Convent Corp. v. City of N. Little Rock

• Decision Date: 28 January 2021
• Docket Number: No. CV-20-216,CV-20-216
• Citation: 615 S.W.3d 706,2021 Ark. 7
• Parties: CONVENT CORPORATION, Appellant v. CITY OF NORTH LITTLE ROCK, Arkansas, a Municipal Corporation; Joe Smith, Mayor, Individually and in His Official Capacity; City Council Members Debi Ross, Beth White, Linda Robinson, Maurice Taylor, Steve Baxter, Bruce Foutch, Murry Witcher, and Charlie Hight, Each Individually and in His or Her Official Capacity; Tom Wadley, Director, Code Enforcement Division, Individually and in His Official Capacity; and Felicia McHenry, Code Enforcement Officer, Individually and in Her Official Capacity, Appellees
• Court: Arkansas Supreme Court

2021 Ark. 7

615 S.W.3d 706

CONVENT CORPORATION, Appellant

v.CITY OF NORTH LITTLE ROCK, Arkansas, a Municipal Corporation; Joe Smith, Mayor, Individually and in His Official Capacity; City Council Members Debi Ross, Beth White, Linda Robinson, Maurice Taylor, Steve Baxter, Bruce Foutch, Murry Witcher, and Charlie Hight, Each Individually and in His or Her Official Capacity; Tom Wadley, Director, Code Enforcement Division, Individually and in His Official Capacity; and Felicia McHenry, Code Enforcement Officer, Individually and in Her Official Capacity, Appellees

No. CV-20-216

Supreme Court of Arkansas.

Opinion Delivered: January 28, 2021

Mickey Steven, for appellant.

Marie-Bernard Miller, Deputy City Attorney, for appellees.

COURTNEY RAE HUDSON, Associate Justice

Appellant Convent Corporation ("Convent") appeals from the Pulaski County Circuit Court's order granting summary judgment in favor of appellees City of North Little Rock, Arkansas, a Municipal Corporation; Joe Smith, Mayor (the "Mayor"), individually and in his official capacity; City Council Members Debi Ross, Beth White, Linda Robinson, Maurice Taylor, Steve Baxter, Bruce Foutch, Murry Witcher, and Charlie Hight, each individually and in his or her official capacity ("City Council"); Tom Wadley, Director, Code Enforcement Division, individually and in his official capacity; and Felicia McHenry, Code Enforcement Officer, individually and in her official capacity (collectively, "the City"); and dismissing Convent's suit, which challenged the City's decision to condemn certain property and sought declaratory and injunctive relief. For reversal, Convent argues that (1) the City Council's condemnation decision was not supported by substantial evidence and was arbitrary and capricious; (2) the circuit court erred by dismissing Convent's constitutional claims, claims pursuant to 42 U.S.C. § 1983 and the Arkansas Civil Rights Act, and common-law claim of trespass for failure to exhaust its administrative remedies; (3) the City's condemnation procedure violates due process; (4) the City's condemnation ordinances contain terms that are unconstitutionally vague and that provide public officials with too much discretion; (5) the City's resolution condemning its property is an unlawful bill of attainder; and (6) the circuit court erred by denying Convent's renewed motion to strike the City's amended answer and affirmative defenses. We affirm in part, reverse and remand in part, and dismiss as moot in part.

This case involves condemnation proceedings instituted by the City on property owned by Convent at 6615 Highway 70 in North Little Rock. The structure at issue had been operated as a nightclub for many years but had been vacant since August 2011. On November 14, 2012, the building was "red-tagged" by McHenry, a code-enforcement officer, serving as notice to the owners and occupants that the structure was deemed a public nuisance in violation of articles 1 and 8 of the City's Nuisance Abatement and Property Maintenance Code. In addition to posting notice on the premises, McHenry also mailed to Convent the notice of public nuisance, which stated that the building was "an unsafe and vacant structure that is not fit for human habitation." This letter notified Convent that the property would be considered for condemnation due to its current condition and that a public hearing would be conducted by the City Council on February 25, 2013. It further indicated that Convent was given seven days’ notice to remove, abate, or eliminate the nuisance or to contact the code enforcement department to discuss a plan of abatement.

After receiving no response from Convent, McHenry obtained a search warrant to inspect the interior of the property. In a January 11, 2013 letter to the Mayor and the City Council, McHenry indicated that her inspection revealed numerous violations and that the structure had also sustained some fire damage. She stated that she and other personnel had twice met with Rich Livdahl, who indicated that he was the representative of Convent even though he was not listed as an owner of record. According to McHenry, they advised him on what would be required to bring the building into compliance with the City code. In the second meeting, Livdahl informed them that Convent would arrange for someone to clean out the building but that there were no plans to rehabilitate it. Livdahl still had no paperwork demonstrating his authority to represent Convent. McHenry concluded her letter by stating that the code enforcement department recommended that the structure be considered for condemnation.

After noticing on the City Council agenda for the February 25, 2013 meeting that it was allotted only three minutes to present its case against the proposed condemnation, Convent filed a motion asking for a full hearing on the issue and arguing that the City's hearing schedule violated Convent's due-process rights under the Arkansas and United States Constitutions. The City did not act on this motion.

At the hearing, counsel for Convent stated that the property's current condition resulted from vandalism and that the owners were not aware of the damage until the condemnation notice. He indicated that people had broken into the building, ripped out copper wiring, and fallen through the ceiling. However, he stated that the damage was mainly cosmetic and that the owners wished to conduct repairs. Counsel asked the City Council to postpone the vote on condemnation and allow the owners to come up with a plan to rehabilitate the structure. He expressed concern that Convent would only have thirty days to appeal if the property was ordered to be condemned. The Mayor stated that Convent would have to negotiate with the City attorneys and code enforcement on a rehabilitation plan, as well as post a bond, but that any repairs would not have to be completed within thirty days of condemnation. A council member also noted that Convent could pursue a timely appeal but at the same time work with code enforcement to abate the nuisance. Counsel indicated that Convent had cleaned out the building but had not conducted any repairs because it was prevented from obtaining a permit pending the condemnation proceeding. Other council members questioned why Convent had waited until the condemnation notice to repair the property and stated that the building had been in that condition for quite a while. Pictures of the exterior and interior of the building were shown, and council members noted that it appeared a fire had occurred in part of the structure. Counsel again requested a full hearing, but the Mayor stated that the City Council was not there "to hear cases" and that was "what the court system was for." Counsel was allowed to submit a brief, but the City Council ultimately voted to condemn the structure.

The resolution condemning the property stated that "the condition of the property constitutes a serious fire and health hazard" and that "unless immediate actions are taken to remedy this situation by removing, razing, or abating the nuisance, there is a great likelihood that the surrounding property may be destroyed by fire." If further indicated that the structure was "a breeding place for rats, rodents and other dangerous germ carriers of diseases." The resolution declared that the structure was vacant, run down, dilapidated, unsafe, unsightly, dangerous, obnoxious, unsanitary, a fire hazard, a menace to abutting properties, and not fit for human habitation, and that because of such conditions, it was condemned as a public nuisance. Convent was directed to raze or otherwise abate the nuisance within thirty days; if this was not completed within ninety days, the resolution authorized the City to remove the structure and to fine Convent $50 for each day after ninety days that the nuisance was not abated.

On March 27, 2013, Convent filed a complaint in the Pulaski County Circuit Court, appealing the City's decision to condemn its property under Rule 9(f) of the Arkansas District Court Rules. Convent also brought claims pursuant to 42 U.S.C. §§ 1983, 1985(3), 1986, and 1988 and the Arkansas Civil Rights Act, Ark. Code Ann. §§ 16-123-101 et seq. (Repl. 2016), for violations of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and article 2, sections 15 and 22 of the Arkansas Constitution, as well as a common-law claim of trespass. Convent sought a declaratory judgment that the City's ordinance related to condemnation proceedings (chapter 8, article 1, section 7 of the City's code) is unconstitutional. Further, Convent requested injunctive relief prohibiting the City from destroying or interfering with its use of the property or from condemning additional properties or taking any action to file or collect liens for the demolition of properties. The complaint also requested that the circuit court certify the case as a class action. Convent requested actual, compensatory, and punitive damages for the alleged violations of its constitutional rights and for the alleged trespass.

Following the City's removal of the action to federal district court, the case was returned to the circuit court on February 20, 2014. On May 17, 2014, Convent filed a motion for judgment on the pleadings or, in the alternative, a motion for summary judgment, arguing that the City had failed to timely file an answer following the return from federal court and that it was entitled to summary judgment on its claims. The City responded to the motion, asserting that it had filed an answer and accompanying motion to dismiss in federal court. The City also argued that Convent's motion was premature because it had not exhausted its administrative remedies.

On June 18, 2014, the City filed an amended answer denying the allegations in Convent's complaint and asserting numerous affirmative defenses. Convent filed a motion to strike the amended answer and affirmative defenses as untimely. On September 1, 2014, Convent...