Forrest Const. v. Milam

Decision Date28 June 2000
Docket Number99-1335
Citation20 S.W.3d 440
PartiesFORREST CONSTRUCTION, INC. v. John MILAM, et al. CA 99-1335 ___ S.W.3d ___ Opinion delivered
CourtArkansas Court of Appeals

Appeal from Sebastian Chancery Court; Harry A. Foltz, Chancellor; reversed and remanded.

1. Judgment -- mootness -- when case becomes moot. -- A case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy.

2. Appeal & error -- mootness -- when appellate court will address moot issues. -- As a general rule, an appellate court will not address moot issues; however, the appellate court may elect to address moot issues when they raise considerations of public interest or when addressing them will prevent future litigation.

3. Appeal & error -- mootness -- issues in case on appeal not moot. -- The appellate court held that the issues presented by the case on appeal were not moot where the rights of a substantial number of persons would be affected, a public interest in the outcome of the case was evident, and a decision on the merits would have the effect of determining whether appellant was liable for a substantial sum in attorney's fees, imposed as the result of the chancellor's ruling on the merits.

4. Attorney & client -- attorney's fees -- ordinarily not included in term "costs." -- The term "costs" does not ordinarily include attorney fees.

5. Appeal & error -- mootness -- foreclosure did not render judicial decision legally impractical. -- The foreclosure in the case on appeal did not have the effect of rendering a judicial decision legally impractical because the appellate court would not be ordering appellant to take any action with regard to property he did not own.

6. Appeal & error -- standing -- aggrieved party. -- It has been said that a party has no standing to raise an issue regarding property in which he has no interest; however, it has also been said that a party is an aggrieved party and thus has standing to appeal if the trial court's order has impaired his economic interests.

7. Appeal & error -- standing -- appellant had standing to appeal. -- Where, although appellant had no present property interest in lots that were replatted, he remained aggrieved by virtue of his liability for substantial attorney's fees; where the chancellor awarded those fees because he found that appellees were the prevailing party below; and where a reversal of that finding would necessarily entail a reversal of the attorney's fee award against appellant, the appellate court concluded that appellant had standing to prosecute the appeal.

8. Appeal & error -- chancery cases -- standard of review. -- Chancery cases are reviewed de novo on appeal; the appellate court does not reverse a chancellor's findings of fact unless they are clearly erroneous; a finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.

9. Property -- restrictions on land use -- not favored. -- Courts do not favor restrictions upon the use of land; if there is a restriction on the land, it must be clearly apparent.

10. Property -- restrictive covenants -- strictly construed against limitations. -- Restrictive covenants are to be strictly construed against limitations on the free use of property; all doubts are resolved in favor of the unfettered use of land; however, this rule of strict construction is limited by the basic doctrine of taking the plain meaning of the language employed.

11. Property -- restrictive covenants -- general rule. -- The general rule governing interpretation, application, and enforcement of restrictive covenants is that the intention of the parties as shown by the covenant governs.

12. Property -- subdivision of lots -- no restriction implied by filing of map. -- No restriction on subdividing lots is implied by the mere filing of a map depicting the lots.

13. Property -- general plan of development -- cannot create restriction. --The importance of a general plan of development is that, in its absence, a restrictive covenant cannot be enforced; a general plan of development cannot create a restriction.

14. Property -- restrictive covenants -- splitting of lots not prohibited. --Nothing in the language of the restriction at issue evidenced an intent to prohibit the splitting of lots.

15. Property -- restrictive covenants -- order enjoining splitting of lots &award of attorney's fee reversed. -- Having determined that the chancellor erred in his interpretation of the restrictive covenant at issue, the appellate court reversed his order enjoining the further splitting of lots and the sale of lots that were already split; the court's holding necessitated the reversal of the attorney's fee award to appellees because appellees were no longer the prevailing party.

16. Parties -- real party in interest -- defined. -- Arkansas law provides that every action is to be prosecuted in the name of the real party in interest [Ark. R. Civ. P. 17(a)]; a real party in interest is considered to be the person or corporation who can discharge the claim on which the allegation is based, not necessarily the person ultimately entitled to the benefit of any recovery.

17. Easements -- finding that appellant was not real party in interest reversed -- original order finding easement by estoppel reinstated. -- Where appellant was actually a party to the easement agreement, although the easement ran in favor of the city; where the existence of the easement benefitted appellant as much as it did the city; where the relationship between appellant and the city for the purpose of the easement was symbiotic enough to allow appellant to discharge the claim that an easement by estoppel should exist, the appellate court reversed the chancellor's finding that the city was not a party to the action and that appellant was not the real party in interest and directed that his original order finding an easement by estoppel be reinstated.

18. Appeal & error -- abstracting requirements -- excessive abstracting. --Excessive abstracting is as violative of the appellate court's rules as omissions of material pleadings, exhibits, and testimony; although the rules give the appellate court several options in dealing with abstracting violations, none of them include awarding costs and fees for reviewing an excessive abstract. [wbj]

Philip J. Taylor, for appellant.

Robertson, Beasley, Cowan & Ketcham, PLLC, by: Kenneth W. Cowan, for appellees.

John F. Stroud, Jr., Judge.

This appeal comes from a chancery decree enjoining appellant from subdividing certain lots and from selling certain lots that had already been subdivided in the Meadowbrook South Addition in the city of Greenwood. The chancellor also refused to enforce a sewer easement over land owned by appellees Donnie and Carol Whitson, and awarded appellees $23,579.65 in attorney fees. Appellant contends that the chancellor's rulings were erroneous and raises eight arguments on appeal. Appellees ask that we dismiss the appeal on the grounds of mootness and lack of standing. We deny the motion to dismiss and reverse and remand the case.

In 1993, Forrest Griffith and his wife Gloria acquired title to over 100 acres of land in Sebastian County. The land was later annexed to the City of Greenwood. In 1994, Griffith began developing the majority of the land into a subdivision called Meadowbrook South. He planned to divide the property into thirty-nine lots. However, before he could plat the subdivision, he sold two tracts by metes and bounds description. One tract was sold to appellees John and Claudia Milam; the other was sold to Melissa and Nelson Brock. Thereafter, Griffith platted the subdivision into lots. OnMay 4, 1994, he filed a plat with the circuit clerk reflecting thirty-seven lots1 ranging in size from 1.05 acres to 5.52 acres. The plat was signed by the Griffiths, Milams, and Brocks as all otters. Forrest Griffith was listed as owner and developer of Meadowbrook South.

On May 9, 1994, five days after the plat was filed, Forrest Griffith filed a document containing ten restrictive covenants pertaining to the subdivision. The covenants provided, inter alia, that all lots were to be used for residential purposes only, that all residences were to have a minimum of 1,600 square feet of living area, and that all lots were to be used for single family dwellings. The document was signed only by Forrest Griffith.

After filing the plat and covenants, Griffith began to market the subdivision as one having estate-sized lots and offering "country living in the city." A few lots were sold in the summer of 1994 by Forrest and Gloria Griffith to various buyers, including appellees John and Claudia Milam and appellees Bill and Donna Dennis. In August 1994, the remaining property in the subdivision was transferred from the Griffiths to appellant Forrest Construction, Inc. After that time, the remaining appellees Maverick and Wendy Trozzi, Rush and Marcia West, Dean and Lena King, Rod and Sherry Hower, Ed and Andria Hawkins, Chris and Debra Honaker, Kenneth and Ann Hamilton, Donnie and Carol Whitson, and Charles and Kathryn O'Brien, purchased various lots in the subdivision.

In June 1996, Forrest Griffith, as president of Forrest Construction, Inc., decided to replat the subdivision by splitting nine of the unsold lots into twenty-two smaller lots. Lot 19 was split into eight lots approximately one-half acre in size, Lots 21 and 22 into three lots approximately three-quarters of an acre in size, Lots 31 and 32 into three lots approximately one and one-half acres in size, and Lots 34, 35, 36, and 37 into eight lots ranging in size from .63 acres to 1.2 acres. The Greenwood City Council approved the replatting in September 1996. Thereafter, appellant began making improvements on the lots.

Griffith did not inform the appellee homeowners of his plan to split...

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2 cases
  • Hruska v. Baxter Reg'l Med. Ctr.
    • United States
    • Arkansas Court of Appeals
    • June 1, 2011
    ... ... See, e.g., St. Paul Fire & Marine Ins. Co. v. Brady, 319 Ark. 301, 891 S.W.2d 351 (1995); Forrest City Machine Works, Inc. v. Mosbacher, 312 Ark. 578, 851 S.W.2d 443 (1993); Forrest Const., Inc. v. Milam", 70 Ark. App. 466, 20 S.W.3d 440 (2000); Schwarz v. Moody, 55 Ark. App. 6, 928 S.W.2d 800 (1996). \xC2" ... ...
  • Forrest Construction v. Milam, et al, 00-830
    • United States
    • Arkansas Supreme Court
    • May 17, 2001

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