City of Dover, Ar v. City of Russellville, Ar, 00-1391

• Decision Date: 18 October 2001
• Docket Number: 00-1391
• Citation: 57 S.W.3d 171
• Parties: The CITY of DOVER, ARKANSAS, APPELLANT, VS. The CITY of RUSSELLVILLE, ARKANSAS, ET AL., APPELLEES.SUPREME COURT OF ARKANSAS 18 October 2001 APPEAL FROM THE CIRCUIT COURT OF POPE COUNTY, ARKANSAS, NO. CIV 99-177; HONORABLE KEN D. COKER, JR., JUDGE, AFFIRMED. TOM GLAZE, Associate Justice The court of appeals certified this case to us because it involves the interpretation of Ark. Code Ann. 14-40-601 and -604 (Repl. 1998), concerning a proposed annexation of an area which adjoins the City of Russellville. We accept jurisdiction of this appeal under Rule 1-2(b)(6). In April 1999, Pope County property owners, who owned land adjoining the City of Russellville, petitioned the Pope County Court pursuant to 14-40-601, seeking to be annexed into Russellville. After holding a hearing on the landowners' petition, the county court entered an order on
• Court: Arkansas Supreme Court

The CITY of DOVER, ARKANSAS, APPELLANT VS The CITY of RUSSELLVILLE, ARKANSAS, ET AL., APPELLEES

No. 00-1391

SUPREME COURT OF ARKANSAS

18 October 2001

APPEAL FROM THE CIRCUIT COURT OF POPE COUNTY, ARKANSAS, NO. CIV 99-177; HONORABLE KEN D. COKER, JR., JUDGE, AFFIRMED.

TOM GLAZE, Associate Justice

The court of appeals certified this case to us because it involves the interpretation of Ark. Code Ann. 14-40-601 and -604 (Repl. 1998), concerning a proposed annexation of an area which adjoins the City of Russellville. We accept jurisdiction of this appeal under Rule 1-2(b)(6).

In April 1999, Pope County property owners, who owned land adjoining the City of Russellville, petitioned the Pope County Court pursuant to 14-40-601, seeking to be annexed into Russellville. After holding a hearing on the landowners' petition, the county court entered an order on June 3, 1999, granting their petition. In June 1999, the City of Dover and Wayne Baker,¹ a landowner in the proposed area to be annexed, filed a timely complaint in the Pope County Circuit Court, as provided under 14-40-604, seeking to prevent the annexation. Dover alleged there was insufficient proof that all parcels of land within the proposed annex area were proper for annexation. Dover asserted that the petitioners' proof failed to show that a majority of the landowners of the proposed area had signed the petition or that a majority of the petitioners owned more than one-half of the proposed area, as required by 14-40-601.

After several months of hearings, the initial circuit judge recused, and the case was then assigned to Circuit Judge Ken Coker, who promptly ordered on December 14, 1999, that a trial be set for April 6, 2000, and that all discovery be completed by March 6, 2000. Judge Coker directed that the parties' discovery should include naming their expert witnesses, and, by the December 14 order, he informed the parties they would not be granted any continuances for the reason they did not have time to depose a witness. On January 25, 2000, Judge Coker further directed that petitioners answer Dover's discovery requests on or before February 24, 2000; the judge also denied petitioners' motion to dismiss and denied the petitioners' prior request for a protective order.

Dover subsequently asked for a continuance so it could obtain an expert; that request was denied. Dover also sought to depose the petitioners' agent and attorney, Alex Streett, and the judge took that request under advisement. In March 2000, petitioners amended their original petition, and Dover moved to dismiss this amendment. On April 4, 2000, Dover suggested Judge Coker disqualify, which the judge denied on April 6, 2000 -- the original trial date. At the same time, the judge denied Dover's motion for summary judgment, refused Dover's request to depose attorney Alex Streett, and reset the trial for May 15, 2000.

The trial was held on May 15, and, by letter opinion dated June 19, 2000, Judge Coker entered his decision, finding: (1) the proposed area to be annexed was contiguous to Russellville, as required by 14-40-604; (2) a majority of the landowners in the proposed annexed area had signed the annexation petition and they owned more than one-half of the area; (3) the petitioners had signed the petition personally or through an agent; (4) Dover failed to show petitioners had no standing; (5) Streett was properly designated as the petitioners' agent; (6) the proposed area was not unreasonably large, and the area was properly described; (7) and the annexed property met the criteria set out in Town of Houston v. Carden, 332 Ark. 340, 965 S.W.2d 131 (1998).

Dover appeals the circuit court's decision and raises ten points for reversal. However, we first discuss this court's standard of review in this case because it is a significant factor when considering some of Dover's arguments. First, we point out that Dover's complaint filed with the circuit court was not an appeal from the Pope County Court, but rather was an independent action attacking the annexation. Proposed Annexation to the Town of Beaver v. Ratliff, 282 Ark. 516, 669 S.W.2d 467 (1984). Such action is tried de novo in circuit court, see Turner v. Wiederkehr Village, 261 Ark. 72, 546 S.W.2d 717 (1977), and this court places a high degree of reliance upon the findings of the trial judge and does not reverse unless those findings are clearly erroneous. Carden, 332 Ark. at 349. Furthermore, this court views the evidence in the light most favorable to the appellee. Id.

In its first point, Dover argues Judge Coker erred in refusing to disqualify himself. More particularly, Dover asserts that, because the judge was a resident of Russellville and a customer of "City Corporation," he had both an actual bias and an appearance of bias requiring his recusal. Dover explains that City Corporation is a Russellville company that handles water and sewage treatment for Russellville, and Dover says that if the proposed annexation is prevented, Dover would be able to build its own water treatment plant and Russellville would lose revenue received from Dover residents who are now required to use Russellville's water treatment facility. In sum, Dover suggests that Judge Coker, as a Russellville resident, not only had an interest as a Russellville citizen, but also an economic interest in the outcome of the case. We find no merit in Dover's argument.

We first note that Dover presented no evidence that the judge had any economic interest or other bias at stake in this litigation. Moreover, it is significant that, at the time the trial court denied the motion to recuse, Dover had been enjoined from constructing the treatment plant it wanted to build.² In sum, this case simply involved the propriety of the proposed annexation and had nothing to do with the construction of any sewer treatment facility.

The rule is long established that there is a presumption of impartiality on the part of judges, see Black v. Van Steenwyk, 333 Ark. 629,970 S.W.2d 280 (1998), and a judge's decision to recuse is within the trial court's discretion and will not be reversed absent abuse. Trimble v. State, 336 Ark.437, 986 S.W.2d 392 (1992). The party seeking recusal must demonstrate any alleged bias. Bradford v. State, 328 Ark. 701, 947 S.W.2d 1 (1997). Unless there is an objective showing of bias, there must be a communication of bias in order to require recusal for implied bias. Lammers v. State, 330 Ark. 324, 955 S.W.2d 489 (1997). Dover simply fails to show bias to warrant Judge Coker's recusal; therefore, we uphold the judge's ruling on this point.

In its second point, Dover urges that the trial court erred in denying Dover a continuance. Dover states that, although the judge had set the trial date and discovery deadlines in December 1999, the judge had not yet denied the petitioners' motion to dismiss Dover's complaint and did not do so until January 25, 2000. It was not until after the January 25 ruling that Dover began a search for expert witnesses. Dover reasoned that it did not wish to incur the unnecessary expenditures of hiring an expert if its complaint would be dismissed; therefore, Dover delayed its search for expert witnesses. Dover submits that the only expert it contacted who could testify said that there was insufficient time to prepare for the April 6 trial. When Dover requested a continuance on February 4, 2000, the trial judge adhered to his earlier orders and, on February 24, denied Dover's continuance request.³

The rule is settled that the granting or denial of a motion for continuance is within the sound discretion of the trial court, and that court's decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001). An appellant must show prejudice from the denial of a continuance, and when a motion is based on a lack of time to prepare, we will consider the totality of the circumstances; the burden of showing prejudice is on the appellant. Id. Finally, the court has also held that a lack of diligence alone is sufficient cause to deny a continuance. See Jenkins v. Int'l Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994).

Here, the record reflects Dover was simply not diligent in engaging an expert needed to prove its case. Dover filed this case in June 1999, and had the burden to prove its allegations. Judge Coker took charge of this case in December1999, and was quite specific in moving the case along by setting an April 6, 2000, trial date and establishing a discovery deadline, including the disclosure of expert witnesses so any depositions could be conducted. Dover knew it had the burden of going forward with proof, yet it delayed engaging an expert until it learned the petitioners' dismissal motion would be denied. Such delaying tactics showed a lack of diligence on Dover's part, and in these circumstances, we cannot say the trial judge abused his discretion in denying Dover's request for continuance.

In its third point, Dover submits that, under 14-40-601, the petitioners were required to apply in writing to the county court and name the persons authorized to act on their behalf. That statute reads, in pertinent part, as follows:

Whenever a majority of the real estate owners of any part of a county contiguous to and adjoining any city or incorporated town shall desire to be annexed to the city or town, they may apply, by petition in writing, to the county court of the county in which the city or town is situated and shall name the persons authorized to act on behalf of the petitioners.

Ark. Code Ann. 14-40-610(a) (Repl. 1998) (emphasis added).

Dover argues the petitioners did not comply with the statute. Dover points to the testimony of a number of the persons who signed the annexation petition, stating these petitioners indicated they had not been told they were required to appoint someone to act on their behalf and did not know they were...