City of Marion v. Guar. Loan & Real Estate Co.

• Decision Date: 07 November 2001
• Docket Number: CA 00-1459
• Citation: 58 S.W.3d 410,75 Ark. App. 427
• Parties: City of Marion v. Guar. Loan & Real Estate Co.
• Court: Arkansas Court of Appeals

75 Ark. App. 427

58 S.W.3d 410

CITY of MARION; Meredith Hardin v. GUARANTY LOAN and REAL ESTATE COMPANY, et al.

CA 00-1459

COURT OF APPEALS OF ARKANSAS, DIVISION THREE

November 7, 2001, Decided

James C. Hale, III, for appellants.

Rieves, Rubens & Mayton, by: J. Michael Stephenson; and David C. Peeples, for appellees.

KAREN R. BAKER, Judge. ROBBINS and ROAF, JJ., agree.

KAREN R. BAKER, Judge. Appellants, City of Marion and Meredith Hardin, appeal a decision by the Crittenden County Circuit Court affirming the county judge's decision that granted a petition for annexation of certain property to the City of West Memphis. Appellants present four points on appeal. First, appellants argue that the trial court erred in ruling that the appellants were not prejudiced by the appellees' filing of an amended annexation petition and maps on the day of trial. Second, appellants argue the trial court erred in ruling that the annexation petition contained the majority of the landowners' signatures as required by Arkansas Code Annotated section 14-40-601et. seq. (Repl. 1998). Third, appellants argue that the court erred in ruling that an accurate map was made and filed describing the limits of the territory to be annexed. Fourth, appellants argue that the circuit court erred in ruling that the appellees' petition for annexation was right and proper. We affirm.

On November 4, 1996, appellee, Guaranty Loan & Real Estate Company, filed a petition and a map to annex approximately 835.3 acres to the City of West Memphis. The property belonged to six land owners: Guarantee Loan & Real Estate, owning 755.4 acres; the State of Arkansas, owning eighteen and one-half acres; Sherman Bretherick, owning fifteen and one-half acres; the City of West Memphis, owning five acres; Arkansas Builders Transport, Inc., owning twenty acres; and the Bronson Family Trust, owning twenty and nine-tenths acres. Notice was published in the Evening Times, a newspaper of general circulation once a week for three consecutive weeks.

On November 21, 1996, Meredith Hardin, Trustee for the Bronson Trust, along with several other landowners, filed a petition for annexation of twenty and nine-tenths acres of property to the City of Marion. This portion of property was included in the 835.3 acres of the November 4, 1996, petition. On December 12, 1996, Meredith Hardin filed an objection on behalf of the Bronson Trust to the pending November 4, 1996, annexation petition. An amended petition for annexation was filed on December 12, 1996, containing the names of additional property owners, Sherman Bretherick, Builders Transport, Inc., and the Mayor of the City of West Memphis. A second map was also filed. At a hearing on December 12, 1996, a third map describing the area to be annexed was filed.

On December 16, 1996, the county judge granted the petition for annexation to the City of West Memphis. The City of Marion and the Bronson Trust appealed the county judge's decision to the Crittenden County Circuit Court. On August 25, 2000, the circuit court entered an order affirming the county judge's decision. From that order, comes this appeal.

A high degree of reliance must be placed upon the findings of the trial judge because, by the very nature of this type of litigation, there is wide latitude for divergence of opinion. Lewis v. City Of Bryant, 291 Ark. 566, 726 S.W.2d 672 (1987). Thus, our task is not to decide where the preponderance of the evidence lies, but solely and simply to ascertain whether the trial court's findings of fact are clearly erroneous. Id. (citing Holmes v. City of Little Rock, 285 Ark. 296, 686 S.W.2d 425 (1985)). When the appellate court has a firm and definite belief that the trial court made a mistake, it will hold the trial court's finding as clearly erroneous even if there is evidence to support it.City of West Memphis v. City of Marion, 332 Ark. 421, 965 S.W.2d 776 (1998). This court views the evidence in the light most favorable to the appellee. Town of Houston v. Carden, 332 Ark. 340, 965 S.W.2d 131 (1998).

First, appellants argue that the trial court erred in ruling that the appellants were not prejudiced by the appellees' filing an amended annexation petition and maps on the day of trial. Appellants argue that they were prejudiced when they were unable to argue the validity of the additional signatures on the amended petition because they were unaware that there were petitioners other than Guaranty Loan & Real Estate Company. Appellants also argue that they were prejudiced when the burden of proof shifted and appellants were forced to proceed, litigating issues from an amended petition filed on the day of the trial. Appellants' argument is premised on Arkansas Rule of Civil Procedure 15 (2001). Rule 15(a) states:

With the exception of pleadings the defenses mentioned in Rule 12(h)(1), a party may amend his pleadings at any time without leave of court. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment, the court may strike such amended pleading or grant a continuance of the proceeding.

Where there was no demonstration of any prejudice resulting from an amendment, the amendment should be allowed. See Turner v. Stewart, 330 Ark. 134, 952 S.W.2d 156 (1997). Appellee cites Chastain v. Davis, 294 Ark. 134, 741 S.W.2d 632 (1987). The court in Chastain held that the trial court did not err in allowing an amended petition, although the original petition contained an incorrect property description; the map attached to the petition properly and sufficiently described the property sought to be annexed, and the area proposed for annexation was not changed or increased by the amended petition. Here, although the maps differed in the property descriptions, the property description in the petition remained the same, and the appellants failed to prove that any prejudice resulted from allowing the amended petition which added the signatures of additional landowners.

Second, appellants argue that the trial court erred in ruling that the annexation petition contained the majority of the landowners' signatures as required by Arkansas Code Annotated sections 14-40-601 et seq. (Repl. 1998). The preliminary issue that we must address is whether the signature on the amended petition of the Mayor, as a representative of the City of West Memphis was unauthorized, and whether the trial court erred in ruling that the City of West Memphis, could ratify the Mayor's signature by the adoption of Resolution 1610. Appellants cite Arkansas Code Annotated section 14-43-502(a) and (b)(1) (Repl. 1998), which states,

The city council shall possess all the legislative powers granted by this subtitle and other corporate powers of the city not prohibited in it or by some ordinance of the city council made in pursuance of the provisions of this subtitle and conferred on some officer of the city. The council shall have the management and control of finances, and of all the real and p/ersonal property belonging to the corporation.

Appellees cite section 14-43-504 (Repl. 1998), which states that the mayor of the city shall be its chief executive officer and conservator of its peace. In Hot Stuff, Inc. v. Kinko's Graphic Corp., Inc., 50 Ark. App. 56, 901 S.W.2d 854 (1995), this court stated that the general principle of interpretation of scope of authority is that an agent is authorized to do, and to do only, what is reasonable for him to infer that the principal desires him to do in the light of the principal's manifestation and the facts as he knows or should know them at the time he acts. Acquiescence by the principal in conduct of an agent whose previously conferred authorization reasonably might include it, indicates that the conduct was authorized. Id. "A municipal corporation may ratify the unauthorized acts of its agents, or officers, which are within the scope of the corporate powers, but not otherwise." Day v. City of Malvern, 195 Ark. 804, 807, 114 S.W.2d 459, 461 (1938) (quoting Texarkana v. Friedell, 82 Ark. 531, 102 S.W. 374 (1907)). Ratification proceeds upon the assumption that there has been no prior authority and constitutes a substitute therefor; it is in the nature of a cure for authorization, and is equivalent to original, prior, or previous authority. Arnold v. All Amer. Assurance Co., 255 Ark. 275, 499 S.W.2d 861 (1973).

In this case, the circuit court concluded that it was not necessary for the city council to authorize the Mayor of the City of West Memphis to sign a petition to annex property; but, in any event, the city council of West Memphis had ratified the Mayor's signature by adopting Resolution 1610. We agree that the Mayor's signature on the petition on behalf of the City of West Memphis was an exercise of his authority as chief executive officer of the city, and that regardless of his prior authorization, the action was ratified by the city council.

We turn next to appellant's argument that the trial court erred in finding that the annexation petition contained the majority of the landowners' signatures as required byArkansas Code Annotated section 14-40-601 et. seq. (Repl. 1998) which states:

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.

Section 14-40-601(b) defines "majority of the real estate owners" as "a majority of the total number of real estate owners in the area affected, if the majority of the total number of owners shall own more than one-half (1/2) of the acreage affected." Although the statute does not specifically provide for amendment in a petition for annexation,...