is not audible from within the closest homes of neighbors. Osborne v. Power, 319 Ark. 239, 890 S.W.2d 577 (1995). In referring these questions to the master, we gave him the power to allow the parties to produce evidence “including, but not limited to, the comparative differences in the size, construction, and electrical energy used in the displays of 1993 and 1994, as well as the comparative foot and vehicular traffic involved.” Id. at 241. (Emphasis added.) We specifically reserved for our ultimate determination the question of whether Osborne, by lighting his display on December 17, 18, and 19, 1994, willfully disobeyed our prior December 5 and 16, 1994, orders.

Following a hearing on March 13 and 14, 1995, the master submitted his report, which included findings of fact that Osborne had substantially reduced the size and extravagance of his display; that the 1994 display was not calculated to and did not attract unusual numbers of visitors to the neighborhood; that there was little or no sound generated by the display; and that all of Osborne’s actions, if contemptuous, were taken on advice of counsel.

The appellees filed a notice of appeal of the master’s findings, to which the Osbornes responded by filing a motion to strike the notice of appeal. In a per curiam opinion delivered May 8, 1995, we stated that we would treat the appellees’ notice of appeal as an objection to the master’s report, see Ark. R. Civ. P. 53(e)(2), and Osborne’s motion to strike the notice of appeal as a motion to strike the objection. Osborne v. Power, 320 Ark. 466, 896 S.W.2d 905 (1995). We asked the parties to brief their respective positions, which have been filed and are currently before us for consideration on the issue of whether Osborne is guilty of criminal contempt. The United States Supreme Court denied Osborne’s petition for writ of certiorari on June 19, 1995.

Pursuant to Ark. R. Civ. P. 53(e)(2), this court must accept the master’s findings of fact unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the court, on the entire evidence, is left with the definite and firm conviction that a mistake has been made by the master. Casteel v. McCuen, 310 Ark. 568, 838 S.W.2d 364 (1992). See also Reporter’s Note to Rule 53. It is thus appropriate to examine the master’s findings on each of the referred questions.

I. Whether Osborne reduced substantially the size and extravagance of the display at or about his home to a level which would not attract the large crowds that had been drawn to the neighborhood in the past

Jennings Osborne erected Christmas light displays in 1993 and 1994 on three lots of approximately equal size which front on Cantrell Road. At the hearing conducted by the master, these lots were referred to as the “east lot,” the “main” or “residential lot,” and the “west lot.”

In finding that Osborne substantially reduced the size and extravagance of his 1994 Christmas display, the master relied on the testimony of Richard McCormac, a full-time employee of Osborne, who was in charge of hanging the lights. McCormac testified on his employer’s behalf that in 1993, 265,480 lights were included in the display on the west lot, as compared to 89,760 lights in 1994, representing a 69 percent reduction. On the east lot, 268,080 lights were included in the 1993 display, as compared to 84,280 in 1994, representing a reduction of 67 percent. On the main or residential lot, 2,642,000 lights were included in the 1993 display, while only 560 lights were illuminated on this lot in 1994. According to McCormac’s calculations, in 1994 the overall reduction of lights on all three lots as compared to 1993 was approximately 95 percent.

The master also made specific reference to the expert testimony of Steve Menhart, a professor of electronics at the University of Arkansas at Little Rock, who stated that in 1993, over 1600 KWH per hour of use in electrical energy was expended in the displays. In 1994, the consumption of energy was reduced to 124 KWH per hour. The energy consumption in 1994 was less than 7.7% of the energy required in previous years.

While we expressly did not limit the master to conducting inquiry into the comparative differences in the size, construction, and electrical energy used in the displays of 1993 and 1994, his finding on this question appears to be based in large measure on the relative differences in the number of lights used and the amount of electrical energy expended. Even so, we cannot say that this finding was clearly erroneous.

II.

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Osborne v. Power, 908 S.W.2d 340, 322 Ark. 229, 1995 Ark. LEXIS 625 (Ark. 1995).

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