Talley v. City of North Little Rock

2009 Ark. 601, 381 S.W.3d 753, 2009 Ark. LEXIS 786
CourtSupreme Court of Arkansas
DecidedDecember 3, 2009
DocketNo. 09-11
StatusPublished
Cited by3 cases

This text of 2009 Ark. 601 (Talley v. City of North Little Rock) 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
Talley v. City of North Little Rock, 2009 Ark. 601, 381 S.W.3d 753, 2009 Ark. LEXIS 786 (Ark. 2009).

Opinion

JIM GUNTER, Justice.

| Appellant appeals the circuit court’s grant of judgment notwithstanding the verdict, based on its finding that the court lacked subject-matter jurisdiction due to appellant’s failure to appeal according to District Court Rule 9. On appeal, appellant asserts that (1) the jury awarded damages based on post-condemnation actions of the City of North Little Rock (the City), not the condemnation order itself, so whether appellant appealed the ordinance has no effect on jurisdiction; (2) the City did not obtain jurisdiction over the property because it did not comply with its own notification ordinances; (3) the City did not obtain jurisdiction over the property because it failed to appeal the issuance of the building permit to appellant; and (4) upholding this argument will give cities permission to carry out their ordinances in bad faith. We accepted certification of this case from the court of appeals, as it involves an issue needing clarification and development of the law or overruling of precedent. Therefore, this 12court has jurisdiction pursuant to Ark. Sup.Ct. R. 1-2(b)(5). We affirm the trial court’s grant of judgment notwithstanding the verdict.

Appellant first purchased the property at issue in 1998, and in 2004, appellant obtained a building permit for a three-unit apartment complex. Construction began but ceased after a few months, and in January 2005, the City revoked the building permit because construction had been abandoned. On February 8, 2006, the State Land Commissioner sold the property to ARChoice, LLC at a tax sale, because property taxes had not been paid on the property.

In May of 2006, appellant, who was no longer the owner of the property, was given notice that the City was considering condemnation of the property. The true owner, ARChoice, LLC, was given no notice. Appellant appeared at the city council meeting held on May 22, 2006, and asked the council to delay its consideration of condemnation. The City agreed to the delay as long as progress was made on the construction. Appellant obtained a renewed building permit on September 22, 2006; however, no progress was made on the construction, so the city council again considered condemnation of the property at its October 9, 2006, meeting. At that meeting, the council passed Resolution 7007, which condemned the property. On October 27, 2006, appellant repurchased the property from ARChoice, LLC.

In February 2007, appellant asked the city council to grant him relief from the condemnation order. The city attorney met with appellant and drew up a development |sagreement, under which appellant could complete the apartment building providing he reacquired a building permit and met several mandatory construction benchmarks. If appellant failed to meet these benchmarks, the structure would be razed. The city council approved this agreement in Resolution 7077 on March 26, 2007.

Appellant’s first benchmark was to have the structure “in the dry” within forty-five days of the city council’s approval of the agreement, which was May 10, 2007.1 On April 26, 2007, the City’s Fire Chief inspected the building and found that several I-joists were rotten and posed a fire hazard. Appellant was advised to either have a structural engineer inspect and approve of the property or to replace the I-joists. Neither action took place, however, so after appellant’s time to meet the first benchmark had passed, the City’s Building Inspector issued a stop-work order on May 23, 2007. On June 7, 2007, appellant was notified that, due to his failure to meet the required deadline as stated in the development agreement, the partially completed building would be razed. Appellant was given until June 12, 2007, to salvage any materials from the building.

On June 12, 2007, appellant filed a complaint against the City for declaratory judgment and a preliminary and permanent injunction. Appellant asked the court to declare the condemnation resolution invalid because it was based on “inaccurate information about the safety of the structure” on the property, and he also asked that the development agreement |4be declared invalid for lack of consideration. The court granted appellant’s motion for a preliminary injunction and set a hearing date of June 14, 2007. After the hearing, on June 27, 2007, the court entered an order denying appellant’s motion for an injunction but holding that the structure on the subject property would not be razed pending a final determination at trial on the merits of appellant’s complaint. Also on June 27, the City filed an answer to appellant’s complaint, asserting that appellant lacked standing to challenge the condemnation resolution, as he was not the owner of the property when it was passed, and that the development agreement was valid because appellant signed it.

On September 25, 2007, appellant filed another motion for preliminary and permanent injunction, as well as an amended complaint, in which he alleged an abuse of process on the part of the City and violations of procedural due process rights,substantive due process rights, -and the Takings Clause, citing 42 U.S.C. § 1983. A hearing on this motion for injunction was held on October 10, 2007, at which the City argued, inter aha, that appellant was required to abide by District Court Rule 9 in appealing the condemnation order, and because he had not done so by appealing within thirty days, the court had no jurisdiction.

On February 11, 2008, the City filed a motion to dismiss pursuant to Ark. R. Civ. P. 12(h)(3), which provides that “[wjhenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” Ark. R. Civ. P. 12(h)(3) (2009). Appellant responded by asserting that, “[sjince the true landowner was not served, as required by Defendant’s own ordinances, the District Court never obtained |,jurisdiction. Therefore, there is no valid decision from which Plaintiff must appeal before initiating civil actions.” A hearing on the City’s motion to dismiss was held on April 14, 2008. After hearing arguments from counsel, the court denied the motion, to dismiss at that time, pending further developments at trial, and ordered the parties to attempt mediation. Mediation proved unsuccessful, and on May 7, 2008, appellant filed a second amended complaint seeking punitive damages. On July 1, 2008, the City filed a counterclaim, for breach of contract (with regard to the development agreement) and specific performance.

The .case proceeded to a jury trial on August 6, 2008. At the close of appellant’s case, the City moved for a directed verdict on the bases that (1) appellant had not exhausted his administrative remedies; (2) no taking had yet occurred because the structure had not been razed; and (3) appellant had failed to appeal the condemnation order within thirty days as provided by District Court Rule 9, nor had he filed the record as required by Rule 9, therefore the court had no jurisdiction. The court denied the motion and its renewal at the close of the City’s case.

The jury returned several verdicts in appellant’s favor and awarded . him $75,138.78 for a violation of substantive due process, $0.00 for a violation of the Takings Clause, and also found that both the condemnation resolution and the development agreement were invalid. The jury also found in favor of appellant on the City’s counterclaim.

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2009 Ark. 601, 381 S.W.3d 753, 2009 Ark. LEXIS 786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/talley-v-city-of-north-little-rock-ark-2009.